1. The business of manufacturing ice and selling it is
essentially a private business and not so affected with a public
interest that a legislature may constitutionally limit the number
of those who may engage in it in order to control competition. Pp.
285 U. S. 273
et seq.
2. An Oklahoma statute, declaring that the manufacture, sale and
distribution of ice is a public business, forbids anyone to engage
in it without first having procured a license from a state
commission; no license is to issue without proof of necessity for
the manufacture, sale or distribution of ice in the community or
place to which the application relates, and if the facilities
already existing and licensed at such place are sufficient to meet
the public needs therein, the commission may deny the application.
Held, repugnant to the due process clause of the
Fourteenth Amendment. P.
285 U. S.
278.
3. A state law infringing the liberty guaranteed to individuals
by the Constitution can not be upheld upon the ground that the
State is conducting a legislative experiment. P.
285 U. S.
279.
52 F.2d 349, affirmed.
Appeal from a decree sustaining the dismissal by the District
Court, 42 F.2d 913, of a bill by the appellant, a licensed ice
company, to enjoin the defendant from engaging in the ice business
at a place in Oklahoma without having first procured a license.
Page 285 U. S. 271
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
The New State Ice Company, engaged in the business of
manufacturing, selling, and distributing ice under a license or
permit duly issued by the Corporation Commission of Oklahoma,
brought this suit against Liebmann in the federal District Court
for the Western District of Oklahoma to enjoin him from
manufacturing, selling, and distributing ice within Oklahoma City
without first having obtained a like license or permit from the
commission. The license or permit is required by an act of the
Oklahoma Legislature, chapter 147, Session Laws 1925. That act
declares that the manufacture, sale, and distribution of ice is a
public business; that no one shall be permitted to manufacture,
sell, or distribute ice within the State without first having
secured a license for that purpose from the commission; that
whoever shall engage in such business without obtaining the license
shall be guilty of a misdemeanor, punishable by fine not to exceed
$25, each day's violation constituting a separate offense, and
that, by general order of the commission, a fine not to exceed $500
may be imposed for each violation.
Section 3 of the act provides:
"That the Corporation Commission shall not issue license to any
persons, firm or corporation for the manufacture, sale and
distribution of ice, or either of them, within this State, except
upon a hearing had by said Commission at which said hearing,
competent testimony and proof shall be presented showing the
necessity for the manufacture, sale or distribution of ice, or
either of them,
Page 285 U. S. 272
at the point, community or place desired. If the facts proved at
said hearing disclose that the facilities for the manufacture, sale
and distribution of ice by some person, firm or corporation already
licensed by said Commission at said point, community or place, are
sufficient to meet the public needs therein, the said Corporation
Commission may refuse and deny the applicant [application] for said
license. In addition to said authority, the said Commission shall
have the right to take into consideration the responsibility,
reliability, qualifications and capacity of the person, firm or
corporation applying for said license and of the person, firm or
corporation already licensed in said place or community, as to
afford all reasonable facilities, conveniences and services to the
public, and shall have the power and authority to require such
facilities and services to be afforded the public; provided, that
nothing herein shall operate to prevent the licensing of any
person, firm or corporation now engaged in the manufacture, sale
and distribution of ice, or either of them, in any town, city or
community of this State, whose license shall be granted and issued
by said Commission upon application of such person, firm or
corporation and payment of license fee."
The portion of the section immediately in question here is that
which forbids the commission to issue a license to any applicant
except upon proof of the necessity for a supply of ice at the place
where it is sought to establish the business, and which authorizes
a denial of the application where the existing licensed facilities
"are sufficient to meet the public needs therein." The District
Court dismissed the bill of complaint for want of equity, on the
ground that the manufacture and sale of ice is a private business
which may not be subjected to the foregoing regulation. 42 F.2d
913. The Court of Appeals affirmed. 52 F.2d 349.
Page 285 U. S. 273
It must be conceded that all businesses are subject to some
measure of public regulation. And that the business of
manufacturing, selling, or distributing ice, like that of the
grocer, the dairyman, the butcher, or the baker, may be subjected
to appropriate regulations in the interest of the public health
cannot be doubted; but the question here is whether the business is
so charged with a public use as to justify the particular
restriction above stated. If this legislative restriction be within
the constitutional power of the state Legislature, it follows that
the license or permit, issued to appellant, constitutes a
franchise, to which a court of equity will afford protection
against one who seeks to carry on the same business without
obtaining from the commission a license or permit to do so.
Frost v. Corporation Commission, 278 U.
S. 515,
278 U. S.
519-521. In that view, engagement in the business is a
privilege to be exercised only in virtue of a public grant, and not
a common right to be exercised independently (
id.) by any
competent person conformably to reasonable regulations equally
applicable to all who choose to engage therein.
The
Frost case is relied on here. That case dealt with
the business of operating a cotton gin. It was conceded that this
was a business clothed with a public interest, and that the statute
requiring a showing of public necessity as a condition precedent to
the issue of a permit was valid. But the conditions which warranted
the concession there are wholly wanting here. It long has been
recognized that mills for the grinding of grain or performing
similar services for all comers are devoted to a public use, and
subject to public control, whether they be operated by direct
authority of the State or entirely upon individual initiative. At a
very early period, a majority of the states had adopted general
acts authorizing the taking and flowage,
in invitum, of
lands for their erection and maintenance. In passing these acts,
the attention of the Legislatures no
Page 285 U. S. 274
doubt was directed principally to grist mills; but some of the
acts, either in precise terms or in their application, were
extended to other kinds of mills.
Head v. Amoskeag
Manufacturing Co., 113 U. S. 9,
113 U. S. 16-19;
State v. Edwards, 86 Me. 102, 104-106, 29 Atl. 947. The
mills were usually operated by the use of water power, but this
method of operation has been said not to be essential.
State v.
Edwards, supra, 86 Me. at p. 106. It was open to the
proprietor of a mill to maintain it as a private mill for grinding
his own grain, and this free from legislative control; but if the
proprietor assumed to serve the general public, he thereby
dedicated his mill to the public use and subjected it to such
legislative control as was appropriate to that status. In such
cases, the mills were regarded as so necessary to the existence of
the communities which they served as to justify the government in
fostering and maintaining them and imposing limitations upon their
operation for the protection of the public.
Id.
In
Chickasha Cotton Oil Co. v. Cotton County Gin Co.,
40 F.2d 846, three Circuit Judges passed upon the constitutionality
of the Oklahoma Cotton Ginning Act. Opinions were delivered
seriatim, all to the effect, but for varying reasons, that
the business of operating cotton gins in Oklahoma was clothed with
a public interest. One of the judges thought that the rule in
respect of grist mills should apply by analogy, on the ground of
the similarity of service. The rule that mills whose services are
open to all comers are clothed with a public interest was
formulated in the light, and upon the basis, of historical usage,
which had survived the limitations that otherwise might be imposed
by the due process clause of the Fourteenth Amendment. While the
cotton gin has no such background of ancient usage, and, as the
opinion by Judge Phillips points out, there is always danger of our
being led afield by relying overmuch upon analogies, the analogy
here is not without helpful significance.
Page 285 U. S. 275
In that connection, we also may consider
Clark v. Nash,
198 U. S. 361, and
Strickley v. Highland Boy Gold Mining Co., 200 U.
S. 527, which dealt with the cognate question of what is
a public use in respect of which the right of eminent domain may be
exercised. The cases involved a statute of the State of Utah, which
declared:
"The cultivation and irrigation of the soil, the production and
reduction of ores, are of vital necessity to the people of the
State of Utah; are pursuits in which all are interested and from
which all derive a benefit; and the use and application of the
unappropriated waters of the natural streams and water courses of
the State to the generation of electrical force or energy to be
employed in industrial pursuits are of great public benefit and
utility. So irrigation of land, the mining, milling, smelting or
other reduction of ores, and such use and application of such
waters for the generation of electrical power to be employed as
aforesaid are hereby declared to be for the public use, and the
right of eminent domain may be exercised in behalf thereof."
C. 95, § 1, Laws of Utah 1896.
In the
Nash case, this Court, applying that statute,
sustained the condemnation of a right of way across the lands of
one private owner for a ditch to convey water for the purpose of
irrigating the lands of another private owner. The decision was
rested explicitly upon the existence of conditions peculiar to the
State. These conditions are epitomized in the legislative
declaration above quoted. The court said (pp.
198 U. S.
369-370) that its decision was not to be understood as
approving the broad proposition that private property might be
taken in all cases where the taking might promote the public
interest and tend to develop the natural resources of the State,
but, having reference to the conditions there appearing,
"that the use is a public one, although the taking of the right
of way is for the purpose simply of thereby obtaining the water for
an individual, where it is absolutely necessary to
Page 285 U. S. 276
enable him to make any use whatever of his land, and which will
be valuable and fertile only if water can be obtained."
This was followed in the
Strickley case, where, mining
being one of the chief industries of the State and its development
peculiarly important for the public welfare, the condemnation of a
right of way for an aerial bucket line across private lands, for
the purpose of transporting ores from a mine in private ownership,
was upheld under the same statute.
These cases, though not strictly analogous, furnish persuasive
ground for upholding the declaration of the Oklahoma Legislature in
respect of the public nature of cotton gins in that State. The
production of cotton is the chief industry of the State of
Oklahoma, and is of such paramount importance as to justify the
assertion that the general welfare and prosperity of the State in a
very large and real sense depend upon its maintenance. Cotton
ginning is a process which must take place before the cotton is in
a condition for the market. The cotton gin bears the same relation
to the cotton grower that the old grist mill did to the grower of
wheat. The individual grower of the raw product is generally
financially unable to set up a plant for himself; but the service
is a necessary one with which, ordinarily, he cannot afford to
dispense. He is compelled, therefore, to resort for such service to
the establishment which operates in his locality. So dependent,
generally, is he upon the neighborhood cotton gin that he faces the
practical danger of being placed at the mercy of the operator in
respect of exorbitant charges and arbitrary control. The relation
between the growers of cotton, who constitute a very large
proportion of the population, and those engaged in furnishing the
service is thus seen to be a peculiarly close one in respect of an
industry of vital concern to the general public. These
considerations render it not unreasonable
Page 285 U. S. 277
to conclude that the business "has been devoted to a public use,
and its use thereby in effect granted to the public."
Tyson
& Bro. v. Banton, 273 U. S. 418,
273 U. S. 434;
Wolff Co. v. Industrial Court, 262 U.
S. 522,
262 U. S. 535,
262 U. S. 538;
same case,
267 U. S. 267 U.S.
552,
267 U. S. 563
et seq.
We have thus, with some particularity, discussed the
circumstances which, so far as the State of Oklahoma is concerned,
afford ground for sustaining the legislative pronouncement that the
business of operating cotton gins is charged with a public use, in
order to put them in contrast with the completely unlike
circumstances which attend the business of manufacturing, selling,
and distributing ice. Here we are dealing with an ordinary
business, not with a paramount industry upon which the prosperity
of the entire State in large measure depends. It is a business as
essentially private in its nature as the business of the grocer,
the dairyman, the butcher, the baker, the shoemaker, or the tailor,
each of whom performs a service which, to a greater or less extent,
the community is dependent upon and is interested in having
maintained, but which bears no such relation to the public as to
warrant its inclusion in the category of businesses charged with a
public use. It may be quite true that, in Oklahoma, ice is not only
an article of prime necessity, but indispensable; but certainly not
more so than food or clothing or the shelter of a home. And this
Court has definitely said that the production or sale of food or
clothing cannot be subjected to legislative regulation on the basis
of a public use, and that the same is true in respect of the
business of renting houses and apartments, except as to temporary
measures to tide over grave emergencies.
See Tyson & Bro.
v. Banton, supra, pp.
273 U. S. 437-438, and cases cited.
It has been said that the manufacture of ice requires an
expensive plant beyond the means of the average citizen, and that,
since the use of ice is indispensable, patronage
Page 285 U. S. 278
of the producer by the consumer is unavoidable. The same might,
however, be said in respect of other articles clearly beyond the
reach of a restriction like that here under review. But, for the
moment conceding the materiality of the statement, it is not now
true, whatever may have been the fact in the past. We know, since
it is common knowledge, that today, to say nothing of other means,
wherever electricity or gas is available (and one or the other is
available in practically every part of the country), anyone, for a
comparatively moderate outlay, may have set up in his kitchen an
appliance by means of which he may manufacture ice for himself.
Under such circumstances, it hardly will do to say that people
generally are at the mercy of the manufacturer, seller, and
distributor of ice for ordinary needs. Moreover, the practical
tendency of the restriction, as the trial court suggested in the
present case, is to shut out new enterprises, and thus create and
foster monopoly in the hands of existing establishments against,
rather than in aid of, the interest of the consuming public.
Plainly, a regulation which has the effect of denying or
unreasonably curtailing the common right to engage in a lawful
private business such as that under review cannot be upheld
consistent with the Fourteenth Amendment. Under that amendment,
nothing is more clearly settled than that it is beyond the power of
a State,
"under the guise of protecting the public, arbitrarily [to]
interfere with private business or prohibit lawful occupations or
impose unreasonable and unnecessary restrictions upon them."
Burns Baking Co. v. Bryan, 264 U.
S. 504,
264 U. S. 513,
and authorities cited;
Liggett Co. v. Baldridge,
278 U. S. 105,
278 U. S.
113.
Stated succinctly, a private corporation here seeks to prevent a
competitor from entering the business of making and selling ice. It
claims to be endowed with state authority to achieve this
exclusion. There is no question
Page 285 U. S. 279
now before us of any regulation by the State to protect the
consuming public either with respect to conditions of manufacture
and distribution or to insure purity of product or to prevent
extortion. The control here asserted does not protect against
monopoly, but tends to foster it. The aim is not to encourage
competition, but to prevent it; not to regulate the business, but
to preclude persons from engaging in it. There is no difference in
principle between this case and the attempt of the dairyman under
state authority to prevent another from keeping cows and selling
milk on the ground that there are enough dairymen in the business;
or to prevent a shoemaker from making or selling shoes because
shoemakers already in that occupation can make and sell all the
shoes that are needed. We are not able to see anything peculiar in
the business here in question which distinguishes it from ordinary
manufacture and production. It is said to be recent; but it is the
character of the business, and not the date when it began, that is
determinative. It is not the case of a natural monopoly, or of an
enterprise in its nature dependent upon the grant of public
privileges. The particular requirement before us was evidently not
imposed to prevent a practical monopoly of the business, since its
tendency is quite to the contrary. Nor is it a case of the
protection of natural resources. There is nothing in the product
that we can perceive on which to rest a distinction, in respect of
this attempted control, from other products in common use which
enter into free competition, subject, of course, to reasonable
regulations prescribed for the protection of the public and applied
with appropriate impartiality.
And it is plain that unreasonable or arbitrary interference or
restrictions cannot be saved from the condemnation of that
amendment merely by calling them experimental. It is not necessary
to challenge the authority of the States to indulge in experimental
legislation; but
Page 285 U. S. 280
it would be strange and unwarranted doctrine to hold that they
may do so by enactments which transcend the limitations imposed
upon them by the Federal Constitution. The principle is imbedded in
our constitutional system that there are certain essentials of
liberty with which the State is not entitled to dispense in the
interest of experiments. This principle has been applied by this
Court in many cases.
Dorchy v. Kansas, 264 U.
S. 286;
Wolff Packing Co. v. Industrial Court,
262 U. S. 522;
267 U. S. 267 U.S.
552;
Pierce v. Sisters, 268 U. S. 510;
Nixon v. Herndon, 273 U. S. 536;
Tumey v. Ohio, 273 U. S. 510;
Manley v. Georgia, 279 U. S. 1;
Washington v. Roberge, 278 U. S. 116;
Chicago, St. P. M. & O. Ry. Co. v. Holmberg,
282 U. S. 162;
Stromberg v. California, 283 U. S. 359;
Near v. Minnesota, 283 U. S. 697. In
the case last cited, the theory of experimentation in censorship
was not permitted to interfere with the fundamental doctrine of the
freedom of the press. The opportunity to apply one's labor and
skill in an ordinary occupation with proper regard for all
reasonable regulations is no less entitled to protection.
Decree affirmed.
MR. JUSTICE CARDOZO took no part in the consideration or
decision of this case.
MR. JUSTICE BRANDEIS, dissenting.
Chapter 147 of the Session Laws of Oklahoma 1925, declares that
the manufacture of ice for sale and distribution is "a public
business"; confers upon the Corporation Commission in respect to it
the powers of regulation customarily exercised over public
utilities; and provides specifically for securing adequate service.
The statute makes is a misdemeanor to engage in the business
without a license from the commission; directs that the license
shall not issue except pursuant to a prescribed written
application, after a formal hearing upon adequate notice
Page 285 U. S. 281
both to the community to be served and to the general public,
and a showing, upon competent evidence, of the necessity "at the
place desired"; and it provides that the application may be denied,
among other grounds, if
"the facts proved at said hearing disclose that the facilities
for the manufacture, sale and distribution of ice by some person,
firm or corporation already licensed by said commission at said
point, community or place, are sufficient to meet the public needs
therein."
Under a license so granted, the New State Ice Company is, and
for some years has been, engaged in the manufacture, sale, and
distribution of ice at Oklahoma City, and has invested in that
business $500,000. While it was so engaged, Liebmann, without
having obtained or applied for a license, purchased a parcel of
land in that city and commenced the construction thereon of an ice
plant for the purpose of entering the business in competition with
the plaintiff. To enjoin him from doing so, this suit was brought
by the ice company.
Compare Frost v. Corporation
Commission, 278 U. S. 515.
Liebmann contends that the manufacture of ice for sale and
distribution is not a public business; that it is a private
business and, indeed, a common calling; that the right to engage in
a common calling is one of the fundamental liberties guaranteed by
the due process clause; and that to make his right to engage in
that calling dependent upon a finding of public necessity deprives
him of liberty and property in violation of the Fourteenth
Amendment. Upon full hearing, the District Court sustained that
contention and dismissed the bill. 42 F.2d 913. Its decree was
affirmed by the Circuit Court of Appeals. 52 F.2d 349. The case is
here on appeal. In my opinion, the judgment should be reversed.
First. The Oklahoma statute makes entry into the
business of manufacturing ice for sale and distribution dependent,
in effect, upon a certificate of public convenience
Page 285 U. S. 282
and necessity. Such a certificate was unknown to the common law.
It is a creature of the machine age, in which plants have displaced
tools and businesses are substituted for trades. The purpose of
requiring it is to promote the public interest by preventing waste.
Particularly in those businesses in which interest and depreciation
charges in plant constitute a large element in the cost of
production, experience has taught that the financial burdens
incident to unnecessary duplication of facilities are likely to
bring high rates and poor service. [
Footnote 1] There, cost is usually dependent, among other
things, upon volume; and division of possible patronage among
competing concerns may so raise the unit cost of operation as to
make it impossible to provide adequate service at reasonable rates.
The introduction in the United States of the certificate of public
convenience and necessity marked the growing conviction that, under
certain circumstances, free competition might be harmful to the
community, and that, when it was so, absolute freedom to enter the
business of one's choice should be denied.
Long before the enactment of the Oklahoma statute here
challenged, a like requirement had become common in the United
States in some lines of business. The certificate was required
first for railroads; then for street railways; then for other
public utilities whose operation is dependent upon the grant of
some special privilege. [
Footnote
2]
Page 285 U. S. 283
Latterly, the requirement has been widely extended to common
carriers by motor vehicle which use the highways but which, unlike
street railways and electric light companies, are not dependent
upon the grant of any special privilege. [
Footnote 3] In Oklahoma, the certificate was required,
as early as 1915, for cotton gins -- a business then declared a
public one, and, like the business of manufacturing ice, conducted
wholly upon private property. Sess.Laws, 1915, c. 176, § 3.
See
Frost v. Corporation Commission, 278 U.
S. 515,
278 U. S. 517.
As applied to public utilities, the validity under the Fourteenth
Amendment of the requirement of the certificate has never been
successfully questioned.
Second. Oklahoma declared the business of manufacturing
ice for sale and distribution a "public business" -- that is, a
public utility. So far as appears, it was the first State to do so.
[
Footnote 4] Of course, a
legislature cannot by
Page 285 U. S. 284
mere legislative fiat convert a business into a public utility.
Producers' Transportation Co. v. Railroad Commission,
251 U. S. 228,
251 U. S. 230.
But the conception of a public utility is not static. [
Footnote 5] The welfare of the
community may require that the business of supplying ice be made a
public utility, as well as the business of supplying water or any
other necessary commodity or service. If the business is, or can be
made, a public utility, it must be possible to make the issue of a
certificate a prerequisite to engaging in it.
Whether the local conditions are such as to justify converting a
private business into a public one is a matter primarily for the
determination of the state legislature. Its determination is
subject to judicial review; but the usual presumption of validity
attends the enactment. [
Footnote
6]
Page 285 U. S. 285
The action of the State must be held valid unless clearly
arbitrary, capricious or unreasonable.
"The legislature, being familiar with local conditions, is,
primarily, the judge of the necessity of such enactments. The mere
fact that a court may differ with the legislature in its views of
public policy, or that judges may hold views inconsistent with the
propriety of the legislation in question, affords no ground for
judicial interference. . . ."
McLean v. Arkansas, 211 U. S. 539,
211 U. S. 547.
Whether the grievances are real of fancied, whether the remedies
are wise or foolish are not matters about which the Court may
concern itself. [
Footnote
7]
"Our present duty is to pass upon the statute before us, and if
it has been enacted upon a belief of evils that is not arbitrary,
we cannot measure their extent against the estimate of the
legislature."
Tanner v. Little, 240 U. S. 369,
240 U. S. 385.
A decision that the Legislature's belief of evils was arbitrary,
capricious, and unreasonable may not be made without enquiry into
the facts with reference to which it acted.
Third. Liebmann challenges the statute -- not an order
of the Corporation Commission. If he had applied for a license and
been denied one, we should have been obliged to inquire whether the
evidence introduced before
Page 285 U. S. 286
the commission justified it in refusing permission to establish
an additional ice plant in Oklahoma City. As he did not apply, but
challenges the statute itself, out inquiry is of an entirely
different nature. Liebmann rests his defense upon the broad claim
that the Federal Constitution gives him the right to enter the
business of manufacturing ice for sale even if his doing so be
found by the properly constituted authority to be inconsistent with
the public welfare. He claims that, whatever the local conditions
may demand, to confer upon the commission power to deny that right
is an unreasonable, arbitrary, and capricious restraint upon his
liberty.
The function of the court is primarily to determine whether the
conditions in Oklahoma are such that the legislature could not
reasonably conclude (1) that the public welfare required treating
the manufacture of ice for sale and distribution as a "public
business"; and (2) that, in order to insure to the inhabitants of
some communities an adequate supply of ice at reasonable rates, it
was necessary to give the commission power to exclude the
establishment of an additional ice plant in places where the
community was already well served. Unless the Court can say that
the Federal Constitution confers an absolute right to engage
anywhere in the business of manufacturing ice for sale, it cannot
properly decide that the legislators acted unreasonably without
first ascertaining what was the experience of Oklahoma in respect
to the ice business. The relevant facts appear, in part, of record.
Others are matters of common knowledge to those familiar with the
ice business.
Compare Muller v. Oregon, 208 U.
S. 412,
208 U. S.
419-420. They show the actual conditions, or the
beliefs, on which the legislators acted. In considering these
matters, we do not, in a strict sense, take judicial notice of them
as embodying statements of uncontrovertible facts. Our function is
only to determine the reasonableness of the legislature's belief in
the existence of evils and in the effectiveness of the remedy
Page 285 U. S. 287
provided. In performing this function, we have no occasion to
consider whether all the statements of fact which may be the basis
of the prevailing belief are well founded; and we have, of course,
no right to weigh conflicting evidence.
(A) In Oklahoma, a regular supply of ice may reasonably be
considered a necessary of life, comparable to that of water, gas,
and electricity. The climate, which heightens the need of ice for
comfortable and wholesome living, precludes resort to the natural
product. [
Footnote 8] There, as
elsewhere, the development of the manufactured ice industry in
recent years [
Footnote 9] has
been attended by deep-seated alterations in the economic structure
and by radical changes in habits of popular thought and living. Ice
has come to be regarded as a household necessity, indispensable to
the preservation of food, and so to economical household management
and the maintenance of health. [
Footnote 10] Its commercial
Page 285 U. S. 288
uses are extensive. In urban communities, they absorb a large
proportion of the total amount of ice manufactured for sale.
[
Footnote 11] The
transportation, storage, and distribution of a great part of the
nation's food supply is dependent upon a continuous, and dependable
supply of ice. [
Footnote 12]
It appears from the record that, in certain parts of Oklahoma, a
large trade in dairy and other products has
Page 285 U. S. 289
been built up as a result of rulings of the Corporation
Commission under the act of 1925, compelling licensed manufacturers
to serve agricultural communities, [
Footnote 13] and that this trade would be destroyed if
the supply of ice were withdrawn. [
Footnote 14] We cannot say that the Legislature of
Oklahoma acted arbitrarily in declaring that ice is an article of
primary necessity, in industry and agriculture as well as in the
household, partaking of the fundamental character of electricity,
gas, water, transportation, and communication.
Nor can the Court properly take judicial notice that, in
Oklahoma, the means of manufacturing ice for private use are within
the reach of all persons who are dependent upon it. Certainly it
has not been so. In 1925, domestic mechanical refrigeration had
scarcely emerged from the experimental stage. [
Footnote 15] Since that time, the production and
consumption of ice manufactured for sale, far from
Page 285 U. S. 290
diminishing, has steadily increased. [
Footnote 16] In Oklahoma, the mechanical household
refrigerator is still an article of relative luxury. [
Footnote 17] Legislation essential
to the protection of individuals of limited or no means is not
invalidated by the circumstance that other individuals are
financially able to protect themselves. The businesses of power
companies and of common carriers by street railway, steam railroad,
or motor vehicle fall within the field of public control, although
it is possible, for a relatively modest outlay, to install
individual power plants, or to purchase
Page 285 U. S. 291
motor vehicles for private carriage of passengers or goods. The
question whether, in Oklahoma, the means of securing refrigeration
otherwise than by ice manufactured for sale and distribution has
become so general as to destroy popular dependence upon ice plants
is one peculiarly appropriate for the determination of its
legislature and peculiarly inappropriate for determination by this
Court, which cannot have knowledge of all the relevant facts.
The business of supplying ice is not only a necessity, like that
of supplying food or clothing or shelter, but the legislature could
also consider that it is one which lends itself peculiarly to
monopoly. [
Footnote 18]
Characteristically, the business is conducted in local plants with
a market narrowly limited in area, [
Footnote 19] and this for the reason that ice
Page 285 U. S. 292
manufactured at a distance cannot effectively compete with a
plant on the ground. [
Footnote
20] In small towns and rural communities, [
Footnote 21] the duplication of plants, and in
larger communities the duplication of delivery service, [
Footnote 22] is wasteful and
ultimately burdensome to consumers. At the same time, the relative
ease and cheapness with which an ice plant may be constructed
exposes the industry to destructive and frequently ruinous
competition. Competition in the industry tends to be destructive
because ice plants have a determinate capacity, and inflexible
fixed charges and operating costs, and because in a market of
limited area the volume of sales is not readily expanded. Thus, the
erection of a new plant in a locality already adequately served
often causes managers to go to extremes in cutting prices in order
to secure business. Trade journals and reports of association
meetings of ice manufacturers bear ample witness to the hostility
of the industry to such competition,
Page 285 U. S. 293
and to its unremitting efforts, through trade associations,
informal agreements, combination of delivery systems, and, in
particular, through the consolidation of plants, to protect markets
and prices against competition of any character. [
Footnote 23]
That these forces were operative in Oklahoma prior to the
passage of the act under review is apparent from the record. Thus,
it was testified that in only six or seven localities in the State
containing, in the aggregate, not more than 235,000 of a total
population of approximately 2,000,000, was there "a semblance of
competition," [
Footnote 24]
and that, even in those localities, the prices of ice were
ordinarily uniform. The balance of the population was, and still
is, served by companies enjoying complete monopoly.
Compare
Munn v. Illinois, 94 U. S. 113,
94 U. S.
131-132;
Sinking Fund Cases, 99 U. S.
700,
99 U. S. 747;
Wabash, St. Louis & Pacific Ry. Co. v. Illinois,
118 U. S. 557,
118 U. S. 569;
Spring Valley Waterworks v. Schottler, 110 U.
S. 347,
110 U. S. 354;
Budd v. New York, 143 U. S. 517,
143 U. S. 545;
Wolff Packing Co. v. Court of Industrial Relations,
262 U. S. 522, 528
[argument of counsel -- omitted]. Where there was competition, it
often resulted to the disadvantage, rather
Page 285 U. S. 294
than the advantage of the public, both in respect to prices and
to service. Some communities were without ice altogether, and the
State was without means of assuring their supply. There is abundant
evidence of widespread dissatisfaction with ice service prior to
the act of 1925, [
Footnote
25] and of material improvement in the situation subsequently.
It is stipulated in the record that the ice industry as a whole in
Oklahoma has acquiesced in and accepted the act and the status
which it creates.
(B) The statute under review rests not only upon the facts just
detailed, but upon a long period of experience in more limited
regulation dating back to the first year of Oklahoma's statehood.
For 17 years prior to the passage of the act of 1925, the
Corporation Commission, under section 13 of the Act of June 10,
1908, had exercised jurisdiction over the rates, practices, and
service of ice plants, its action in each case, however, being
predicated upon a finding that the company complained of enjoyed a
"virtual monopoly" of the ice business in the community which it
served. [
Footnote 26] The
jurisdiction thus exercised
Page 285 U. S. 295
was upheld by the Supreme Court of the State in
Oklahoma
Light & Power Co. v. Corporation Commission, 96 Okl. 19,
220 Pac. 54. The court said, at page 24:
"The manufacture, sale and distribution of ice in many respects
closely resembles the sale and distribution of gas as fuel, or
electric current, and in many communities the same company that
manufactures, sells, and distributes electric current is the only
concern that manufactures, sells and distributes ice, and by reason
of the nature and extent of the ice business it is impracticable in
that community to interest any other concern in such business. In
this situation, the distributor of such a necessity as ice should
not be permitted by reason of the impracticability of any one else
engaging in the same business to charge unreasonable prices, and if
such an abuse is persisted in, the regulatory power of the State
should be invoked to protect the public."
See also Consumers' Light & Power Co. v. Phipps,
120 Okl. 223, 251 Pac. 63.
By formal orders, the commission repeatedly fixed or approved
prices to be charged in particular communities; [
Footnote 27] required ice to be sold
without discrimination [
Footnote
28]
Page 285 U. S. 296
and to be distributed as equitably as possible to the extent of
the capacity of the plant; [
Footnote 29] forbade short weights and ordered scales to
be carried on delivery wagons and ice to be weighed upon the
customer's request; [
Footnote
30] and undertook to compel sanitary practices in the
manufacture of ice [
Footnote
31] and courteous service of patrons. [
Footnote 32] Many of these regulations, other
than those fixing prices, were embodied in a general order to all
ice companies, issued July 15, 1921, and are still in effect.
[
Footnote 33] Informally,
the Commission
Page 285 U. S. 297
adjusted a much greater volume of complaints of a similar
nature. [
Footnote 34] It
appears from the record that, for some years prior to the act of
1925, one day of each week was reserved by the commission to hear
complaints relative to the ice business.
As early as 1911, the commission, in its annual report to the
Governor, had recommended legislation more clearly delineating its
powers in this field:
"There should be a law passed putting the regulation of ice
plants under the jurisdiction of the Commission. The Commission is
now assuming this jurisdiction under an Act passed by the
Legislature known as the antitrust law. A specific law upon this
subject would obviate any question of jurisdiction. [
Footnote 35]"
This recommendation was several times repeated, in terms
revealing the extent and character of public complaint against the
practices of ice companies. [
Footnote 36]
Page 285 U. S. 298
The enactment of the so-called Ice Act in 1925 enlarged the
existing jurisdiction of the Corporation Commission by removing the
requirement of a finding of virtual monopoly in each particular
case,
compare Budd v. New York, 143 U.
S. 517,
143 U. S. 545,
with Brass v. Stoeser, 153 U. S. 391,
153 U. S.
402-403, by conferring the same authority to compel
adequate service as in the case of other public utilities, and by
committing to the commission the function of issuing licenses
equivalent to a certificate of public convenience and necessity.
With the exception of the granting and denying of such licenses and
the exertion of wider control over service, the regulatory activity
of the commission in respect to ice plants has not changed in
character since 1925. It appears to have diminished somewhat in
volume. [
Footnote 37]
Page 285 U. S. 299
In 1916, the commission urged, in its report to the Governor,
that all public utilities under its jurisdiction be required to
secure from the commission "what is known as a
certificate of
public convenience and necessity' before the duplication of
facilities."
"This would prevent ruinous competition resulting in the driving
out of business of small though competent public service utilities
by more powerful corporations, and often consequent demoralization
of service, or the requiring of the public to patronize two
utilities in a community where one would be adequate. [
Footnote 38]"
Up to that time, a certificate of public convenience and
necessity to engage in the business had been applied only to cotton
gins. Okla.Sess.Laws 1915, c. 176, § 3. In 1917, a certificate from
the commission was declared prerequisite to the construction of new
telephone or telegraph lines. [
Footnote 39] In 1923, it was required for the operation
of motor carriers. [
Footnote
40] In 1925, the year in which the Ice Act was passed, the
requirement was extended also to power, heat, light, gas, electric,
or water companies proposing
Page 285 U. S. 300
to do business in any locality already possessing one such
utility. [
Footnote 41]
Fourth. Can it be said in the light of these facts that
it was not an appropriate exercise of legislative discretion to
authorize the commission to deny a license to enter the business in
localities where necessity for another plant did not exist? The
need of some remedy for the evil of destructive competition, where
competition existed, had been and was widely felt. Where
competition did not exist, the propriety of public regulation had
been proven. Many communities were not supplied with ice at all.
The particular remedy adopted was not enacted hastily. The statute
was based upon a long established state policy recognizing the
public importance of the ice business, and upon 17 years'
legislative and administrative experience in the regulation of it.
The advisability of treating the ice business as a public utility
and of applying to it the certificate of convenience and necessity
had been under consideration for many years. Similar legislation
had been enacted in Oklahoma under similar circumstances with
respect to other public services. The measure bore a substantial
relation to the evils found to exist. Under these circumstances, to
hold the act void as being unreasonable would, in my opinion,
involve the exercise not of the function of judicial review, but
the function of a super-legislature. If the act is to be stricken
down, it must be on the ground that the Federal Constitution
guarantees to the individual the absolute right to enter the ice
business, however detrimental the exercise of that right may be to
the public welfare. Such, indeed, appears to be the contention
made.
Page 285 U. S. 301
Fifth. The claim is that manufacturing ice for sale and
distribution is a business inherently private, and, in effect, that
no state of facts can justify denial of the right to engage in it.
To supply one's self with water, electricity, gas, ice, or any
other article is inherently a matter of private concern. So also
may be the business of supplying the same articles to others for
compensation. But the business of supplying to others, for
compensation, any article or service whatsoever may become a matter
of public concern. Whether it is or is not depends upon the
conditions existing in the community affected. [
Footnote 42] If it is a matter of public
concern, it may be regulated whatever the business. The public's
concern may be limited to a single feature of the business, so that
the needed protection can be secured by a relatively slight degree
of regulation. Such is the concern over possible incompetence,
which dictates the licensing of dentists,
Dent v. West
Virginia, 129 U. S. 114,
129 U. S. 122;
Douglas v. Noble, 261 U. S. 165,
261 U. S. 170;
or the concern over possible dishonesty, which led to the licensing
of auctioneers or hawkers,
Baccus v. Louisiana,
232 U. S. 334,
232 U. S. 338. On
the other hand, the public's concern about a particular business
may be so pervasive and varied as to require constant detailed
supervision and a very high degree of regulation. Where this is
true, it is common to speak of the business as being a "public"
one, although it is privately owned. It is to such businesses that
the designation "public utility" is commonly applied, or they are
spoken of as "affected with a public interest."
German Alliance
Insurance Co. v. Lewis, 233 U. S. 389,
233 U. S.
408.
A regulation valid for one kind of business may, of course, be
invalid for another; since the reasonableness
Page 285 U. S. 302
of every regulation is dependent upon the relevant facts. But so
far as concerns the power to regulate, there is no difference, in
essence, between a business called private and one called a public
utility or said to be "affected with a public interest." Whatever
the nature of the business, whatever the scope or character of the
regulation applied, the source of the power invoked is the same.
And likewise the constitutional limitation upon that power. The
source is the police power. The limitation is that set by the due
process clause, which, as construed, requires that the regulation
shall be not unreasonable, arbitrary, or capricious, and that the
means of regulation selected shall have a real or substantial
relation to the object sought to be obtained. The notion of a
distinct category of business "affected with a public interest,"
employing property "devoted to a public use," rests upon historical
error. The consequences which it is sought to draw from those
phrases are belied by the meaning in which they were first used
centuries ago, [
Footnote 43]
and by the decision of this Court, in
Munn v. Illinois,
94 U. S. 113, which
first introduced them into the law of the Constitution. [
Footnote 44] In my opinion, the true
principle is that the
Page 285 U. S. 303
state's power extends to every regulation of any business
reasonably required and appropriate for the public protection. I
find in the due process clause no other limitation upon the
character or the scope of regulation permissible.
Sixth. It is urged specifically that manufacturing ice
for sale and distribution is a common calling, and that the right
to engage in a common calling is one of the fundamental liberties
guaranteed by the due process clause. To think of the ice
manufacturing business as a common calling is difficult, so recent
is it in origin and so peculiar in character. Moreover, the
Constitution does not require that every calling which has been
common shall ever remain so. The liberty to engage in a common
calling, like other liberties, may be limited in the exercise of
the police power. The slaughtering of cattle had been a common
calling in New Orleans before the monopoly sustained in
Slaughter House
Cases, 16 Wall. 36, was created by the legislature.
Prior to the Eighteenth Amendment, selling liquor was a common
calling, but this Court held it to be consistent with the due
process clause for a State to abolish the calling,
Bartemeyer
v. Iowa, 18 Wall. 129;
Mugler v. Kansas,
123 U. S. 623, or
to establish a system limiting the number of licenses,
Crowley
v. Christensen, 137 U. S. 86. Every
citizen has the right to navigate a river or lake, and may even
carry others thereon for hire. But the ferry privilege may be made
exclusive in order that the patronage may be sufficient to justify
maintaining the ferry service,
Conway v. Taylor's
Executor, 1 Black, 603,
66 U. S.
633-634.
Page 285 U. S. 304
It is settled that the police power commonly invoked in aid of
health, safety, and morals extends equally to the promotion of the
public welfare. [
Footnote
45] The cases just cited show that, while ordinarily free
competition in the common callings has been encouraged, the public
welfare may at other times demand that monopolies be created. Upon
this principle is based our whole modern practice of public utility
regulation. It is no objection to the validity of the statute here
assailed that it fosters monopoly. That, indeed, is its design. The
certificate of public convenience and invention is a device -- a
recent social -- economic invention -- through which the monopoly
is kept under effective control by vesting in a commission the
power to terminate it whenever that course is required in the
public interest. To grant any monopoly to any person as a favor is
forbidden, even if terminable. But where, as here, there is
reasonable ground for the legislative conclusion that, in order to
secure a necessary service at reasonable rates, it may be necessary
to curtail the right to enter the calling, it is, in my opinion,
consistent with the due process clause to do so, whatever the
nature of the business. The existence of such power in the
Legislature seems indispensable in our ever-changing society.
It is settled by unanimous decisions of this Court that the due
process clause does not prevent a State or city from engaging in
the business of supplying its inhabitants with articles in general
use, when it is believed that they
Page 285 U. S. 305
cannot be secured at reasonable prices from the private dealers.
Thus, a city may, if the local law permits, buy and sell at retail
coal and wood,
Jones v. City of Portland, 245 U.
S. 217; or gasoline,
Standard Oil Co. v. City of
Lincoln, 275 U.S. 504. And a State may, if permitted by its
own Constitution, build and operate warehouses, elevators,
packinghouses, flour mills, or other factories,
Green v.
Frazier, 253 U. S. 233. As
States may engage in a business, because it is a public purpose to
assure to their inhabitants an adequate supply of necessary
articles, may they not achieve this public purpose, as Oklahoma has
done, by exercising the lesser power of preventing single
individuals from wantonly engaging in the business and thereby
making impossible a dependable private source of supply? As a State
so entering upon a business may exert the taxing power, all
individual dealers may be driven from the calling by the unequal
competition. If States are denied the power to prevent the harmful
entry of a few individuals into a business, they may thus, in
effect, close it altogether to private enterprise.
Seventh. The economic emergencies of the past were
incidents of scarcity. In those days it was preeminently the common
callings that were the subjects of regulation. The danger then
threatening was excessive prices. To prevent what was deemed
extortion, the English Parliament fixed the prices of commodities
and of services from time to time during the four centuries
preceding the Declaration of Independence. [
Footnote 46] Like legislation was enacted
Page 285 U. S. 306
in the Colonies, and in the States, after the Revolution.
[
Footnote 47] When the first
due process clause was written into the Federal Constitution, the
price of bread was being fixed by statute in at least two of the
States, and this practice continued long thereafter. [
Footnote 48] Dwelling houses when
occupied by the owner are preeminently private property. From the
foundation of our government, those who wished to lease residential
property had been free to charge to tenants such rentals as they
pleased. But, for years after the World War had ended, the scarcity
of dwellings in the City of New York was such that the State's
legislative power was invoked to insure reasonable rentals. The
constitutionality of the statute was sustained by this Court.
Marcus Brown Holding Co. v. Feldman, 256 U.
S. 170. Similar legislation of Congress for the city of
Washington was also upheld.
Block v. Hirsh, 256 U.
S. 135.
Eighth. The people of the United States are now
confronted with an emergency more serious than war. Misery is
widespread in a time not of scarcity, but of overabundance. The
long-continued depression has brought unprecedented unemployment, a
catastrophic fall in commodity prices, and a volume of economic
losses which threatens our financial institutions. [
Footnote 49] Some people
Page 285 U. S. 307
believe that the existing conditions threaten even the stability
of the capitalistic system. [
Footnote 50] Economists are searching for the causes of
this disorder, and are reexamining the basis of our industrial
structure. Business men are seeking possible remedies. Most of them
realize that failure to distribute widely the profits of industry
has been a prime cause of our present plight. But rightly or
wrongly, many persons think that one of the major contributing
causes has been unbridled competition. [
Footnote 51] Increasingly, doubt is expressed whether
it is economically wise, or morally right, that men should be
permitted to
Page 285 U. S. 308
add to the producing facilities of an industry which is already
suffering from overcapacity. In justification of that doubt, men
point to the excess capacity of our productive facilities resulting
from their vast expansion without corresponding increase in the
consumptive capacity of the people. They assert that, through
improved methods of manufacture, made possible by advances in
science and invention and vast accumulation of capital, our
industries had become capable of producing from 30 to 100 percent
more than was consumed even in days of vaunted prosperity; and that
the present capacity will, for a long time, exceed the needs of
business. [
Footnote 52] All
agree that irregularity in employment -- the greatest of our evils
-- cannot be overcome unless production and consumption are more
nearly balanced. Many insist there must be some form of economic
control. There are plans for proration. There are many proposals
for stabilization. [
Footnote
53] And some thoughtful men
Page 285 U. S. 309
of wide business experience insist that all projects for
stabilization and proration must prove futile unless, in some way,
the equivalent of the certificate of public convenience and
necessity is made a prerequisite to embarking new capital in an
industry in which the capacity already exceeds the production
schedules. [
Footnote 54]
Whether that view is sound, nobody knows. The objections to the
proposal are obvious and grave. The remedy might bring evils worse
than the present disease. The
Page 285 U. S. 310
obstacles to success seem insuperable. [
Footnote 55] The economic and social sciences
are largely uncharted seas. We have been none too successful in the
modest essays in economic control already entered upon. The new
proposal involves a vast extension of the area of control. Merely
to acquire the knowledge essential as a basis for the exercise of
this multitude of judgments would be a formidable task, and each of
the thousands of these judgments would call for some measure of
prophecy. Even more serious are the obstacles to success inherent
in the demands which execution of the project would make upon human
intelligence and upon the character of men. Man is weak, and his
judgment is, at best, fallible.
Yet the advances in the exact sciences and the achievements in
invention remind us that the seemingly impossible sometimes
happens. There are many men now living who were in the habit of
using the age-old expression: "It is as impossible as flying." The
discoveries in physical science, the triumphs in invention, attest
the value of the process of trial and error. In large measure,
these advances have been due to experimentation. In those fields,
experimentation has, for two centuries, been not only free, but
encouraged. Some people assert that our present plight is due, in
part, to the limitations set
Page 285 U. S. 311
by courts upon experimentation in the fields of social and
economic science, and to the discouragement to which proposals for
betterment there have been subjected otherwise. There must be power
in the States and the nation to remould, through experimentation,
our economic practices and institutions to meet changing social and
economic needs. I cannot believe that the framers of the Fourteenth
Amendment, or the States which ratified it, intended to deprive us
of the power to correct the evils of technological unemployment and
excess productive capacity which have attended progress in the
useful arts. [
Footnote
56]
To stay experimentation in things social and economic is a grave
responsibility. Denial of the right to experiment may be fraught
with serious consequences to the nation. It is one of the happy
incidents of the federal system that a single courageous State may,
if its citizens choose, serve as a laboratory; and try novel social
and economic experiments without risk to the rest of the country.
This Court has the power to prevent an experiment. [
Footnote 57] We may strike down the statute
which embodies it on the ground that, in our opinion, the measure
is arbitrary, capricious, or unreasonable. We have power to do
this, because the due process clause has been held by the Court
applicable to matters of substantive law as well as to matters of
procedure. But, in the exercise of this high power, we must be ever
on our guard lest we erect our prejudices into legal principles. If
we would guide by the light of reason, we must let our minds be
bold.
MR. JUSTICE STONE joins in this opinion.
[
Footnote 1]
Compare Sumner H. Slichter, "Modern Economic Society,"
pp. 56, 326-328; Eliot Jones and T. C. Bigham, "Principles of
Public Utilities," p. 70; Eliot Jones, "Is Competition in Industry
Ruinous," 34 Quarterly Journal of Economics, 473, 488.
[
Footnote 2]
See Ford P. Hall, "Certificates of Convenience and
Necessity," 28 Mich.L.Rev. 107, 276; Waldo O. Willhoft,
"Certificates of Convenience and Necessity in Michigan," 10
Mich.State Bar Journal 257; Charles S. Hyneman, "Public
Encouragement of Monopoly in the Utility Industries," Annals of
American Academy of Political and Social Science, January, 1930, p.
160; 24 Col.L.Rev. 528. Professor Hall lists statutes of
forty-three States, most of them enacted within the last 20 years,
requiring a certificate for the operation of various classes of
public utilities. Before the advent of the certificate of public
convenience and necessity, similar but less flexible control over
the entry of many public utilities into business was exercised
through the grant of franchises, municipal or State.
See
Eliot Jones and T. C. Bigham, "Principles of Public Utilities," c.
III. The certificate was first introduced into federal law by the
Transportation Act 1920, c. 91, § 402, pars. 18-20, 41 Stat. 456,
477.
Compare Thomas H. Kennedy, "The Certificate of
Convenience and Necessity Applied to Air Transportation," 1 Journal
of Air Law 76.
[
Footnote 3]
See D. E. Lilienthal and I. S. Rosenbaum, "Motor
Carrier Regulation by Certificates of Necessity and Convenience,"
36 Yale L.J. 163, "Motor Carrier Regulation: Federal, State, and
Municipal," 26 Col.L.Rev. 954.
Compare LaRue Brown and S.
N. Scott, "Regulation of the Contract Motor Carrier Under the
Constitution," 44 Harv.L.Rev. 530.
[
Footnote 4]
Such a law has since been passed in Arkansas. Ark.Acts 1929, No.
55, p. 110. The state court held that the measure violated the
State Constitution in so far as it sanctioned denial of the right
to engage in the ice business.
Cap. F. Bourland Ice Co. v.
Franklin Utilities Co., 180 Ark. 770, 22 S.W.2d 993. The
provisions for the regulation of rates, attacked under the
Fourteenth Amendment, were sustained.
See 15 St. Louis
L.Rev. 414. Bills declaring the business of manufacturing ice a
public utility have been introduced in Kansas, Louisiana, Michigan,
New York, and Texas.
See 70 Ice & Refrigeration 425;
72
id. 172, 239; 74
id. 110; 76
id. 216,
217; H. P. Hill, "Commission Control of the Ice Industry,"
ibid., 80.
[
Footnote 5]
"Neither is it a matter of any moment that no precedent can be
found for a statute precisely like this. It is conceded that the
business is one of recent origin, that its growth has been rapid,
and that it is already of great importance. . . . It presents,
therefore, a case for the application of a long known and well
established principle in social science, and this statute simply
extends the law so as to meet his new development of commercial
progress."
Munn v. Illinois, 94 U. S. 113,
94 U. S. 133.
See Thomas P. Hardman, "Public Utilities" 37 W.Va.L.Q.
250.
[
Footnote 6]
O'Gorman & Young, Inc. v. Hartford Fire Insurance
Co., 282 U. S. 251.
"Every possible presumption is in favor of the validity of a
statute, and this continues until the contrary is shown beyond a
rational doubt. One branch of the government cannot encroach on the
domain of another without danger. The safety of our institutions
depends in no small degree on a strict observance of this salutary
rule."
Sinking Fund Cases, 99 U. S. 700,
99 U. S. 718.
See also Legal Tender
Cases, 12 Wall. 457,
79 U. S. 531;
Trade-Mark Cases, 100 U. S. 82,
100 U. S. 96.
See James B. Thayer, "The Origin and Scope of the American
Doctrine of Constitutional Law," 7 Harv.L.Rev. 129, 142.
[
Footnote 7]
"Whether the enactment is wise or unwise, whether it is based on
sound economic theory, whether it is the best means to achieve the
desired result, whether, in short, the legislative discretion
within its prescribed limits should be exercised in a particular
manner, are matters for the judgment of the legislature, and the
earnest conflict of serious opinion does not suffice to bring them
within the range of judicial cognizance."
Chicago, Burlington & Quincy R. Co. v. McGuire,
219 U. S. 549,
219 U. S.
569.
"Questions of policy are not submitted to judicial
determination, and the courts have no general authority of
supervision over the exercise of discretion which under our system
is reposed in the people or other departments of government."
Green v. Frazier, 253 U. S. 233,
253 U. S. 240.
See also Price v. Illinois, 238 U.
S. 446,
238 U. S.
451-452;
Rast v. Van Deman & Lewis,
240 U. S. 342,
240 U. S. 357;
Merrick v. N. W. Halsey & Co., 242 U.
S. 568,
242 U. S.
586-587.
[
Footnote 8]
The mean normal temperature in the State from May to September
is 76.4 degrees. Climatological Data, United States Weather Bureau,
vol. xxxix, 1930, No. 13, p. 53. The mean normal temperature in
January, the coldest month, is 38.3 degrees; in December, 39.2
degrees.
Id. So far as appears, no natural ice is
harvested in the State for commercial purposes.
See Guy L.
Andrews, "State Regulation of Ice Industry in Oklahoma,"
Refrigerating World, Sept. 1928, p. 32.
[
Footnote 9]
The industry first assumed commercial importance in the United
States about 1880.
See Ice and Refrigeration Blue Book
(10th Ed.), pp. 12-18. Reports of the Bureau of the Census indicate
that, in 1869, there were only four establishments producing
artificial ice; in 1879, 35; in 1889, 222; in 1899, 775.
See Willard L. Thorp, "The Integration of Industrial
Operation," United States Census Monographs, III, 1924, pp. 49, 50.
In 1929, the Census of Manufactures shows 4,110 establishments
making ice as their product of chief value. The Ice and
Refrigeration Blue Book for 1927, p. 30, lists 7,338 plants
actually producing ice for sale. It estimates the total production
for that year at 52,202,160 tons, as against 4,294,439 tons,
reported by the Bureau of the Census for 1899.
[
Footnote 10]
See report of Committee on Fundamental Equipment,
submitted to the President's Conference on Home Building and Home
Ownership, December 3, 1931, p. 107; Elsie P. Wolcott, "Use and
Cost of Ice in Families with Children," published by the department
of public welfare of the city of Chicago. Lack of ice, in hot
seasons, results in constant waste and danger to health. It compels
the purchase of food in small quantities at higher prices. The
intimate relation of food preservation to health, and infant
mortality has long been recognized. Ordinary perishable foodstuffs,
it is generally considered, cannot be safely kept at temperatures
in excess of from 45 to 50 degrees. Report of Committee on
Fundamental Equipment,
supra, p. 110.
[
Footnote 11]
See Walter R. sanders, "Industrial Application of
Refrigeration in the United States," Proceedings of the Fourth
International Congress of Refrigeration, London, 1924, p. 967. It
was testified that, in Oklahoma City, in April, 1930, 46.4 percent
of the sales of ice were to the retail trade, 37.12 percent to the
commercial trade, 13.81 percent to the wholesale trade, 2.92
percent for car icing, and the remainder for carload shipments out
of the city. In 1922, there were loaded in Oklahoma 1,676 cars of
food products under refrigeration; in 1925, 2,940 cars; and in
1929, 3,347. The Ice and Refrigeration Blue Book (10th Ed.), pp.
22, 23, lists 198 industries using refrigeration. In a great number
of these, it is impracticable to install a private ice plant.
[
Footnote 12]
Were it not for refrigeration, the market for perishable
foodstuffs, in warm seasons, would be limited in area to a few
miles and in time to a few days, or even hours. A considerable part
of this refrigeration is supplied by concerns manufacturing ice for
sale. Such concerns commonly supply ice used in car-icing.
Mechanical refrigeration is beyond the means of many small retail
dealers. Moreover, since decay in food, once begun, cannot be
arrested by subsequent refrigeration, ice, or a substitute, is
often essential on the farm.
See M. E. Pennington and A.
D. Greenlee, "The Refrigeration of Dressed Poultry in Transit,"
Bulletin No. 17, U.S. Department of Agriculture, p. 31.
[
Footnote 13]
More than 80 percent of the milk and cream sold from farms in
the United States is produced in sections where natural ice can be
harvested.
See U.S. Department of Agriculture, "Colling
Milk and Cream on the Farm," Farmers' Bulletin No. 976, p. 1. The
dairy industry in Oklahoma, however, is wholly dependent upon
artificial ice, or its substitutes. Refrigeration on the farm is
indispensable to the safe marketing of dairy products at any season
when the temperature exceeds 50 degrees.
See John T. Bown,
"The Application of Refrigeration to the Handling of Milk,"
Bulletin No. 98, U.S. Department of Agriculture, pp. 2, 65
et
seq.
[
Footnote 14]
The power of the commission to compel this service, of course,
depends upon the status of the ice business as a public utility.
The evidence shows that the distribution of ice in rural
communities not themselves possessing ice plants has developed
almost wholly since the passage of the act of 1925. There was
testimony that such distribution would be impracticable without the
protection afforded by the Act.
[
Footnote 15]
The total number of household refrigerators in the entire
country manufactured and sold before 1920 was approximately 10,000.
In 1924, the annual production reached 30,000; in 1925, 75,000.
Electrical Refrigerating News, February 17, 1932.
[
Footnote 16]
The Secretary of the National Association of Ice Industries
testified that the ice business for the last 11 years had increased
upon an average of 5.35 percent each year; that, in 1919, the per
capita consumption of ice was 712 pounds; in 1929, 1,157 pounds. A
great deal of the increase in consumption of ice in Oklahoma,
another witness testified, was in rural communities and among urban
dwellers of the poorer classes.
[
Footnote 17]
The number of domestic electric meters installed in Oklahoma as
of August 31, 1930, was only 222,237, according to a tabulation of
the Bureau of Foreign and Domestic Commerce. The population of the
State in 1930 was 2,396,000. Fifteenth Census, vol. I, p. 18. It is
estimated that 965,000 household refrigerators were sold in 1931,
of which only 10,146 were sold in Oklahoma. Electrical
Refrigerating News, February 24, 1932. Approximately 3,578,000 such
refrigerators are now in use throughout the country.
Id.,
February 10, 1932. From these figures, it may be calculated that
the number of refrigerators in use in Oklahoma is between 35,000
and 40,000. The average cost of a household electric refrigerator
in 1925 was $425; in 1931, $245. Electrical Refrigerating News,
February 17, 1932. The price of ice for domestic use in Oklahoma
varies from 40 to 70 cents the hundredweight. Few families use as
much as three or four tons of ice in a year. In view of these
facts, this Court can scarcely have judicial knowledge that, in
Oklahoma, all families or businesses which are able to purchase ice
are able to purchase a mechanical refrigerator.
See Report
of Committee on Fundamental Equipment, submitted to the President's
Conference on Home Building and Home Ownership, pp. 111, 128-129.
This committee found it impossible to recommend even an ordinary
refrigerator, using ice, for families of low income, and suggested
the design and marketing of a specially constructed ice-chest.
[
Footnote 18]
It is noteworthy that the ice industry has the characteristic of
uniformity of product or service common to most public utilities,
and distinguishing it from other businesses in which differences in
quality or style make difficult effective regulation.
See
S. Howard Patterson and Karl W. H. Scholz, "Economic Problems of
Modern Life" (2d Ed. 1931), p. 426.
The tendency of the industry to be conducted as a public utility
is reflected in the widespread entry into it in recent years of
electrical, gas, and water utilities, and the like. Such companies
in Oklahoma operate more than one-third of the ice plants.
See Ice and Refrigeration Blue Book (10th Ed.), pp.
1268-1288.
Compare Oklahoma Light & Power Co. v.
Corporation Commission, 96 Okl. 19, 24, 220 Pac. 54.
Municipalities have engaged extensively in the business of
manufacturing and selling ice in foreign countries, and, to a
lessor extent, in the United States. On several occasions,
departments of the federal government, unable to secure ice at what
were regarded as reasonable prices, have installed their own ice
plants. Both in the Philippine Islands and in Panama, plants have
been operated which sell ice to government employees.
See
Carl D. Thompson, "Public Ownership," pp. 301-305; Jeanie Wells
Wentworth, "A Report on Municipal and Government Ice Plants,"
submitted to the Borough President of Manhattan, December 15,
1913.
[
Footnote 19]
See Willard L. Thorp, "The Integration of Industrial
Operation," United States Census Monographs, III, 1924, pp. 49, 50.
Neither consolidation of ownership nor increase in production has
had the effect of greatly increasing the size of plants in the ice
business. Thus, in Oklahoma in 1927, there were only twenty plants
manufacturing ice for sale which had a capacity exceeding 200 tons
a day, of which eight were in Oklahoma City and Tulsa. Ice and
Refrigeration Blue Book (10th Ed.) pp. 1268-1288.
[
Footnote 20]
Several reasons were given in the testimony for this
localization of the ice business. Freight rates on ice are high in
proportion to value. Handling charges are doubled if the ice is put
in cold storage at the point of consignment; and, if kept in the
car, the ice loses in weight and deteriorates in quality during the
period of a week or more before a carload will be exhausted in a
small community. Shrinkage, of course, varies with the weather, but
is at all times considerable.
[
Footnote 21]
Oklahoma is predominantly a State of rural population. Only 34.3
percent of its inhabitants live in towns or cities of more than
2,500. Fifteenth Census of the United States, vol. I, p. 15. It has
only four cities over 25,000; 12 cities from 10,000 to 25,000; and
52 cities from 2,500 to 10,000. There are 444 incorporated places
of less than 2,500.
Id., pp. 895-898.
[
Footnote 22]
See Editorials, Refrigerating World, May, 1928, p. 5,
June 1, 1928, p. 6; J. H. Reed, "Consolidate Ice Delivery in
Atlanta,"
id., May, 1928, p. 15.
[
Footnote 23]
See e.g., John Nickerson, "Consolidations in the Ice
Industry," 73 Ice & Refrigeration 333, 334; 69
id.
223; 70
id. 357; 72
id. 39;
id. 282;
Halbert P. Hill, "The Effect of Recent Mergers on the Ice
Industry," Refrigerating World, February, 1926, pp. 15, 42; W. F.
Stevens, "What the Future Holds for the Ice Manufacturer," 76 Ice
& Refrigeration 81, 82; W. L. Foushee, "The Ice Business as a
Public Utility,"
id. 302.
See Tipton v. Ada Ice &
Fuel Co., 2d & 3d Ann.Rep.Okla.Corp.Comm., p. 358.
[
Footnote 24]
The Ice and Refrigeration Blue Book for 1927 shows that, of 142
communities containing ice plants manufacturing ice for sale, at
least 112 were served either by a single plant or by several plants
of common ownership.
See pp. 1268-1288, 1645
et
seq. There is evidence in the record that it was common
practice for manufacturing establishments of different ownership to
make use of a jointly owned delivery company. Out of 217 plants
listed as engaged in manufacturing ice for sale, 101 were owned by
corporations owning or controlling other plants within or without
the State.
Id.
[
Footnote 25]
For accounts of the situation in Oklahoma before the passage of
the bill,
see Guy L. Andrews, "Regulation of the Ice
Business in Oklahoma," 75 Ice & Refrigeration 171, "State
Regulation of the Ice Industry,"
id. 437. In the year
1924, 375 formal complaints against ice companies are said to have
been filed with the commission.
[
Footnote 26]
Okla.Sess.Laws 1907-08, c. 83:
"Sec. 13. Whenever any business, by reason of its nature,
extent, or the existence of a virtual monopoly therein, is such
that the public must use the same, or its services, or the
consideration by it given or taken or offered, or the commodities
bought or sold therein are offered or taken by purchase or sale in
such a manner as to make it of public consequence, or to affect the
community at large as to supply, demand or price or rate thereof,
or said business is conducted in violation of the first section of
this Act, said business is a public business, and subject to be
controlled by the State, by the Corporation Commission or by an
action in any district court of the State, as to all of its
practices, prices, rates and charges. And it is hereby declared to
be the duty of any person, firm or corporation engaged in any
public business to render its services and offer its commodities,
or either, upon reasonable terms without discrimination and
adequately to the needs of the public, considering the facilities
of said business."
[
Footnote 27]
Powers v. Mangum Ice & Cold Storage Co., 2d & 3d
Ann.Rep.Okla.Corp.Comm., p. 354; Tipton v. Ada Ice & Fuel Co.,
id., p. 358; Scanlon v. Sass,
id., p. 361; Worley
v. Hill,
id., p. 390; Gillian v. Tishomingo Electric Light
& Power Co., 4th Ann.Rep., p. 103; Wadlington v. Southern Ice
& Utilities Co., 13th Ann.Rep., p. 235; In re General
Investigation of Prices, Practices, Rates and Charges of the New
State Ice Co., 15th Ann.Rep. p. 176; In re General Investigation of
Prices, Practices, Rates, and Charges of the Steffens-Bretch Ice
& Ice Cream Co.,
id., p. 177; McCartney v. Kingfisher
Ice Co.,
id., p. 210; In the Matter of the Investigation
of Prices Charged for Ice at Guthrie, Oklahoma, by the
Rummeli-Braun Co.,
id., p. 212.
[
Footnote 28]
Brenan v. Tishomingo Ice & Cold Storage Co., 2d & 3d
Ann.Rep.Okla.Corp.Comm., p. 353; Tipton v. Ada Ice & Fuel Co.,
id., p. 358; Scanlon v. Sass,
id., p. 361; Order
No. 472, 4th Ann.Rep., p. 40; Nunnery v. Mangum Ice & Cold
Storage Co.,
id., p. 63; Order No. 641, 6th Ann.Rep., p.
7; Order No. 650,
id., p. 8; Order No. 708, id. p. 10;
Garner v. Tulsa Ice Co., 10th Ann.Rep., p. 336; Ratner v. Imperial
Ice Co., 11th Ann.Rep., p. 205; Norton v. Chandler Ice Co., 12th
Ann.Rep., p. 227; Vance v. Tahlequah Light & Power Co., 13th
Ann.Rep., p. 194.
[
Footnote 29]
In most instances of complaint of insufficient ice, the
commission undertook to secure only the equitable distribution of
the available supply; and the terms of the statute gave it no
greater authority.
See, e. g., Powers v. Mangum Ice &
Cold Storage Co., 2d & 3d Ann.Rep.Okla.Corp.Comm., p. 354;
Gardiner v. Geary Light & Ice Co.,
id., p. 403.
But compare Ratner v. Imperial Ice Co., 11th Ann.Rep., p.
205; Ada v. Tipton Ice & Fuel Co., 2d & 3d Ann.Rep., p.
358. On no occasion, before 1925, did the commission undertake to
extend ice service to communities not theretofore supplied.
[
Footnote 30]
Brenan v. Tishomingo Ice & Cold Storage Co., 2d & 3d
Ann.Rep.Okla.Corp.Comm., p. 353; Powers v. Mangum Ice & Cold
Storage Co.,
id., p. 354; Tipton v. Ada Ice & Fuel
Co.,
id., p. 358; Scanlon v. Sass,
id., p. 361;
Worley v. Hull,
id., p. 390; Ralston v. Hobart Ice &
Bottling Co., 4th Ann.Rep. p. 110; In the Matter of Proposed Order
No. 94, 6th Ann.Rep., p. 219, 7th
id., p. 266; Langan v.
McCoy Bros., 8th & 9th Ann.Rep., p. 226; Ratner v. Imperial Ice
Co., 11th Ann.Rep., p. 205; Norton v. Chandler Ice Co., 12th
Ann.Rep., p. 227; Vance v. Tahlequah Light & Power Co., 13th
Ann.Rep., p. 194.
[
Footnote 31]
Gardiner v. Geary Light & Ice Co., 2d & 3d
Ann.Rep.Okla.Corp.Comm., p. 403.
[
Footnote 32]
Worley v. Hull, 2d & 3d Ann.Rep.Okla.Corp.Comm., p. 390.
[
Footnote 33]
Order No. 1906, 15th Ann.Rep.Okla.Corp.Comm., p. 178.
[
Footnote 34]
See 8th & 9th Ann.Rep.Okla.Corp.Comm., p. 1.
[
Footnote 35]
2d & 3d Ann.Rep.Okla.Corp.Comm., p. 8.
[
Footnote 36]
In its Eighth and Ninth Annual Report, dated November 20, 1916,
p. 5, the Commission said:
"The scope of legislation pertaining to those utilities which
serve the public generally should be broadened. Two conspicuous
examples are ice plants and cotton compresses. Chapter 93, Session
Laws, 1915, extends the jurisdiction of the Corporation Commission
over water, heat, light, and power companies, but does not include
ice plants. Numerous complaints are received by the Commission each
year as to extortionate practices of ice companies and exorbitant
prices charged. The same jurisdiction should be given the
Corporation Commission over ice plants as it exercises over gas,
electric and water companies."
In its Eleventh Annual Report, October 3, 1918, p. xxii, it was
said:
"The business of manufacturing and distributing ice is as much a
matter of public concern as is the business of rendering water,
electric or gas service, and should be subject to the same
regulation. Complaints are continuously being made to the
Commission in reference to prices of ice, practices of ice
companies, or service rendered by such companies, and the
Commission has frequently been called upon to exercise jurisdiction
under the so-called Anti-Trust Laws. Specific legislation should be
enacted in reference to these companies and the power of regulation
should be made definite and certain."
Again, in the Twelfth Annual Report, November 18, 1919, p.
1:
"During the past summer season, numerous complaints against
practices and rates of ice utilities have arisen from at least a
hundred towns and cities throughout the State. The same
jurisdiction should be given the Corporation Commission over ice
plants as it exercises over gas, electric and water companies."
[
Footnote 37]
Besides continuing in effect order No. 1906,
supra,
note 33 the commission has
issued further general orders pertaining particularly to accounting
practices. Order No. 3843, 20th Ann.Rep.Okla.Corp.Comm., p. 562. In
the following cases, it has prescribed rates: In re Application of
Marietta Ice & Water Co., 22d Ann.Rep., p. 601; In re
Application for Reduction in Ice Rates Charged by the Sallisaw Ice
Co.,
id., p. 816; In re Reduction of Rates Charged by the
Consumers' Ice Co.,
id., p. 859; In re Application of
Southwestern Light & Power Co., 23d Ann.Rep., p. 755; In re
Application of the Ward Ice Industries for Reduction in Ice Rates,
id., p. 757. In In re Application of the Shawnee Ice Co.
for Increase of Capacity in its Plant, 22d Ann.Rep., p. 834, the
applicant was allowed to withdraw its application, and the
intervening application of E. A. Liebemann to erect a new plant was
denied. In Burbank Ice Co. v. Kaw City Ice & Power Co., 23d
Ann.Rep., p. 558, the defendant's permit to distribute ice in the
town of Shidler was revoked upon a showing that it distributed
during the summer months only and that the plaintiff's local plant
was operated throughout the year, was adequate to meet local needs,
and could not be maintained in the face of the defendant's
competition.
See also In re Application of New State Ice
Co.,
id., p. 748. Other formal orders of the commission
have been issued without opinion.
[
Footnote 38]
8th & 9th Ann.Rep.Okla.Corp.Comm., pp. 5, 6.
[
Footnote 39]
Okla.Sess.Laws, 1917, c. 270.
[
Footnote 40]
Okla.Sess.Laws, 1923, c. 113, § 4. This statute was held valid
against objections under both the Federal and State Constitutions
in
Ex parte Tindall, 102 Okl. 192, 229 Pac. 125, and
Barbour v. Walker, 126 Okl. 227, 229, 259 Pac. 552.
See also Chicago, R. I. & P.Ry. Co. v. State, 123 Okl.
190, 252 Pac. 849;
Chicago, R. I. & P. Ry. Co. v.
State, 126 Okl. 48, 258 Pac. 874. As to certificates of public
convenience and necessity for the operation of a cotton gin,
see Hohman v. State, 122 Okl. 45, 250 Pac. 514.
[
Footnote 41]
Okla.Sess.Laws, 1925, c. 102, §§ 5, 6. Control over entry into
these businesses, power and water plants, and the like, had
therefore been exercised by the requirement of a franchise from the
municipality to be served.
See Mayor and Councilmen of City of
Pawhuska v. Pawhuska Oil & Gas Co., 28 Okl. 563, 568, 115
Pac. 353;
Huffaker v. Town of Fairfax, 115 Okl. 73, 242
Pac. 254.
Compare Okla.Const., art. IX, § 2; art. XVIII, §
5.
[
Footnote 42]
"Plainly, circumstances may so change in time or so differ in
space as to clothe with such an [public] interest what, at other
times or in other places, would be a matter of purely private
concern."
Block v. Hirsh, 256 U. S. 135,
256 U. S.
155.
[
Footnote 43]
In Lord Hale's "Treatise on the Ports of the Sea," Hargrave,
"Law Tracts," pp. 77-78. Lord Hale was speaking of the particulars,
wharves and cranes in ports, and did not purport to generalize the
obligation to serve all persons at reasonable rates in other
circumstances.
See Breck P. McAllister, "Lord Hale and
Business Affected With a Public Interest," 43 Harv.L.Rev. 759. He
was speaking of duties arising at common law, and not of
limitations upon the legislative power of Parliament.
See
J. A. McClain, Jr., "The Convenience of the Public Interest
Concept," 15 Minn.L.Rev. 546. He could not have been speaking of
such limitations, for in England they did not exist, and Parliament
was accustomed to regulate prices of commodities of all kinds.
See note 46
infra.
[
Footnote 44]
Chief Justice Waite, who wrote the opinion, said generally, p.
94 U. S.
126,
"Property does become clothed with a public interest when used
in a manner to make it of public consequence, and affect the
community at large,"
and referred with approval to statutes regulating the prices of
bread and the rates of chimney-sweepers, as well as of persons in
other callings still regulated.
See Walton H. Hamilton,
"Affectation with a Public Interest," 39 Yale L.J. 1089, 1095,
1096.
See also German Alliance Insurance Co. v. Lewis,
233 U. S. 389,
233 U. S.
408.
[
Footnote 45]
Lake Shore & Michigan Southern Ry. Co. v. Ohio,
173 U. S. 285,
173 U. S. 292;
Chicago & Alton R. Co. v. Tranbarger, 238 U. S.
67,
238 U. S. 77;
Chicago, B. & Q. Ry. Co. v. Illinois ex rel. Drainage
Commissioner, 200 U. S. 561,
200 U. S. 592;
Bacon v. Walker, 204 U. S. 311,
204 U. S.
317.
"But it was recognized in the cases cited, as in many others,
that freedom of contract is a qualified, and not an absolute,
right. There is no absolute freedom to do as one wills or to
contract as one chooses."
Chicago, B. & Q. R. Co. v. McGuire, 219 U.
S. 549,
219 U. S. 567.
Compare Walls v. Midland Carbon Co., 254 U.
S. 300.
[
Footnote 46]
"In Lord Hale's time . . . , all activity comprehended under
what we call business was public, and all of it subject to price
control." Walton H. Hamilton, "Affectation With a Public Interest,"
39 Yale L. J. 1089, 1094. For voluminous collections of statutes
and materials relating to Parliamentary control of business in
England prior to the American Revolution,
see the
references in Edward A. Adler, "Business Jurisprudence," 28
Harv.L.Rev. 135; J. A. McClain, Jr., "The Convenience of the Public
Interest Concept," 15 Minn.L.Rev. 546; Breck P. McAllister, "Lord
Hale and Business Affected With a Public Interest," 43 Harv.L.Rev.
759, 767; Milton Handler, "The Constitutionality of Investigations
by the Federal Trade Commission," 28 Col.L.Rev. 708, 712-714.
[
Footnote 47]
Statutes of eight of the thirteen States, passed during the
Revolution, and fixing the price of almost every commodity in the
market, are listed in 33 Harv.L.Rev. 838, 839.
[
Footnote 48]
Maryland Laws of 1789, c. 8, § 2, Herty's Digest of the Laws of
Maryland, 1799, p. 250; 5 Statutes of South Carolina 186, 1 South
Carolina Acts of Assembly, 1791-1794, p. 88.
[
Footnote 49]
See Hearings before the La Follette subcommittee of the
Senate Committee on Manufactures, Seventy-Second Congress, First
Session, on Senate Bill 6215 (71st Congress), to establish a
National Economic Council, Parts 1 and 2 (October 22 to December
19, 1931), particularly the testimony of Dr. E. A. Goldenweiser,
director of research and statistics of the Federal Reserve Board,
of Mr. L. H. Sloan, vice president of the Standard Statistics
Company, and of Miss Frances Perkins, Industrial Commissioner of
the State of New York, pp. 3-150; "When We Choose to Plan," Graphic
Survey, March 1, 1932.
See also Hearings on December 28,
1931-January 9, 1932, the La Follette-Costigan Bills, Senate Bills
Nos. 174, 262, and 3045 (72d Congress).
[
Footnote 50]
See Edward S. Corwin, "Social Planning under the
Constitution," 26 American Political Science Review 1; W. B.
Donham, "Business Adrift," (1931), p. 165; "America Faces the
Future," edited by Charles A. Beard (1932), pp. 1-10; Paul M.
Mazur, "New Roads to Prosperity" (1931), c. V.
[
Footnote 51]
W. B. Donham, "Business Adrift," pp. 141, 142; "The Swope Plan,"
edited by J. George Frederick (1931), pp. 70, 73, 128; Richard T.
Ely, "Hard Times, The Way In and the Way Out" (1931), pp. 62-64,
135, 137; "The Menace of Overproduction," edited by Scoville Hamlin
(1930); Dexter M. Keezer and Stacy May, "The Public Control of
Business" (1930), p. 83; Walker D. Hines, "Planning in a Particular
Industry," Bulletin of the Taylor Society, October, 1931; Philip
Cabot, "The Vices of Free Competition," The Yale Review, Autumn,
1931; Julius H. Barnes, "Business Looks at Unemployment," Atlantic
Monthly, August, 1931; "The Federal Anti-Trust Laws: A Symposium,"
edited by Milton Handler (December, 1931).
[
Footnote 52]
The depression which began in 1929 has greatly reduced the
present consumptive capacity; and the loss of export trade, and the
arrest in the growth in population (resulting from the lessened
birthrate and the practical stoppage of immigration), apparently
preclude the rapid increase of consumptive capacity which followed
the earlier periods of depression.
[
Footnote 53]
See Charles A. Beard, "America Faces the Future" (1932), pp.
117-140; "The Swope Plan," edited by J. George Frederick (1931);
Report No. 12 of the Committee on Continuity of Business and
Employment of the United States Chamber of Commerce, October 2, 3,
1931; Report of the Executive Council, American Federation of Labor
to the 51st Annual Convention, October 5, 1931; Stuart Chase, "A
Ten Year Plan for America," Harpers' Magazine, June, 1931; George
Soule, "What Planning Might Do," New Republic, March 11, 1931;
"When We Choose to Plan," Graphic Survey, March 1, 1932; "The New
Challenge to Scientific Management," Bulletin of the Taylor
Society, April, 1931; Robert J. McFall, "Planning Industry,"
id., June, 1931; Horace B. Drury, "The Hazard of
Business,"
id., December, 1931; Grover A. Whalen,
"National Planning,"
id., February, 1932; J. Russell
Smith, "The End of An Epoch," Graphic Survey, July 1, 1931; Mary
van Kleeck, "Planning and the World Paradox,"
id.,
November 1, 1931; Lewis L. Lorwin, "The Origins of Economic
Planning,"
id., February 1, 1932; H. S. Person,
"Scientific Management as a Philosophy and Technique of Progressive
Industrial Stabilization," paper presented at World Social Economic
Congress, August, 1931; "When Will America Begin to Plan?"
Christian Century, March 11, 1931.
See generally Hearings
before the La Follette Subcommittee, on S. 6215,
supra,
note 49 Compare
Editorial Research Reports, Washington, D.C., August 1, August 8,
December 3, 1931.
[
Footnote 54]
See Charles R. Stevenson, "The Way Out" (1932),
particularly pp. 27, 31, 33; Philip Cabot, "The Vices of Free
Competition," The Yale Review, Autumn, 1931; J. A. Hobson, "The
State as an Organ of Rationalization," Political Quarterly,
January-March, 1931; and the discussions by Professor Beard and
Messrs. Swope, Chase, Soule, and Smith,
supra, note 53 Concerning the bituminous
coal business,
see United States Coal Commission, Final
Report 1925, Part I, pp. 268, 269; "Opening New Mines on the Public
Domain: A Way of Order for Bituminous Coal," by Walter H. Hamilton
and Helen R. Wright, pp. 35-37; "The Case of Bituminous Coal," by
Walton H. Hamilton and Helen R. Wright, pp. 170-173, 263, 264;
Willard E. Atkins, et al., "Economic Behavior," (1931), c. XXII;
Senate Bill No. 2935, §§ 2, 8 (72d Congress), introduced by Senator
Davis, and report of hearings, U.S. Daily, March 15, 1932, p. 1.
Concerning petroleum and gas,
see Ralph H. Fuchs, "Legal
Technique and National Control of the Petroleum Industry"; J.
Howard Marshall and Norman L. Meyers, "Legal Planning of Petroleum
Production," 41 Yale Law Journal 33; Samuel H. Slichter, "Modern
Economic Society," 861, 862.
[
Footnote 55]
Compare Sumner H. Slichter, "Modern Economic Society"
(1931), pp. 872-888; Charles Whiting Baker, "Pathways Back to
Prosperity" (1932), pp. 59-61; Samuel Crowther, "A Basis for
Stability" (1932), pp. 3-17; J. Franklin Ebersole, "National
Planning," Bulletin of the Taylor Society, August, 1931; Virgil
Jordan, "Some Aspects of National Stabilization," Mechanical
Engineering, January, 1932; "What Price Stability," The Annalist,
October 9, 1931; Warren Bishop, "The Rain of Plans," The Nation's
Business, October, 1931; Myron W. Watkins, "The Economic Philosophy
of Anti-Trust Legislation," Annals of the American Academy of
Political and Social Science, January, 1930; Albert W. Atwood, "The
Craze for National Planning," Saturday Evening Post, March 19,
1932.
[
Footnote 56]
Compare Charles Warren, "The New "Liberty" under the
Fourteenth Amendment," 39 Harv.L.Rev. 431.
[
Footnote 57]
Compare Felix Frankfurter, "The Public and Its
Government," pp. 49-51.