LIBRARY 
 
 UNIVERSITY OF CALIFORNIA 
 DAVIS 
 
CHARLES E. HUGHES 
 
 THE STATESMAN AS SHOWN IN THE OPINIONS 
 OF THE JURIST 
 
CHARLES E. HUGHES 
 
 The Statesman as Shown 
 in the Opinions of the Jurist 
 
 BY 
 
 WILLIAM L. RANSOM 
 
 JUSTICE OF THE CITY COURT 
 OF THE CITY OF NEW YORK 
 
 NEW YORK 
 
 E. P. BUTTON & COMPANY 
 681 FIFTH AVENUE 
 
 LIBRARY 
 
 UNIVERSITY OF 
 
 T\A17TO, 
 
COPYRIGHT, 1916, 
 BY 
 
 E. P. DUTTON & COMPANY 
 
 Printed in the United States of America 
 
TO 
 MY WIFE 
 
PREFACE 
 
 In bringing together for publication, several 
 years ago, "The Constitutional Decisions of 
 John Marshall," the scholarly editor 1 made 
 reference to the fact that "save Washington, 
 Hamilton and Lincoln, no American stands 
 higher (than Marshall) as a constructive states 
 man in the work of the evolution of the Union, ' ' 
 and he added that "it is the peculiarity of his 
 work of statesmanship that practically with 
 out exception all of it found expression in the 
 course of judicial opinions as Chief Justice." 
 
 That great services of constructive National 
 statesmanship should thus have been rendered 
 in a judicial position and given expression 
 through judicial opinions, was not a casual cir 
 cumstance due alone to the ability of Marshall 
 and his contemporaries in the Supreme Court. 
 The creation of the Federal judiciary as a 
 separate department of government, and the 
 delegation to it of powers and duties transcend 
 ing the arbitrament of controversies of private 
 right, made the Supreme Court of the United 
 States all that Washington called it "the key- 
 
 '"The Constitutional Decisions of John Marshall, 77 edited, 
 with an Introductory Essay, by Joseph P. Cotton, Jr., of the 
 New York Bar. (1905.) 
 
 Vll 
 
viii PEEFACE 
 
 stone of our political fabric." DeTocqueville 
 found, eighty-one years ago, on his visit to 
 America, that the Supreme Court had been 
 "placed at the head of all known tribunals/' 
 and James Bryce later observed that "The Su 
 preme Court is the living voice of the Constitu 
 tion of the will of the people expressed in the 
 fundamental law." Entrusted with the duty of 
 determining co-ordinately, but finally so far as 
 the departments of government are concerned, 
 all questions of the meaning and requirements 
 of the Constitution and Federal laws ; entrusted 
 with the function, in behalf of the Nation, of 
 passing authoritatively upon those questions of 
 adjustment and relationship which give vitality 
 to the National power and solidarity to the 
 Union of States, the Supreme Court has con 
 tinued to be generally the most expert factor in 
 American statesmanship and the most accurate 
 expositor of the ultimate public opinion. Espe 
 cially as to questions of Constitutional inter 
 pretation, the trained judgment, detached from 
 local controversies too commonly called poli 
 tics, has carried an authority which needed no 
 finality of power to give it sanction; casual 
 Presidents and changing Congresses have been 
 in no position to speak so accurately or authori 
 tatively of fundamental questions of the Na 
 tional structure and the National power. The 
 result has been that, through the years, the 
 Supreme Court has embodied, more than either 
 the executive or the legislative departments of 
 
PKEFACE ix 
 
 government, those factors of accommodation 
 and adjustment which, under Constitutional 
 forms, have welded a workable National polity 
 from a Confederation of hesitant and mutually 
 distrustful States. Our framework of govern 
 ment and the powers committed to the judiciary 
 under it have made the Supreme Court the 
 exponent of the expanding Nationalism of each 
 succeeding generation, and the statesmanship 
 of the members of that revered tribunal has 
 been at least no less influential than that of the 
 leaders in legislative councils and administra 
 tive responsibility. 
 
 The impressive position of the Supreme 
 Court as an expert factor in the formulation of 
 a National outlook upon matters of fundamental 
 political philosophy and procedure, and its use 
 fulness as a continuing agency of adjustment 
 between the departments of government and be 
 tween State and Federal authority, have been 
 commented upon by accurate observers of the 
 American form of government. For example, 
 in the opening paragraph of his "Constitu 
 tional Law of the United States," Dr. von Hoist 
 pointed out the reasons why, under the Ameri 
 can system, the viewpoint of the jurist becomes 
 an indispensable factor in the activities of the 
 statesman, and why likewise the Federal jurist 
 must apply, to his interpretation of the charter 
 of government and the amplification of its ex 
 panding powers, the point of view of the con 
 structive statesman. "Like every constitution 
 
x PREFACE 
 
 which has, or can have, a real life," said he, 
 "that of the United States of America is a 
 result of actual circumstances of the past, and 
 not a product of abstract political theorising. 
 . . . Since the life of the people is the basis of 
 the Constitution and undergoes a steady devel 
 opment, the Constitution itself, quite apart 
 from any formal alterations, must have a cer 
 tain capacity for change, and this not the less 
 real because there is no formal statement of it 
 in the instrument itself. A Constitution which 
 resembles a Chinese shoe can suit only a nation 
 which has sunk into Chinese inertia. . . . If the 
 statesman is bound to be, in the practical dis 
 charge of his duties, a conscientious jurist, the 
 jurist must, in his work of examination and 
 testing, always keep in mind the point of view 
 of the statesman." In passing judgment, 
 therefore, upon any matter of the qualifications 
 or the public services of a member of the Su 
 preme Court, there is necessarily kept in mind, 
 not alone his skilled judgment in the decision of 
 controversies between man and man, but also 
 his outlook and vision upon National life and 
 National powers; and in forming estimate of 
 the statesman charged with legislative or execu 
 tive leadership, account must be taken of his 
 views of constitutional power and National 
 dominance, even though finality of interpreta 
 tion as to those matters is committed to the 
 judicial branch of government. The statesman 
 ship of the judicial officer and the judicial in- 
 
PREFACE xi 
 
 sight of President and legislator are each an 
 essential part of the effective inter-adjustments 
 of our Federal system, and many of the most 
 sound expressions of National thought and most 
 valuable guide-posts of National policy are to 
 be found in the reported decisions of the 
 Nation's great Court. 
 
 In selecting men to discharge the duties of 
 administrative or legislative positions in the 
 Federal sphere, there is often failure to take 
 into account their opinions upon basic questions 
 of governmental purpose and National power. 
 These are looked upon as "constitutional ques 
 tions ' ' ; they are thought of as committed to the 
 determination of the Courts alone. In point of 
 fact, however, the judiciary has only a power 
 of review and limitation, after the legislative 
 and executive branches have acted upon their 
 own opinions as to the powers denned and du 
 ties imposed by the organic law. President and 
 Congress, no less than the courts, have taken 
 oath to support and fulfil the Constitution; its 
 provisions are no less binding upon them than 
 upon the Supreme Court; the constitutional 
 opinions of the President and a majority of 
 Congress ordinarily blend with their views of 
 desirable policy in shaping the course of polit 
 ical action; and as to the overwhelming ma 
 jority of the matters dealt with by the Federal 
 government, the determinations of the executive 
 and legislative departments are final upon ques 
 tions of governmental power, duty and purpose, 
 
xii PEEFACE 
 
 and judicial review is not called into action. 
 
 The views held by a President or Senator, 
 for example, on questions of State and National 
 power under the Constitution, and on the per 
 missible scope of social-welfare legislation un 
 der the "police power," may be no less decisive 
 in their effect upon the policies of the govern 
 ment than as though those views were held and 
 declared as a member of the Supreme Court. 
 If the Executive endeavours to go beyond the 
 boundaries of National power as defined by the 
 Constitution, or if he endeavours to put in force 
 legislative measures at variance with the fun 
 damental spirit of our laws, the Supreme Court 
 is vested with power to check and curb, and 
 its determinations are final on the question 
 whether Executive proposals are in excess of 
 constitutional powers. Beyond the boundaries 
 as defined by the Supreme Court, the Executive 
 and Congress cannot go, without recourse to 
 the people as the repositories of the ultimate 
 power, through orderly amendment. But if a 
 timid Executive or halting Congress hold views 
 of National powers, duties, rights, and concep 
 tions of the proper boundaries of regulative 
 control in the public interest, which fall, it may 
 be, far short of the National concepts declared 
 by the Supreme Court, then the Constitutional 
 concepts of the President and Congress become 
 controlling and mark the limits of governmental 
 policy within that Administration. 
 
 To make the matter still more concrete : If a 
 
PREFACE xiii 
 
 President of the United States does not believe 
 that a nation-wide child-labor law is within the 
 scope of powers committed by the Constitu 
 tion to the National government, his view of the 
 Constitution prevents the enactment of such a 
 law, unless a two-thirds vote of Congress over 
 rides him or he changes his mind. Every mem 
 ber of the Supreme Court may believe that un 
 der the "commerce clause" of the Constitution 
 and in the exercise of the broad power of the 
 National government to act effectively for the 
 "public welfare" in connection with essentially 
 National concerns, a Federal child-labour law 
 would be within the power of Congress to enact 
 and of the President to sign and put in force; 
 but as long as the President believes that the 
 safeguarding of the health and robustness of 
 children in industry has been left by the Consti 
 tution in the hands of the States, his veto gives 
 finality to his view of the Constitution and the 
 National powqr, unless a sufficient preponder 
 ance of the members of each House of Congress 
 votes to overcome his adverse view. If the 
 President and Congress hold a narrower view 
 than does the Supreme Court as to the boun 
 daries of National power and action, that is 
 within their discretion, and they are account 
 able only to voters who may not have taken 
 those important factors into account in electing 
 them to administrative or legislative responsi 
 bility. A "strict-construction," "States- 
 rights" President may give effectiveness to a 
 
xiv PREFACE 
 
 cramped and devitalised view of the Nation un 
 der the Constitution, and may give finality to 
 such a view in the face of a contrary outlook 
 on the part of the highest judicial authority in 
 the land. On the contrary, a statesman who, as 
 von Hoist phrased it, is "in the practical dis 
 charge of his duties, a conscientious jurist, " 
 with a broad, sound concept of the adaptability 
 of the "unchanging provisions" of the Federal 
 Constitution "to the infinite variety of the 
 changing conditions of our National life, ' ' is in 
 superb position to make effective the important 
 constructive reforms which he undertakes. 
 
 These factors which I have indicated give rea 
 son for especial popular interest at this time in 
 the opinions rendered by Charles Evans 
 Hughes during the period of his service in the 
 Supreme Court of the United States. From 
 October of 1910 to June of 1916, he was a mem 
 ber of that tribunal, and dealt day by day with 
 the epoch-making issues of National power and 
 policy brought into its chamber. During those 
 eventful years, the Supreme Court was fulfil 
 ling more than its usual part of ' ' constructive 
 statesmanship in the work of the evolution of 
 the Union, ' ' and it is true of Mr. Hughes during 
 those years, as it was true of John Marshall 
 throughout his period of great service to the 
 Nation, that "practically without exception " 
 "all of his work of statesmanship" "found ex 
 pression in the course of judicial opinions." 
 
PEEFACE xv 
 
 During nearly six years, practically the sole 
 record of the views of Mr. Hughes upon Na 
 tional problems and his point of approach to 
 their solution the record of his constructive 
 statesmanship during five important years is 
 of necessity to be found in the reported deci 
 sions of the Supreme Court of the United 
 States. When it is proposed by some to trans 
 fer Mr. Hughes from National service in a judi 
 cial position to the supreme executive position 
 of the land, in which his views on constitutional 
 questions would by his oath be no less binding 
 upon him than heretofore, it would seem to be 
 of importance that the public should have 
 means of becoming familiar with those views 
 and with his outlook upon public questions and 
 with the way in which his mind and heart work 
 when he is brought to face vital issues of Na 
 tional policy. From the bound volumes of these 
 reports of the decisions of the Supreme Court 
 should be brought to the people of the United 
 States adequate and accurate information as to 
 the views and vision of Mr. Hughes upon gov 
 ernmental problems, as disclosed by his unre 
 mitting daily work in that Court. That is the 
 purpose of this volume. 
 
 Of course, no opinion written or decision par 
 ticipated in by Mr. Hughes as a member of the 
 Supreme Court should now be looked upon by 
 any one as reason for the giving or withholding 
 of support in the political arena. The outcome 
 pf a judicial proceeding cannot with propriety 
 
xvi PKEFACE 
 
 be regarded as reason for the political reward 
 or punishment of a judicial officer open-mind- 
 edly participating therein in the course of duty. 
 The work of an independent judiciary has been, 
 and will continue to be, kept free from the pos 
 sible operation of ulterior influence of that 
 kind. At the same time, for reasons which 
 have, I trust, been sufficiently indicated, the 
 judicial utterances of Mr. Hughes are a legiti 
 mate subject of analysis and consideration at 
 this juncture, in so far as they disclose the 
 workings of his mind, his outlook upon Na 
 tional problems, and his manner of reasoning 
 as to problems which come before the Chief 
 Executive before they are possibly brought be 
 fore the Supreme Court. His judicial opinions 
 upon Constitutional questions compose, thus 
 far, his chief contribution to National states 
 manship a very notable contribution, indeed 
 and the electorate will find no reason now for 
 excluding Mr. Hughes' memorable opinions 
 from its own available sources of information 
 as to the manner of man he is and the kind of a 
 President he would be likely to be. 
 
 The chapters which follow in this volume do 
 not undertake to establish or disprove the 
 qualifications of Mr. Hughes for the Presidency 
 of the United States, much less to argue for or 
 against his election. The purpose is to present 
 information to make more generally available 
 a quantity of information which otherwise 
 could be found only through delving through 
 
PEEFACE xvii 
 
 many volumes of usually dusty law-books and 
 to present this information in such form as to 
 make it understandable by a reader without 
 legal training. To this end, all of the opinions 
 prepared by Justice Hughes have been brought 
 together and summarised within a single vol 
 ume, and those which deal with questions of Na 
 tional power and policy, as distinguished from 
 the adjudication of controversies based upon 
 private law, have been quoted from at length. 
 An effort has also been made to accompany each 
 such quotation with a fair statement of rele 
 vant facts, helpful in grasping the public bear 
 ings of the views uttered, and then to let the 
 opinions themselves tell their own story and 
 guide the reader to his own impressions of the 
 man who wrote them. I believe that each 
 reader will form a very definite impression of 
 Mr. Hughes from a careful reading of his judi 
 cial opinions, as quoted in the present volume. 
 You may or may not like the manner of man 
 disclosed; you may or may not feel that he 
 should be chosen for the supreme executive 
 office of the land this volume is in fact con 
 cerned with none of these queries. Its purpose 
 will be fulfilled if the lay reader finds fairly 
 presented herein the information on which he 
 can base a better estimate of Mr. Hughes. 
 
 The title of the book indicates that it deals 
 with a man, his service in the Supreme Court, 
 and the opinions which he rendered as a mem 
 ber of that revered tribunal. That is at least 
 
xviii PEEFACE 
 
 the pretext, if not altogether the theme. In a 
 broader sense, the volume is a record of an in 
 stitution during nearly six important years of 
 its history, and I shall be disappointed if any 
 reader gains from these pages only an estimate 
 of one of the members of that Court, and fails 
 to gather an impression of the Court itself, as a 
 great, unified working force for the develop 
 ment of National institutions and the conserv 
 ing to the communities of those concerns with 
 which they can most effectively deal. If there 
 is much in the judicial utterances of Justice 
 Hughes which reflects accurately the best 
 thought and policy of the Eepublic as embodied 
 in its organic law, it is because the Supreme 
 Court itself performs accurately and accep- 
 ably that function of interpretation and does 
 its full part in making republican institutions 
 the available instruments of justice under law. 
 This volume has of course been prepared 
 without the knowledge of Mr. Hughes or those 
 charged with the conduct of his campaign. 
 Conceivably they would not wish for its pub 
 lication. It has of necessity been made ready 
 in the scant leisure permitted by daily tasks 
 which demanded first consideration, and I am 
 indebted to Charles G. Keutgen, of the New 
 York Bar, for aid in the scrutiny of manuscript 
 and proofs. 
 
 WILLIAM L. EANSOM. 
 New York City, July 20, 1916. 
 
CONTENTS 
 
 CHAPTER PAGE 
 
 PREFACE vii 
 
 TABLE OF CASES * . xxi 
 
 I. INTRODUCTION 1 
 
 II. NATIONAL POWER OVER NATIONAL INTERESTS . 15 
 
 III. THE DOCTRINE OF REASONABLE RELATIONSHIP 74 
 
 IV. THE SAFEGUARDS AGAINST ADULTERATION AND 
 
 MlSBRANDING OF FOODS AND DRUGS . . 101 
 
 V. THE EIGHT-HOUR WORKDAY AND COMPENSATION 
 FOR OCCUPATIONAL DISABILITIES ARISING 
 
 FROM TRADE RISKS 127 
 
 VI. "THE PAPER-BOX FACTORY GIRL AND THE CON 
 STITUTION " 136 
 
 VII. COMPELLING CHOICE BETWEEN WITHDRAWAL 
 FROM TRADES-UNION MEMBERSHIP AND DIS 
 CHARGE FROM EMPLOYMENT .... 146 
 VIII. THE RIGHTS AND INDUSTRIAL STATUS OF WOMEN 154 
 IX. FRANCHISE OBLIGATIONS AND VESTED RIGHTS 164 
 X. PREJUDICIAL RESTRAINT OF TRADE AND THE 
 NEED FOR CERTAINTY IN THE ANTI-TRUST 
 
 ACTS 173 
 
 XI. THE CASE OF LEO M. FRANK AND A PUZZLING 
 
 QUESTION OF NATIONAL RESPONSIBILITY . 191 
 XII. COMMUNAL PROPERTY AND RELIGIOUS ORDERS . 205 
 
 XIII. THE "SEPARATE COACH" LAW AND THE SLEEP 
 
 ING-CAR .213 
 
 XIV. STANDARDS OF OFFICIAL RESPONSIBILITY AND THE 
 
 EFFICIENCY OF ADMINISTRATIVE ADJUST 
 MENTS , . 221 
 
 XV. THE MAN WHO BROKE His WRITTEN CONTRACT 
 WITHOUT RE-PAYING His EMPLOYER WHAT 
 
 HE HAD BORROWED 235 
 
 XVI. AMERICA AND THE IMMIGRANT OF TO-DAY AND 
 
 YESTERDAY . . * . * 248 
 xix 
 
XX 
 
 CONTENTS 
 
 CHAPTKB PAGE 
 
 XVII. THE COURTS AS ll EXPERT AGENTS OF DEMOC 
 RACY" ........ 262 
 
 APPENDIX "A." TABLE OF OPINIONS WRITTEN 
 
 BY JUSTICE HUGHES FOR THE COURT . . 282 
 
 APPENDIX "B." TABLE OF DISSENTS BY JUS 
 TICE HUGHES FROM THE MAJORITY 'ACTION 328 
 
 INDEX . , 347 
 
TABLE OF CASES 
 
 PAGE 
 
 Adair v. U. S., 208 U. S. 161 146, 147, 148, 153 
 
 Adams Express Co. v. New York, 232 U. S. 14 73 
 
 Aluminum Co. v. Eamsey, 222 U. S. 251 134 
 
 American Lithograph Co. v. Werckmeister, 221 U. S. 603 272 
 
 Anderson v. Pacific Coast SS. Co., 225 U. S. 187 73 
 
 Arizona & New Mexico Ey. Co. v. Clark, 235 U. S. 669 ... 274 
 
 Atlantic Coast Line v. Georgia, 234 U. S. 280 53 
 
 Atlantic Coast Line v. Eiverside Mills, 219 U. S. 186 87 
 
 Bailey v. Alabama, 219 U. S. 219 235-247 
 
 Bailey v. The State, 158 Alabama 25 236 
 
 Baltimore & Ohio E. E. Co. v. Interstate Commerce Com 
 mission, 221 U. S. 612 127, 128 
 
 Bauer & Co. v. O'Donnell, 229 U. S. 1 183 
 
 Bosley v. McLaughlin, 236 U. S. 385 162, 163 
 
 Brown v. Elliott, 225 U. S. 402 271 
 
 Burt v. Oneida Community, 137 N. Y. 346 211 
 
 Camfield v. U. S., 167 U. S. 518 77 
 
 Champion v. Ames, 188 U. S. 331 65 
 
 Chicago, B. & Q. Ey. Co. v. McGuire, 219 U. S. 549. .79, 88, 134 
 
 Chicago, M. & St. P. Ey. Co. v. Iowa, 233 U. S. 334 73 
 
 Chicago, M. & St. P. Ey. v. Minneapolis, 232 U. S. 430.. 167 
 
 Chicago, E. I. & P. Ey. Co. v. Arkansas, 219 U. S. 453 130 
 
 Chiles v. Chesapeake & Ohio Ey. Co., 218 U. S. 71 217 
 
 City of Memphis v. Cumberland Tel. & Tel. Co., 218 U. S. 
 
 624 275 
 
 City of Owensboro v. Cumberland Tel. & Tel. Co., 230 U. S. 
 
 58 168 
 
 Collins v. Kentucky, 234 U. S. 634 171, 221 
 
 Coppage v. Kansas, 236 U. S. 1 147, 148 
 
 Dalmas v. Kemble, 215 Pennsylvania State Eeports 410. .. 278 
 
 Dreier v. U. S., 221 U. S. 394 272 
 
 Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 
 
 373 179, 182 
 
 Engel v. O'Malley, 219 U. S. 128 249 
 
 Ex parte Eiley, 94 Alabama 82 236 
 
 Ferris v. Frohman, 223 U. S. 424 185 
 
 Frank v. Mangum, 237 U. S. 309 191-203 
 
 Fraternal Mystic Circle v. Snyder, 227 U. S. 503 269 
 
 Goesele v. Brineler, 14 How. (N. Y.) 589 211 
 
 xxi 
 
xxii TABLE OF CASES 
 
 PAGE 
 
 Graham v. West Virginia, 224 U. S. 616 270 
 
 Grand Trunk W. By. Co. v. South Bend, 227 U. S. 544. .. 170 
 
 Grant v. U. S., 227 U. S. 74 272 
 
 Hall v. De Cuir, 95 U. S. 485 218 
 
 Hawley v. Walker, 232 U. S. 718 127, 141, 145 
 
 Heim v. McCall, 239 U. S. 175 259 
 
 Henry Co. v. Dick Co., 224 U. S. 1 180 
 
 Herencia v. Guzman, 219 U. S. 44 269 
 
 Hipolite Egg Co. v. U. S., 220 U. S. 45 66, 119 
 
 Hoke v. U. S., 227 U. S. 308. 67 
 
 Houston & Texas By. Co. v. U. S., 234 U. S. 342 18, 49 
 
 Illinois Central K. E. Co. v. Skaggs, 240 U. S. 66 269 
 
 International Harvester Co. v. Kentucky, 234 U. S. 216. .. 178 
 
 Ives v. South Buffalo Ey. Co., 201 N. Y. 271 76 
 
 Kerfoot v. Farmers & Merch. Bk., 218 U. S. 281 5 
 
 Kiernan v. Portland, Oregon, 223 U. S. 151 227 
 
 Los Angeles Switching Cases, 234 U. S. 294 230 
 
 Louisiana Ey. & Nav. Co. v. New Orleans, 235 U. S. 164. . 166 
 
 Louisville & N. E. E. Co. v. Garrett, 231 U. S. 298 92, 230 
 
 Louisville, etc., Ey. Co. v. Mississippi, 133 U. S. 587 218 
 
 Luria v. U. S., 231 U. S. 9 257 
 
 McCabe v. Atchison, Topeka & S. F. Ey. Co., 235 U. S. 
 
 151 213-220 
 
 Memphis v. Cumberland Tel. & Tel. Co., 218 U. S. 624 275 
 
 Miller v. Wilson, 236 U. S. 373 128, 145, 162, 163 
 
 Minnesota Bate Cases, 230 U. S. 352. . .15, 17, 19, 23, 53, 89 
 
 Missouri & Kan. Ey. Co. v. City of Olathe, 222 U. S. 187. . 167 
 
 Missouri, K. & T. Ey. Co. v. U. S., 231 U. S. 118 130 
 
 Mobile, etc., B. B. Co. v. Turnipseed, 219 U. S. 35 134 
 
 Muller v. Oregon, 208 U. S. 412 127, 162, 163 
 
 Mutual Loan Co. v. Martell, 222 U. S. 225 161 
 
 New York Electric Lines Co. v. Empire City Subway Co., 
 
 235 U. S. 179 164 
 
 New York v. Becker, 241 U. S. 7 
 
 Noble State Bank v. Haskell, 219 U. S. 104 77 
 
 Norfolk & Western Ey. Co. v. Holbrook, 235 U. S. 625 269 
 
 Northern Pac. Ey. Co. v. North Dakota, 236 U. S. 595... 89 
 
 Owensboro v. Cumberland Tel. & Tel. Co., 230 U. S. 58. . . 168 
 
 Pacific Telephone Co. v. Oregon, 223 U. S. 118 227 
 
 People v. Marcus, 185 N. Y. 257 147 
 
 Philadelphia, B. & W. By. Co. v. Schubert, 224 U. S. 603 . . 134 
 
 Philadelphia Co. v. Stimson, 223 U. S. 605 73 
 
 Plessy v. Ferguson, 163 U. S. 540 216 
 
 Port Bichmond Ferry v. Hudson County, 234 U. S. 317. .. 73 
 
 Price v. Illinois, 238 U. S. 446 117 
 
 Purity Extract Co. v. Lynch, 226 U. S. 192 122 
 
 Eeaves v. Ainsworth, 219 U. S. 296 224, 225 
 
 Eussell v. Sebastian, 233 U. S. 195 167, 168 
 
TABLE OF CASES xxiii 
 
 PAGE 
 
 Santa Fe Ey. Co. v. Grant Bros., 228 U. S. 177 185 
 
 Sault Ste. Marie v. International Transit Co., 234 U. S. 
 
 333 73 
 
 Savage v. Jones, 225 U. S. 501 121 
 
 Schwartz v. Duss, 187 U. S. 8 211 
 
 Seven Cases of Eckmon's Alterative v. U. S., 221 U. S. 
 
 488 6, 65, 105 
 
 Slaughter House Cases, 16 Wall. (U. S.) 36 77 
 
 Slocum v. N. Y. Life Ins. Co., 228 U. S. 364 277 
 
 Standard Oil Co. v. U. S., 221 U. S. 1 175 
 
 Standard Stock Food Co. v. Wright, 225 U. S. 540 122 
 
 St. Benedict Order v. Steinhauser, 234 U. S. 640 205-211 
 
 Stettler v. Oregon (not yet decided) 138 
 
 Sturges v. Beauchamp, 231 U. S. 320 83, 131 
 
 Taney v. Penn Bank, 232 U. S. 174 186 
 
 Tang Tun v. Bdsell, 223 U. S. 673 260 
 
 Thaddeus Davids Co. v. Davids, 233 U. S. 461 186, 187 
 
 Thompson v. Thompson, 218 U. S. 611 5, 154, 156 
 
 Toney v. The State, 141 Alabama 120 236 
 
 Truax v. Raich, 239 U. S. 33 251-257 
 
 Union Lime Co. v. Chicago & N. W. Ey. Co., 233 U. S. 
 
 211 171 
 
 IT. S. v. American Tobacco Co., 221 U. S. 106 175 
 
 U. S. v. Birdsall, 233 U. S. 223 222 
 
 U. S. v. Citroen, 223 U. S. 424 185, 221 
 
 U. S. v. Coca Cola Co., 241 U. S. 265 106 
 
 U. S. v. Johnson, 221 U. S. 488 6, 65, 101 
 
 U. S. v. Midwest Oil Co., 236 U. S. 459 223 
 
 U. S. v. Eoss, 239 U. S. 530 224 
 
 U. S. v. Smull, 236 U. S. 405 222 
 
 Wilmington Transp. Co. v. California E. E. Commission, 
 
 236 U. S. 151 73 
 
 Wilson v. U. S., 221 U. S. 361 272 
 
CHARLES E. HUGHES 
 
 THE STATESMAN AS SHOWN IN THE OPINIONS 
 OF THE JURIST 
 
CHAPTER I 
 
 lETTKODUCTIOET 
 
 CHAELES EVANS HUGHES was appointed to the 
 Supreme Court by President Taft on April 25, 
 1910. He was then nearing the close of his 
 second term as Governor of New York, having 
 been first elected in 1906. Before becoming 
 Governor, he had been a practising lawyer in 
 New York City since 1884, with the exception 
 of the years 1891 to 1893, when he was a pro 
 fessor in the Cornell University College of Law 
 at Ithaca. His professional eminence had re 
 ceived public recognition through his service in 
 1905 and 1906 as counsel to the special investi 
 gating bodies of the New York Legislature, 
 known as the Stevens Gas and Electric Light 
 ing Committee and the Armstrong Life Insur 
 ance Investigation Committee. In 1906 he had 
 been designated as one of the special counsel of 
 the United States Department of Justice to 
 initiate steps for the prosecution of the so- 
 called coal-owning and coal-carrying railroads 
 for violations of the Anti-Trust and Anti-Ee- 
 bate laws. As Governor of New York, he had 
 taken a large part in the draughtsmanship, as 
 well as advocacy, of constructive statutes, such 
 
 l 
 
2 CHAELES E. HUGHES 
 
 as those creating the New York Public Service 
 Commissions and those formulating more ade 
 quate standards for the conduct of the affairs 
 of life insurance companies. He had also been 
 responsible for the creation and personnel of 
 the so-called Wainwright Commission, whose 
 monumental inquiry into the social aspects of 
 occupational injury and disease was the start 
 ing-point of the " social- justice ' ' campaign in 
 many States. Governor Hughes worked in the 
 closest co-operation with the "Wainwright Com 
 mission throughout its exhaustive labours, and 
 gave executive approval to the Workmen's 
 Compensation Act of 1910, recommended by the 
 Commission as a frankly experimental begin 
 ning of progress in that domain of awakened 
 social conscience. 
 
 The Senate of the United States, on May 2, 
 1910, confirmed the appointment of Mr. Hughes, 
 but the October Term of 1909 was then nearing 
 its close and Mr. Hughes was in the midst of 
 important tasks as Governor of New York. 
 With the approval of the President, he did not 
 resign as Governor or take his seat as a member 
 of the Supreme Court, until October 10th. The 
 vacancy thus filled was that created by the 
 death of Justice David J. Brewer of Kansas, 
 who had died on March 28, 1910. An interest 
 ing commentary upon the change which a cen 
 tury has brought in the prestige and rank of 
 the Supreme Court is afforded by the fact that 
 
INTRODUCTION 3 
 
 its first Chief Justice resigned to become Gov 
 ernor of New York, after having served as 
 Minister to England for a year without with 
 drawal from his judicial office, and that Oliver 
 Ellsworth, whom President Washington subse 
 quently appointed as Chief Justice, spent two 
 years abroad as Commissioner to France, like 
 wise without resigning the Chief Justiceship. 
 As Willoughby says, 1 "a position on its bench 
 was then considered not as important as many 
 positions now ranking far below it. Such posi 
 tion was not even considered incompatible with 
 the holding of another office at the same time." 
 The founders of the republic felt that, in com 
 mon with any other citizen, a member of the 
 Supreme Court might be called to any other 
 post of public service as the public need arose, 
 with or without retirement from his judicial 
 place, as the circumstances seemed to warrant. 
 This view gave no sanction, however, to mani 
 fest political bias on the part of a member of 
 the Nation's highest Court, as was shown by 
 the failure of the Senate to confirm Washing 
 ton's appointment of Rutledge of North Caro 
 lina as successor of John Jay in the Chief 
 Justiceship. After Rutledge had received in 
 formation of his appointment, he delivered a 
 speech which disclosed an intense partisanship, 
 and this was forthwith recognised as disquali- 
 
 Court of the U. S.," by Westel W. 
 Willoughby. (Johns Hopkins University Studies: 1890.) 
 
4 CHARLES E. HUGHES 
 
 fying him for the place for which he had been 
 named. 
 
 At the time Mr. Hughes was translated from 
 executive to judicial responsibility, he was 48 
 years of age, and thus by nine years the young 
 est member of the Court. Chief Justice Fuller 
 of Illinois had died on July 4, 1910, and Justice 
 John Maynard Harlan of Kentucky presided 
 over the Court from the opening of the October 
 Term until December 19th, when Justice 
 Edward Douglass White of Louisiana took the 
 oath as Chief Justice, by appointment of Presi 
 dent Taft. At the time Mr. Hughes entered 
 upon his duties, the Court was made up of 
 Associate Justices Harlan, "White, Joseph Mc- 
 Kenna of California, Oliver Wendell Holmes of 
 Massachusetts, William R. Day of Ohio, 
 William Henry Moody of Massachusetts, Hor 
 ace Harmon Lurton of Tennessee. Justice 
 Moody, however, had suffered for some months 
 from a disabling illness, and on November 20th 
 accepted retirement under a special Act of Con 
 gress. The virtual re-constituting of the per 
 sonnel of the Court during the year 1910 was 
 completed by the appointment, on December 
 12th, of Justice White to be Chief Justice, of 
 Joseph Rucker Lamar of Georgia as successor 
 of Justice Moody, and Willis Van Devanter of 
 Wyoming as successor of Mr. White as Asso 
 ciate Justice. The Court thus had again its full 
 quota of members, and was composed of Chief 
 Justice White and Associate Justices Harlan, 
 
INTRODUCTION 5 
 
 McKenna, Holmes, Day, Lurton, Hughes, Van 
 Devanter, and Lamar. This rugged and well- 
 balanced working organisation was unbroken 
 until the death of Justice Harlan, on October 
 14, 1911. On March 18, 1912, Mahlon Pitney, 
 Chancellor of New Jersey, took his seat as Jus 
 tice Harlan 's successor. On July 12, 1914, Jus 
 tice Lurton died during vacation, and at the 
 opening of the October Term of that year, At 
 torney-General James Clark McReynolds be 
 came a member of the Court, by appointment of 
 President Wilson. On January 2, 1916, Justice 
 Lamar died. Louis Dembitz Brandeis of Bos 
 ton took seat as his successor, immediately be 
 fore Justice Hughes tendered his resignation 
 on the tenth of June. 
 
 The first reported opinion written by Justice 
 Hughes was that in the case of Kerfoot against 
 the Farmers' and Merchants' Bank, reported in 
 the 218th volume of the United States Reports, 
 at page 281. This case was argued before the 
 Court on October 25, 1910, fifteen days after 
 he went on the bench ; the opinion prepared by 
 Justice Hughes was handed down on November 
 7th, less than two weeks later. His first re 
 ported dissent came in the case of Thompson 
 against Thompson? on December 12th of that 
 year. In this case Justices Harlan, Holmes and 
 Hughes found themselves unable to accept the 
 majority opinion that a wife could not main- 
 
 *218 U. S. Keports, page 611. 
 
6 CHAELES E. HUGHES 
 
 tain an action in the District of Columbia 
 against her husband, for damages for an as 
 sault and battery committed against her person, 
 and Justices Holmes and Hughes concurred in 
 Justice Harlan's trenchant assertion of a con 
 trary opinion. The first dissenting opinion 
 written by Justice Hughes was in the case of 
 United States against Johnson, 2 on May 29, 
 1911. In this dissent, concurred in by Justices 
 Harlan and Bay, Justice Hughes contended that 
 the "mis-branding" provisions of the Food & 
 Drugs Act of 1906 applied to false statements 
 of facts as to the curative qualities of articles 
 sold as drugs and medicines, and that "mis- 
 branding" did not relate merely to false state 
 ments of the identity of the article, for exam 
 ple, its strength, quality, purity, and the like. 
 The majority of the Court felt otherwise, but 
 at the beginning of 1916 Justice Hughes was 
 able to write for a unanimous Court an opinion 
 upholding the constitutionality of the Sherley 
 Amendment of 1912 to the Food & Drugs Act, 
 by which amendment Congress had given 
 prompt legislative sanction to the view ex 
 pressed by the minority in the Johnson case and 
 had unmistakably declared that the penalties 
 against mis-branding should be deemed applic 
 able to any "false and fraudulent" statements 
 on the package or label "regarding the cura 
 tive or therapeutic effect of such article" sold. 
 The last opinion written by Justice Hughes 
 
 *221 U. S. Reports, page 488. 
 
INTRODUCTION 7 
 
 as a member of the Supreme Court was handed 
 down on June 12, 1916, the Monday following 
 his resignation. This opinion x dealt with the 
 paramountcy of New York State fish and game 
 regulations over the fishing rights of "Western 
 New York Indians on tribal lands alienated by 
 them with attempted reservation of hunting 
 and fishing rights. It had been prepared by 
 Justice Hughes and approved by his colleagues 
 before his resignation. " After that event," so 
 states the note which precedes the opinion as 
 reported in volume 241 of the United States 
 Reports, "it was again considered, re-adopted, 
 and delivered by White, Ch. J." 
 
 From the first, he had made clear his belief 
 and desire that his judicial work was his life 
 work, worthy of the utmost energy and ability 
 at his command, and in a number of unmis 
 takable ways he had made known his desire that 
 friends and opponents alike should cease to 
 think of him in any political connection. He 
 wished to remain upon the Supreme Court; 
 he believed that he ought to be permitted to re 
 main there ; and at no time did he deviate in any 
 discernible degree from that wish and that be 
 lief. His concise, matter-of-fact opinions, free 
 from any trace of utterance which could be re 
 garded as written for the public ear or for any 
 purpose foreign to the necessities of the con 
 troversy at bar, tend to refute any suggestion 
 
 *New York vs. Becker (241 U. S. Eeports . 
 
8 CHAELES E. HUGHES 
 
 that at any time from October of 1910 to June 
 of 1916 was there a willingness on his part to 
 be counted a factor in future political calcula 
 tions. On repeated occasions, he made known 
 his insistent opposition to the use of his name 
 in connection with the presidential nomination 
 which he had deliberately placed aside in ac 
 cepting the appointment tendered by President 
 Taft. With one of his predecessors, 1 appointed 
 to the Supreme Court by President Lincoln, 
 Justice Hughes believed, however, that "the 
 Chief Magistracy of the Republic should 
 neither be sought nor declined by any American 
 citizen," especially at such a time of National 
 difficulty as was presented in June of 1916 ; he 
 felt that the citizenship of the Nation had the 
 right to summon to the Presidency any man in 
 the land, and that no man had the right to place 
 his own preference for a present post of service 
 above the right of the people to requisition for 
 the Presidency the best ability at their com 
 mand. He made known his own preference for 
 remaining in the Supreme Court, his view that 
 it was for him the highest post of service to the 
 Nation, and his belief that nothing should be 
 done to interrupt his work in that tribunal ; but 
 when the time and the summons came, he said, 
 with perfect truthfulness : 
 
 1 Justice David Davis of Illinois, nominated by the Labor 
 Beform Party in 1872. In 1877, Justice Davis resigned from 
 the Supreme Court to accept election to the U. S. Senate from 
 Illinois. 
 
INTRODUCTION 9 
 
 I have not desired the nomination. I have 
 wished to remain on the bench. But in this 
 critical period in our National history, I recog 
 nise that it is your right to summon and that it 
 is my paramount duty to respond. ... I 
 should have been glad to have had that respon 
 sibility placed upon another. ... I have re 
 signed my judicial office. ... I accept the 
 nomination. 
 
 On June 10, 1916,^ his resignation terminated 
 the judicial service begun on October 10, 1910. 
 
 During this period of approximately five 
 years and eight months ' service in the Supreme 
 Court, and within the twenty-four volumes of 
 official reports numbered from two hundred and 
 eighteen to two hundred and forty-one, Justice 
 Hughes prepared 150 opinions which were ren 
 dered as the opinions of the Court, and in only 
 nine instances was there dissent from his opin 
 ion as prepared. In but three instances did 
 more than one Justice dissent. 
 
 He could not with accuracy be called a ' * dis 
 senting judge." Throughout his judicial 
 career, there was no trace of that showy isola 
 tion of individual opinion, whose reverberating 
 sentences have sometimes shaken public con 
 fidence in the certainty of legal principles. 
 On only thirty occasions did he find himself 
 aligned with a minority of the Court, and in 
 only six of those instances did he write the 
 dissenting opinion. In fourteen of the thirty 
 occasions, he concurred in dissenting opinions 
 
10 CHARLES E. HUGHES 
 
 prepared by men long his seniors in the Court ; 
 and in six instances he joined with colleagues 
 in dissenting without filing memoranda of rea 
 sons. When he did dissent, it was usually with 
 large minorities and on close divisions ; in about 
 two instances throughout his service on the 
 bench was he alone in declaration of variance 
 from the majority view. 
 
 In the appendices of this volume will be found 
 a complete resume 1 of all the opinions which 
 he wrote in behalf of the Court during his 
 period of service on the bench, and also an 
 equally interesting table 2 of summary of the 
 controversies as to which he found himself 
 [^aligned with a minority of the Court. 
 
 He was in fact, if all indications of the man 
 and his work may be accepted as indicating a 
 conclusion, what may be termed a "team-work 
 judge." He worked in close co-operation and 
 fellowship with his associates, in that task 
 which he often referred to as "in a democracy 
 . . . the highest privilege of vocation." To 
 him were assigned many of the cases requiring 
 an unusual amount of physical as well as in 
 tellectual labour of the most exacting sort, and 
 he brought to that work an incisive and ana 
 lytical mind, a conscience sensitive to funda 
 mental right, and what Mr. Cotton has called 
 "so sound a common sense for the working of 
 legal theory, so just an instinct for the National 
 
 1 See page 282, post. a See page 328, post. 
 
INTRODUCTION 11 
 
 welfare, and so austere and unswerving a judi 
 cial fairness and openness of mind." 
 
 He displayed fl^Jbroad^_and sympathetic 
 knowledge of human affairs, and that knowl 
 edge was Ms guidance, rather than any pre 
 conceptions of social, economic or political the 
 ory. Notably along lines which will be set out 
 in later chapters of this volume, he made a 
 substantial and valuable contribution to the 
 orderly development of American law, and he 
 did it by working incessantly to make judicial 
 processes effective in the application of funda 
 mental concepts to new conditions. His opin 
 ions were clear and rugged; they teem with 
 facts, details, corroboration gained from au 
 thoritative sources far outside the law books; 
 they are deficient in any display of vain learn 
 ing and mere erudition for its own sake, which 
 might make them more attractive to a lay 
 reader but less compact in dealing with the 
 essential issues. 
 
 With hardly an exception, his opinions reveal 
 a man who is looking at actualities and is fac 
 ing forward. His judicial statesmanship as 
 revealed by his opinions meets fully Burke 's 
 definition : 
 
 A disposition to preserve, and an ability to 
 improve taken together, would be my standard 
 of a statesman. 
 
 And he also realised with Burke that "a state 
 without means of change is without the means 
 
 1 
 
12 CHARLES E. HUGHES 
 
 of its own conservation." The free play of his 
 compact and incisive reasoning touched many 
 topics copyright law, the patient examination 
 of the tribal records on which rest titles of the 
 lands of Indian wards, bankruptcy and commer 
 cial law, the simplification of procedure, taxa 
 tion, the franchises and rates of public service 
 corporations, and many others but his great 
 and memorable service was in re-definition and 
 application of the boundaries of State and 
 National authority, and in welding together 
 anew the economic and political elements of a 
 dominant Nationalism. 
 
 It could with propriety be said of him, as it 
 was said of John Marshall by Mr. Bryce, that 
 
 He grasped with extraordinary force and 
 clearness the cardinal idea that the creation of 
 ' a National government implies the grant of all 
 , such subsidiary powers as are requisite to the 
 effectuation of its main powers and purposes, 
 but he developed and applied this idea with so 
 much prudence and sobriety, never treading on 
 purely political ground, never indulging in the 
 temptation to theorise, but content to follow 
 out as a lawyer the consequences of legal prin 
 ciples, that the Constitution seemed not so much 
 to rise under his hands to its full stature, as 
 to be gradually unveiled by him until it stood 
 revealed in the harmonious perfection of the 
 form which its framers had designed. 
 
 Justice Hughes vindicated afresh the ade 
 quacy and practicability of the Constitutional 
 
INTRODUCTION 13 
 
 concepts of the boundaries of State and Na 
 tional action ; he established in concrete fashion 
 the effectiveness of the historic concepts of con 
 trol ; he answered acceptably a. challenge which 
 the complexity of new transportation and in 
 dustrial problems seemed for a time to make to 
 the Federal system. 
 
 He was "a team-work judge, " not an unrea 
 soning- adherent of individual opinion. Per 
 haps the best thing that can be said about his 
 work, under all the conditions of the National 
 life of the past five years, is that it does not, 
 and was not made to, stand out in any way 
 from the trend of policy and decision of the 
 Court as a whole. This record of his opinions 
 and utterances is almost equally a record of 
 the opinions and utterances of the Court as a 
 whole. JiM^wag^ progressive and forward- 
 looking, so were M$ colleagues. The great 
 issues brought before the Court were threshed 
 out in its conferences, and thereby was devel 
 oped a patriotic unity and agreement of view 
 which has fortified both the Court and the Con 
 stitution in public confidence. There may be 
 understanding of what Justice Hughes meant, 
 in saying before the New York County Law 
 yers' Association in 1911, that 
 
 In the conferences of the Justices of the Su 
 preme Court of the United States, there is ex 
 hibited a candour, a comprehensiveness, a sin 
 cerity, and a complete devotion to their task, 
 that I am sure would be most gratifying to the 
 
14 CHARLES E. HUGHES 
 
 entire people of the Union, could they know 
 more intimately what actually takes place. 
 
 And we may understand what former Justice 
 John Archibald Campbell meant in saying, in 
 the course of that intimate description of the 
 work and conferences of the Court which is to 
 be found in his remarks at the exercises in com 
 memoration of Justice Benjamin E. Curtis in 
 1874, as reported in the twentieth volume of 
 Wallace's Reports, that of all the enumerated 
 duties performed by a Justice of the Supreme 
 Court, "the most arduous and responsible duty 
 is in the conference." 
 
 In a tale adapted from the Talmud, there is a 
 comparison which may be used to characterise 
 the manner and spirit of approach to public 
 questions which seems to stand out through the 
 judicial service of Charles E. Hughes. Mas 
 tery of law and its development and applica 
 tion are there likened to a great heap of dirt 
 that needs to be cleared away: 
 
 The foolish man says : " It is impossible that 
 I should be able to remove this immense heap. 
 I will not attempt anything so impossible. I 
 will ignore it, and pass it by, and say there is 
 no such obstacle/' But the wise man says: "I 
 see it. It is there. It has to be dealt with. I 
 will remove a little to-day, some more to-mor 
 row, and more the day after, and thus in time 
 I shall have removed it all ; and the fathers will 
 be glad." 
 
CHAPTER H 
 
 NATIONAL POWER OVER NATIONAL INTERESTS 
 
 THE monumental and distinctive service ren 
 dered by Mr. Hughes in the Supreme Court 
 was in the so-called "State Rate Cases" an 
 epochal series of controversies which came up 
 from the commonwealths of the Mississippi 
 Valley and South-west and subjected our dual 
 system of State and National sovereignty to the 
 most severe strain and test since the Civil War. 
 To him there was entrusted, not only the pro 
 digious labours of the perusal of an unprece 
 dented quantity of printed records and ex 
 haustive briefs, incident to the examination of 
 the intricate questions of valuation, rates, re 
 turns, fixed charges, depreciation, repairs, in 
 tangible and physical property, franchises, and 
 the like, on which largely depended the deter 
 mination of the reasonableness or confiscatory 
 character of hundreds of orders of State Com 
 missions affecting thousands of rates over 
 diverse areas, but also the preparation of opin 
 ions which necessarily undertook the task of 
 making concrete, understandable, workable, and 
 consistent, the practical applications of the gen 
 eral principles of State and National authority, 
 
 15 
 
16 CHAELES E. HUGHES 
 
 hitherto stated in the most general terms in the 
 Federal Constitution and expounded in termin 
 ology hardly less general, by Marshall and his 
 successors in the constructive statesmanship of 
 the Supreme Court of an earlier day. 
 
 There was doubt on the part of many whether 
 it was physically possible that a court, before 
 which issues of great difficulty and public im 
 portance were coming day by day, without end 
 and almost without interlude, could in addition 
 perform, in any adequate and acceptable fash 
 ion, the task of scrutiny and review of such 
 voluminous records, calling, as each case did, 
 for detailed examination of facts as to the rela 
 tive adjustments of. rates, the income from 
 different classes of traffic, the cost of trans 
 portation of the various classes of traffic, and 
 the whole issue of the reasonableness of the 
 returns from the rates as fixed by State author 
 ity. As one saw wagon-loads of exhibits 
 brought into hearings before the State Commis 
 sions and the Interstate Commerce Commis 
 sion; as one looked upon the bulky volumes of 
 testimony and formidable libraries of briefs 
 prepared with laborious effort by little armies 
 of specialised counsel; as one saw maps and 
 tariffs piled before special masters and listened 
 to the droning narrative of rate-experts and 
 tariff -men as to the way in which schedules have 
 been built up through the years and the factors 
 necessarily taken into account in even a single 
 community, to say nothing of a State or region, 
 
NATIONAL POWER 17 
 
 it seemed to many that the decisive challenge 
 to National regulation had come, and that the 
 whole fabric was imperilled by the physical im 
 possibility that a busy court could perform 
 with thoroughness and fidelity to fundamental 
 principles the recurring task of keeping the 
 rivalries of States and sections within the con 
 fines of the fair rights of invested property 
 and the paramount interests of the Nation as a 
 whole. 
 
 Such was the challenge to National regula 
 tion of essentially National concerns should 
 that National control in the National sphere be 
 affirmed, clarified, made effective, or was it now 
 to break down, virtually under the weight and 
 complexity of the demand made upon the Su 
 preme Court? Mr. Hughes was the youngest 
 member of the Court ; he had an infinite capac 
 ity for patient and assiduous application to 
 facts ; he had come from the atmosphere of rate 
 and regulative matters in- New York State; 
 upon him devolved no small part of the detail 
 work in the rate cases. The statement may with 
 entire accuracy be made that few men of ma 
 ture years and ripened experience could have 
 physically performed the task mastered by Jus 
 tice Hughes between the close of the argument 
 in the Minnesota Rate Cases * on April 12, 1912, 
 and the handing down of the remarkable series 
 of opinions which began with the determination 
 of the Minnesota cases on June 9, 1913. His 
 
 1 230 U. S. Eeports, page 352. 
 
18 CHAELES E. HUGHES 
 
 opinion in the Minnesota case alone covers a 
 hundred pages, many of them compact with 
 closely marshalled facts. From that date until 
 the filing of the opinion in the so-called Shreve- 
 port case * a year later less a day, there was a 
 continuance of the same labours, and opinions 
 were prepared in nine cases involving volumi 
 nous printed records, intricate facts, and per 
 haps the most far-reaching issues ever pre 
 sented to the Court in a single line of cases. 
 
 Nor was the answer merely one of the ade 
 quate performance of the physical task. For 
 years there had been strain and conflict be 
 tween State and National authority in many 
 fields, notably that of railroad regulation, be 
 cause of uncertainty as to the mode of apply 
 ing concepts almost a century old, to complex 
 conditions which Marshall, Curtis and Storey in 
 no wise anticipated. The task of judicial clari 
 fication and definition was an undertaking in 
 constructive statesmanship second perhaps 
 only to that performed by Marshall. It will 
 remain matter for regret to many that the sum 
 mons to another field of public service led Jus 
 tice Hughes to leave the Supreme Court with 
 this task of judicial statesmanship splendidly 
 begun, but far from completed. His opinion in 
 the Minnesota Rate Cases and subsequently in 
 the Shreveport case will ever be quoted as chart 
 and compass of the metes and bounds of State 
 and National sovereignty in the regulative field. 
 
 *234 U. S. Reports, page 342. 
 
NATIONAL POWER . 19 
 
 These opinions are truly the charter of a vital 
 ised Nationalism. 
 
 In the Minnesota Rate Cases, there was 
 challenge of the constitutionality of acts of the 
 Minnesota Legislature and the State Railroad 
 and Warehouse Commission, in relation to 
 freight and passenger rates between points 
 wholly within the State. It was asserted, in 
 behalf of the carriers, that the action of the 
 State authorities demanded rates so unre- 
 munerative and confiscatory as to place a direct 
 burden upon interstate commerce, accomplish 
 results forbidden by the Interstate Commerce 
 Act, and exceed the permissible limits of State 
 action as to instrumentalities used in inter 
 state commerce, even though the action was in 
 terms addressed only to segments of the use 
 of such instrumentalities exclusively within the 
 State. In the so-called Shreveport case, there 
 was challenge of the dominance of the Federal 
 power over the State power, where it appeared 
 that the State regulative authority had fixed 
 intrastate rates so low and on such a basis, in 
 relation to interstate rates in part through the 
 same territory, as to inflict injury upon inter 
 state commerce and perpetuate results which 
 the Interstate Commerce Commission had ex 
 pressly found to be discriminatory and viola- 
 tive of the regulative rules declared by Con 
 gress as to interstate transportation. The as 
 sertion was made that the Federal government 
 
20 CHARLES E. HUGHES 
 
 was not empowered by the "commerce clause" 
 to control or direct the doing of anything as to 
 a rate purely intrastate, especially a rate fixed 
 by State authority, and that if Congress found 
 that injurious discriminations against inter 
 state commerce were arising from the relation 
 of interstate and intrastate rates in the terri 
 tory affected, Congress might authorise the 
 reduction of the former to the plane of the 
 latter, but could not require the carriers or the 
 State Commission to readjust the intrastate 
 rates in accordance with a determination made 
 by the Interstate Commerce Commission as to 
 the proper relationship. 
 
 A volume would be necessary for the ade 
 quate discussion of the determinations of the 
 Supreme Court in these rate cases alone. The 
 questions of valuation, properties, franchises, 
 depreciation charges, earnings, rate of return, 
 and the like, cannot be here considered at all, 
 although the determinations in these respects 
 will have far-reaching effects in the domain of 
 railroad administration and regulative prac 
 tice. On the issues of State and National au 
 thority, the holdings of the Court, through Jus 
 tice Hughes, may perhaps be briefly although 
 unsatisfactorily summarised under four 
 headings : 
 
 As to the power of Congress over interstate 
 commerce and interstate rates: The authority 
 of Congress over interstate commerce and in- 
 
NATIONAL POWER 21 
 
 terstate rates is paramount, dominant, exclu 
 sive. This dominance is held to extend to every 
 part and phase of interstate commerce and to 
 every agency and instrumentality by the use of 
 which it is anywhere carried on. It cannot be 
 denied, thwarted or limited through any indi 
 rection or through the mere complexity of the 
 transportation business and the inevitable com 
 mingling of intrastate with interstate opera 
 tions and properties. Interstate commerce is 
 National, and the Nation is supreme within the 
 National field. 
 
 As to the power of the State over interstate 
 commerce: The State has no authority at all 
 as to interstate rates, nor has the State, irre 
 spective of any action by Congress, any power 
 of direct control with respect to those subjects, 
 embraced within the constitutional grant, which 
 are of such a nature as to demand that, if regu 
 lated at all, their regulation should be uniform 
 and prescribed by a single authority. As to 
 matters deemed at any time to require a general 
 system or uniformity of regulation, the power 
 of Congress is exclusive. As to other matters 
 admitting of diversity of treatment according 
 to the local conditions, the States may act, up 
 to such time as Congress sees fit to act in that 
 respect. Measures of local improvements, local 
 facilities, protective measures as to safety, 
 health, convenience, morals, or welfare of the 
 people, may be put in force by the States, up 
 
22 CHARLES E. HUGHES 
 
 to such time as Congress, in response to a con 
 viction that changed conditions have brought 
 about a National need, sees fit to displace the 
 local regulations with its own paramount and 
 exclusive authority as to any of such matters. 
 
 As to the power of the State over intrastate 
 rates: Authority over rates and commerce 
 wholly within the State belongs to the State, 
 and there is reserved to the State plenary pow 
 er of regulation of intrastate rates and traffic, 
 affected and limited only by the exertion of the 
 National power with respect to interstate com 
 merce and its instruments as utilised also in in 
 trastate commerce. The authority of the State 
 over intrastate rates and commerce is limited or 
 affected only by the actual exercise of the para 
 mount National power, and is not affected by 
 the existence of an unused and dormant Federal 
 power of action for the better protection of 
 interstate commerce. 
 
 As to the power of Congress over intrastate 
 commerce and rates: The Nation is equipped 
 with a power, supreme and plenary, to protect 
 its authority over National commerce from 
 being obstructed or destroyed by any opposing 
 action, even the rivalries or counter-wishes of 
 State or local governments. Congress may, 
 in its discretion, for the better regulation and 
 control of interstate commerce, take authority 
 over intrastate rates and transactions of car 
 riers doing an interstate business, and may re- 
 
NATIONAL POWER 23 
 
 quire such readjustment of intrastate rates and 
 regulations as the paramount interests of the 
 National commerce may make advisable, even 
 though such intrastate rates and regulations 
 have been determined and prescribed by State 
 authority and have the full approval of the 
 carriers concerned. 
 
 In the opinion prepared by Justice Hughes in 
 the Minnesota Rate Cases, he explained the 
 ramifications of the subject in great clearness 
 of detail. Only a part of this classic opinion 
 may be quoted within the confines of this vol 
 ume ; it merits reading in entirety : 
 
 The controversy thus arises from opposing 
 conceptions of the fundamental law, and of the 
 scope and effect of Federal legislation, rather 
 than from differences with respect to the 
 salient facts. 
 
 For the purpose of the present inquiry, the 
 rates fixed by the State must be assumed to be 
 reasonable rates so far as intrastate traffic is 
 concerned; that is, they must be taken to be 
 rates which the State, in the exercise of its 
 legislative judgment, could constitutionally fix 
 for intrastate transportation separately consid 
 ered. If the State rates are not of this charac 
 ter a question to be dealt with later they 
 cannot be sustained in any event; but, assum 
 ing them to be otherwise valid, the decree be 
 low, with respect to the present branch of the 
 case, rests upon two grounds: (1) That the 
 action of the State imposes a direct burden 
 
24 CHARLES E. HUGHES 
 
 upon interstate commerce; and (2) that it is in 
 conflict with the provisions of the Act to Regu 
 late Commerce. 
 
 These grounds are distinct. If a State enact 
 ment imposes a direct burden upon inter 
 state commerce, it must fall regardless of Fed 
 eral legislation. The point of such an objection 
 is not that Congress has acted, but that the 
 State has directly restrained that which in the 
 absence of Federal regulation should be free. 
 If the acts of Minnesota constitute a direct 
 burden upon interstate commerce, they would 
 be invalid without regard to the exercise of 
 Federal authority touching the interstate rates 
 said to be affected. On the other hand, if the 
 State, in the absence of Federal legislation, 
 would have had the power to prescribe the rates 
 here assailed, the question remains whether its 
 action is void as being repugnant to the statute 
 which Congress has enacted. 
 
 Prior to the Act to Regulate Commerce, car 
 riers fixed their interstate rates free from the 
 actual exertion of Federal control; and under 
 that Act, as it stood until the amendment of 
 June 29, 1906, 34 Stat. 584, c. 3591, the Inter 
 state Commerce Commission had no power to 
 prescribe interstate rates. The States, how 
 ever, had long exercised the power to establish 
 maximum rates for intrastate transportation. 
 Was this power, apart from Federal action, 
 subject to the limitation that the State could 
 not fix intrastate rates, reasonable as such, 
 generally throughout the State, but only as to 
 such places and in such circumstances that the 
 interstate business of the carriers would not 
 
NATIONAL POWER 25 
 
 be thereby affected! That is, was the State 
 debarred from fixing reasonable rates on traffic, 
 wholly internal, as to all State points so situ 
 ated that as a practical consequence the carriers 
 would have to reduce the rates they had made 
 to competing' points without the State, in order 
 to maintain the volume of their interstate busi 
 ness or to continue the parity of rates or the 
 relation between rates as it had previously 
 existed? Was the State, in prescribing a gen 
 eral tariff of reasonable intrastate rates other 
 wise within its authority, bound not to go below 
 a minimum standard established by the inter 
 state rates made by the carriers within com 
 petitive districts! If the State power, inde 
 pendently of Federal legislation, is thus limited, 
 the inquiry need proceed no further. Other 
 wise it must be determined whether Congress 
 has so acted as to create such a restriction 
 upon the State authority theretofore existing. 
 
 (1.) The general principles governing the 
 exercise of State authority when interstate 
 commerce is affected are well established. The 
 power of Congress to regulate commerce among 
 the several States is supreme and plenary. It 
 is "complete in itself, may be exercised to its 
 utmost extent, and acknowledges no limitations 
 other than are prescribed in the Constitution/' 
 The conviction of its necessity sprang from the 
 disastrous experiences under the Confederation 
 when the States vied in discriminatory meas 
 ures against each other. In order to end these 
 evils, the grant in the Constitution conferred 
 upon Congress an authority at all times ade- 
 
26 CHAELES E. HUGHES 
 
 quate to secure the freedom of interstate com 
 mercial intercourse from State control and to 
 provide effective regulation of that intercourse 
 as the National interest may demand. The 
 words " among the several States " distinguish 
 between the commerce which concerns more 
 States than one and that commerce which is con 
 fined within one State and does not affect other 
 States. "The genius and character of the 
 whole government," said Chief Justice Mar 
 shall, "seem to be that its action is to be ap 
 plied to all the external concerns of the Nation, 
 and to those internal concerns which affect the 
 States generally; but not to those which are 
 completely within a particular State, which do 
 not affect other States, and with which it is not 
 necessary to interfere, for the purpose of exe 
 cuting some of the general powers of the gov 
 ernment. The completely internal commerce of 
 a State, then, may be considered as reserved 
 for the State itself." This reservation to the 
 States manifestly is only of that authority 
 which is consistent with and not opposed to the 
 grant to Congress. There is no room in our 
 scheme of government for the assertion of State 
 power in hostility to the authorised exercise of 
 Federal power. The authority of Congress ex 
 tends to every part of interstate commerce, and 
 to every instrumentality or agency by which 
 it is carried on; and the full control by Con 
 gress of the subjects committed to its regulation 
 is not to be denied or thwarted by the com 
 mingling of interstate and intrastate opera 
 tions. This is not to say that the Nation may 
 deal with the internal concerns of the State, as 
 
NATIONAL POWER 27 
 
 such, but that the execution by Congress of its 
 constitutional power to regulate interstate com 
 merce is not limited by the fact that intrastate 
 transactions may have become so interwoven 
 therewith that the effective government of the 
 former incidentally controls the latter. This con 
 clusion necessarily results from the supremacy 
 of the Nationalpower within its appointed sphere. 
 
 The grant in the Constitution of its own 
 force, that is, without action by Congress, estab 
 lished the essential immunity of interstate com 
 mercial intercourse from the direct control of 
 the States with respect to those subjects em 
 braced within the grant which are of such a 
 nature as to demand that, if regulated at all, 
 their regulation should be prescribed by a 
 single authority. It has repeatedly been de 
 clared by this Court that as to those subjects 
 which require a general system or uniformity 
 of regulation the power of Congress is exclu 
 sive. In other matters, admitting of diversity 
 of treatment according to the special require 
 ments of local conditions, the States may act 
 within their respective jurisdictions until Con 
 gress sees fit to act; and when Congress does 
 act, the exercise of its authority overrides all 
 conflicting State legislation. 
 
 The principle which determines this classi 
 fication, underlies the doctrine that the States 
 cannot under any guise impose direct burdens 
 upon interstate commerce. For this is but to 
 hold that the States are not permitted directly 
 to regulate or restrain that which from its na 
 ture should be under the control of the one 
 authority and be free from restriction save as 
 
28 CHAELES E. HUGHES 
 
 it is governed in the manner that the national 
 legislature constitutionally ordains. 
 
 Thus, the States cannot tax interstate com 
 merce, either by laying the tax upon the busi 
 ness which constitutes such commerce or the 
 privilege of engaging in it, or upon the receipts, 
 as such, derived from it; or upon persons or 
 property in transit in interstate commerce. 
 
 They have no power to prohibit interstate 
 trade in legitimate articles of commerce; or to 
 discriminate against the products of other 
 States; or to exclude from the limits of the 
 State corporations or others engaged in inter 
 state commerce or to fetter by conditions their 
 right to carry it on ; or to prescribe the rates to 
 be charged for transportation from one State 
 to another, or to subject the operations of car 
 riers in the course of such transportation to 
 requirements that are unreasonable or pass 
 beyond the bounds of suitable local protection. 
 
 But within these limitations there necessarily 
 remains to the States, until Congress acts, a 
 wide range for the permissible exercise of 
 power appropriate to their territorial jurisdic 
 tion although interstate commerce may be af 
 fected. It extends to those matters of a local 
 nature as to which it is impossible to derive 
 from the constitutional grant an intention that 
 they should go uncontrolled pending Federal 
 intervention. Thus, there are certain subjects 
 having the most obvious and direct relation to 
 interstate commerce, which, nevertheless, with 
 the acquiescence of Congress, have been con 
 trolled by State legislation from the foundation 
 of the Government because of the necessity 
 
NATIONAL POWER 29 
 
 that they should not remain unregulated and 
 that their regulation should be adapted to vary 
 ing local exigencies ; hence, the absence of regu 
 lation by Congress in such matters has not im 
 ported that there should be no restriction but 
 rather that the States should continue to sup 
 ply the needed rules until Congress should de 
 cide to supersede them. Further, it is compe 
 tent for a State to govern its internal com 
 merce, to provide local improvements, to create 
 and regulate local facilities, to adopt protective 
 measures of a reasonable character in the 
 interest of the health, safety, morals and wel 
 fare of its people, although interstate com 
 merce may incidentally or indirectly be in 
 volved. Our system of government is a prac 
 tical adjustment by which the National author 
 ity as conferred by the Constitution is main 
 tained in its full scope without unnecessary loss 
 of local efficiency. Where the subject is pecu 
 liarly one of local concern, and from its nature 
 belongs to the class with which the State appro 
 priately deals in making reasonable provision 
 for local needs, it cannot be regarded as left to 
 the unrestrained will of individuals because 
 Congress has not acted, although it may have 
 such a relation to interstate commerce as to be 
 within the reach of the Federal power. In 
 such case, Congress must be the judge of the 
 necessity of Federal action. Its paramount 
 authority always enables it to intervene at its 
 discretion for the complete and effective gov 
 ernment of that which has been committed to 
 its care, and, for this purpose and to this extent, 
 in response to a conviction of National need, 
 
30 CHAELES E. HUGHES 
 
 to displace local laws by substituting laws of its 
 own. The successful working of our constitu 
 tional system has thus been made possible. 
 
 The leading illustrations may be noted. Im 
 mediately upon the adoption of the Constitu 
 tion, Congress recognised the propriety of local 
 action with respect to pilotage, in view of the 
 local necessities of navigation. It was sixty 
 years before provision for Federal license of 
 pilots was made, and even then port pilots were 
 not included. And while Congress has full 
 power over the subject and to a certain extent 
 has prescribed rules, it is still in a large meas 
 ure subject to the regulation of the States. 
 
 A State is entitled to protect its coasts, to 
 improve its harbours, bays and streams, and to 
 construct dams and bridges across navigable 
 rivers within its limits, unless there is conflict 
 with some act of Congress. Plainly, in the case 
 of dams and bridges, interference with the 
 accustomed right of navigation may result. 
 But this exercise of the important power to 
 provide local improvements has not been re 
 garded as constituting such a direct burden 
 upon intercourse or interchange of traffic as to 
 be repugnant to the Federal authority in its 
 dormant state. . . . 
 
 State inspection laws and statutes designed 
 to safeguard the inhabitants of a State from 
 fraud and imposition are valid when reason 
 able in their requirements and not in conflict 
 with Federal rules, although they may affect 
 interstate commerce in their relation to articles 
 prepared for export or by including inciden 
 tally those brought into the State and held for 
 
NATIONAL POWER 31 
 
 sale in the original imported packages. And 
 for the protection of its game and the preserva 
 tion of a valuable food supply, the State may 
 penalise the possession of game during the 
 closed season whether obtained within the 
 State or brought from abroad. 
 
 Interstate carriers, in the absence of Federal 
 statute providing a different rule, are answer 
 able according to the law of the State for non- 
 feasance or misfeasance within its limits. 
 Until the enactment by Congress of the act of 
 April 22, 1908, the laws of the States deter 
 mined the liability of interstate carriers by 
 railroad for injuries received by their em 
 ployes while engaged in interstate commerce, 
 and this was because Congress, although em 
 powered to regulate the subject, had not acted 
 thereon. In some States the so-called fellow- 
 servant rule obtained ; in others it had been ab 
 rogated; and it remained for Congress, in this 
 respect and in other matters specified in the 
 statute, to establish a uniform rule. So, where 
 Congress has not intervened, State statutes 
 providing damages for wrongful death may be 
 enforced not only against land carriers but also 
 against the owners of vessels engaged in inter 
 state commerce where the wrong occurs within 
 the jurisdiction of the State. And, until Con 
 gress legislated on the matter, liability for loss 
 of property, on interstate as well as intrastate 
 shipments, was subject to State regulation. 
 Some States allowed an exemption by contract 
 from all or a part of the common law liability; 
 others allowed no exemption. These differ 
 ences in the applicable laws created inequalities 
 
32 CHAELES E. HUGHES 
 
 with respect to interstate transportation, but 
 each State exercised the power inherent in its 
 territorial jurisdiction, and the remedy for the 
 resulting diversity lay with Congress, which 
 was free to substitute its own regulations ; and 
 this was done in the recent amendment of Sec. 
 20 of the Act to Regulate Commerce. It is 
 within the competency of a State to create and 
 enforce liens upon vessels for supplies fur 
 nished under contracts not maritime in their 
 nature, and it is no valid objection that the 
 State law may obstruct the prosecution of a 
 voyage of an interstate character. It may also 
 create liens for damages to property on land 
 occasioned by negligence of vessels. Cars em 
 ployed in interstate commerce may be seized by 
 attachment under State law, in order to compel 
 the payment of debts. And the legislation of 
 the State, safeguarding life and property and 
 promoting comfort and convenience within its 
 jurisdiction, may extend incidentally to the 
 operations of the carrier in the conduct of inter 
 state business, provided it does not subject that 
 business to unreasonable demands and is not 
 opposed to Federal legislation. It has also 
 been held that the State has the power to for 
 bid the consolidation of State railroad corpora 
 tions with competing lines although both may 
 be interstate carriers and the prohibition may 
 have a far-reaching effect upon interstate 
 commerce. 
 
 Again, it is manifest that when the legislation 
 of the State is limited to internal commerce to 
 such degree that it does not include even inci 
 dentally the subjects of interstate commerce, 
 
NATIONAL POWER 33 
 
 it is not rendered invalid because it may affect 
 the latter commerce indirectly. In the intimacy 
 of commercial relations, much that is done in 
 the superintendence of local matters may have 
 an indirect bearing upon interstate commerce. 
 The development of local resources and the ex 
 tension of local facilities may have a very im 
 portant effect upon communities less favoured 
 and to an appreciable degree alter the course 
 of trade. The freedom of local trade may 
 stimulate interstate commerce, while restrictive 
 measures within the police power of the State 
 enacted exclusively with respect to internal 
 business, as distingnished from interstate 
 traffic, may in their reflex or indirect influence 
 diminish the latter and reduce the volume of 
 articles transported into or out of the State. 
 It was an objection of this sort that was urged 
 and overruled in Kidd v. Pearson, 128 U. S. 1, 
 to the law of Iowa prohibiting the manufacture 
 and sale of liquor within the State, save for 
 limited purposes. When, however, the State in 
 dealing with its internal commerce undertakes 
 to regulate instrumentalities which are also 
 used in interstate commerce, its action is neces 
 sarily subject to the exercise by Congress of its 
 authority to control such instrumentalities so 
 far as may be necessary for the purpose of en 
 abling it to discharge its constitutional function. 
 Within the State power, then, in the words of 
 Chief Justice Marshall, is "that immense mass 
 of legislation, which embraces everything 
 within the territory of a State, not surrendered 
 to a general government : all which can be most 
 advantageously exercised by the States them- 
 
34 CHAELES E. HUGHES 
 
 selves. Inspection laws, quarantine laws, 
 health laws of every description, as well as laws 
 for regulating the internal commerce of a State, 
 and those which respect turnpike roads, fer 
 ries, &c., are component parts of this mass. 
 No direct general power over these objects is 
 granted to Congress: and, consequently, they 
 remain subject to State legislation. If the legis 
 lative power of the Union can reach them, d it 
 must be for . National purposes ; it must be 
 where the power is expressly given for a spe 
 cial purpose, or is clearly incidental to some 
 power which is expressly given." 
 
 And, wherever as to such matters, under 
 these established principles. Congress may be 
 entitled to act, by virtue of its power to secure 
 the complete government of interstate com 
 merce, the State power nevertheless continues 
 until Congress does act and by its valid inter 
 position limits the exercise of the local 
 authority. 
 
 (2.) These principles apply to the authority 
 of the State to prescribe reasonable maximum 
 rates for intrastate transportation. 
 
 State regulation of railroad rates began with 
 railroad transportation. The railroads were 
 chartered by the States and from the outset, in 
 many charters, maximum rates for freight or 
 passengers, or both, were prescribed. Frequent 
 ly and this became the more general prac 
 tice the board of directors was permitted to 
 fix charges in its discretion, an authority which 
 in numerous instances was made subject to a 
 limitation upon the amount of net earnings. In 
 
NATIONAL POWER 35 
 
 several States maximum rates were aiso estab 
 lished, or the power to alter rates was expressly 
 reserved, by general laws. In 1853, the State of 
 New York fixed the maximum fare for way 
 passengers on the railroads forming the line of 
 New York Central at two cents a mile and this 
 rate, extending to Buffalo and Suspension 
 Bridge, on the boundary of the State, has con 
 tinued to the present day. As a rule the re 
 strictions imposed by the early legislation were 
 far from onerous, but they are significant in the 
 assertion of the right of control. More potent 
 than these provisions, in the actual effect upon 
 railroad tariffs, was the State canal. It is a 
 matter of common knowledge that the traffic on 
 the trunk lines from the Atlantic seaboard to 
 the West was developed in competition with the 
 Erie Canal, built, maintained and regulated by 
 the State of New York to promote its com 
 merce. 
 
 The authority of the State to limit by legisla 
 tion the charges of common carriers within its 
 borders was not confined to the power to impose 
 limitations in connection with grants of cor 
 porate privileges. In view of the nature of 
 their business, they were held subject to legis 
 lative control as to the amount of their charges 
 unless they were protected by their contract 
 with the State. This was decided in Chicago, 
 Burlington & Quincy R. E. Co. v. Iowa, 94 U. S. 
 155, and other cases. The question was pre 
 sented by acts of the legislatures of Illinois, 
 Iowa, Wisconsin and Minnesota, passed in the 
 years 1871 and 1874 in response to a general 
 movement for a reduction of rates. The section 
 
36 CHARLES E. HUGHES 
 
 of the country in which the demand arose was 
 to a large degree homogeneous and one in 
 \vhich the flow of commerce was only slightly 
 concerned with State lines. But resort was had 
 to the States for relief. In the Mitnn Case, the 
 Court had before it the statute of Illinois gov 
 erning the grain warehouses in Chicago. 
 Through these elevators, located with the river 
 harbour on the one side and the railway tracks 
 on the other, it was necessary according to the 
 course of trade for the product of seven or 
 eight States of the West to pass on its way to 
 the States on the Atlantic coast. In addition to 
 the denial of any legislative authority to limit 
 charges it was urged that the act was repug 
 nant to the exclusive power of Congress to 
 regulate interstate commerce. The court an 
 swered that the business was carried on ex 
 clusively within the limits of the State of Illi 
 nois, that its regulation was a thing of domestic 
 concern and that "certainly, until Congress 
 acts in reference to their interstate relations, 
 the State may exercise all the powers of gov 
 ernment over them, even though in so doing it 
 may indirectly operate upon commerce outside 
 its immediate jurisdiction." In the decision of 
 the railroad cases, above cited, the same opin 
 ion was expressed. The language of the court, 
 however, went further than to sustain the State 
 law with respect to rates for purely intrastate 
 carriage. Thus, the act of Wisconsin covered 
 traffic which started within the State and was 
 destined to points outside, and this was treated 
 as being within the State power. 
 
 It became a frequent practice for the States 
 
NATIONAL POWER 37 
 
 to create commissions, as agencies of State 
 supervision and regulation, and in many in 
 stances the rate-making power was conferred 
 upon these bodies. A summary of such legis 
 lation is given in Interstate Commerce Com 
 mission v. Chicago, N. 0. & T. P. Ry. Co., 167 
 U. S. 479, 495, 496. One of these State laws, 
 that of Mississippi, passed in 1884, came under 
 review in Stone v. Farmers Loan & Trust Co., 
 116 U. S. 307. The suit was brought to enjoin 
 the Railroad Commission from enforcing the 
 statute against the Mobile and Ohio Railroad 
 Company. It had been incorporated in the 
 States of Alabama, Mississippi, Tennessee and 
 Kentucky, for the purpose of constructing a 
 railroad from Mobile to some point near the 
 mouth of the Ohio River where it would con 
 nect with another railroad, thus forming a con 
 tinuous line of interstate communication be 
 tween the Gulf of Mexico and the Great Lakes. 
 The Commission as yet had not acted. Sus 
 taining the State power to fix rates upon traffic 
 wholly internal, the Court directed the dis 
 missal of the bill. The State, said the Court 
 (p. 334), "may, beyond all question, by the set 
 tled rule of decision in this Court, regulate 
 freights and fares for business done exclusively 
 within the State, and it would seem to be a mat 
 ter of domestic concern to prevent the company 
 from discriminating against persons and places 
 in Mississippi. " In the same case, it was de 
 clared that the power of regulation was not a 
 power to confiscate ; and that under pretence of 
 regulating fares and freights, the States could 
 not " require a railroad corporation to carry 
 
38 CHAELES E. HUGHES 
 
 persons or property without reward," or do 
 that which in law amounted t i to a taking of pri 
 vate property for public use without just com 
 pensation, or without due process of law." 
 (Id., p. 331.) 
 
 In Wabash, St. L. & P. Railway Co. v. Illi 
 nois, supra, it was finally determined that the 
 authority of the State did not extend to the 
 regulation of charges for interstate transporta 
 tion. There the State statute was aimed at dis 
 crimination. It was said to have been violated 
 by the railroad company in the case of ship 
 ments from points within Illinois to the city of 
 New York. The state court had construed the 
 statute to be binding as to that part of the inter 
 state Jiaul which was within the State although 
 inoperative beyond the boundary. So applied, 
 this court held the act to be invalid. 
 
 But no doubt was entertained of the State's 
 authority to regulate rates for transportation 
 that was wholly intrastate. And, in illustrating 
 the extent of State power (id., p. 564), the court 
 selected transportation across the State from 
 Cairo to Chicago and from Chicago to Alton, 
 all boundary points constituting important cen 
 tres of commerce the one on Lake Michigan, 
 and the others at the confluence of the Missis 
 sippi and Ohio rivers, and of the Mississippi 
 and Missouri rivers, respectively. After re 
 viewing decisions holding State laws to be in 
 effective which imposed a direct burden upon 
 interstate commerce, including the cases of 
 the State Freight Tax, 15 Wall. 232; Hall 
 v. DeCuir, 95 U. S. 485; Gloucester Ferry 
 Co. v. Pennsylvania, 114 U. S. 196 ; Pickard 
 
NATIONAL POWER 39 
 
 v. Pullman Southern Car Co., 117 TT. S. 34, 
 the Court emphasised the distinction with 
 respect to the operation of the statute 
 upon domestic transactions saying: "Of the 
 justice or propriety of the principle which lies 
 at the foundation of the Illinois statute it is 
 not the province of this court to speak. As 
 restricted to a transportation which begins and 
 ends within the limits of the State it may be 
 very just and equitable, and it certainly is the 
 province of the State legislature to determine 
 that question." (Id., p. 577.) 
 
 The doctrine was thus fully established that 
 the State could not prescribe interstate rates 
 but could fix reasonable intrastate rates 
 throughout its territory. The extension of rail 
 road facilities has been accompanied at every 
 step by the assertion of this authority on the 
 part of the States and its invariable recognition 
 by this court. It has never been doubted that 
 the State could, if it saw fit, build its own high 
 ways, canals and railroads. (Railroad Com 
 pany v. Maryland, 21 Wall. 456, 470, 471.) It 
 could build railroads traversing the entire 
 State and thus join its border cities and com 
 mercial centres by new highways of internal 
 intercourse to be always available upon reason 
 able terms. Such provision for local traffic 
 might indeed alter relative advantages in com 
 petition, and, by virtue of economic forces, 
 those engaged in interstate trade and trans 
 portation might find it necessary to make read 
 justments extending from market to market 
 through a wide sphere of influence; but such 
 action of the State would not for that reason be 
 
40 CHAELES E. HUGHES 
 
 regarded as creating a direct restraint upon 
 interstate commerce and as thus transcending 
 the State power. Similarly, the authority of 
 the State to prescribe what shall be reasonable 
 charges of common carriers for intrastate 
 transportation, unless it be limited by the exer 
 tion of the constitutional power of Congress, 
 is State-wide. As a power appropriate to the 
 territorial jurisdiction of the State, it is not 
 confined to a part of the State, but extends 
 throughout the State to its cities adjacent to 
 its boundaries as well as to those in the inte 
 rior of the State. To say that this power exists, 
 but that it may be exercised only in prescribing 
 rates that are on an equal or higher basis than 
 those that are fixed by the carrier for interstate 
 transportation, is to maintain the power in 
 name while denying -it in fact. It is to assert 
 that the exercise of the legislative judgment in 
 determining what shall be the carrier's charge 
 for the intrastate service is itself subject to 
 the carrier's will. But this State-wide author 
 ity controls the carrier and is not controlled by 
 it; and the idea that the power of the State 
 to fix reasonable rates for its internal traffic is 
 limited by the mere action of the carrier in 
 laying an interstate rate to places across the 
 State's border, is foreign to our jurisprudence. 
 If this authority of the State be restricted, it 
 must be by virtue of the paramount power of 
 Congress over interstate commerce and its in 
 struments; and, in view of the nature of the 
 subject, a limitation may not be implied be 
 cause of a dormant Federal power, that is, one 
 which has not been exerted, but can only be 
 
NATIONAL POWER 41 
 
 found in the actual exercise of Federal control 
 in such measure as to exclude this action by the 
 State which otherwise would clearly be within 
 its province. 
 
 (3.) When Congress, in the year 1887, en 
 acted the Act to Regulate Commerce (24 
 Stat. 379, c. 104), it was acquainted with the 
 course of the development of railroad transpor 
 tation and with the exercise by the States of the 
 rate-making power. An elaborate report had 
 been made to the Senate by a committee author 
 ised to investigate the subject of railroad regu 
 lation in which the nature and extent of State 
 legislation, including the commission plan, were 
 fully reviewed (Senate Eeport 46, submitted 
 January 6, 1886, 49th Congress, 1st session). 
 And it was the fact that beyond the bounds of 
 State control there lay a vast field of unregu 
 lated activity in the conduct of interstate trans 
 portation which was found to be the chief cause 
 of the demand for Federal action. 
 
 Congress carefully defined the scope of its 
 regulation, and expressly provided that it was 
 not to extend to purely intrastate traffic. In 
 the first section of the Act to Regulate Com 
 merce there was inserted the following proviso : 
 
 "Provided, however, That the provisions of 
 this act shall not apply to the transportation 
 of passengers or property, or to the receiving, 
 delivering, storage, or handling of property, 
 wholly within one State, and not shipped to or 
 from a foreign country from or to any State 
 or Territory as aforesaid.'' 
 
 When in the year 1906 (act of June 29, 1906, 
 
42 CHAELES E. HUGHES 
 
 c. 3591, 34 Stat. 584), Congress amended the act 
 so as to confer upon the Federal commission 
 power to prescribe maximum interstate rates, 
 the proviso in section one was reenacted. 
 Again, in 1910, when the act was extended to 
 embrace telegraph, telephone and cable compa 
 nies engaged in interstate business, the proviso 
 was once more reenacted, with an additional 
 clause so as to exclude intrastate messages from 
 the operation of the statute. Act of June 18, 
 1910, c. 309, 36 Stat. 539 545. The proviso in 
 its present form reads : 
 
 "Provided, however, That the provisions of 
 this act shall not apply to the transportation of 
 passengers or property, or to the receiving, de 
 livering, storage, or handling of property wholly 
 within one State and not shipped to or from a 
 foreign country from or to any State or Terri 
 tory as aforesaid, nor shall they apply to the 
 transmission of messages by telephone, tele 
 graph, or cable wholly within one State and not 
 transmitted to or from a foreign country from 
 or to any State or Territory as aforesaid/' 
 
 There was thus excluded from the provisions 
 of the act that transportation which was 
 "wholly within one State/' with the specified 
 qualification where its subject was going to or 
 coming from a foreign country. 
 
 It is urged, however, that the words of the 
 proviso are susceptible of a construction which 
 would permit the provisions of section three of 
 the act, prohibiting carriers from giving an un 
 due or unreasonable preference or advantage 
 to any locality, to apply to unreasonable dis 
 criminations between localities in different 
 
NATIONAL POWER 43 
 
 States, as well when arising from an intrastate 
 rate as compared with an interstate rate as 
 when due to interstate rates exclusively. If it 
 be assumed that the statute should be so con 
 strued, and it is not necessary now to decide the 
 point, it would inevitably follow that the con 
 trolling principle governing the enforcement of 
 the act should be applied to such cases as might 
 thereby be brought within its purview ; and the 
 question whether the carrier, in such a case, 
 was giving an undue or unreasonable prefer 
 ence or advantage to one locality as against an 
 other, or subjecting any locality to an undue or 
 unreasonable prejudice or disadvantage, would 
 be primarily for the investigation and determi 
 nation of the Interstate Commerce Commis 
 sion and not for the courts. The dominating 
 purpose of the statute was to secure conformity 
 to the prescribed standards through the ex 
 amination and appreciation of the complex facts 
 of transportation by the body created for that 
 purpose ; and, as this court has repeatedly held, 
 it would be destructive of the system of regula 
 tion defined by the statute if the court without 
 the preliminary action of the Commission were 
 to undertake to pass upon the administrative 
 questions which the statute has primarily con 
 fided to it. In the present case, there has been 
 no finding by the Interstate Commerce Commis 
 sion of unjust discrimination violative of the 
 act ; and no action of that body is before us for 
 review. 
 
 The question we have now before us, essen 
 tially, is whether after the passage of the Inter 
 state Commerce Act, and its amendment, the 
 
44 CHAELES E. HUGHES 
 
 State continued to possess the State-wide au 
 thority which it formerly enjoyed to prescribe 
 reasonable rates for its exclusively internal 
 traffic. That, as it plainly appears, was the 
 nature of the action taken by Minnesota, and 
 the attack, however phrased, upon the rates 
 here involved as an interference with interstate 
 commerce, is in substance a denial of that au 
 thority. 
 
 Having regard to the terms of the Federal 
 statute, the familiar range of State action at 
 the time it was enacted, the continued exercise 
 of State authority in the same manner and to 
 the same extent after its enactment, and the 
 decisions of this court recognising and uphold 
 ing this authority, we find no foundation for 
 the proposition that the Act to Regulate Com 
 merce contemplated interference therewith. 
 
 Congress did not undertake to say that the in- 
 trastate rates of interstate carriers should be 
 reasonable or to invest its administrative 
 agency with authority to determine their rea 
 sonableness. Neither by the original act nor 
 by its amendment, did Congress seek to estab 
 lish a unified control over interstate and intra- 
 state rates ; it did not set up a standard for in- 
 trastate rates, or prescribe, or authorise the 
 Commission to prescribe, either maximum or 
 minimum rates for intrastate traffic. It cannot 
 be supposed that Congress sought to accomplish 
 by indirection that which it expressly dis 
 claimed, or attempted to override the accus 
 tomed authority of the States without the provi 
 sion of a substitute. On the contrary, the fix 
 ing of reasonable rates for intrastate transpor- 
 
NATIONAL POWER 45 
 
 tation was left where it had been found ; that is, 
 with the States and the agencies created by the 
 States to deal with that subject. 
 
 How clear was the purpose not to occupy the 
 field thus left to the exercise of State power is 
 shown by the clause uniformly inserted in the 
 numerous acts passed by Congress to authorise 
 the construction of railways across the Indian 
 Territory. This clause, while fixing a maxi 
 mum passenger rate, made the laws of an ad 
 joining State (in some cases Arkansas, in 
 others Texas, and in others Kansas) applicable 
 to the freight rates to be charged within the 
 Territory ; and while the right to regulate rates 
 on the authorised line of railroad was reserved 
 to Congress until a State government should be 
 established, it was expressly provided that, 
 when established, the State should be entitled 
 to fix rates for intrastate transportation the 
 right remaining with Congress to prescribe 
 rates for such transportation as should be in 
 terstate. Within a month after the Act to Regu 
 late Commerce was enacted, two acts were 
 passed by Congress for this purpose with re 
 spect to railways extending across the Territory 
 from the Texas to the Kansas boundary. The 
 provision in both cases in identical language 
 save that the one referred to the laws of Texas 
 and the other to the laws of Kansas was as 
 follows (act of Feb. 24, 1887, c. 254, 4, 24 Stat. 
 420; act of March 2, 1887, c. 319, 4, id., 447) : 
 
 "SEC. 4. That said railroad company shall 
 not charge the inhabitants of said Territory a 
 
 freater rate of freight than the rate authorised 
 y the laws of the State of Texas for services 
 
46 CHAELES E. HUGHES 
 
 or transportation of the same kind: Provided, 
 That passenger rates on said railway shall not 
 exceed three cents per mile. Congress hereby 
 reserves the right to regulate the charges for 
 freight and passengers on said railway, and 
 messages on said telegraph and telephone lines, 
 until a State government or governments shall 
 exist in said Territory within the limits of 
 which said railway, or a part thereof, shall be 
 located; and then such State government or 
 governments shall be authorised to fix and regu 
 late the cost of transportation of persons and 
 freights within their respective limits by said 
 railway; but Congress expressly reserves the 
 right to fix and regulate at all times the cost of 
 such transportation by said railway or said 
 company whenever such transportation shall 
 extend from one State into another, or shall 
 extend into more than one State: Provided, 
 however, That the rate of such transportation 
 of passengers, local or inter-State, shall not 
 exceed the rate above expressed : And provided 
 further, That said railway company shall carry 
 the mail at such prices as Congress may by law 
 provide ; and until such rate is fixed by law the 
 Postmaster-General may fix the rate of com 
 pensation. " 
 
 The same provision is found in similar stat 
 utes passed in almost every year from 1884 to 
 1902 and relating to lines intended to serve as 
 highways of interstate communication. When 
 Oklahoma became a State, the laws of other 
 States which were referred to in these various 
 acts ceased to be operative within its limits, 
 and by virtue of its Statehood and with the 
 
NATIONAL POWER 47 
 
 direct sanction of Congress, it became author 
 ised to prescribe reasonable maximum rates for 
 intrastate transportation throughout its extent. 
 Oklahoma v. A., T. & 8. F. Ey. Co., 220 U. S. 
 277, 285; Oklahoma v. C., R. I. S Pac. Ry. Co., 
 220 U. S. 302, 306. 
 
 The decisions of this court since the passage 
 of the Act to Regulate Commerce have uni 
 formly recognised that it was competent for the 
 State to fix such rates, applicable throughout 
 its territory. If it be said that in the contests 
 that have been waged over State laws during 
 the past twenty-five years, the question of inter 
 ference with interstate commerce by the estab 
 lishment of State-wide rates for intrastate traf 
 fic has seldom been raised, this fact itself at 
 tests the common conception of the scope of 
 State authority. And the decisions recognising 
 and defining the State power wholly refute the 
 contention that the making of such rates either 
 constitutes a direct burden upon interstate com 
 merce or is repugnant to the Federal statute. 
 * * * 
 
 To suppose, however, from a review of these 
 decisions, that the exercise of this acknowl 
 edged power of the State may be permitted to 
 create an irreconcilable conflict with the au 
 thority of the Nation, or that through an equi 
 poise of powers an effective control of inter 
 state commerce is rendered impossible, is to 
 overlook the dominant operation of the Consti 
 tution which, creating a Nation, equipped it 
 with an authority, supreme and plenary, to con 
 trol National commerce and to prevent that 
 control, exercised in the wisdom of Congress, 
 
48 CHARLES E. HUGHES 
 
 from being obstructed or destroyed by any op 
 posing action. But, as we said at the outset, 
 our system of government is a practical adjust 
 ment by which the National authority as con 
 ferred by the Constitution is maintained in its 
 full scope without unnecessary loss of local ef 
 ficiency. It thus clearly appears that, under the 
 established principles governing State action, 
 the State of Minnesota did not transcend the 
 limits of its authority in prescribing the rates 
 here involved, assuming them to be reasonable 
 intrastate rates. It exercised an authority ap 
 propriate to its territorial jurisdiction and not 
 opposed to any action thus far taken by Con 
 gress. 
 
 The interblending of operations in the con 
 duct of interstate and local business by inter 
 state carriers is strongly pressed upon our at 
 tention. It is urged that the same right-of- 
 way, terminals, rails, bridges, and stations are 
 provided for both classes of traffic; that the 
 proportion of each sort of business varies from 
 year to year and, indeed, from day to day; 
 that no division of the plant, no apportionment 
 of it between interstate and local traffic, can be 
 made to-day, which will hold to-morrow; that 
 terminals, facilities and connections in one State 
 aid the carrier's entire business and are an 
 element of value with respect to the whole prop 
 erty and the business in other States ; that se 
 curities are issued against the entire line of the 
 carrier and cannot be divided by States; that 
 tariffs should be made with a view to all the 
 traffic of the road and should be fair as between 
 through and short-haul business ; and. that, in 
 
NATIONAL POWER 49 
 
 substance, no regulation of rates can be just, 
 which does not take into consideration the whole 
 field of the carrier's operations, irrespective of 
 State lines. The force of these contentions is 
 emphasised in these cases, and in others of like 
 nature, by the extreme difficulty and intricacy of 
 the calculations which must be made in the effort 
 to establish a segregation, of intrastate business 
 for the purpose of determining the return to 
 which the carrier is properly entitled there 
 from. 
 
 But these 'considerations are for the prac 
 tical judgment of Congress in determining the 
 extent of the regulation necessary under exist 
 ing conditions of transportation to conserve and 
 promote the interests of interstate commerce. 
 If the situation has become such, by reason of 
 the interblending of the interstate and intra 
 state operations of interstate carriers, that ade 
 quate regulation of their interstate rates cannot 
 be maintained without imposing requirements 
 with respect to their intrastate rates which sub 
 stantially affect the former, it is for Congress 
 to determine, within the limits of its constitu 
 tional authority over interstate commerce and 
 its instruments the measure of the regulation it 
 should supply. It is the function of this court 
 to interpret and apply the law already enacted, 
 but not under the guise of construction to pro 
 vide a more comprehensive scheme of regula 
 tion than Congress has decided upon. Nor, in 
 the absence of Federal action, may we deny 
 effect to the laws of the State enacted within 
 the field which it is entitled to occupy until its 
 authority is limited through the exertion by 
 
50 CHARLES E. HUGHES 
 
 Congress of its paramount constitutional 
 power. 
 
 In the so-called Shreveport case, more ac 
 curately known as Houston and Texas Railway 
 Company against the United States* Justice 
 Hughes declared, in part : 
 
 Tt is unnecessary to repeat what has fre 
 quently been said by this court with respect 
 to the complete and paramount character of the 
 power confided to Congress to regulate com 
 merce among the several States. It is of the es 
 sence of this power that, where it exists, it 
 dominates. Interstate trade was not left to be 
 destroyed or impeded by the rivalries of local 
 governments. The purpose was to make impos 
 sible the recurrence of the evils which had over 
 whelmed the Confederation and to provide the 
 necessary basis of national unity by insuring 
 "uniformity of regulation against conflicting 
 and discriminating State legislation." By vir 
 tue of the comprehensive terms of the grant, 
 the authority of Congress is at all times ade 
 quate to meet the varying exigencies that arise 
 and to protect the national interest by securing 
 the freedom of interstate commercial inter 
 course from local control. . . . 
 
 Congress is empowered to regulate, that is, 
 to provide the law for the government of inter 
 state commerce; to enact "all appropriate leg 
 islation " for its "protection and advance 
 ment ;" to adopt measures "to promote its 
 
 1 234 U. S. Keports, page 342. 
 
NATIONAL POWER 51 
 
 growth and insure its safety;" "to foster, pro 
 tect, control and restrain." Its authority, ex 
 tending to these interstate carriers as instru 
 ments of interstate commerce, necessarily em 
 braces the right to control their operations in 
 all matters having such a close and substantial 
 relation to interstate traffic that the control is 
 essential or appropriate to the security of that 
 traffic, to the efficiency of the interstate service, 
 and to the maintenance of conditions under 
 which interstate commerce may be conducted 
 upon fair terms and without molestation or 
 hindrance. As it is competent for Congress to 
 legislate to these ends, unquestionably it may 
 seek their attainment by requiring that the 
 agencies of interstate commerce shall not be 
 used in such manner as to cripple, retard or 
 destroy it. The fact that carriers are instru 
 ments of intrastate commerce, as well as of 
 interstate commerce, does not derogate from 
 the complete and paramount authority of Con 
 gress over the latter or preclude the Federal 
 power from being exerted to prevent the intra 
 state operations of such carriers from being 
 made a means of injury to that which has been 
 confided to Federal care. "Wherever the inter 
 state and intrastate transactions of carriers are 
 so related that the government of one involves 
 the control of the other, it is Congress, and not 
 the State, that is entitled to prescribe the final 
 and dominant rule, for otherwise Congress 
 would be denied the exercise of its constitu 
 tional authority and the State, and not the Na 
 tion, would be supreme within the national 
 field. 
 
52 CHAELES E. HUGHES 
 
 While these decisions sustaining the Federal 
 power relate to measures adopted in the inter 
 est of the safety of persons and property, they 
 illustrate the principle that Congress, in the 
 exercise of its paramount power, may prevent 
 the common instrumentalities of interstate and 
 intrastate commercial intercourse from being 
 used in their intrastate operations to the injury 
 of interstate commerce. This is not to say that 
 Congress possesses the authority to regulate 
 the internal commerce of a State, as such, but 
 that it does possess the power to foster and 
 protect interstate commerce, and to take all 
 measures necessary or appropriate to that end, 
 although intrastate transactions of interstate 
 carriers may thereby be controlled. 
 
 This principle is applicable here. We find no 
 reason to doubt that Congress is entitled to keep 
 the highways of interstate communication open 
 to interstate traffic upon fair and equal terms. 
 That an unjust discrimination in the rates of a 
 common carrier, by which one person or locality 
 is unduly favoured as against another under 
 substantially similar conditions of traffic, con 
 stitutes an evil is undeniable; and where this 
 evil consists in the action of an interstate car 
 rier in unreasonably discriminating against in 
 terstate traffic over its line, the authority of 
 Congress to prevent it is equally clear. It is 
 immaterial, so far as the protecting power of 
 Congress is concerned, that the discrimination 
 arises from intrastate rates as compared with 
 interstate rates. The use of the instrument of 
 interstate commerce in a discriminatory man 
 ner so as to inflict injury upon that commerce, 
 
NATIONAL POWER 53 
 
 or some part thereof, furnishes abundant 
 ground for Federal intervention. Nor can the 
 attempted exercise of State authority alter the 
 matter, where Congress has acted, for a State 
 may not authorise the carrier to do that which 
 Congress is entitled to forbid and has forbid 
 den. . . . 
 
 Congress thus defined the scope of its regula 
 tion and provided that it was not to extend to 
 purely intrastate traffic. It did not undertake 
 to authorise the Commission to prescribe intra 
 state rates and thus to establish a unified con 
 trol by the exercise of the rate-making power 
 over both descriptions of traffic. Undoubtedly 
 in the absence of a finding by the Commission 
 of unjust discrimination intrastate rates were 
 left to be fixed by the carrier -and subject to 
 the authority of the States or agencies created 
 by the States. This was the question recently 
 decided by this Court in the Minnesota Rate 
 Cases. 
 
 This assertion of the primacy of National 
 over local interests and the supremacy of Na 
 tional over State power in respect to mattQrs 
 inevitably National in scope, did not, however, 
 lead Justice Hughes to deny the possession of 
 broad and plenary regulative powers on the part 
 of the States, even as to instrumentalities used 
 in interstate commerce. Said he, in Atlantic 
 Coast Line against Georgia, 1 where the carriers 
 denied the powers of the State to regulate 
 interstate trains as to matters concerning which 
 
 *234: U. S. Eeports, page 280. 
 
54 CHAELES E. HUGHES 
 
 Congress had not prescribed a National stand 
 ard: 
 
 The use of locomotive headlights is directly 
 related to safety in operation. It cannot be 
 denied that the protective power of (the State) 
 government, subject to which the carrier con 
 ducts its business and manages its property, 
 extends as well to the regulation of this part of 
 the carrier's equipment as to apparatus for 
 heating cars or to automatic couplers. The 
 legislature may require an adequate headlight, 
 and whether the carrier's practice is properly 
 conducive to safety, or a new method affording 
 greater protection should be substituted, is a 
 matter for legislative judgment. But it is in 
 sisted that the legislature has gone beyond the 
 limits of its authority in making the specific 
 requirements contained in the act as to the 
 character and power of the light and the di 
 mensions of the reflector. This argument ig 
 nores the established principle that if its action 
 is not arbitrary is reasonably related to a 
 proper purpose the legislature may select the 
 means which it deems to be appropriate to the 
 end to be achieved. It is not bound to content 
 itself with general directions when it considers 
 that more detailed measures are necessary to 
 attain a legitimate object. Particularisation 
 has had many familiar illustrations in cases 
 where there has been a conviction of the need 
 of it, as, for example, in building regulations 
 and in provisions for safeguarding persons in 
 the use of dangerous machinery. So far as gov 
 ernmental power is concerned, we know of no 
 
NATIONAL POWER 55 
 
 ground for an exception in the case of a loco 
 motive headlight. 
 
 It cannot be said that the legislature acted 
 arbitrarily in prescribing electric light, in pref 
 erence to others, or that, having made this se 
 lection, it was not entitled to impose minimum 
 requirements to be observed in the use of the 
 light. Witnesses for the plaintiff in error, in 
 cluding its general superintendent of motive 
 power and other employes holding important 
 positions and conversant with the exigencies of 
 operation, presented their objections to the use 
 of the electric headlight. Locomotive engineers 
 who for many years had driven locomotives 
 with such a light testified for the State, ex 
 pressing a decided opinion in favour of the use 
 of electric headlights in the interest of safe 
 operation and submitting their views in answer 
 to the objections that had been urged. Assum 
 ing that there is room for difference of opinion, 
 this fact does not preclude the exercise of the 
 legislative discretion. So far as the question 
 was one simply of expediency as to the best 
 method to provide the desired security it was 
 within the competency of the legislature to de 
 cide it. ... 
 
 If there is a conflict in such local regulations, 
 by which interstate commerce may be incon 
 venienced if there appears to be need of stand 
 ardisation of safety appliances and of provid 
 ing rules of operation which will govern the 
 entire interstate road irrespective of State 
 boundaries there is a simple remedy; and it 
 cannot be assumed that it will not be readily 
 applied if there be real occasion for it. That 
 
56 CHARLES E. HUGHES 
 
 remedy does not rest in a denial to the State, 
 in the absence of conflicting Federal action, of 
 its power to protect life and property within its 
 borders, but it does lie in the exercise of the 
 paramount authority of Congress in its control 
 of interstate commerce to establish such regula 
 tions as in its judgment may be deemed ap 
 propriate and sufficient. Congress, when it 
 pleases, may give the rule and make the stand 
 ard to be observed on the interstate highway. 
 
 In the address which he gave before the New 
 York State Bar Association last January, Jus 
 tice Hughes commented upon the legal bearings 
 of the whole subject with perhaps greater free 
 dom than within the limitations of a judicial 
 opinion : 
 
 With Congress using widely its authority 
 over interstate commercial intercourse and the 
 States creating new obligations and remedies, 
 the difficulty and importance of the work of the 
 courts as the interpreters of constitutions and 
 laws has enormously increased. There has 
 never been a time when that work, in view of 
 the intimate relation of legislation to commerce 
 and industry, has been of more vital concern 
 to the country than it is to-day. It is plain that 
 our dual system of government is being sub 
 jected to a new and severe strain. Congress is 
 constantly defining the scope of its legislation 
 by reference to the commerce clause, while on 
 the other hand the States, with respect to al 
 most every important activity, press their ao- 
 
NATIONAL POWER 57 
 
 tion to the constitutional limit of State power. 
 Thus the Interstate Commerce Act fastens upon 
 interstate transportation, while statutes with 
 similar purpose and thoroughness deal with the 
 transportation that is intrastate, conducted by 
 the same carriers. The Federal Employers' 
 Liability Act applies to persons suffering in 
 jury while employed by railroads in interstate 
 commerce, and other acts define what it shall 
 be unlawful for any person to do " in the course 
 of such commerce, " either "directly or indi 
 rectly. " Now, as has been aptly said, inter 
 state commerce is a "practical conception"; it 
 is not determined by mere forms of contracts, or 
 by bills of lading, or by mere technicalities of 
 any sort, that is, by anything short of the sub 
 stance of the transaction. But, while this is 
 true, interstate commerce is a department of 
 practical affairs which as a rule is segregated 
 only in legal theory. It has no separate exist 
 ence in economics and is not separately main 
 tained by transportation companies or by those 
 engaged in trade. When is an employe of a 
 railroad company engaged in interstate com 
 merce ? There may be no distinction in the mere 
 physical conditions of his work or in his wages. 
 Train crews handle interstate and intrastate 
 traffic indiscriminately ; and the practical serv 
 ice of the carrier is determined by the nature 
 of the haul, not by the presence or absence of 
 a State boundary. If, while in his usual work 
 as a train hand, there is an interstate passenger 
 on the train, or goods in a freight car are in the 
 actual course of an interstate journey, his rights 
 and the correlative liability of his employer in 
 
58 CHAELES E. HUGHES 
 
 case of injury through the latter 's neglect are 
 governed by Federal law ; but if the passengers 
 or goods are being moved solely in intrastate 
 transportation, the State law alone determines 
 right and remedy. Again, the same right of 
 way, terminals, tunnels and bridges are used 
 for both classes of traffic. The railroad has 
 economically but one value ; but this value must 
 in some way be apportioned to determine 
 whether laws of different jurisdictions permit a 
 fair return upon that value, which for legal 
 purposes must be assigned to each. Certain 
 rate structures which from the standpoint of 
 economic principle and practical judgment 
 are single, are split into legal divisions for 
 the purpose not of academic discussion but 
 of vital control. Our recent reports abund 
 antly show that questions of utmost nicety are 
 constantly being presented in the application 
 of new statutes, and evidence the extreme 
 difficulty of the work of carrying out the will of 
 Congress over the activities within its control 
 while at the same time avoiding encroachment 
 upon the State field. This difficulty is sure to 
 be very keenly appreciated in whatever fields of 
 activity the regulating power of government 
 takes hold. It is the problem of many govern 
 ments, within one Nation, dealing with portions 
 of an activity which has economic unity. The 
 import of this should be clear to every disinter 
 ested observer; a practical people with bound 
 less opportunities and with aspirations uncon- 
 fined will not be disposed to permit legitimate 
 progress to be needlessly restrained or gov 
 erned to defeat itself by its own complexity. 
 
NATIONAL POWER 59 
 
 His aversion to a Nationalism which, for its 
 own sake, makes war on the autonomy of State 
 and local sovereignties and seeks to transfer 
 purely local concerns to a centralised and "bu 
 reaucratic" supervision from the Federal capi 
 tal, was trenchantly expressed in the same 
 address : 
 
 But in the face of the difficulties already upon 
 us, and destined to increase in number and grav 
 ity, we remain convinced of the necessity of 
 autonomous local governments. An over-cen 
 tralised government would break down of its 
 own weight. It is almost impossible even now 
 for Congress in well-nigh continuous session to 
 keep up with its duties, and we can readily im 
 agine what the future may have in store in legis 
 lative concerns. If there were centred in Wash 
 ington a single source of authority from which 
 proceeded all the governmental forces of the 
 country created and subject to change at its 
 will upon whose permission all legislative and 
 administrative action depended throughput the 
 length and breadth of the land, I think we 
 should swiftly demand and set up a different 
 system. If we did not have States we 
 should speedily have to create them. We now 
 have them, with the advantages of historic 
 background, and in meeting the serious ques 
 tions of local administration we at least have the 
 advantage of ineradicable sentiment and cher 
 ished traditions. And we may well congratulate 
 ourselves that the circumstances of the forma 
 tion of a more perfect Union has given us 
 
60 CHARLES E. HUGHES 
 
 neither a confederation of States, nor a single 
 centralised government, but a Nation and yet 
 a Union of States each autonomous in its local 
 concerns. To preserve the essential elements 
 of this system without permitting necessary 
 local autonomy to be destroyed by the unwar 
 ranted assertion of Federal power, and without 
 allowing State action to throw out of gear the 
 requisite machinery for unity of control in 
 National concerns demands the most intelli 
 gent appreciation of all the facts of our inter 
 related affairs and far more careful efforts in 
 co-operation than we have hitherto put forth. 
 
 Within its sphere as defined by the Consti 
 tution, the Nation is supreme. The question is 
 simply of the extent of the Federal power as 
 granted; where there is authorised exercise of 
 that power there is no reserved power to nullify 
 it a principle obviously essential to the main 
 tenance of national integrity, yet continually 
 calling for new applications. Thus, regulations 
 required in the exercise of the judgment com 
 mitted to Congress for the protection of inter 
 state commerce cannot be made nugatory by 
 the mere commingling of interstate and intra- 
 state transactions. To illustrate, when the va 
 lidity of the Hours of Service Act was under 
 consideration, it was emphasised that the inter 
 state and intrastate transactions of the carriers 
 were so interwoven that it was utterly imprac 
 ticable for them to divide their employes so 
 that those engaged in interstate commerce 
 should be confined to that commerce exclusively. 
 But this fact, it was held, did not preclude the 
 exercise of Federal power. As Congress for 
 
NATIONAL POWER 61 
 
 the purpose of promoting safety through the 
 reduction of the risks incident to excessive 
 strain could limit the hours of labour of those 
 engaged in interstate transportation, it neces 
 sarily followed that this exertion of its author 
 ity could not be frustrated by prolonging the 
 period of service through other requirements 
 of the carriers or by intermingling the duties 
 which related to interstate and intrastate 
 operations. So also, Congress has taken 
 account of the practical exigencies of traffic, 
 and of the interdependence of train move 
 ments, and has insisted that cars moving on 
 railroads that are highways of interstate com 
 merce shall be suitably equipped to the end that 
 interstate traffic shall not be exposed to unneces 
 sary danger. Again, Congress has asserted its 
 authority to compel interstate carriers to give 
 to interstate traffic reasonable rates without un 
 just discrimination; and the question whether 
 interstate trade was left to be destroyed by 
 hostile discrimination under the authority of 
 local governments was decisively answered 
 when the Constitution superseded the Articles 
 of Confederation. On the other hand, while 
 there is this supremacy of national power with 
 in the national sphere, it was never intended 
 that throughout the extent of authorised Fed 
 eral action there could be, in the absence of the 
 actual exercise of Federal power, no employ 
 ment of State authority. There are un 
 doubtedly many matters of such a na 
 ture that but one authority can be exercised 
 over them, and the Federal power must be exer 
 cised or none at all. But along with these are 
 
62 CHAELES E. HUGHES 
 
 a host of local necessities which from the be 
 ginning were viewed as properly engaging the 
 attention of the States in the protection of the 
 interests of their people, albeit interstate com 
 merce was incidentally affected, until Congress 
 should act and by the exertion of its consti 
 tutional authority supersede State laws by its 
 own requirements. Varying local exigencies 
 have thus been met. Consequently, in a large 
 measure the Federal power has been dormant 
 and its exercise has awaited the revelation of 
 national need and the pressure of a gradually 
 forming national sentiment. 
 
 In the same address, Justice Hughes hinted 
 at constructive lines along which he thought 
 the resources of the executive and legislative 
 departments of government might most help 
 fully be employed lines which he characterised 
 as "the resources of accommodation" under 
 our dual system : 
 
 But important as is the judicial function in 
 maintaining the integrity of the constitutional 
 system, it should not be overburdened, nor 
 should work be expected of it which should 
 otherwise be performed. No opportunity should 
 be neglected to secure that wise co-operation 
 which in our network of activities can go far 
 to avoid unnecessary friction. While I cannot 
 enter the domain of legislative policy, may I 
 suggest that the resources of accommodation 
 have not been exhausted; indeed, they have 
 scarcely been touched. Very often the differ- 
 
NATIONAL POWER 63 
 
 ences that exist between State and Federal laws 
 governing different phases of the same gen 
 eral activity are due more to accident or lack of 
 forethought than to difference in deliberate pur 
 pose. We have had in our States too little re 
 gard for the remoter and indirect consequences 
 of legislation. There has been, perhaps, too 
 much thought of questions of abstract power 
 rather than of its sagacious use by those who 
 after all must have a common prosperity or 
 none at all. Some progress, very gratifying, 
 has been made toward unifying our commer 
 cial law by the enactment of uniform acts in 
 many States, relating to negotiable instruments, 
 warehouse receipts, bills of lading and sales. 
 But it should be possible to do far more than 
 has been done in the promotion of agreement 
 rather than diversity, inasmuch as our people 
 are to a very great extent inspired by the same 
 ideals. When Congress has legislated on a sub 
 ject within its province variations in statutes 
 as to corresponding activities in the local field 
 may well be examined to see whether such varia 
 tions are worth while, or whether it would not 
 be possible to secure harmony without sacrifice 
 of any real local interest. The various admin 
 istrative commissions easily provide opportuni 
 ties for deliberation and conference which 
 should be of inestimable importance in avoiding 
 unfortunate differences, particularly when the 
 legislative policies underlying administrative 
 action appear to be identical. Our administra 
 tive law is comparatively of recent develop 
 ment and we have hardly begun to consider the 
 practical needs and advantages which go with 
 
64 CHAELES E. HUGHES 
 
 the creation of such agencies in Nation and 
 State. In most cases differences yield to a com 
 plete understanding of facts, and equipment for 
 competent investigations should diminish the 
 dangers of conflict. It would- seem to be clear 
 that bodies of intelligent men dealing as ex 
 perts, for example, with the interstate and in- 
 trastate phases of traffic situations, should be 
 in practical accord, or that at least such differ 
 ences as may appear to exist should be put to 
 the test of mutual statement, analysis and con 
 sultation under plans more definitely designed 
 to prevent unnecessary divergencies. I do not 
 mean to underestimate such voluntary efforts 
 as have been made in this direction ; nor shall 
 I presume to suggest the details of possible im 
 provements in administrative schemes with this 
 end in view. But I should think that many of 
 our difficulties might be solved by perfecting 
 the machinery of administration with the direct 
 purpose of promoting harmony* of action* in 
 dealing with those activities which are con 
 ducted in the world of affairs as parts of the 
 same enterprises. It should not be deemed im 
 practicable to secure the protective purposes 
 of State and Nation without injury or needless 
 embarrassment to the honest undertakings upon 
 which both depend. 
 
 Another epoch-marking development in the 
 scope of National action for public health, pub 
 lic morals, public safety, public welfare, and 
 the like, has come about through a judicial 
 clearing of the way for an increased exercise 
 
NATIONAL POWER 65 
 
 of the Federal power over interstate commerce 
 along lines akin to "police-power" regulations. 
 That is to say, the Supreme Court has, during 
 the past five years, very clearly pointed the way 
 for the nation-wide accomplishment of legisla 
 tive purposes having to do with the public wel 
 fare, through the application of wholesome 
 regulatory restraints to the use of the channels 
 and instrumentalities of interstate commerce. 
 If Congress wished to give nation-wide effec 
 tiveness to a measure vitally conserving the 
 public health, morals, or welfare, the way was 
 opened to the doing of this through denying to 
 those engaged in activities hostile to the legis 
 lative purpose the right to use the channels of 
 interstate transportation. 
 
 This extension of National regulatory power 
 is beyond doubt one of the most far-reaching in 
 the evolution of American constitutional law, 
 and the official reports show Justice Hughes' 
 vital relation to the progressive development 
 of this wholesome doctrine. "Why should not 
 worthless stuff, purveyed under false labels as 
 cures, be made contraband of commerce, as 
 well as lottery tickets?" he impressively in 
 quired, in his dissenting opinion in the Johnson 
 case. 1 The Supreme Court had upheld the 
 power of Congress, in the interests of public 
 morals, to exclude lottery tickets from the 
 mails and from interstate commerce. 2 "If an 
 
 1 U. 8. vs. Johnson (221 U. S. Reports, page 488). 
 
 2 Champion vs. Ames (188 U. S. Reports, page 331). 
 
66 CHAELES E. HUGHES 
 
 article is shipped in interstate commerce, bear 
 ing on its label a representation that it is a cure 
 for a given disease, when on a showing of the 
 facts there would be a unanimous agreement 
 that it was absolutely worthless and an out and 
 out cheat," Justice Hughes felt that Congress 
 had denned this to be a "mis-branding" of the 
 article, and that Congress had the power to con 
 serve public health, safety, morals and welfare, 
 by preventing the interstate shipment of so sin 
 ister a menace to public health and security in 
 medical treatment. 
 
 In the celebrated Hipolite Egg case l in 1911, 
 the Supreme Court held the object of the Food 
 and Drugs Act to be "to keep adulterated ar 
 ticles out of the channels of interstate com 
 merce, or, if they enter such commerce, to con 
 demn them while being transported or when 
 they have reached their destination, provided 
 they remain unloaded, unsold, or in original 
 unbroken packages." It declared that while 
 "in the original, unbroken packages, they 
 carry their own identification of contraband of 
 law." Concerning this power of Congress to 
 declare to be "contraband of law" and "out 
 laws of commerce" any articles whose inter 
 state transportation would accomplish results 
 repugnant to the public health, morals or wel 
 fare," the Supreme Court, Justice Hughes con 
 curring, declared : 
 
 1 220 U. S. Beports, page 45. 
 
NATIONAL POWER 67 
 
 The statute rests, of course, upon the power 
 of Congress to regulate interstate commerce, 
 and, defining that power, we have said that no 
 trade can be carried on between the States to 
 which it does not extend, and have further said 
 that it is complete in itself, subject to no lim 
 itations except those found in the Constitution. 
 We are dealing, it must be remembered, with 
 illicit articles articles which the law seeks to 
 keep out of commerce, because they are debased 
 by adulteration, and which law punishes them 
 (if we may so express ourselves) and the ship 
 per of them. . . . The question here is whether 
 articles which are outlaws of commerce may be 
 seized wherever found. . . . Their confiscation 
 or destruction is the especial concern of the 
 law. 
 
 In Hoke, against the United States * one of 
 the so-called " white slave " cases the power 
 of Congress to regulate interstate commerce in 
 the interests of the public morality and welfare 
 was further commented upon by a unanimous 
 Court, Justice Hughes concurring: 
 
 Congress is given power "to regulate com 
 merce with the foreign nations and among the 
 several States." The power is direct; there is 
 no word of limitation in it; and its broad and 
 universal scope has been so often declared as 
 to make repetition unnecessary. . . . Com 
 merce among the States, we have' said, consists 
 of intercourse and traffic between their citizens, 
 
 1 227 U. S. Eeports, page 308. 
 
68 CHARLES E. HUGHES 
 
 and includes the transportation of persons and 
 property. . . . There is unquestionably a con 
 trol in the States over the morals of their cit 
 izens . . . but there is a domain which the 
 States cannot reach and over which Congress 
 alone has power. ... Its exertion does not en 
 croach upon the jurisdiction of the States. . . . 
 
 Our dual form of government has its perplex 
 ities, State and Nation having different spheres 
 of jurisdiction, as we have said, but it must be 
 kept in mind that we are one people; and the 
 powers reserved to the States and those con 
 ferred on the Nation are adapted to be exer 
 cised, either independently or concurrently, to 
 promote the general welfare, material and 
 moral. This is the effect of the decisions, and 
 surely if the facility of interstate transporta 
 tion can be taken away from the demoralisation 
 of lotteries, the debasement of obscene litera 
 ture, the contagion of diseased cattle or per 
 sons, the impurity of food and drugs, the like 
 facility can be taken away from the systematic 
 enticement to and the enslavement in prostitu 
 tion and debauchery of women, and, more in 
 sistently, of girls. 
 
 This is the aim of the law expressed in broad 
 generalisation ; and motives are made of deter 
 mining consequence. Motives executed by ac 
 tions may make it the concern of Government 
 to exert its powers. Eight purpose and fair 
 trading need no restrictive regulation, but let 
 them be transgressed and penalties and prohi 
 bitions must be applied. We may illustrate 
 again by the Pure Food and Drugs Act. Let 
 an article be debased by adulteration, let it be 
 
NATIONAL POWER 69 
 
 misrepresented by false branding, and Con 
 gress may exercise its prohibitive power. It 
 may be that Congress could not prohibit the 
 manufacture of the article in a State. It may 
 be that Congress could not prohibit in all of its 
 conditions its sale within a State. But Congress 
 may prohibit its transportation between the 
 States, and by that means defeat the motives 
 and evils of its manufacture. 
 
 The question which Justice Hughes asked in 
 his dissenting opinion in the Johnson case was 
 soon answered by Congress. The extension for 
 which he had contended was made effective. 
 Drugs or purported medicines misbranded as 
 to their curative properties were made "con 
 traband of law," "outlaws of commerce," by 
 the Sherley Amendment, and Justice Hughes, 
 within the present year, wrote for a unanimous 
 Court l in applying to a purported ' l tubercu 
 losis cure" the Congressional enactment and 
 what he called "the simple principle that Con 
 gress is not to be denied the exercise of its con 
 stitutional authority over interstate commerce, 
 and its power to adopt not only means neces 
 sary but convenient to its exercise, because 
 these means may have the quality of police reg 
 ulations ' ' a statement which may be regarded 
 as representing the limit thus far of judicial 
 indication of the scope of Congressional au 
 thority under this doctrine. 
 
 1 Seven Cases of Eckman's Alterative vs. U. S. (239 U. S, 
 Keports, page 510), 
 
70 CHARLES E. HUGHES 
 
 The belief is general, among students of the 
 law, that the United States stands only at the 
 beginning of the exercise of increased Federal 
 power for public ends, through legislation en 
 acted along the lines indicated by Justice 
 Hughes and his colleagues. Already the devel 
 opment of the doctrine within the past two or 
 three years has had a notable effect upon the 
 trend of legislation. An instance is the way in 
 which a constitutional basis has been revealed 
 for a National child-labour law, at a time when 
 the "Cry of the Children " has as much mean 
 ing for us as for our grandfathers, whose 
 hearts it was written to stir, more than seventy 
 years ago. As it was Senator Beveridge who 
 was the pioneer in arousing a nation-wide inter 
 est in the formulation of such a law, so it has 
 been the statesmen of the Supreme Court who 
 have pointed the way for it. The Beveridge 
 proposal aroused antagonism or at least gave 
 basis for interested antagonism because it- 
 was based on a constitutional concept then vig 
 orously denied by many lawyers. This meas 
 ure sought to prevent the use of the labour of 
 children in manufacturing processes by impos 
 ing prohibitions and penalties on railroad com 
 panies, who employed no children and engaged 
 in no manufacture. The carriers were to be 
 punished if they carried the products of child 
 labour, and the employers of little children were 
 to be punished only if they made false state 
 ments as to such employment. Such a measure 
 
NATIONAL POWER 71 
 
 seemed necessarily based on the proposition 
 that Congress had an unlimited power arbi 
 trary, in its discretion over the instrumental 
 ities of interstate commerce. Otherwise, Con 
 gress could not attach the penalties to acts of 
 carriers themselves doing no wrong. Senator 
 Carmack is said to have wrung from Senatoj" 
 Beveridge even an admission that the latter 's 
 bill was based on a theory which carried the 
 extreme implication that Congress had such 
 power over interstate railroads that it could 
 prohibit them from carrying the milk of such 
 cows as were milked by red-headed girls ! 
 
 Justice Hughes and his colleagues have, how 
 ever, pointed and cleared the way construc 
 tively for a National regulation of child labour 
 on a less debatable basis. The Keating-Owen 
 bill, in the form in which it was pending before 
 the Senate at the time of the writing of this 
 volume, follows more closely the doctrine of the 
 vdecisions above quoted. It denies to a factory 
 or mine employing children below specified 
 standards of child protection in the public in 
 terest, the right to use the instrumentalities 
 and channels of interstate commerce. The em 
 ployment of children in manufacture or mining 
 is looked upon as evincing an intent, and as 
 disclosing acts, inimical to public health, mor 
 als, safety and welfare; and the employers of 
 children under such circumstances are to be 
 barred from use of the facilities of interstate 
 transportation. A child-employing establish- 
 
72 CHAELES E. HUGHES 
 
 ment is thus placed in the same category with 
 a lottery or with an area in which cattle or per 
 sons are generally diseased, and the goods pro 
 duced in the child-employing establishment are 
 placed in the category of lottery tickets, dis 
 eased cattle, obscene printed matter, adulter- 
 ^ted drags, and the like. Therefore, while 
 there may be no inherent differences between 
 the goods manufactured in a place where chil 
 dren work and those made in a place where only 
 adults work and so no basis, short of arbi 
 trary power, for the imposing of penalties on 
 carriers transporting the former there is 
 much difference between the two establishments 
 one conserving, and the other impinging upon 
 and tearing down, the vigour, health, morality 
 and welfare of the boys and girls who soon will 
 be the men and women of the Nation. The es 
 tablishment at war with public welfare cannot 
 carry on that war over State boundaries. The 
 Nation localizes, confines to a single State, the 
 power of such an establishment to do more gen 
 eral injury, by denying it the right to move its 
 products into other States, until it eliminates 
 from its mode of doing business the crime 
 against the robustness, morality, education, and 
 joyous childhood of American boys and girls. 
 
 Justice Hughes prepared the opinions of the 
 Court upon other and diversified aspects of the 
 necessary adjustments between National and 
 State sovereignty, but it is impracticable in this 
 
NATIONAL POWER 73 
 
 volume to do more than refer by footnote to the 
 cases * in which were expressed his amplified 
 views of an adequate Nationalism. In subse 
 quent chapters, notably those dealing with pure 
 food laws and the regulation of labour condi 
 tions, will be found excerpts from his opinions 
 as to the scope of State and National power in 
 relation to those topics. 
 
 1 Port Richmond Ferry vs. Hudson County (234 U. S. Re 
 ports, page 317) ; Sault Ste. Marie vs. International Transit 
 Co. (234 U. S. Eeports, page 333) ; Anderson vs. Pacific Coast 
 Ss. Co. (225 U. S. Eeports, page 187) ; Wilmington Transp. 
 Co. vs. California E. E. Commission (236 U. S. Eeports, page 
 151) ; Adams Express Co. vs. New York (232 U. S. Eeports, 
 page 14) ; Philadelphia Co. vs. Stimson (223 U. S. Eeports, 
 page 605) ; Chicago, etc., Ey. Co. vs. Iowa (233 U. S. Eeports, 
 page 334). 
 
CHAPTEE HI 
 
 THE DOCTRINE OF REASONABLE RELATIONSHIP TO A 
 PERMISSIBLE PURPOSE 
 
 IP a student of modern legislation were to 
 make inquiry for the purpose of forming an 
 estimate as to the social outlook and social 
 statesmanship of a member of an appellate 
 court, his inquiry would probably be along four 
 or five notable lines. He would inquire as to 
 his acceptance and application of the doctrine 
 of reasonable relationship to a permissible pub 
 lic purpose ; he would inquire as to his rejection 
 of the doctrine of "freedom of contract " and 
 his willingness to follow through the full conse 
 quences of that rejection; he would ask as to 
 his standards of determining what "process" 
 and procedure is "due" and what is arbitrary; 
 he would ask as to his criteria of reviewing 
 questions of the remunerativeness or confisca- 
 tory consequences of rate and service orders 
 of governmental authorities; and he would 
 search as to his acceptance or rejection of the 
 modern concept of legal and social science in 
 the regulative field, which calls for ascertain 
 ment of facts, action in the light of disclosed 
 conditions, and emancipation alike from a mere 
 
 74 
 
EXTENSION OF "POLICE POWER" 75 
 
 traditionalism of form and an unquestioned 
 adherence to predetermined conceptions of law 
 and policy. 
 
 A brief commentary upon the judicial course 
 and utterances of Justice Hughes and his col 
 leagues in the Supreme Court may be of value 
 at this juncture: 
 
 As to the doctrine of reasonable relationship 
 to the accomplishment of a permissible public 
 purpose: From a social viewpoint, perhaps the 
 most forward-looking event in the legal his 
 tory of the past decade or so has been the de 
 velopment and extending application of this 
 concept as to the metes and bounds of regula 
 tive action for social betterment. From this 
 viewpoint, two questions are presented as to 
 the validity of a regulative measure : 
 
 Is there an evil conditions with which gov 
 ernment is called upon or entitled to deal 
 and does the measure deal with a purpose which 
 government is entitled to effect? 
 
 If so, does the legislation in question bear a 
 reasonable relation to that purpose? 
 
 For many years, the question of the per 
 missible scope of the exercise of governmental 
 power in behalf of social welfare had caused 
 a great deal of disagreement between the Courts 
 of different jurisdictions, between students of 
 
76 CHAELES E. HUGHES 
 
 the history and philosophy of the law, and be 
 tween champions of opposing schools of thought 
 and action in the realm of public affairs. There 
 was, for example, sharp divergence of standards 
 between the Federal and many State courts, as 
 to the limits of governmental discretion under 
 the concept of "due process " which the Four 
 teenth Amendment requires the National judi 
 cial power to apply and enforce, even as against 
 the action of a sovereign State. One of the 
 difficulties, it is true, was that the National 
 view was perhaps naturally more broad and 
 progressive than the view of many of the older 
 States, but another difficulty was that there 
 was no very definite or understandable formula 
 for determining the boundaries of the regula 
 tive power, commonly referred to as the "po 
 lice power " of government. 
 
 Some of the State courts ruled that the "due 
 process" clause permitted legislation to protect 
 the lives, health, morals, and physical safety of 
 the general public or of employes, for example, 
 but little, if anything, beyond that. The New 
 York Court of Appeals said that 1 
 
 Every man's right to life, liberty and prop 
 erty is to be disposed of in accordance with 
 those ancient and fundamental principles which 
 were in existence when our Constitutions were 
 adopted. 
 
 1 Ives vs. South Buffalo By. Co. (201 N. Y. Keports, page 
 271). 
 
EXTENSION OF "POLICE POWER" 77 
 
 On the other hand, the Supreme Court of the 
 United States was giving to the " police power " 
 a very broad and wholesome application, with 
 out laying down any very comprehensible stand 
 ard for determining what was and was not 
 within its limitations. ' ' The power is, and must 
 be from its very nature, incapable of any very 
 exact definition or limitation," said the Court. 1 
 "Upon it depends the security of the social or 
 der, the life and health of the citizen, the com 
 fort of existence in a thickly populated com 
 munity, the enjoyment of private and social 
 life, and the beneficial use of property." A 
 little later it was observed that the power might 
 be said to "extend to all the great public 
 needs, ' ' 2 and still later it was said, 3 Justice 
 Hughes concurring, that the "police power" 
 
 . . . may be put forth in aid of what is sanc 
 tioned by usage, or held by the prevailing 
 morality or strong and preponderant opinion 
 to be greatly and immediately necessary to the 
 public welfare. 
 
 The inclusion of "public welfare" as one of 
 the permissible objects of the "police power" 
 as distinguished from merely "life, safety, 
 health and morals" has had a most salutary 
 effect. "Social purpose" has come within the 
 
 1 Slaughter House Cases (16 Wallace's [U. S.] Eeports, 
 page 36). 
 
 *Camfield vs. U. S. (167 U. S. Eeports, page 518). 
 
 3 Noble State Bank vs. Haskell (219 U. S. Eeports, page 
 104). 
 
78 CHAELES E. HUGHES 
 
 purview of "public purpose," and there has 
 been a continued and broadening judicial ap 
 preciation of the quickened regulative activities 
 of the State. 
 
 The development of the doctrine of " reason 
 able relationship to a public purpose " has given 
 perhaps a new definiteness and stability to the 
 concept of "due process" and the "police 
 power." It has afforded a sound and more 
 workable standard and test. Is there an evil? 
 Are there conditions affected with a public in 
 terest or giving rise to a public concern? Is 
 there an aspect of public welfare presented by 
 social phenomena to which attention has been 
 directed by fair inquiry? If so, does the rem 
 edy, the particular proposal which the legisla 
 ture has adopted, the legislation which it has 
 fashioned, seem designed to deal with the evil, 
 the conditions? The Court is of course not 
 called upon to answer this question with guar 
 anty of the suitableness and effectiveness of 
 the expedient ; the question is not whether the 
 legislature has chosen the best possible method 
 or put its enactment in the best possible form ; 
 the question is whether the measure is reason 
 ably calculated to deal with the conditions and 
 bears a reasonable relation to the accomplish 
 ment of the public purpose. If there is room 
 for a difference of honest opinion, the legisla 
 ture is entitled to decide. In other words, in all 
 fairness, can the Court see that the legisla 
 ture's proposal bears an actual and reasonable 
 
EXTENSION OF "POLICE POWER 79 
 
 relation to accomplishing the result? Of course, 
 if it does not, and seems to be only a subter 
 fuge and the public purpose only a pretext, then 
 the measure falls under the Constitutional pro 
 hibition. If the measure discloses aught dis 
 criminatory and essentially unfair to classes of 
 the community, manifesting a disposition to in 
 jure and penalize rather than aid and upbuild, 
 then the measure falls. If the measure is arbi 
 trary in its operation, it likewise falls, for rea 
 sons which will be commented on later in this 
 chapter; but the fundamental challenge of the 
 Constitution to the legislature is: Does and 
 can the Court, in all fairness, see that your new 
 law bears a reasonable relation to, and is fairly 
 calculated to be a step forward in bringing 
 about, a result which the legislature is entitled 
 to try to accomplish? If so, the requirements 
 of "due process " have been met, and the meas 
 ure is within the "police power." 
 
 To this doctrine, which has lately been the 
 rallying-point of the champions of economic 
 and industrial legislation before judicial tri 
 bunals, Justice Hughes early gave definite and 
 apparently cordial acceptance. It may fairly 
 be said that he has 'taken a discernible and im 
 portant part in its wholesome development and 
 fair application. In the first opinion which he 
 wrote on a "social welfare" question, he said: 1 
 
 1 Chicago, B. & Q. By. Co. vs. McGuire (219 U. S. Beports, 
 page 549). 
 
80 CHARLES E. HUGHES 
 
 We pass without comment the criticisms 
 which are made of certain details of the relief 
 plan, for neither the suggested excellence nor 
 the alleged defects of a particular scheme may 
 be permitted to determine the validity of the 
 statute, which is general in its application. The 
 question with which we are concerned is not 
 whether the regulations set forth in the answer 
 are just or unjust, but whether the amended 
 statute transcends the limits of power as de 
 fined by the Federal Constitution. . . . The 
 legislature, provided it acts within its consti 
 tutional authority, is the arbiter of the public 
 policy of the State. While the Court, unaided 
 by legislative declaration and applying the 
 principles of the common law, may uphold or 
 condemn contracts in the light of what is con 
 ceived to be public policy, its determination as 
 a rule for future action must yield to the legis 
 lative will when expressed in accordance with 
 the organic law. . . . 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. The guaranty of lib 
 erty does not withdraw from legislative super 
 vision that wide department of activity which 
 consists of the making of contracts, or deny to 
 government the power to provide restrictive 
 safeguards. Liberty implies the absence of ar 
 bitrary restraint, not immunity from reason 
 able regulations and prohibitions imposed in 
 the interests of the community. . . . 
 
 The right to make contracts is subject to 
 the exercise of the powers granted to Congress 
 for the suitable conduct of matters of national 
 
EXTENSION OF "POLICE POWER" 81 
 
 concern, as for example the regulation of 
 commerce with foreign nations and among the 
 several States. . . . 
 
 It is subject also, in the field of State action, 
 to the essential authority of government to 
 maintain peace and security and to enact laws 
 for the promotion of the health, safety, morals 
 and welfare of those subject to its jurisdiction. 
 This limitation has had abundant illustration in 
 a variety of circumstances. Thus, in addition to 
 upholding the power of the State to require 
 reasonable maximum charges for public serv 
 ice (Munn v. Illinois, 94 U. S. 113; C., B. & 
 Q. E. R. Co. v. Iowa, 94 U. S. 155; Railroad 
 Commission Cases, 116 U. S. 307; Willcox v. 
 Consolidated Gas Co., 212 U. S. 19), and to 
 prescribe the hours of labour for those employed 
 by the State or its municipalities (Aikin v. Kan 
 sas, 191 U. S. 207), this court has sustained the 
 validity of State legislation in prohibiting the 
 manufacture and sale of intoxicating liquors 
 within the State (Mugler v. Kansas, 123 U. S. 
 623; Crowley v. Christ ensen, supra) ; in limit 
 ing employment in underground mines or work 
 ings, and in smelters and other institutions for 
 the reduction or refining of ores or metals, to 
 eight hours a day except in cases of emergency 
 (Holden v. Hardy, 169 U. S. 366) ; in prohibit 
 ing the sale of cigarettes without license (Gund- 
 ling v. Chicago, 177 U. S. 183) ; in requiring the 
 redemption in cash of store orders or other 
 evidences of indebtedness issued in payment of 
 wages (Knoxville Iron Co. v. Harbison, 183 U. 
 S. 13) ; in prohibiting contracts for options to 
 sell or buy grain or other commodity at a future 
 
82 CHARLES E. HUGHES 
 
 time (Booth v. Illinois, 184 IT. S. 425) ; in pro 
 hibiting the employment of women in laundries 
 more than ten hours a day (Muller v. Oregon, 
 208 U. S. 412) ; and in making it unlawful to 
 contract to pay miners employed at quantity 
 rates upon the basis of screened coal, instead of 
 the weight of the coal as originally produced 
 in the mine (McLean v. Arkansas, 211 U. S. 
 539). 
 
 The principle involved in these decisions is 
 that where the legislative action is arbitrary 
 and has no reasonable relation to a purpose 
 which it is competent for government to effect, 
 the legislature transcends the limits of its 
 power in interfering with liberty of contract; 
 but where there is reasonable relation to an 
 object within the governmental authority, the 
 exercise of the legislative discretion is not sub 
 ject to judicial review. The scope of judicial 
 inquiry in deciding the question of power is not 
 to be confused with the scope of legislative con 
 siderations in dealing with the matter of policy. 
 Whether the enactment is wise or unwise, 
 whether it is based on sound economic theory, 
 whether it is the best means to achieve the de 
 sired 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 suf 
 fice to bring them within the range of judicial 
 cognizance. . . . 
 
 In dealing with the relation of employer and 
 employed, the legislature has necessarily a wide 
 field of discretion in order that there may be 
 
EXTENSION OF " POLICE POWEB" 83 
 
 suitable protection of health and safety, and 
 that peace and good order may be promoted 
 through regulations designed to insure whole 
 some conditions of work and freedom from op 
 pression. What difference, as to the extent of 
 this power, may exist with respect to particular 
 employments, and how far that which may be 
 authorised as to one department of activity 
 may appear to be arbitrary in another, must be 
 determined as cases are presented for decision. 
 But it is well established that, so far as its regu 
 lations are valid, not being arbitrary or unre 
 lated to a proper purpose, the legislature un 
 doubtedly may prevent them from being nulli 
 fied by prohibiting contracts which by modifica 
 tion or waiver would alter or impair the ob 
 ligation imposed. If the legislature may re 
 quire the use of safety devices, it may prohibit 
 agreements to dispense with them. If it may 
 restrict employment in mines and smelters to 
 eight hours a day, it may make contracts for 
 longer service unlawful. In such case the inter 
 ference with the right to contract is incidental 
 to the main object of the regulation, and if the 
 power exists to accomplish the latter, the inter 
 ference is justified as an aid to its exercise. 
 
 In the " Illinois child-labour law" case 1 he 
 made and applied this admirable statement of 
 the rule: 
 
 Where, as here, such legislation has a reason 
 able relation to a purpose which the State was 
 
 1 Sturges vs. Beauchamp (231 U. S. Eeports, page 320, at 
 page 326). 
 
84 CHAELES E. HUGHES 
 
 entitled to effect, it is not open to constitutional 
 objection as a deprivation of liberty or property 
 without due process of law. 
 
 As to the requirement of "due process 9 ' that 
 no department of government shall inflict upon 
 individual activities and opportunities an exer 
 cise of purely arbitrary power: The indefinite- 
 ness of the phrase "due process" has hid from 
 at least lay understanding a multitude of early 
 judicial errors, and has led not a few people 
 to think there was something radically wrong 
 with our Constitutional and judicial system. 
 The trouble was that economic, social, political 
 and industrial conditions changed so fast, fol 
 lowing the Civil War, that it took the law 
 which is always last, and should be, in any social 
 change, although not so hopelessly in arrears 
 a little time to catch up and readjust its defini 
 tions to the new aspect of things. When is the 
 process of taking a person's life, liberty, and es 
 pecially his property, "due process' '? "Due 
 process" is of course a matter of both substance 
 and of procedural form, and it has taken some 
 time to readjust our legal definitions of "due 
 process" to the new administrative agencies, 
 legislative forms, and procedural improvements 
 which have come with progress in the law and 
 social outlook. 
 
 On the procedural side the side of form, 
 method and "process" Justice Hughes has 
 also had an influence and performed a part, 
 
WHAT IS "DUE PBOCESS" 85 
 
 in giving to "due process" at once a rugged, 
 imperishable vitality, a real power to safeguard 
 things which must never be withheld or aban 
 doned, yet at the same time a practicable con- 
 f ormance to improvements of mechanism which 
 involve no withdrawal of fundamentals. To 
 him, as gleaned from many decisions, "due 
 process" commits to no particular form or 
 mechanism, fetters the present to no particular 
 device or expedient of the past, interposes no 
 barrier to the betterment in methods of deter 
 mination which the future may devise ; yet back 
 of all this flexibility remains a stalwart ad 
 herence to essentials that cannot be denied 
 without calling into action the National judicial 
 power. 
 
 The essentials of "due process," as he saw 
 them, were those of proper notice and fair op 
 portunity to be heard in advance of determina 
 tion, a freedom from unfair influence inside or 
 outside the determining tribunal, and action 
 that shows no trace of purely arbitrary charac 
 ter. An open-minded willingness to hear, find, 
 weigh, and fairly act upon, the facts makes any 
 process "due." Some details of the views of 
 Justice Hughes as to what procedural reforms 
 are permissible and what elements are essen 
 tial, will be found in Chapter XVII, post. 
 
 As to abridgement of so-called "freedom of 
 contract" in industrial relationship : For many 
 years the shibboleth of judicial obstruction of 
 
86 CHAELES E. HUGHES 
 
 so-called "social welfare" legislation, notably 
 in State courts, was the historic doctrine of 
 "freedom of contract, " which of course came 
 down from the time when such a thing existed. 
 When there was an industrial situation in which 
 employer and employe stood on some sort of 
 an equal footing, and the man or woman did not 
 have to go to work in the little shop unless he 
 or she wanted to, because there were plenty of 
 other little shops where they might work, and 
 plenty of ways for them to get a living without 
 working in any industrial establishment at all, 
 the law recognised a kind of mutual freedom of 
 contract, and said that the employer and em 
 ploye might talk it over and make the kind of a 
 contract they wanted to, each driving the best 
 bargain he could. That kind of a legal doctrine 
 was all right as long as the conditions remained 
 anything like what they were, and as long as the 
 contracting parties stood on some kind of an 
 equality and there was anything approaching 
 freedom of contract. 
 
 The difficulty arose when conditions changed, 
 and many employers and their lawyers, and a 
 few judges who mostly had been lawyers for 
 employers, wanted to keep the old law "like a 
 strait- jacket," as Justice Hughes said, quoting 
 from Justice Moody, and kept trying to enforce 
 application of the old law to new conditions. 
 When the farm-hand wanted to turn switchman, 
 and found himself confronted with a railroad 
 corporation which operated all the railroads in 
 
"FEEEDOM OF CONTBACT" 87 
 
 his part of the country; when the widow, sud 
 denly thrown on her resources in the little vil 
 lage, came to the mill town, and stood amid 
 whirring fly-wheels and the noise of strange ma 
 chines and tried to dicker with the indifferent 
 sub-foreman of the only factory in town for a 
 chance to earn enough money for the support 
 and schooling of her dependent children ; when 
 the cost of living forced the schoolboy into the 
 shops and the daughter of the family down to 
 the employes' entrance of the jute mill or the 
 box factory, to try to supplement the meagre 
 family earnings, there was not much "freedom 
 of contract" left to be conserved or considered 
 in a community which cared about its own 
 standards of humanity or the physical robust 
 ness of its next generation. 
 
 Justice Hughes quickly made known his con 
 currence in the view many times expressed by 
 the Supreme Court that 
 
 There is no such thing as absolute freedom of 
 contract. Contracts which contravene public 
 policy cannot be made at all . . . and the power 
 of government extends to the denial of the lib 
 erty of contract to the extent of forbidding or 
 regulating every contract which is reasonably 
 calculated to injuriously affect the public in 
 terests. 1 
 
 In the first opinion which he wrote for the 
 Court in relation to a regulative topic he quoted 
 
 1 Atlantic Coast Line E. E. Co. vs. Riverside Mills (219 
 U. S. Eeports, page 186). 
 
88 CHAELES E. HUGHES 
 
 at length * from the classic repudiation of the 
 "freedom of contract " theory in E olden 
 against Hardy? to the effect that 
 
 The fact that both parties are of full age and 
 competent to contract does not necessarily de 
 prive the State of power to interfere where the 
 parties do not stand upon an equality, or where 
 the public health demands that one party to the 
 contract shall be protected against himself. 
 ' i The State still retains an interest in his wel 
 fare, however reckless he may be. The whole 
 is no greater than the sum of all the parts, and 
 when the individual health, safety and welfare 
 are sacrificed or neglected, the State must suf 
 fer." 
 
 Throughout his Supreme Court service he 
 rigorously applied this doctrine, and, as in the 
 McGuire case, 1 he declared many amplifications 
 of it by holding that the parties to an industrial 
 contract had no right to make agreements al 
 tering or evading, as to themselves, the public 
 policy declared in behalf of the paramount pub 
 lic interest. 
 
 As to the requirement that regulatory action 
 shall not amount to a "confiscation" of the 
 property of those entitled to earn a fair return: 
 
 1 Chicago, B. $ Q. Ey. Co. vs. McGuire (219 U. S. Reports, 
 page 549). 
 a !69 U. S. Eeports, page 397. 
 
STANDARDS OF " CONFISCATION" 89 
 
 Within the necessary limits of this volume, it is 
 not practicable to discuss the principles which 
 Justice Hughes laid down, notably in the Min 
 nesota Rate Cases * and those which followed 
 it, as to the ascertainment of the property val 
 ues on which the returns from the business of a 
 public service corporation are to be figured, 
 and the basis on which determination must be 
 made whether the rates under attack are or are 
 not ' ' confi scatory. ' ' It may be sufficient to in 
 dicate, at this point, the fundamentals of legal 
 and economic standards- which he felt should 
 govern the action of the Commissions and Leg 
 islatures in determining, and of the Courts in 
 reviewing, rates prescribed by regulative 
 authority. 
 
 In Northern Pacific Railway Company 
 against North Dakota, 2 he said : 
 
 The general principles to be applied are not 
 open to controversy. The railroad property is 
 private property devoted to a public use. As a 
 corporation, the owner is subject to the obliga 
 tions of its charter. As the holder of special 
 franchises, it is subject to the conditions upon 
 which they are granted. Aside from specific 
 requirements of this sort, the common carrier 
 must discharge the obligations which inhere in 
 the nature of its business. It must supply 
 facilities that are reasonably adequate ; it must 
 carry upon reasonable terms ; and it must serve 
 
 '230 U. S. Eeports, page 352. 
 a 23(> U. S. Reports, page 595, 
 
90 CHARLES E. HUGHES 
 
 without unjust discrimination. These duties 
 are properly called public duties, and the State 
 within the limits of its jurisdiction may enforce 
 them. The State may prescribe rules to insure 
 fair remuneration and to prevent extortion, to 
 secure substantial equality of treatment in like 
 cases, and to promote safety, good order and 
 convenience. 
 
 But, broad as is the power of the regulation, 
 the State does not enjoy the freedom of an 
 owner. The fact that the property is devoted 
 to a public use on certain terms does not jus 
 tify the requirement that it shall be devoted to 
 other public purposes, or to the same use on 
 other terms, or the imposition of restrictions 
 that are not reasonably concerned with the 
 proper conduct of the business according to 
 the undertaking which the carrier has expressly 
 or impliedly assumed. If it has held itself out 
 as a carrier of passengers only, it cannot be 
 compelled to carry freight. As a carrier for 
 hire, it cannot be required to carry persons or 
 goods gratuitously. The case would not be 
 altered by the assertion that the public interest 
 demanded such carriage. The public interest 
 cannot be invoked as a justification for demands 
 which pass the limits of reasonable protection 
 and seek to impose upon the carrier and its 
 property burdens that are not incident to its 
 engagement. In such a case, it would be no 
 answer to say that the carrier obtains from 
 its entire intrastate business a return as to the 
 sufficiency of which in the aggregate it is not 
 entitled to complain. . . . 
 
 We have, then, to apply these familiar prin- 
 
STAND AEDS OF "CONFISCATION" 
 
 ciples to a case where the State has attempted 
 to fix a rate for the transportation of a com 
 modity under which, taking the results of the 
 business to which the rate is applied, the car 
 rier is compelled to transport the commodity 
 for less than cost or without substantial com 
 pensation in addition to cost. We say this, for 
 we entertain no doubt that, in determining the 
 cost of the transportation of a particular com 
 modity, all the outlays which pertain to it must 
 be considered. We find no basis for distin 
 guishing in this respect between so-called ' ' out- 
 of-pocket costs," or "actual" expenses, and 
 other outlays which are none the less actually 
 made because they are applicable to all traffic, 
 instead of being exclusively incurred in the 
 traffic in question. Illustrations are found in 
 outlays for maintenance of way and structures, 
 general expenses and taxes. It is not a suffi 
 cient reason for excluding such, or other, ex 
 penses to say that they would still have been 
 incurred had the particular commodity not 
 been transported. That commodity has been 
 transported; the common carrier is tinder a 
 duty to carry, and the expenses of its business 
 at a particular time are attributable to what it 
 does carry. The State cannot estimate the cost 
 of carrying coal by throwing the expense inci 
 dent to the maintenance of the roadbed, and the 
 general expenses, upon the carriage of wheat; 
 or the cost of carrying wheat by throwing the 
 burden of the upkeep of the property upon 
 coal and other commodities. 
 
^92 CHARLES E. HUGHES 
 
 In Louisville and Nashville R. R. Co. against 
 Garrett, 1 he said: 
 
 . . . prescribing rates for the future is an 
 act legislative, and not judicial, in kind. . . . 
 It pertains, broadly speaking, to the legislative 
 power. The legislature may act directly, or, in 
 the absence of constitutional restriction, it may 
 commit the authority to fix rates to a subordi 
 nate body. . . . 
 
 The contention is that, before the Com mi a- 
 sion makes such an order, it is required to exer 
 cise judicial functions. It is first to deter 
 mine whether the carrier has been exacting 
 more than is just and reasonable; it is to give 
 notice and a hearing; it is to "hear such state 
 ments, arguments or evidence offered by the 
 parties " as it may deem relevant, and it is in 
 case it determines that the carrier is "guilty of 
 extortion " that it is to prescribe the just and 
 reasonable rate. Still, the hearing and deter 
 mination, viewed as prerequisite to the fixing 
 of rates, are merely preliminary to the legis 
 lative act. To this act, the entire proceeding 
 led ; and it was this consequence which gave to 
 the proceeding its distinctive character. Very 
 properly, and, it might be said, necessarily 
 even without the express command of the stat 
 ute would the Commission ascertain whether 
 the former, or existing, rate, was unreasonable 
 before it fixed a different rate. And in such an 
 inquiry, for the purpose of prescribing a rule 
 for the future, there would be no invasion of 
 the province of the judicial department. Even 
 
 231 U. S. Keports, page 298. 
 
STANDARDS OF " CONFISCATION " 93 
 
 where it is essential to maintain strictly the 
 distinction between the judicial and other 
 branches of the government, it must still be 
 recognised that the ascertainment of facts, or 
 the reaching of conclusions upon evidence taken 
 in the course of a hearing of parties interested, 
 may be entirely proper in the exercise of execu 
 tive or legislative, as distinguished from judi 
 cial, powers. The legislature, had it seen fit, 
 might have conducted similar inquiries through 
 committees of its members, or specially con 
 stituted bodies, upon whose report as to the 
 reasonableness of existing rates it would de 
 cide whether or not they were extortionate and 
 whether other rates should be established, and 
 it might have used methods like those of judi 
 cial tribunals in the endeavor to elicit the facts. 
 It is "the nature of the final act" that deter 
 mines "the nature of the previous inquiry. " 
 . . . The right of the carrier to make its own 
 intrastate rates is subject to the law of the 
 State constitutionally enacted. In the absence 
 of a legislative rate, it is the province of the 
 courts in deciding cases that arise; between 
 shippers and carriers to pass upon the reason 
 ableness of the compensation which the carrier 
 has demanded for its services. In so doing, 
 the courts apply the common law. But it is the 
 province of the legislature to make the law ; and 
 when the legislature, or the body acting under 
 its authority, establishes the rate to be there 
 after charged by the carrier, it is the duty of the 
 courts to enforce the rule of law so made un 
 less the constitutional limits of the rate-mak 
 ing power have been transgressed. The rate- 
 
94 CHAELES E. HUGHES 
 
 making power necessarily implies a range of 
 legislative discretion; and, so long as the legis 
 lative action is within its proper sphere, the 
 courts are not entitled to interpose and upon 
 their own investigation of traffic conditions and 
 transportation problems to substitute their 
 judgment with respect to the reasonableness of 
 rates for that of the legislature or of the Rail 
 road Commission exercising its delegated 
 power. It may be assumed that the statute of 
 Kentucky forbade arbitrary action; it required 
 a hearing, the consideration of the relevant 
 statements, evidence and arguments submitted, 
 and a determination by the Commission 
 whether the existing rates were excessive. But, 
 on these conditions being fulfilled, the questions 
 of fact which might arise as to the reasonable 
 ness of the existing rates in the consideration 
 preliminary to legislative action would not be 
 come, as such, judicial questions to be reex- 
 amined by the courts. The appropriate ques 
 tions for the courts would be whether the Com 
 mission acted within the authority duly con 
 ferred by the legislature, and also, so far as 
 the amount of compensation permitted by the 
 prescribed rates is concerned, whether the 
 Commission went beyond the domain of the 
 State's legislative power and violated the con 
 stitutional rights of property by imposing con- 
 fiscatory requirements. . . . Undoubtedly, a 
 State may permit appeals to its courts from 
 the rate-making orders of its Railroad Commis 
 sion and, upon the review of such orders, it may 
 expressly authorise its judicial tribunals to in 
 vestigate and decide questions which would 
 
THE LAW AND THE FACTS 95 
 
 otherwise not belong to them, or even to act 
 legislatively. But the guaranties of the Four 
 teenth Amendment do not entitle the carrier to 
 the exercise by the courts of such extra- judicial 
 authority. 
 
 As to the belief that regulative legislation 
 and governmental action should be based upon, 
 and should from time to time be shaped accord 
 ing to, a thorough disclosure of the relevant 
 social facts, rather than predetermined con 
 cepts of Constitutional construction, economic 
 theory, or governmental polity: More than by 
 anything else even more than by the formid 
 able array of forward-looking decisions which 
 bear his name and the imprint of the free- 
 spirited play of his facile mind the unmistak 
 able alignment of the statesmanship of Mr. 
 Hughes with the constructive social statesman 
 ship of his day and age is established by his 
 freedom from academic theorising and eco 
 nomic preconception, and his willingness to face 
 facts as from time to time disclosed. In inti 
 mate knowledge of the actualities of industrial 
 conditions for example, of the atmosphere of 
 the plant of a great steel corporation or a syn 
 dicate of textile manufactories, or of the actual 
 environment in which men and women, boys and 
 girls of factory towns have so much difficulty 
 in preserving the good, the true and beautiful 
 in their lives he has perhaps not the grasp and 
 
96 CHAELES E. HUGHES 
 
 perspective possessed by men who have been 
 grappling at first hand with these problems dur 
 ing most of their lives. But this thing stands 
 out through his executive and judicial career: 
 He has a passion for quickly finding out the 
 facts, and when he finds them, and finds them 
 all, he follows them with a fidelity and a free 
 readjustment of policy to experience, which, 
 after all, is the real test of the highest pro 
 gressive statesmanship in a period of economic 
 and social reconstruction. 
 
 This pragmatism and freedom from precon 
 ception is likewise of the essence of American 
 institutions, although it has at times seemed 
 absent from American statesmanship. As Von 
 Hoist says, in his "Constitutional Law of the 
 United States": 
 
 Like every Constitution which has or can have 
 a real life, that of the United States of America 
 is a result of actual circumstances of the past 
 and the present, and not a product of abstract 
 academic theorising. ... A Constitution which 
 resembles a Chinese shoe can suit only a Nation 
 which has sunk into Chinese inertia. . . . The 
 real essence of the Constitution, as it takes con 
 crete shape in legislation, must grow and change 
 with the advancing public and private life of 
 the people. ... If the statesman is bound to 
 be, in the practical discharge of his duties, a 
 conscientious jurist, the jurist must, in his work 
 of examination and testing, keep always in mind 
 the point of view of the statesman. 
 
THE LAW AND THE FACTS 97 
 
 Perhaps it has been a lifetime fondness for 
 the physical sciences in hours of relaxation, 
 perhaps a natural bent of mind or the hard les 
 son of experience at the Bar and in great legis 
 lative inquiries, that has given to Mr. Hughes 
 this quiet, unpretentious, thorough-going fond 
 ness for a fact and aversion to merely academic 
 theorising and preconception; but his pragma 
 tism of outlook is of the grass roots of progres 
 sive and constructive statesmanship, in judicial 
 as well as administrative position. As Profes 
 sor Roscoe Pound, perhaps the most clear 
 sighted of all American students of modern pub 
 lic law, said, in 1909 : 
 
 Jurisprudence is the last in the march of the 
 sciences away from the method of deduction, 
 from predetermined conceptions. The socio 
 logical movement in jurisprudence, the move 
 ment for pragmatism as 'a philosophy of law, 
 the movement for the adjustment of principles 
 and doctrines to the human conditions they are 
 to govern rather than assumed first principles, 
 the movement for putting the human factor in 
 the central place and relegating logic to its true 
 position as an instrument, has scarcely shown 
 itself as yet in America. 
 
 The predominance of the varying social fac 
 tor has, from a somewhat different angle, been 
 expressed by Justice Holmes of the Supreme 
 Court, in his observation that 
 
98 CHARLES E. HUGHES 
 
 ... in law we are dealing almost wholly 
 with considerations of social advantage which 
 very rarely permit of quantitative determina 
 tion. 
 
 The broad bearings of the proper interpre 
 tation and application of the ' ' Bills of Rights ' ' 
 were elaborated upon by Justice Hughes before 
 the New York State Bar Association last 
 January : 
 
 Recurring to the work of the courts, it is 
 evident that legislative activity is constantly 
 raising questions involving not simply the con 
 stitutional adjustment of national and State 
 power, but also the application of the historic 
 clauses of our Bills of Rights securing life, lib 
 erty and property. Here, also, our system is 
 under an increased strain as efforts to impose 
 new obligations are brought to the constitu 
 tional test. In view of the impossibility of com 
 prehensive definition of the content of the great 
 guaranties of due process and equal protection, 
 and of the necessity for what Mr. Justice Miller 
 called the "gradual process of judicial inclusion 
 and exclusion, as the cases presented for deci 
 sion require/' there is peculiar danger of defec 
 tive generalisation in a critical estimate of re 
 sults. For a fair view of judicial work in this 
 field, it must be judged in its entirety and with 
 out losing sight of the broad range of legisla 
 tive discretion which is every day recognised 
 despite constant efforts to induce judicial deci 
 sion upon matters which are essentially mere 
 
THE " BILLS OF EIGHTS" 99 
 
 questions of legislative expediency and over 
 which the courts have no constitutional author 
 ity. Even with respect to procedure, which is of 
 the essence of due process, it has repeatedly 
 been held that there was no intention by the 
 adoption of the Fourteenth Amendment to con 
 fine State practice to archaic forms. For, as 
 Mr. Justice Moody said, in Twining v. New Jer 
 sey, if that were so, "the procedure of the first 
 half of the seventeenth century would be fas 
 tened upon the American jurisprudence like a 
 strait-jacket, only to be unloosed by constitu 
 tional amendment," and that, he continued, 
 quoting from Mr. Justice Matthews in Hurtado 
 v. California, would be "to deny every quality 
 of the law but its age, and to render it incapable 
 of progress or improvement." Thus it has 
 been found, for example, that there was nothing 
 in the guaranty % of due process of law contained 
 in the Fourteenth Amendment which required a 
 State to proceed by indictment by a grand jury 
 (instead of by information) or by trial by a 
 petit jury of twelve persons in prosecutions for 
 infamous crimes, or from dispensing with the 
 exemption from compulsory self-incrimination. 
 And in the operation of this amendment accord 
 ing to our established constitutional doctrine 
 as a restriction upon the enactment of substan 
 tive legislation, it is manifest that the prohibi 
 tion was not intended to override legislative 
 action by the views of judges as to its wisdom. 
 The amendment was the affirmation of indi 
 vidual rights deemed to be fundamental. It was 
 incorporated in the Constitution with full 
 knowledge of the judicial duty to apply the su- 
 
100 CHARLES E. HUGHES 
 
 preme law in the decision of controversies. 
 What was thus sought was not a privilege to 
 deny the legislative authority to enact reason 
 able measures for the promotion of the safety, 
 health, jnorals and welfare of the people, not 
 to make improvement or rational experimen 
 tation impossible, but to preserve and enforce 
 the primary and fundamental conceptions of 
 justice which demand proper notice and oppor 
 tunity to be heard before a competent tribunal 
 in advance of condemnation, immunity from the 
 confiscation of property, and, with respect to 
 every department of government, freedom from 
 the exercise of purely arbitrary power. The 
 perpetuity of this judicial function characteris 
 tic of our system, in my judgment, lies with the 
 courts themselves rather than with their critics. 
 With the alternative of legislative power, un 
 controlled no matter how indulged, the people 
 have preferred the interposition of the judicial 
 scrutiny in order to conserve what have been 
 deemed to be the essentials of liberty. It is not 
 a function likely to be disturbed so long as 
 judges in the discharge of their delicate and 
 difficult duty exhibit a profound knowledge and 
 accurate appreciation of the facts of commercial 
 and industrial activity, and by their intelligence 
 and fidelity in the application of the Constitu 
 tion according to its true intent commend its 
 guaranties to the judgment of a fair-minded 
 people jealous alike of public rights and in 
 dividual opportunities. 
 
CHAPTER IV 
 
 THE SAFEGUAKDS AGAINST ADTJLTEKATION ANT) 
 MIS-BKANDING OF FOODS AND DEUGS 
 
 ONE of the notable public services performed 
 by Mr. Hughes as a Justice of the Supreme 
 Court was in connection with the Food and 
 Drugs Act of 1906 and similar statutes, State 
 and Federal, enacted to aid the public in pro 
 tecting itself from " notorious abuses " in con 
 nection with the impurity of foods and drugs 
 and the falsity of representations made as to 
 their quality, constituents, and curative prop 
 erties. To the interpretation and application 
 of these enactments and the analysis of the in 
 tricate trade conditions on which their applica 
 tion often hinges, he brought a wealth of ad 
 ministrative experience, a mind accustomed to 
 the exact facts of physical science and commer 
 cial life, and a broad understanding of the con 
 ditions with which the community was trying 
 to grapple, in this field so largely new to admin 
 istrative law. 
 
 The first dissenting opinion 1 which he wrote 
 as a member of the Supreme Court dealt with 
 
 1 Z7. S. vs. Johnson (221 U. S. Reports, page 488). 
 101 
 
102 CHARLES E. HUGHES 
 
 the Food and Drugs Act of 1906. Congress had 
 prescribed penalties for what it termed the 
 "mis-branding" of drugs, and a man named 
 Johnson was charged with delivering for ship 
 ment in interstate commerce packages and bot 
 tles of drugs alleged to have been " mis- 
 branded" within the meaning of the Act. Cer 
 tain of the bottles were labelled "Cancerine 
 tablets" and "Cancerine"; the combination 
 was known as "Dr. Johnson's Mild Combina 
 tion Treatment for Cancer" ; and the labels con 
 tained other statements explaining at length the 
 curative properties of the contents, if taken in 
 treatment of cancer or other malignant mala 
 dies. The majority of the Court were of the 
 opinion that inasmuch as fraudulent "mis- 
 branding" necessarily consisted of mis-state 
 ments of fact, rather than of opinion, the stat 
 ute must be construed to prohibit false state 
 ments only as to the identity of the article for 
 example, as to its purity, quality, strength, in 
 gredients, and the like and could not be held 
 to condemn false statements by the manufac 
 turer as to what the article would cure. 
 
 Justice Hughes entered emphatic dissent 
 from this view, and Justices Harlan and Day 
 concurred with him. To label a worthless liquid 
 a cancer curative and to sell tablets of inert 
 matter with assurance of its proved efficacy in 
 relief from deadly diseases, seemed a false rep 
 resentation of the principal fact as to the article 
 sold, and he urged with great earnestness that 
 
FOODS AND DRUGS 103 
 
 Congress had aimed at false statements of 
 fact as to curative properties of a drug, at least 
 no less than at anything else falsely asserted as 
 to it. The majority construction seemed there 
 fore to defeat the legislative purpose and leave 
 the Act largely ineffective. He said, in part : 
 
 According to the construction placed upon 
 the statute by the court below in quashing the 
 indictment, if one puts upon the market, in 
 interstate commerce, tablets of inert matter or 
 a liquid wholly worthless for any curative pur 
 poses as he well knows, with the label " Cancer 
 Cure" or "Remedy for Epilepsy," he is not 
 guilty of an offence, for in the sense attributed 
 by that construction to the words of the statute 
 he has not made a statement regarding the 
 article which is false or misleading in any 
 particular. 
 
 I fail to find a sufficient warrant for this 
 limitation, and on the contrary, it seems to me 
 to be opposed to the intent of Congress and to 
 deprive the act of a very salutary effect. . . . 
 . It is, of course, true, that when Congress used 
 the words "false or misleading statement" it 
 referred to a well-defined category in the law 
 and must be taken to have intended statements 
 of fact and not mere expressions of opinion. 
 The argument is that the curative properties of 
 articles purveyed as medicinal preparations are 
 matters of opinion, and the contrariety of views 
 among medical practitioners, and the conflict 
 between the schools of medicine, are impres 
 sively described. But, granting the wide do- 
 
104 CHAELES E. HUGHES 
 
 main of opinion, and allowing the broadest 
 range to the conflict of medical views, there still 
 remains a field in which statements as to cura 
 tive properties are downright falsehoods and in 
 no sense expressions of judgment. This field 
 I believe this statute covers. . . . 
 
 The question then is whether, if an article 
 is shipped in interstate commerce, bearing on 
 its label a representation that it is a cure for 
 a given disease, when on a showing of the facts 
 there would be a unanimous agreement that it 
 was absolutely worthless and an out and out 
 cheat, the act of Congress can be said to apply 
 to it. To my mind the answer appears 
 clear. . . . 
 
 Nor does it seem to me that any serious ques 
 tion arises in this case as to the power of Con 
 gress. I take it to be conceded that mis-brand 
 ing may cover statements as to strength, qual 
 ity and purity. But so long as the statement is 
 not as to matter of opinion, but consists of a 
 false representation of fact in labelling the 
 article as a cure when it is nothing of the sort 
 from any point of view, but wholly worthless - 
 there would appear to be no basis for a consti 
 tutional distinction. It is none the less descrip 
 tive and falsely descriptive of the article. 
 Why should not worthless stuff, purveyed 
 under false labels as cures, be made contra 
 band of interstate commerce, as well as lot 
 tery tickets? 
 
 This was in May of 1911. The following year 
 Congress amended the Food and Drugs Act, by 
 
FOODS AND DRUGS 105 
 
 the so-called "Sherley Amendment/' which 
 provided that for the purposes of that Act a 
 drug should be deemed to be "mis-branded": 
 
 If its package or label shall bear or contain 
 any statement, design or device regarding the 
 curative or therapeutic effect of such article 
 . . . which is false and fraudulent. 
 
 This was of course the orderly procedure in a 
 responsible democracy: If the Court, as the 
 agency of the most expert interpretation of 
 the written statutes, finds that the language 
 thus far used is not sufficient to accomplish 
 what was probably the legislative purpose, 
 prompt action by the legislative branch of gov 
 ernment clears the difficulty and makes unmis 
 takable the intent to reach by legislation the 
 particular abuse as to which there was question 
 of the efficacy of the original enactment. Con 
 gress having thus given legislative sanction to 
 the interpretation which Justice Hughes had 
 unsuccessfully from the first endeavoured to 
 have the Court place upon the term " mis- 
 branding, " the Supreme Court, on January 10, 
 1916, through an opinion l written by Justice 
 Hughes, unanimously upheld the constitutional 
 ity of the Sherley Amendment and sustained 
 the condemnation and seizure of cases of drugs 
 known as "Eckman's Alterative," which were 
 
 1 Seven Cases of Eckman's Alterative vs. U. S. (239 U. S. 
 Beports, page 510). 
 
106 CHAELES E. HUGHES 
 
 sent out with circulars containing the untrue 
 statement: "Effective as a preventative for 
 pneumonia/' "We know that it has cured 
 and has and will cure tuberculosis.'' 
 
 The last of the cases decided by Justice 
 Hughes under the Food and Drugs Act involved 
 the long-litigated properties of "Coca Cola" 
 and the propriety of its shipment in interstate 
 commerce. The Federal Government had, un 
 der the provisions of that Act, filed a libel for 
 the condemnation of certain cases of Coca Cola 
 which had been seized while in course of trans 
 portation, for sale, from Atlanta to Chatta 
 nooga. The charge of the Government was that 
 the product was both " adulterated " and "mis- 
 branded," within the meaning of the statute. 
 The claim as to adulteration was, in substance, 
 that the beverage contained ' ' an added poison 
 ous or other added deleterious ingredient" 
 caffeine which rendered the product harmful 
 to health. The claim as to "mis-branding" 
 was that the name "Coca Cola" was a repre 
 sentation of the presence of both "coca" and 
 "cola"; that the beverage in fact contained no 
 coca and very little, if any, cola; and that ac 
 cordingly the product was but an "imitation" 
 of those substances, offered for sale under 
 their "distinctive name," within the inhibition 
 of the statute. 
 
 The Coca Cola Company at once claimed the 
 goods which the Government had seized, and 
 
FOODS AND DRUGS 107 
 
 demanded a jury trial, as was its right. The an 
 swer of the Coca Cola Company admitted that 
 the product contained as one of its ingredients 
 "a small portion of caffeine/' but denied that 
 the caffeine in this quantity was either an 
 " added ingredient," within the meaning of the 
 law, or i ' an added deleterious ingredient which 
 may render such article injurious to health. " 
 The company also denied that there were any 
 such substances known as either "coca" or 
 "cola" under "their own distinctive names," 
 and asserted that the beverage did, however, 
 contain certain elements or substances derived 
 from cola nuts and coca leaves, which the com 
 pany said was sufficient to require dismissal of 
 a "mis-branding" charge. 
 
 After taking a great deal of testimony, the 
 United States District Judge who heard the 
 case directed a verdict in favour of the Coca 
 Cola Company, without letting the jury pass 
 upon the issues, and the Circuit Court of Ap 
 peals sustained his action. The question be- ' 
 fore the Supreme Court, therefore, was whether 
 the Government was right in its contentions, 
 at least to the extent that the disputed questions 
 of fact as to the nature and effect of Coca Cola 
 and its ingredients should have been submitted 
 to the jury. Justice Hughes, in an opinion x 
 handed down by the Court on May 22, 1916, 
 sustained fully the Government's contentions 
 as to the vitality and efficacy of the Food and 
 
 1 U. S. vs. Coca Cola Co. (241 U. S. Eeports, page 265). 
 
108 CHARLES E. HUGHES 
 
 Drugs Act, and sent the case back for deter 
 mination in the light of the interpretation 
 placed upon the statute by the highest Court. 
 
 Recognising "the extreme importance of the 
 question thus presented with respect t.o the ap 
 plication of the Act to articles of food sold 
 under trade names," Justice Hughes' devo 
 tion to realities and his rugged common sense 
 in analysis of trade conditions led him to clear 
 away the elaborate artifice of statutory con 
 struction with which it was sought to paralyse 
 the practical workings of the law. He held 
 with directness and conciseness that 
 
 The facts that a formula has been made up 
 and followed and a distinctive name adopted do 
 not suffice to take an article from the reach 
 of the statute; that the standard by which the 
 combination in such a case is to be judged is 
 not necessarily the combination itself; that a 
 poisonous or deleterious ingredient with the 
 stated injurious effect may still be an added 
 ingredient in the statutory sense, although it is 
 covered by the formula and made a constituent 
 of the article sold. 
 
 Likewise he ruled that the terms " adultera 
 tion " and "mis-branding" are used in the stat 
 ute in a special sense, have their own glossary 
 in that use, and are not controlled by their ordi 
 nary definitions. For example, "we cannot 
 . . . assume that simply because a prepared 
 food has its formula and distinctive name, it is 
 
FOODS AND DRUGS 109 
 
 not, as such, adulterated. ... It is plain that 
 the article may be ' adulterated, ' if in fact it con 
 tains an ' ingredient deleterious or detrimental 
 to health.' " Again, "The substance which 
 renders the article injurious, and the introduc 
 tion of which causes * adulteration,' may be one 
 of the ' component parts, or constituents, of the 
 article which is the subject of the described 
 traffic.' " Finally, he held that "proprietary 
 foods, sold under distinctive names, are within 
 the purview of the provision" against "adul 
 teration" and "mis-branding," and this with 
 out regard to whether "they were already on 
 the market when the statute was passed." 
 
 Justice Hughes' reasoning upon some of the 
 points involved is strikingly direct and prag 
 matic : 
 
 Having these considerations in mind, we 
 deem it to be clear that, whatever difficulties 
 there may be in construing the provision, the 
 claimant's argument proves far too much. We 
 are not now dealing with the question whether 
 the caffeine did, or might, render the article in 
 question injurious; that is a separate inquiry. 
 The fundamental contention of the claimant, as 
 we have seen, is that a constituent of a food 
 product having a distinctive name cannot be 
 an "added" ingredient. In such case, the 
 standard is said to be the food product itself 
 which the name designates. It must be, it is 
 urged, this "finished product" that is "adul 
 terated." In that view, there would seem to 
 
110 CHABLES E. HUGHES 
 
 be no escape from the conclusion that however 
 poisonous or deleterious the introduced in 
 gredient might be, and however injurious its 
 effect, if it be made a constituent of a product 
 having its own distinctive name it is not within 
 the provision. If this were so, the 'statute 
 would be reduced to an absurdity. Manufac 
 turers would be free, for example, to put ar 
 senic or strychnine or other poisonous or dele 
 terious ingredients with an unquestioned in 
 jurious effect into compound articles of food, 
 provided the compound were made according 
 to formula and sold under some fanciful name 
 which would be distinctive. When challenged 
 upon the ground that the poison was an 
 " added" ingredient, the answer would be that 
 without it the so-called food product would 
 not be the product described by the name. 
 Further, if an article purporting to be an ordi 
 nary food product sold under its ordinary 
 name were condemned because of some added 
 deleterious ingredient, it would be difficult to 
 see why the same result could not be attained 
 with impunity by composing a formula and 
 giving a distinctive name to the article with 
 the criticised substance as a component part. 
 We think that an analysis of the statute shows 
 such a construction of the provision to be inad 
 missible. Certain incongruities may follow 
 from any definition of the word " added," but 
 we cannot conclude that it was the intention of 
 Congress to afford immunity by the simple 
 choice of a formula and a name. It does not 
 seem to us to be a reasonable construction that 
 in the case of "proprietary foods" manufac- 
 
FOODS AND DRUGS 111 
 
 tared under secret formulas Congress was 
 simply concerned with additions to what such 
 formulas might embrace. Undoubtedly, it was 
 not desired needlessly to embarrass manufac 
 turers of " proprietary foods" sold under dis 
 tinctive names, but it was not the purpose of 
 the Act to protect articles of this sort regard 
 less of their character. Only such food prod 
 ucts as contain "no unwholesome added in 
 gredient" are within the saving clause and 
 in using the words quoted we are satisfied that 
 Congress did not make the proprietary article 
 its own standard. 
 
 Equally extreme and inadmissible is the sug 
 gestion that where a "proprietary food" would 
 not be the same without the harmful ingredient, 
 to eliminate the latter would constitute an 
 "adulteration" under 7, subdivision Third, 
 by the abstraction of a "valuable constituent." 
 In that subdivision Congress evidently refers 
 to articles of food which normally are not 
 within the condemnation of the Act. Congress 
 certainly did not intend that a poisonous or 
 deleterious ingredient which made a proprie 
 tary food an enemy to the public health should 
 be treated as a "valuable constituent," or to 
 induce the continued use of such injurious in 
 gredients by making their elimination an 
 adulteration subject to the penalties of the 
 statute. 
 
 It is apparent, however, that Congress in 
 using the word "added" had some distinction 
 in view. In the Senate bill (for which the 
 measure as adopted was a substitute) there was 
 a separate clause relating to "liquors," provid- 
 
112 CHAELES E. HUGHES 
 
 ing that the article should be deemed to be 
 adulterated if it contained "any added ingredi 
 ent of a poisonous or deleterious character' '; 
 while in the case of food (which was defined as 
 excluding liquors) the article was to be deemed 
 to be "adulterated" if it contained "any added 
 poisonous or other ingredient which may ren 
 der such article injurious to human health." 
 Cong. Bee., 59th Cong., 1st Sess., Vol. 40, p. 897. 
 In explaining the provision as to "liquors," 
 Senator Heyburn, the chairman of the Senate 
 Committee having the bill in charge, stated to 
 the Senate (Id., p. 2647) : "The word ' added/ 
 after very mature consideration by your com 
 mittee, was adopted because of the fact that 
 there is to be found in nature's products as she 
 produces them, poisonous substances to be de 
 termined by analysis. Nature has so combined 
 them that they are not a danger or an evil 
 that is, so long as they are left in the chemical 
 connection in which nature has organised them ; 
 but when they are extracted by the artificial 
 processes of chemistry they become a poison. 
 You can extract poison from grain or its prod 
 ucts and when it is extracted it is a deadly 
 poison; but if you leave that poison as nature 
 embodied it in the original substances it is not 
 a dangerous poison or an active agency of 
 poison at all. So, in order to avoid the threat 
 that those who produce a perfectly legitimate 
 article from a natural product might be held 
 liable because the product contained nature's 
 poison it was thought sufficient to provide 
 against the adding of any new substance that 
 was in itself a poison, and thus emphasising the 
 
FOODS AND DRUGS 113 
 
 evils of existing conditions in nature 's product. 
 That is the reason the word ' added' is in the 
 bill. Fusel oil is a poison. If you extract it, 
 it becomes a single active agency of destruction, 
 but allow it to remain in the combination where 
 nature has placed it, and, while it is nominally 
 a poison, it is a harmless one, or comparatively 
 so." For the Senate bill, the House of Repre 
 sentatives substituted a measure which had the 
 particular provisions now under consideration 
 in substantially the same form in which they 
 were finally enacted into law. ( Section 7, subd. 
 Fifth; 8, subd. Fourth, provisos.) And the 
 Committee of the House of Representatives in 
 reporting this substituted measure said (H. R. 
 Report, No. 2118, 59th Cong., 1st Sess., pp. 
 6, 7, 11) : "The purpose of the pending meas 
 ure is not to compel people to consume par 
 ticular kinds of foods. It is not to compel 
 manufacturers to produce particular kinds or 
 grades of foods. One of the principal objects 
 of the bill is to prohibit in the manufacture of 
 foods intended for interstate commerce the ad 
 dition of foreign substances poisonous or dele 
 terious to health. The bill does not relate to 
 any natural constituents of food products which 
 are placed in the foods by nature itself. It is 
 well known that in many kinds of foods in their 
 ^natural state some quantity of poisonous or 
 deleterious ingredients exists. How far these 
 substances may be deleterious to health when 
 the food articles containing them are consumed 
 may be a subject of dispute between the scien 
 tists, but the bill reported does not in any way 
 consider that question. If, however, poison- 
 
114 CHARLES E. HUGHES 
 
 ous or deleterious substances are added by man 
 to the food product, then the bill declares the 
 article to be adulterated and forbids interstate 
 traffic." 
 
 This statement throws light upon the inten 
 tion of Congress. Illustrations are given to 
 show possible incongruous results of the test, 
 but they do not outweigh this deliberate decla 
 ration of purpose ; nor do we find in the subse 
 quent legislative history of the substituted 
 measure containing the provision any opposing 
 statement as to the significance of the phrase. 
 
 With the way thus cleared for a remedial 
 application of the statute, Justice Hughes took 
 up the two questions involved in the facts of 
 the case at bar. Was the caffeine an " added 
 ingredient "1 As to this he said: 
 
 In the present case, the article belongs to a 
 familiar group ; it is a syrup. It was originally 
 called "Coca Cola Syrup and Extract." It is 
 produced by melting sugar, the analysis show 
 ing that 52.64 per cent, of the product is sugar 
 and 42.63 per cent, is water. Into the syrup 
 thus formed by boiling the sugar, there are 
 introduced colouring, flavouring, and other in 
 gredients, in order to give the syrup a dis 
 tinctive character. The caffeine, as has been 
 said, is introduced in the second or third "melt 
 ing." We see no escape from the conclusion 
 that it is an "added" ingredient within the 
 meaning of the statute. 
 
FOODS AND DRUGS 115 
 
 Was the caffeine " poisonous " or " deleteri 
 ous' '? This question he says the jury should 
 have been permitted to decide and so there 
 must be a re-trial, with an application of the 
 statute as defined by the Supreme Court : 
 
 Upon the remaining question whether the 
 caffeine was a poisonous or deleterious in 
 gredient which might render the article injuri 
 ous to health, there was a decided conflict of 
 competent evidence. The Government's ex 
 perts gave testimony to the effect that it was, 
 and "the claimant introduced evidence to show 
 the contrary. It is sufficient to say that the 
 question was plainly one of fact which was for 
 the consideration of the jury. 
 
 In a manner equally pointed and cogent the 
 question of "mis-branding" involved in* the 
 name "Coca, Cola" was discussed, and the 
 rule laid down that although what the statute 
 refers to as a "distinctive name" may be alto 
 gether arbitrary, it must be one that distin 
 guishes the article; and where a "distinctive 
 name" is formed by the uniting of several 
 names, each descriptive of a known substance 
 or article, it amounts to a "mis-branding" con 
 demned by law, if the article sold does not 
 contain the articles generally known individu 
 ally by any of such names. The opinion said, 
 on this point: 
 
116 CHARLES E. HUGHES 
 
 We are thus brought to the question whether 
 if the names coca and cola were respectively 
 descriptive, as the Government contends, a 
 combination of the two names constituted a 
 " distinctive name" within the protection of the 
 proviso in case either of the described ingredi 
 ents was absent. It is said that "coca" indi 
 cates one article, and "cola" another, but that 
 the two names together did not constitute the 
 distinctive name of any other substance or com 
 bination of substances. The contention leads 
 far. To take the illustration suggested in argu 
 ment, it would permit a manufacturer, who 
 could not use the name chocolate to describe 
 that which was not chocolate, or vanilla to de 
 scribe that which was not vanilla, to designate 
 a mixture as "Chocolate-Vanilla," although it 
 was destitute of either or both, provided the 
 combined name had not been previously used. 
 We think that the contention misses the point 
 of the proviso. A mixture or compound may 
 have a name descriptive of its ingredients or 
 an arbitrary name. The latter (if not already 
 appropriated) being arbitrary, designates the 
 particular product. Names, however, which 
 are merely descriptive of ingredients are not 
 primarily distinctive names save as they ap 
 propriately describe the compound with such 
 ingredients. To call the compound by a name 
 descriptive of ingredients which are not pres 
 ent is not to give it "its own distinctive name" 
 which distinguishes it from other compounds 
 but to give it the name of a different com 
 pound. That, in our judgment, is not protected 
 by the proviso, unless the name has achieved 
 
FOODS AND DRUGS 117 
 
 a secondary significance as descriptive of a 
 product known to be destitute of the ingredi 
 ents indicated by its primary meaning. 
 
 In the present case we are of opinion that 
 it could not be said as matter of law that 'the 
 name was not primarily descriptive of a com 
 pound with coca and cola ingredients, as 
 charged. Nor is there basis for the conclusion 
 that the designation had attained a secondary 
 meaning as the name of a compound from 
 which either coca or cola ingredients were 
 known to be absent; the claimant has always 
 insisted, and now insists, that its product con 
 tains both. But if the name was found to be 
 descriptive, as charged, there was clearly a con 
 flict of evidence with respect to the .presence of 
 any coca ingredient. We conclude that the 
 court erred in directing a verdict on the second 
 count. 
 
 During the past five years, the Supreme 
 Court has likewise given great vitality to the 
 power of the States to enact and enforce effec 
 tive regulations against impurity in foods and 
 drugs and the presence of deleterious sub 
 stances therein. In Price v. Illinois, 1 Mrs. Price 
 had been found guilty, in the Chicago Municipal 
 Court, of violating the "pure food" statute of 
 that commonwealth. She had sold in Chicago a 
 preservative compound well known to house 
 wives under the name of "Mrs. Price's Canning 
 Compound. " The State authorities charged, 
 
 * Price vs. Illinois (238 IT. S. Keports, page 446). 
 
118 CHARLES E. HUGHES 
 
 and the State Courts had determined, that this 
 so-called "preservative of food'' was "unwhole 
 some and injurious, in that it contained boric 
 acid." Mrs. Price promptly appealed to the 
 Supreme Court of the United States, and 
 Justice Hughes wrote the opinion of the Court 
 in her case. 
 
 The Supreme Court of the United States of 
 course did not undertake to say whether boric 
 acid, which Mrs. Price's "canning compound" 
 concededly contained, was in fact "injurious to 
 health or to the human system." These nine 
 men of the law behind a long bench down in a 
 "Washington court-room did not try to decide 
 that, and the provisions of the Constitution as 
 to the jurisdiction of the Supreme Court did not 
 put that task upon them. The Supreme Court 
 said, as it does in all similar cases, that the 
 State authorities, with the aid of their chemists 
 and their health experts, are entitled to form 
 their own judgment as to that, and unless their 
 determination that "boric acid" is unhealthful 
 appears under all the evidence to be so alto 
 gether unreasonable and arbitrary that the 
 trained minds of the Court can discover no fair 
 or probable foundation for such a conclusion, 
 the Supreme Court has no right or reason to 
 interfere with the action of the State experts. 
 If the house-wives of Illinois want Mrs. Price's 
 "canning compound" taken out of the cate 
 gory of prohibited articles, and want to use this 
 boric acid preservative in their fall canning, 
 
FOODS AND DRUGS 119 
 
 they should let their views be known to their 
 legislators, and vote accordingly; the Supreme 
 Court cannot interfere. The Court, in other 
 words, said, in substance, that it was no answer 
 to the action of the State authorities and the 
 State Courts to say that the injurious effects of 
 boric acid are debatable, because if the effects 
 are debatable, the legislature of Illinois is enti 
 tled to use its own best judgment, with the aid 
 of the most expert advisers it can obtain, and 
 the matter rests with the people of Illinois, not 
 a Court in Washington. 
 
 Justice Hughes wrote, in part, as follows, in 
 the Price case: 
 
 The State has undoubted power to protect 
 the health of its people and to impose restric 
 tions having reasonable relation to that end. 
 The nature and extent of restrictions of this 
 character are matters for the legislative judg 
 ment in defining the policy of the State and 
 the safeguards required. In the avowed exer 
 cise of this power, the legislature of Illinois has 
 enacted a prohibition as the statute is con 
 strued against the sale of food preservatives 
 containing boric acid. And unless this prohibi 
 tion is palpably unreasonable and arbitrary we 
 are not at liberty to say that it passes beyond 
 the limits of the State's protective author- 
 ity 
 
 The contention of the plaintiff in error could 
 .be granted only if it appeared that by a con 
 sensus of opinion the preservative was unques- 
 
120 CHARLES E. HUGHES 
 
 tionably harmless with respect to its contem 
 plated uses, that is, that it indubitably must be 
 classed as a wholesale article of commerce so 
 innocuous in its designed use and so unrelated 
 in any way to any possible danger to the public 
 health that the enactment must be considered 
 as a merely arbitrary interference with the 
 property and liberty of the citizen. It is plainly 
 not enough that the subject should be regarded 
 as debatable. If it be debatable, the legislature 
 is entitled to its own judgment, and that judg 
 ment is not to be superseded by the verdict of 
 a jury upon the issue which the legislature has 
 decided. It is not a case where the legislature 
 has confined its action to the prohibition of that 
 which is described in general terms as unwhole 
 some or injurious, leaving the issue to be de 
 termined in each case as it arises. The legis 
 lature is not bound to content itself with gen 
 eral directions when it considers that more de 
 tailed measures are necessary to attain a legiti 
 mate object. Legislative particularisation in 
 the exercise of protective power has many 
 familiar illustrations. The present case is one 
 of such particularisation, where the statute 
 read as the State Court reads it specially pro 
 hibits preservatives containing boric acid. The 
 legislature thus expressed its judgment and it is 
 sufficient to say, without passing upon the 
 opinions of others adduced in argument, that 
 the action of the legislature cannot be consid 
 ered to be arbitrary. Its judgment appears to 
 have sufficient support to be taken out of that 
 category. See Hipolite Egg Co. v. United 
 States, 220 U. S. 45, 51; Circular No. 15 (June 
 
FOODS AND DRUGS 121 
 
 23, 1904), Bureau of Chemistry, Food Inspec 
 tion Decision 76 (July 13, 1907) ; Bulletin 
 (December 31, 1914), Bureau of Chemistry; 
 IT. S. Department of Agriculture. . . . 
 
 It is further urged that the enactment, as 
 construed, contains an unconstitutional dis 
 crimination against the plaintiff in error, but in 
 this aspect, again, the question is whether the 
 classification made by the legislature can be 
 said to be without any reasonable basis. The 
 legislature is entitled to estimate degrees of evil 
 and to adjust its legislation according to the 
 exigency found to exist. And, applying fa 
 miliar principle, it cannot be said that the legis 
 lature exceeded the bounds of reasonable dis 
 cretion in classification when it enacted the pro 
 hibition in question relating to foods and com 
 pounds sold as food preservatives. 
 
 In several other opinions of notable fidelity 
 to the actual conditions under which adminis 
 trative problems of State regulation are en 
 countered, Justice Hughes strongly sustained 
 the State power. In Savage against Jones, 1 the 
 Court was asked to condemn an Indiana statute 
 which regulated in certain respects, the sale 
 of what is known as ' ' concentrated commercial 
 food" for live-stock, and required disclosure of 
 the ingredients and the minimum percentage of 
 fats and proteins therein, disclosure of the for 
 mula of their combination not being required. 
 Justice Hughes held, for a unanimous Court, 
 
 1 225 U. S. Reports, page 501. 
 
122 CHARLES E. HUGHES 
 
 that in view of the conditions under which these 
 prepared foods for live-stock are sold and used 
 and the importance to scientific and successful 
 dairying that the ingredients of these concen 
 trated foods should be known, the statute must 
 be regarded as within the limits of what the 
 State might reasonably do, along the lines of 
 police regulation for the suitable protection of 
 the best interests of its farmers. He said that 
 "commerce among the States is not a technical 
 legal conception, but a practical one, drawn 
 from the course of business "; and that a State 
 enactment of this kind could not be regarded 
 as an interference with or a burden upon inter 
 state commerce, even as to a vendor of these 
 stock foods who lived in another State and 
 shipped them into Indiana for sale. He like 
 wise held that as long as the Federal Food and 
 Drugs Act does not require disclosure of the 
 ingredients of any compounds, the field in that 
 respect is left open to the discretion of the 
 State authorities. Later in the same month, 
 Justice Hughes wrote for the Court in the case 
 of Standard Stock Food Company against 
 Wright, 1 and upheld the constitutionality of a 
 similar statute passed by the Iowa Legislature. 
 
 In Purity Extract Company against Lynch, 2 
 decided in December of 1912, the Supreme 
 Court passed upon a number of questions 
 
 *225 U. S. Reports, page 540. 
 a 22(J U. S. Reports, page 192. 
 
FOODS AND DRUGS 123 
 
 closely related to those already considered un 
 der this chapter, and also having a bearing 
 upon the scope of the regulative power of the 
 State to make effective its duly determined 
 policy as to the sale and use of intoxicating 
 liquors. The plaintiff in the action was the 
 manufacturer of a beverage known as "Poin- 
 setta," which contained 5.73% of malt and con- 
 cededly was not intoxicating. The United 
 States Government did not class "Poinsetta" 
 as an intoxicating liquor, and the beverage was 
 bottled in such a way that concededly it could 
 not be used "as a subterfuge for the sale of 
 beer." The defendant was to have had the 
 exclusive agency for the beverage in one of the 
 Mississippi counties, and was to pay an agreed 
 price for the agency. When he went into the 
 State, he found that the legislature, in pur 
 suance of the "prohibition" policy of the com 
 monwealth, had enacted a law prohibiting the 
 sale of all malt liquors, whether intoxicating in 
 fact or not, and the Supreme Court of the State 
 had specifically held that this statute prohibited 
 the sale of "Poinsetta" within the State, be 
 cause one of its ingredients was malt. The de 
 fendant then refused to take the agency or pay 
 the price ; the company sued him for the money ; 
 the State Court said he need not pay it because 
 the contract called for the doing of a thing 
 illegal in the State ; and the company asked the 
 Supreme Court of the United States to rule 
 that the State had no right to exclude "Poin- 
 
124 CHARLES E. HUGHES 
 
 setta" from the channels of interstate com 
 merce and no right to vitiate an otherwise valid 
 contract merely because it related to transac 
 tions for the sale of a non-intoxicating malt 
 liquor. 
 
 On the question whether the prohibition law 
 ofjthe Sta^e could be made applicable to a malt 
 beverage not intoxicating and a prohibition 
 consequently placed on the sale of a beverage 
 such as "Poinsetta," Justice Hughes said: 
 
 That the State in the exercise of its police 
 power may prohibit the selling of intoxicating 
 liquors is undoubted. It is also well established 
 that, when a State exercising its recognised 
 authority undertakes to suppress what it is free 
 to regard as a public evil, it may adopt such 
 measures having reasonable relation to that end 
 as it may deem necessary in order to make its 
 action effective. It does not follow that be 
 cause a transaction separately considered is 
 innocuous it may not be included in a prohibi 
 tion the scope of which is regarded as essential 
 in the legislative judgment to accomplish a 
 purpose within the admitted power of the Gov 
 ernment. . . . With the wisdom of the exercise 
 of that judgment the court has no concern; 
 and unless it clearly appears that the enactment 
 has no substantial relation to a proper purpose, 
 it cannot be said that the limit of legislative 
 power has been transcended. To hold other 
 wise would be to substitute judicial opinion of 
 expediency for the will of the legislature, a 
 notion foreign to our constitutional system. . . . 
 
FOODS AND DEUGS 125 
 
 It was competent for the legislature of Mis 
 sissippi to recognise the difficulties besetting the 
 administration of laws aimed at the prevention 
 of traffic in intoxicants. It prohibited, among 
 other things, the sale of "Malt liquors/' In 
 thus dealing with a class of beverages which in 
 general are regarded as intoxicating, it was not 
 bound to resort to a discrimination with respect 
 to ingredients and processes of manufacture 
 which, in the endeavour to eliminate innocuous 
 beverages from the condemnation, would facili 
 tate subterfuges and frauds and fetter the en 
 forcement of the law. A contrary conclusion 
 logically pressed would save the nominal power 
 while preventing its effective exercise. The 
 statute establishes its own category. The ques 
 tion in this court' is whether the legislature had 
 power to establish it. The existence of this 
 power, as the authorities we have cited abun 
 dantly demonstrate, is not to be denied simply 
 because some innocent articles of transactions 
 may be found within the prescribed class. The 
 inquiry must be whether, considering the end 
 in view, the statute passes the bounds of reason 
 and assumes the character of a merely arbi 
 trary fiat. 
 
 That the opinion is extensively held that a 
 general prohibition of the sale of malt liquors, 
 whether intoxicating or not, is a necessary 
 means to the suppression of trade in intoxi 
 cants, sufficiently appears from the legislation 
 of other States and the decision of the courts 
 in its construction. . . . We cannot say that 
 there is no basis for this widespread conviction. 
 
 The State, within the limits we have stated, 
 
126 CHARLES E. HUGHES 
 
 must decide upon the measures that are need 
 ful for the protection of its people, and, having 
 regard to the artifices which are used to pro 
 mote the sale of intoxicants under the guise of 
 innocent beverages, it would constitute an un 
 warrantable departure from accepted principle 
 to hold that the prohibition of the sale of all 
 malt liquors, including the beverage in ques 
 tion, was beyond its reserved power. 
 
CHAPTER V 
 
 THE EIGHT-HOUE WOKK-DAY AND COMPENSATION 
 FOK OCCUPATIONAL DISABILITIES THKOUGH 
 TKADE KISKS. 
 
 "THE length of hours of service has direct 
 relation to the efficiency of the human agencies 
 upon which protection to life and property nec 
 essarily depends," was an expression of the 
 economic and legal doctrine held by Justice 
 Hughes in Baltimore & Ohio Railroad Company 
 against the Interstate Commerce Commission. 1 
 He added that "in imposing restrictions having 
 reasonable relation to this end there is no inter 
 ference with liberty of contract as guaranteed 
 by the Constitution. ' ' In the so-called ' ' Oregon 
 hours of labour" case, 2 decided before Justice 
 Hughes became a member of the Supreme 
 Court, that tribunal had upheld an Oregon 
 statute, which reduced the maximum hours of 
 labour for women in industrial establishments 
 to ten hours per day. In the so-called "Ohio 
 hours of labour" case, 3 he joined with his col 
 leagues in unanimously sustaining the Ohio 
 statute which limited the hours of labour of 
 
 1 221 U. S. Eeports, page 612. 
 
 *Muller vs. Oregon (208 U. S. Eeports, page 412). 
 
 *Hawley vs. Walker (232 U. S. Eeports, page 718). 
 
 127 
 
128 CHAELES E. HUGHES 
 
 women in certain industrial establishments to 
 fifty-four hours in any one week. In Miller 
 against Wilson, 1 Justice Hughes wrote the 
 opinion of the Supreme Court, in which he held 
 that while a limitation of the hours of women 
 " might be pushed to a wholly indefensible ex 
 treme/' there was no reason for the conclusion 
 "that the limit of the reasonable exertion of 
 protective authority has been overstepped " in 
 a California statute which prescribed for em 
 ployed women a maximum work-day of eight 
 hours and a maximum work- week of forty-eight 
 hours. 
 
 In the Baltimore <& Ohio case above referred 
 to, where a limitation of the hours of labour of 
 railroad employes was under attack, Justice 
 Hughes said, for a unanimous Court: 
 
 The fundamental question here is whether a 
 restriction upon the hours of labour of em 
 ployes who are connected with the movement 
 of trains in interstate transportation is com 
 prehended within this sphere of authorised leg 
 islation. This question admits of but one an 
 swer. The length of hours of service has direct 
 relation to the efficiency of the human agencies 
 upon which protection to life and property nec 
 essarily depends. This has been repeatedly em 
 phasised in official reports of the Interstate 
 Commerce Commission, and is a matter so plain 
 as to require no elaboration. In its power 
 suitably to provide for the safety of employes 
 
 X 236 U. S. Reports, page 373. 
 
THE EIGHT-HOUR WORK-DAY 129 
 
 and travellers, Congress was not limited to the 
 enactment of laws relating to mechanical ap 
 pliances, but it was also competent to consider, 
 and to endeavour to reduce, the dangers inci 
 dent to the strain of excessive hours of duty on 
 the part of engineers, conductors, train des- 
 patchers, telegraphers, and other persons em 
 braced within the class defined by the act. 
 And in imposing restrictions having reasonable 
 relation to this end there is no interference with 
 liberty of contract as guaranteed by the Con 
 stitution. If then it be assumed, as it must 
 be, that in the furtherance of its purpose Con 
 gress can limit the hours of labour of employes 
 engaged in interstate transportation, it follows 
 that this power cannot be defeated either by 
 prolonging the period of service through other 
 requirements of the carriers or by the com 
 mingling of duties relating to interstate and 
 intrastate operations. . . . 
 
 Finding that the objections to the validity of 
 the statute are not well taken, we are brought 
 to the question whether the Interstate Com 
 merce Commission has authority to require the 
 reports called for by its order. Section 4 of 
 the act provides : " SEC. 4. It shall be the duty 
 of the Interstate Commerce Commission to 
 execute and enforce the provisions of this act, 
 and all powers granted to the Interstate Com 
 merce Commission are hereby extended to it in 
 the execution of this act." 
 
 The Commission then may call to its aid in 
 the enforcement of the act "all powers grant 
 ed" to it. And, although there might have 
 been doubt as to the adequacy of the authority 
 
130 CHAELES E. HUGHES 
 
 of the Commission, under the law as it formerly 
 stood, to require these reports, there can be 
 none now in view of the amendment of 20 of 
 the act to regulate commerce by the act of June 
 18, 1910. . . . 
 
 To enable the Commission properly to per 
 form its duty to enforce the law, it is necessary 
 that it should have full information as to the 
 hours of service exacted of the employes who 
 are subject to the provisions of the statute, and 
 the requirements to which we have referred are 
 appropriate for that purpose and are compre 
 hended within the power of the Commission. 
 
 There is the final objection that to compel the 
 disclosure by these reports of violations of the 
 law is contrary to the Fourth and Fifth 
 Amendments of the Constitution of the United 
 States. The order of the Commission is suit 
 ably specific and reasonable, and there is not 
 the faintest semblance of an unreasonable 
 search and seizure. The Fourth Amendment 
 has no application. 
 
 Justice Hughes likewise joined in the opinion 
 of Justice Holmes in Missouri, K. & T. Railway 
 Company against the United States* in which 
 the latter said that "as towards the public 
 every overworked man presents a distinct dan 
 ger," and he joined in Justice Harlan's holding 
 in Chicago, R. I. & P. Railway Company against 
 Arkansas 2 that the "full crew law" was not an 
 obstruction to or burden upon interstate com- 
 
 231 U. S. Reports, page 118. 
 ' 219 U. S. Reports, page 453. 
 
THE EIGHT-HOUR WORK-DAY 131 
 
 merce, but an aid thereto, fully within the regu 
 lative power of the State. 
 
 In Sturges & Burn against Beauchamp^ Jus 
 tice Hughes was called upon to write the opin 
 ion of the Court as to the Illinois statute pro 
 hibiting the employment of children under 
 sixteen years of age in industrial employments. 
 Said his opinion: 
 
 It cannot be doubted that the State was en 
 titled to prohibit the employment of persons of 
 tender years in dangerous occupations. ... It 
 is urged that the plaintiff in error was not per 
 mitted to defend upon the ground that it acted 
 in good faith relying upon the representation 
 made by Beauchamp that he was over sixteen. 
 It is said that, being over fourteen, he at least 
 had attained the age at which he should have 
 been treated as responsible for his statements. 
 But, as it was competent for the State in secur 
 ing the safety of the young to prohibit such em 
 ployment altogether, it could select means ap 
 propriate to make its prohibition effective and 
 could compel employers, at their peril, to ascer 
 tain whether those they employed were in fact 
 under the age specified. The imposition of 
 absolute requirements of this sort is a familiar 
 exercise of the protective power of government. 
 . . . And where, as here, such legislation has 
 reasonable relation to a purpose which the 
 State was entitled to effect, it is not open to 
 constitutional objection as a deprivation of lib 
 erty or property without due process of law. 
 
 'SSI U, S, Reports, page 320, 
 
132 CHARLES E. HUGHES 
 
 As Governor of New York, Mr. Hughes had 
 been a pioneer in constructive steps for the 
 development of an adequate and scientific sys 
 tem of compensation to injured employes for 
 those disabilities which are a natural risk and 
 concomitant of industry. As far back as 1909, 
 two years before the enactment of the Wiscon 
 sin workmen's compensation law, Governor 
 Hughes had sent to the New York Legislature 
 the following recommendation, upon which the 
 Legislature acted in authorising the creation 
 of the so-called Wainwright Commission: 
 
 I recommend that provision be made for spe 
 cial and expert inquiry into the questions re 
 lating to employers ' liability and compensation 
 for workmen's injuries. Our present methods 
 are wasteful and result in injustice. Numbers 
 of negligence cases are prosecuted upon a basis 
 which gives the attorney a high percentage of 
 recoveries. Only a small percentage of the pre 
 miums paid for insurance against liability is 
 devoted to payment of losses. As a result the 
 workmen do not receive proper compensation 
 and employers pay large amounts that do not 
 reach them. There are constitutional restric 
 tions which stand in the way of some of the 
 remedies which have been devised in other coun 
 tries; but the subject should be thoroughly ex 
 amined to the end that the present waste and 
 injustice should be mitigated to the fullest ex 
 tent that may be found to be at once practicable 
 and consistent with the provisions of our funda 
 mental law. 
 
THE EIGHT-HOUR WORK-DAY 133 
 
 Upon the recommendation of the "Wainwright 
 Commission, the Legislature passed a work 
 men's compensation law which was a pioneer of 
 its kind and performed a valuable experimental 
 service in clarifying the fundamental law as 
 to the policy and scope of legislation in this 
 field. In approving the Wainwright bill, which 
 was afterwards held unconstitutional by the 
 New York Court of Appeals in the well-known 
 Ives case, 1 thereby clearing the way for a 
 needed amendment of the State Constitution 
 and the passage of a more comprehensive and 
 admirable Compensation Act, Governor Hughes 
 said: 
 
 Existing conditions with regard to employ 
 ers' liability and compensation for workmen's 
 injuries are so unjust that there should be re 
 medial action. . . . The present methods are 
 satisfactory neither to employer nor employed 
 and the rules of law governing legal liability 
 offend the commonsense of fairness. The im 
 portance of providing a suitable scheme of com 
 pensation for industrial acidents and of avoid-* 
 ing the shocking waste of injustice of our pres 
 ent methods must be conceded by all open- 
 minded students of industrial conditions. It is 
 difficult to devise any method of compensation 
 which will not be visited with severe criticism 
 and a satisfactory solution of the problem can 
 only be reached by experimentation. 
 
 1 Ivea vs. South Buffalo By. Co. (201 N. Y. Reports, page 
 271), 
 
134 CHAELES E. HUGHES 
 
 In the field of indemnity or recovery for in 
 dustrial accidents, Justice Hughes' opinions in 
 the Supreme Court manifest a broad and sym 
 pathetic outlook upon the activities of the State 
 legislatures. In Chicago, B. & Q. Railway 
 Company against McGuire* argued a few 
 months after Justice Hughes went upon the 
 bench, he held that the Iowa Legislature had 
 the right to prohibit contracts between railway 
 companies and their employes limiting the lat 
 ter 's right to recover damages at common law 
 for injuries in the course of employment, and 
 that this prohibition might be made effective 
 against even a so-called " relief plan," to which 
 both the company and the employes contrib 
 uted, and which was by its terms supposed to 
 bar and be in substitution for any recovery by 
 the employe through action at law. To a very 
 similar effect was his ruling in Philadelphia, 
 B. & W. Railway Company against Schubert, 2 
 where the prohibition against exemptions from 
 Jiability was contained in the Federal Employ 
 ers' Liability Act of 1908. He joined repeat 
 edly in upholding the constitutionality of State 
 statutes 3 abrogating or modifying the "fellow- 
 
 1 219 U. S. Eeports, page 549. 
 
 a 224 U. S. Eeports, page 603. 
 
 8 Mobile, etc., E. E. Co. vs. Turnipseed (219 U. S. 35), up 
 holding the Mississippi statute in 1910; Chicago, B. $ I. K. It. 
 Co. vs. McGuire (219 U. S. 549), upholding the Iowa statute 
 in 1911; and Aluminum Co. vs. Eamsey (222 U. S. 251), up 
 holding the Arkansas statute in 1911. 
 
THE EIGHT-HOUR WORK-DAY 135 
 
 servant doctrine" the outgrown concept that 
 an injured employe was barred of recovery if 
 the accident was due to the fault of a fellow 
 employe. 
 
CHAPTER VI 
 
 "THE PAPER-BOX FACTORY GIRL AND THE 
 CONSTITUTION" 
 
 THE greatest Court in the world is a very 
 human institution. It deals with palpitating 
 human issues in a very direct, common-sense, 
 human way, and it knows it is dealing with 
 them dealing with them finally, at least so far 
 as the rights and happiness of the human beings 
 before the Court in the particular case are con 
 cerned. Those who think of the Supreme Court 
 as an impersonal aggregation of men with me 
 chanical minds, leading a cloistered life and in 
 different to the happenings and welfare of a 
 workaday world, have never sat in that court 
 room and watched the way in which these nine 
 black-robed men address themselves to the hu 
 man as well as the legal phases of the cases 
 argued before them, after they have come across 
 the Capitol corridors at noon in impressive file, 
 between ropes of red plush temporarily ex 
 tended from their robing-rooms to give them 
 avenue. The members of this Court realise 
 what governments, Constitutions, laws, deci 
 sions, precedents, courts, law-suits, appeals, ar 
 guments, are all about and what in the final 
 
 136 
 
' <THE PAPEE-BOX FACTORY GIRL" 137 
 
 analysis these man-created instrumentalities 
 are and should serve, and they appear to 
 work decidedly hard to keep all these instru 
 mentalities in accord and in service for the ulti 
 mate welfare of the men and women who make 
 up, and in the years to come will make up, the 
 Nation. 
 
 In the Survey magazine, 1 Miss Mary Cham 
 berlain once wrote down very vividly her im 
 pressions of the direct and open-minded way in 
 which the Supreme Court hears argument on 
 vital issues of human rights and " keeps its 
 eyes on the main issue": 
 
 "OYEZ, OYEZ, OYEZ . . . God save the United 
 States and this honourable court," chants the 
 marshal of the highest tribunal in America as 
 the black-robed justices file to their places. 
 
 "Save, also," he might add, "the nine million 
 working women who to-day are pleading for 
 health and energy, for some joyousness in liv 
 ing and for the welfare of their children." 
 
 For this afternoon, December 17, 1914, the 
 first case involving the constitutionality of a 
 law to provide minimum wages for women in 
 industry and upheld by unanimous bench in the 
 Supreme Court of Oregon is come to trial 
 before the Supreme Court of the United States. 
 On the court's decision will probably depend 
 
 1 Issue of December 26, 1914. "The Paper-Box Factory 
 Girl and the Constitution," by Miss Mary Chamberlain. 
 
138 CHAELES E. HUGHES 
 
 the status of similar laws in California, Colo 
 rado, Minnesota, Utah, Washington and Wis- 
 consin. It will constitute, furthermore, an im 
 petus or a blockage to the present investigations 
 of living conditions in the States where wage 
 legislation is contemplated. 
 
 The decision to be rendered, therefore, in the 
 cases of Frank C. Stettler, a box manufacturer, 
 of Portland, Ore., and Elmira Simpson, a girl 
 employed in the Stettler factory, vs. the Indus 
 trial Welfare Commission of Oregon l involves 
 more than the right of a single manufacturer to 
 bargain for labour at six and seven dollars a 
 week and more than the right of a single woman 
 to scrimp through life on an eight-dollar wage. 
 The judgment handed down may prove an index 
 to the attitude of our final judiciary toward a 
 broader extension of the police power of the 
 State in the field of economic relations. 
 
 The scene in the semi-circular court-room has 
 a touch of irony, almost of the dramatic; the 
 quiet, stately room so far from the whir of 
 machines and the rush of Christmas shopping; 
 the formality of the proceedings ; the inscruta 
 ble faces of the eight judges; the attempt of 
 . . . counsel for the plaintiffs, to prove the 
 collapse of constitutional government by the 
 payment of sixty-four cents more a week to a 
 factory girl in Portland ; and finally the earnest 
 appeal of Louis D. Brandeis and Attorney Gen 
 eral Crawford of Oregon, representing the de 
 fendants, to judge not hypothetical bogies, but 
 
 1 No decision of the Supreme Court in this case had been 
 handed down, up to the time of Justice Hughes' resignation 
 from the bench. 
 
"THE PAPEE-BOX FACTORY GIRL" 139 
 
 the very real terrors of starvation, thin cloth 
 ing arid temptation. 
 
 The plaintiffs rest their case upon the same 
 familiar premise the premise of freedom of 
 contract guaranteed by the Fourteenth Amend 
 ment to the Constitution. This arbitrary regu 
 lation of wages, regardless both of the em 
 ployes ' efficiency or other sources of income and 
 of the employers' ability to pay the rate, is 
 claimed to be a deprivation of liberty and of 
 property (since labour is a commodity) without 
 due process of law. Furthermore, it is branded 
 discriminatory, on the one hand, against the em 
 ployers of Oregon who must compete with 
 manufacturers in Washington and neighbour 
 ing States ; on the other hand, against employes 
 as women. 
 
 In judging the case the Supreme Court of 
 Oregon held that regulation of wages by a 
 minimum wage law was a proper exercise of the 
 police power of the State whereby "freedom" 
 is subject to such restraint of action as the State 
 may impose for protection of health, safety, 
 morals, and general welfare. But Mr. Brown 
 contends that a i l fair, reasonable, necessary ex 
 ercise of police power" has never been and 
 may not be invoked to supply an individual's 
 needs which are merely incidental to employ 
 ment and do not, like the hazards of long hours 
 and accidents, arise out of an occupation. It 
 is difficult to follow from the argument which 
 he advances how an individual's private life, 
 her unmet needs of food and shoes and recrea 
 tion, has no connection with the six or eight 
 dollar wage paid for her industrial life. 
 
140 CHAELES E. HUGHES 
 
 To take from those who have, simply because 
 they have, and give to those who have not, 
 simply because they have not, warns counsel, 
 opens a realm of police power regulation which 
 has no limit, one which will lead to compulsory 
 division of profit and thence to a division of 
 property. It may be, he admits, ethically right 
 and even economically sound, but it is impos 
 sible under our present form of government. 
 It strains all police power and " jumps over a 
 chasm into a field repugnant to a Constitution 
 which holds sacred the rights of property " 
 the similes of his conclusion are jumbled but 
 they express to Mr. Brown's mind the vague, 
 nameless terrors which menace a government 
 where a minimum wage is law. 
 
 The spectator unconsciously tries to sense 
 the attitude of the court from the queries which 
 the judges make. Is Mr. Justice Pitney adverse 
 when he questions the granting of a fixed wage 
 without reference to efficiency or Mr. Chief Jus 
 tice White when he asks if such a regulation 
 would not drive some employers out of busi 
 ness? May the defence expect agreement from 
 Mr. Justice McKenna who appears to take issue 
 when Mr. Brown declares there is no " reason 
 ableness " in the Oregon statute? Or from Mr. 
 Justice Holmes when he cites the degeneracy of 
 the working classes in England before the fac 
 tory acts curbed absolute "freedom of con 
 tract"? Or are these questions and comments 
 merely the expression of alert and open minds 
 desirous of examining the subject from its 
 every angle? 
 
 "Never," declares a frequent visitor to the 
 
i < THE PAPER-BOX FACTORY GIRL ' ' 141 
 
 court, "have I seen the judges more obviously 
 interested in a case." 
 
 But whether we count them favourable or ad 
 verse, one question remains unanswered by the 
 plaintiffs which must be answered by the court. 
 
 Ex-Senator Fulton is summing up the case of 
 the plaintiffs. Mr. Justice Hughes, silent until 
 now, leans forward. 
 
 "Do you base your argument on the theory 
 of freedom of contract V ' he asks. 
 
 "Yes," answers the counsel. 
 
 i i Then, ' ' continues Justice Hughes, ' ' is there 
 not a precedent in the Ohio case 1 in which this 
 court held constitutional the 54-hour for women 
 in industry?" 
 
 "No," objects Mr. Fulton, "there is a dif 
 ference between hours and wages." 
 
 "What is it?" 
 
 "Long hours," he repeats, "break down 
 women so that they become public charges, it 
 is a condition growing out of employment. The 
 amount of wages has no relation to health and 
 morals. ' ' 
 
 "But," contends Justice Hughes, "suppose 
 it has, suppose this court finds that these evils 
 are in consequence of wages paid in employ 
 ment?" 
 
 And it is upon this question that the defend 
 ants, the Industrial Welfare Commission, sub 
 mit most telling evidence. 
 
 Their defence is not based on contemplation 
 of a nation shattered by the payment of mini 
 mum wage, but on a condition of industry which 
 actually exists when wages are paid women "in- 
 
 *Hawley vs. Walker (232 U. S. Reports, page 718). 
 
142 CHAELES E. HUGHES 
 
 adequate to supply the necessary cost of living 
 and to maintain them in health." 
 
 Mr. Brandeis does not present to the court 
 speculation, but facts, human documents col 
 lected in a brief which was prepared in co 
 operation with Josephine Goldmark of the Na 
 tional Consumers' League; and deductions 
 drawn from those facts. 
 
 First of all the counsel pictures the condi 
 tions found in Oregon by the Industrial Wel 
 fare Commission and confirmed by investiga 
 tion in other States that working women do 
 not buy enough to eat in order that they may 
 dress decently, that those who do eat plenty 
 go without proper clothes or shelter, that those 
 who have all these things often have them at the 
 expense of morality. 
 
 He argues that a survey of the four remedies 
 for such evils proves the voluntary remedies 
 of education and organisation too slow to pre 
 vent the spread of misery; the Massachusetts 
 plan of raising wages by compulsory publicity 
 uncertain and unsuited perhaps to Oregon ; the 
 legal minimum wage now on trial a remedy 
 founded on precedent and on logic. After 
 eighteen years of minimum wage legislation in 
 Victoria, prosperity, not chaos, is found in that 
 commonwealth, and in England wages boards 
 established in four trades in 1909 have been 
 extended to four more in 1913 without destruc 
 tion to the empire. 
 
 Nor, Mr. Brandeis continues, in the United 
 States with its constitutional government is this 
 process of restricting individual liberty so revo 
 lutionary. Factory acts, applying first to chil- 
 
' l THE PAPER-BOX FACTORY GIEL ' > 143 
 
 dren, have been extended to women, regulating 
 hours of work, lunch-hour period, night work, 
 etc., and then to men, regulating their employ 
 ment in trades hazardous to life and limb, 
 trades dangerous to health, and finally the sani 
 tary conditions in all trades. Freedom of con 
 tract is an empty phrase, avows Mr. Brandeis, 
 when it implies a single woman pitted against 
 a corporation, and the laws of supply and de 
 mand, like all natural laws, must be regulated. 
 
 His final appeal is for a broader interpreta 
 tion of the Constitution. It lies within the Con 
 stitution to save our people, he declares, or it 
 must go as a hindrance to progress. It is most 
 conservative, in the true sense of the word, to 
 encourage experiment. 
 
 These two arguments before the Supreme 
 Court bear in upon the spectators as more than 
 the case for and against the minimum wage. 
 They reflect two attitudes toward a document 
 drawn up when society and business were or 
 ganised on a scale unrecognisable in the huge 
 operations and tense competition of to-day. 
 One would attempt to fit the infinite march of 
 events and economic and social change to a 
 finite, rigid mould of constitutional language; 
 the other .would adapt its principles to a 
 changed state of society where freedom of con 
 tract is impaired and legal protection in con 
 tract more and more necessary. They lay be 
 fore the Supreme Court the clash between ' ' that 
 sacredness of private property, " the very bul 
 wark of our Constitution according to the plain 
 tiffs and the sacredness of human life, to the 
 
144 CHAELES E. HUGHES 
 
 defence, the real meaning of constitutional gov 
 ernment. 
 
 %. 
 
 In this graphic narrative of the broad and 
 sympathetic manner in which great issues of 
 human welfare and economic readjustment are 
 heard by the Nation's highest Court, Miss 
 Chamberlain depicts Justice Hughes as cen 
 tering the issue with unerring accuracy on what 
 the lawyers call the very "nub" of the ques 
 tion which will go hurtling through the years, 
 no matter what in the particular case may be 
 the decision of the Court : 
 
 If, as the courts have held, the legis 
 latures may wholesomely limit the hours 
 which women may be required to work 
 in industrial employments, for reasons 
 having in view, not merely the health and 
 welfare of women, but the welfare and 
 protection of all humankind, what shall 
 be the metes and bounds of protective 
 legislation, if legislatures and courts 
 find that the minimum of the wages paid 
 to women in industry has in fact a no less 
 vital and causal relation to conditions 
 similar to those against which the hours- 
 of-labor statutes are aimed? 
 
 " Suppose, " as Justice Hughes in effect in 
 quired; "suppose the amount of wages has a 
 relation to health and morals; suppose this 
 Court finds that these evils are in consequence 
 
' < THE P APEE-BOX FACTORY GIRL ' ' 145 
 
 of wages paid in employment? Is there not a 
 precedent in the Ohio case x in which this Court 
 held constitutional the fifty-four hour for 
 women in industry, ' ' and also, it may be added, 
 in the California case, 2 in which, in the very 
 month following this colloquy, Mr. Justice 
 Hughes held constitutional a limitation of 
 women's work-day to eight hours and their 
 work-week to forty-eight hours? 
 
 1 Hawley vs. Walker (232 U. S. Eeports, page 718). 
 3 Miller vs. Wilson (236 U. S. Beports, page 373). 
 
CHAPTER VH 
 
 COMPELLING CHOICE BETWEEN WITHDRAWAL FROM 
 TRADES-UNION MEMBERSHIP AND DISCHARGE 
 FROM EMPLOYMENT 
 
 SEVERAL years before Governor Hughes be 
 came Justice Hughes, the Supreme Court had 
 held that, even as it was the constitutional right 
 of an employe to join or refrain from joining 
 a trades-union and the constitutional right of 
 the employer to hire or refrain from hiring 
 union or non-union workmen, so it was the con 
 stitutional right of a union employe to quit the 
 service of an employer who hired non-union 
 men and the right of the employer to discharge 
 an employe because of the latter 's membership 
 or non-membership in a trades-union. In the 
 Adair case, 1 it was ruled that the constitutional 
 guaranties of freedom of contract render in 
 valid a Congressional statute by which it was 
 sought to make it a crime against the United 
 States for an interstate carrier to discharge an 
 employe because of his membership in a labour 
 organisation. 
 
 In 1914, the question arose as to the validity 
 
 1 Adair vs. U. S. (208 U. S. Keports, page 161). 
 146 
 
TRADES-UNION MEMBERSHIP 147 
 
 of a Kansas statute, of a kind already held in 
 valid by the New York Court of Appeals, 1 
 whereby it was made a misdemeanour for any 
 employer "to coerce, require, demand or in 
 fluence any person or persons to enter into any 
 agreement, either written or verbal, not to join 
 or become or remain a member of any labour 
 organisation or association, as a condition of 
 such person or persons securing employment or 
 continuing in the employment of" such em 
 ployer. The majority of the Supreme Court 
 thought that this statute was unconstitutional. 2 
 They urged that the invalidity of this enact 
 ment was an inevitable corollary of the decision 
 in the Adair case. As they saw it : 
 
 Under constitutional freedom of contract, 
 whatever either party has the right to treat as 
 sufficient ground for terminating the employ 
 ment, where there is no stipulation on the sub 
 ject, he has the right to provide against by in 
 sisting that a stipulation respecting it shall be 
 a sine qua non of the inception of the employ 
 ment, or of its continuance if it be terminable 
 at will. 
 
 As in the Adair case, the majority looked upon 
 the right to labour, and the right to make con 
 tracts respecting employment, as property 
 rights. Labour was viewed essentially as a 
 " commodity, " just as any of its products in 
 
 1 People vs. Marcus (185 N. Y. Eeports, page 257). 
 *Coppage vs. Kansas (236 U. S. Eeports, page 1). 
 
148 CHARLES E. HUGHES 
 
 the market, and the right to work and gain a 
 livelihood therein was looked upon as a prop 
 erty right, standing in an economic and legal 
 relation not distinguishable from that of ordi 
 nary articles of commerce. The majority said: 
 
 Included in the right of personal liberty and 
 the right of private property partaking of 
 the nature of each is the right to make con 
 tracts for the acquisition of property. Chief 
 among such contracts is that of personal em 
 ployment, by which labour and other services 
 are exchanged for money or other forms of 
 property. If this right be struck down or ar 
 bitrarily interfered with, there is a substantial 
 impairment of liberty in the long-established 
 Constitutional sense. 
 
 The prevailing opinion denied that it was 
 within the power of the State to declare that 
 "Coppage, the plaintiff in error, is a criminal 
 punishable with fine or imprisonment under 
 this statute simply and merely because, while 
 acting as the representative of the Railroad 
 Company and dealing with Hedges, an em 
 ploye at will and a man of full age and under 
 standing, subject to no restraint or disability, 
 Coppage insisted that Hedges should freely 
 choose whether he would leave the employ of 
 the Company or would agree to refrain from 
 association with the union while so employed. ' ' 
 What Justice Hughes thought of the Adair 
 case and what he would have done and said had 
 
TKADES-UNION MEMBERSHIP 149 
 
 he been a member of the Court at the time it 
 was decided, has never been disclosed ; but he at 
 least did not think well of a probably logical 
 extension of its doctrine to the Coppage case, 
 and was unable to give assent to the proposi 
 tion that the legislature of a State might not, 
 in its discretion, forbid an employer to require 
 an employe to agree affirmatively not to join 
 or become or remain a member of a trades- 
 union during the period of his employment, as 
 a condition of such person being permitted to 
 become or remain an employe of the employer 
 insisting upon such a condition precedent of 
 employment. 
 
 Justice Holmes dissented from the majority 
 ruling, in a compact memorandum which reit 
 erated the views many times expressed by him, 
 in the Supreme Court and in the Massachusetts 
 court. Justice Day and Justice Hughes like 
 wise dissented, and the former prepared a 
 memorandum l which expressed the views in 
 which the latter concurred. Justice Day and 
 Justice Hughes were unable to indorse the ma 
 jority conclusion that a right to require any 
 such agreement from trades-union employes, 
 even on penalty of discharge or refusal to hire, 
 was essential to the assured mutual freedom of 
 contract on the part of both employer and em 
 ployed. They contended that inasmuch as men 
 had the right to choose freely whether they 
 would join trades-unions and inasmuch as the 
 
 1 Coppage vs. Kansas (236 U. S., page 27). 
 
150 CHAELES E. HUGHES 
 
 law looks with favour upon membership in such 
 organisations for common industrial better 
 ment, the Legislature of Kansas had the right 
 to forbid attempts to coerce an unwilling em 
 ploye to agree to forego the exercise of his 
 wholesome legal right of membership, even to 
 the point of refusing him employment or con 
 tinued employment at all unless he was willing 
 thus to agree not to do what he lawfully and 
 desirably might do, in the exercise of his sup 
 posedly assured rights. 
 
 The reasoning of the opinion concurred in by 
 Justice Hughes is interesting, as expressive of 
 a broad and modern outlook upon industrial 
 relationships : 
 
 That the right of contract is a part of indi 
 vidual freedom within the protection of this 
 (Fourteenth) amendment, and may not be arbi 
 trarily interfered with, is conceded. While 
 this is true, nothing is better settled by the 
 repeated decisions of this court than that the 
 right of contract is not absolute and unyielding, 
 but is subject to limitation and restraint in the 
 interest of the public health, safety and welfare, 
 and such limitations may be declared in legisla 
 tion of the State. . . . Whether a given exer 
 cise of such authority transcends the limits of 
 legislative authority must be determined jin 
 each case as it arises. The preservation of the 
 police power of the States, under the authority 
 of which that great mass of legislation has been 
 enacted which has for its purpose the pro 
 motion of the health, safety and welfare of 
 
TRADES-UNION MEMBEESHIP 151 
 
 the public, is of the utmost importance. . . . 
 
 Of the necessity of such legislation, the local 
 legislature is itself the judge, and its enact 
 ments are only to be set aside when they in 
 volve such palpable abuse of power and lack 
 of reasonableness to accomplish a lawful end 
 that they may be said to be merely arbitrary 
 and capricious, and hence out of place in a gov 
 ernment of laws and not of men, and irrecon 
 cilable with the conception of due process of 
 law. . . . By this it is not meant that the legis 
 lative power is beyond judicial review. Such 
 enactments as are arbitrary .or unreasonable 
 and thus exceed the exercise of legislative au 
 thority in good faith, may be declared invalid 
 when brought in review by proper judicial pro 
 ceedings. This is necessary to the assertion 
 and maintenance of the supremacy of the Con 
 stitution. . . . 
 
 The question now presented is, May an em 
 ployer, as a condition of present or future em 
 ployment, require an employe to agree that he 
 will not exercise the privilege of becoming a 
 member of a labour union, should he see fit to 
 do so? In my opinion, the cases are entirely 
 different, and the decision of the o/uestions con 
 trolled by different principles. The right to 
 join labour unions is undisputed, and has been 
 the subject of frequent affirmation in judicial 
 opinions. Acting within their legal rights, such 
 associations are as legitimate as any organisa 
 tion of citizens formed to promote their com 
 mon interest. They are organised under the 
 laws of many States, by virtue of express stat 
 utes passed for that purpose, and, being legal, 
 
152 CHAELES E. HUGHES 
 
 and acting within their constitutional rights, the 
 right to join them, as against coercive action 
 to the contrary, may be the legitimate subject 
 of protection in the exercise of the police au 
 thority of the States. This statute, passed in 
 the exercise of that particular authority called 
 the police power, the limitations of which no 
 court has yet undertaken precisely to define, has 
 for its avowed purpose the protection of the 
 exercise of a legal right, by preventing an em 
 ployer from depriving the employe of it as a 
 condition of obtaining employment. I see no 
 reason why a State may not, if it chooses, pro 
 tect this right, as well as other legal rights. . . . 
 It is urged that a labour organisation a vol 
 untary association of working-men has the 
 constitutional right to deny membership to any 
 man who will not agree that during such mem 
 bership he will not accept or retain employment 
 in company with non-union men. And it is as 
 serted that there cannot be one rule of liberty 
 for the labour organisation and its members 
 and a different and more restrictive rule for 
 employers. . . . An analogous case, viewed 
 from the employer's standpoint, would be : Can 
 the State, in the exercise of its legislative 
 power, reach concerted effort of employes in 
 tended to coerce the employer as a condition of 
 hiring labour that he shall engage in writing to 
 give up his privilege of association with other 
 employers in legal organisations, corporate or 
 otherwise, having for their object a united effort 
 to promote by legal means that which employers 
 believe to be for the best interest of their busi 
 ness? . 
 
TEADES-UNION MEMBEBSHIP 153 
 
 I entirely agree that there should be the 
 same rule for employers and employed, and the 
 same liberty of action for each. In my judg 
 ment, the law may prohibit coercive attempts, 
 such as are here involved, to deprive either of 
 the free right of exercising privileges which are 
 theirs within the law. . . . The penalty imposed 
 is not for the discharge but for the attempt to 
 coerce an unwilling employe to agree to forego 
 the exercise of the legal right involved as a con 
 dition of employment. It is the requirement of 
 such agreements which the State declares to be 
 against public policy. 
 
 I think that the act now under consideration, 
 and kindred ones, are intended to promote the 
 same liberty of action for the employe as the 
 employer confessedly enjoys. The law should 
 be as zealous to protect the constitutional lib 
 erty of the employe as it is to guard that of 
 the employer. A principal object of this statute 
 is to protect the liberty of the citizen to make 
 such lawful affiliations as he may desire with 
 organisations of his choice. It should not be 
 necessary to the protection of the liberty of 
 one citizen that the same right in another citi 
 zen be abridged or destroyed. 
 
 Out of the atmosphere, and with the advan 
 tage of a leisurely examination of both opin 
 ions, the minority declaration does not seem a 
 notably cordial acclaim and acceptance of the 
 doctrine or the holding of the Adair case. 
 
CHAPTER 
 
 THE RIGHTS AND INDUSTRIAL STATUS OP WOMEN 
 
 * JUSTICE HUGHES had been on the bench about 
 two weeks when there was presented a vital 
 question as to property rights of married 
 women, at common law and under the enlight 
 ened statutes which have in recent years been 
 passed as steps towards emancipating the wife 
 from the common-law concept of the merger of 
 her legal existence in that of her husband. The 
 question was, in substance, whether in the Dis 
 trict of Columbia, under the statute passed by 
 Congress in 1901, a married woman was em 
 powered, not only to sue others in her own 
 right for redress for wrongs done to her person 
 or her property, but also to maintain an action 
 against the man to whom she was still joined 
 in marital bond, to recover damages for an 
 assault and battery committed by him against 
 her. 
 
 The wife who sought to sue her well-to-do 
 spouse was named Thompson. She charged 
 that she had been brutally beaten on seven dif 
 ferent days, separated in point of time. On 
 four of these occasions on which she was the 
 victim of force and violence, she said that she 
 
 154 
 
EIGHTS OF WOMEN 155 
 
 was enceinte and that her husband knew it 
 when he added force to wrath against her. The 
 items of her complaint indicated that she was 
 seriously injured, and she asked damages in 
 the sum of $70,000, which she thought her err 
 ing spouse could well afford to pay. She 
 sought to sue in her own name and in her own 
 right, to recover damages as any other person 
 could, compensatory of physical injuries in 
 flicted upon her. The District of Columbia 
 Courts ruled that she could not sue at all, and 
 her attorneys carried the matter to the Su 
 preme Court, which is the court of final appeal 
 for the District of Columbia, regardless 
 whether an otherwise "Federal question " is 
 involved in the case appealed. 
 
 Upon the question of the construction of this 
 statute and the rights of women thereunder, 
 Justice Hughes found himself for the first time 
 at variance with a large majority of his col 
 leagues. They agreed with the District Court, 
 and he therefore felt compelled to register his 
 earnest dissent from the decision of the Court. 
 Justice Day delivered the opinion which set 
 forth the prevailing view. The statute under 
 construction provided that 
 
 Married women shall have power to engage 
 in any business, and to contract, whether en 
 gaged in business or not, and to sue separately 
 upon their contracts, and also to sue separately 
 for the recovery, security or protection of their 
 
156 CHAELES E. HUGHES 
 
 property, and for torts committed against them, 
 as fully and freely as if iliey were unmar 
 ried. . . . 
 
 The majority of the Court held, 1 in effect, that 
 the portions of the statute italicised above 
 should be read and taken in connection with the 
 preceding clause which authorised separate suit 
 "for the recovery, security or protection of 
 their property." From this the conclusion was 
 reached that, as to a married woman, ' ' the lim 
 itation upon her right of action imposed in the 
 requirement of the common law that the hus 
 band should join her (in any suit) was removed 
 by the statute, and she was permitted to recover 
 separately for such torts (committed by others), 
 as freely as if she were still unmarried. The 
 statute was not intended to give a right of ac 
 tion as against the husband. ... In no act (of 
 legislation) called to our attention has the right 
 of the wife been carried to the extent of opening 
 the Courts to complaints of the character of the 
 one here involved. ' ' 
 
 This view of the statute, argued with great 
 elaboration of reasoning as to the historical 
 perspective and the legislative intent, the new 
 Justice was unable to adopt. He felt the stat 
 ute fairly meant what it said ; he found his di 
 vergence of belief also shared by two veterans 
 of the Court; and he joined with Justice 
 Holmes in concurring in a trenchant opinion of 
 
 1 Thompson vs. Thompson (218 U. S. Reports, page 611). 
 
EIGHTS OF WOMEN 157 
 
 dissent, read by Justice Harlan, in part as 
 follows : 
 
 In my opinion these statutory provisions, 
 properly construed, embrace such a case as the 
 
 E resent one. If the words used by Congress 
 iad to such a result, and if, as suggested, that 
 result be undesirable on grounds of public 
 policy, it is not within the functions of the 
 court to ward off the dangers feared or the evils 
 threatened simply by a judicial construction 
 that will defeat the plainly-expressed will of 
 the legislative department. With the mere 
 policy, ^xpediency or justice of legislation the 
 courts, in our system of government, have no 
 rightful concern. Their duty is only to declare 
 what the law is, not what, in their judgment, it 
 ought to be leaving the responsibility for 
 legislation where it exclusively belongs, that is, 
 with the legislative department, so long as it 
 keeps within constitutional limits. Now, there 
 is not here, as I think, any room whatever for 
 mere construction so explicit are the words 
 of Congress. Let us follow the clauses of the 
 statute in their order. The statute enables the 
 married woman to take, as her own, property of 
 any kind, no matter how acquired by her, as 
 well as the avails of her skill, labour or personal 
 exertions, "as absolutely as if she were unmar 
 ried." It then confers upon married women 
 the power to engage in any business, no matter 
 what, and to enter into contracts, whether en 
 gaged in business or not, and to sue separately 
 upon those contracts. If the statute stopped 
 here, there would be ground for holding that 
 
158 CHAELES E. HUGHES 
 
 it did not authorise this suit. But the statute 
 goes much further. It proceeds to authorise 
 married women "also" to sue separately for 
 the recovery, security and protection of their 
 property ; still more, they may sue, separately, 
 "for torts committed against them as fully and 
 freely as if they were unmarried." No dis 
 crimination is made, in either case, between the 
 persons charged with committing the tort. No 
 exception is made in reference to the husband, 
 if he happens to be the party charged with 
 transgressing the rights conferred upon the 
 wife by the statute. In other words, Congress, 
 by these statutory provisions, destroys the 
 unity of the marriage association as it had pre 
 viously existed. It makes a radical change in 
 the relations of man and wife as those relations 
 were at common law in this District. In respect 
 of business and property the married woman 
 is given absolute control; in respect of the re 
 covery, security and protection of her property, 
 she may sue, separately, in tort, as if she was 
 unmarried ; and in respect of herself, that is, of 
 her person, she may sue, separately, as fully 
 and freely as if she were unmarried, "for torts 
 committed against her." So the statute ex 
 pressly reads. 
 
 But my brethren think that notwithstanding 
 the destruction by the statute of the unity of 
 the married relation, it could not have been in 
 tended to open the doors of the courts to accu 
 sations of all sorts by husband and wife against 
 each other; and, therefore, they are moved to 
 add, by construction, to the provision that mar 
 ried women may "sue separately . . . for 
 
EIGHTS OF WOMEN 159 
 
 torts committed against them as fully and 
 freely as if they were unmarried" these words : 
 " Provided, however, that the wife shall not 
 be entitled, in any case, to sue her husband sep 
 arately for a tort committed against her per- 
 son." If the husband violently takes posses 
 sion of his wife's property and withholds it 
 from her she may, wider the statute, sue him, 
 separately, for its recovery. But such a civil 
 action will be one in tort. If he injures or de 
 stroys her property she may, under the statute, 
 sue him, separately, for damages. That action 
 would also be one in tort. If these propositions 
 are disputed, what becomes of the words in the 
 statute to the effect that she may "sue sep 
 arately for the recovery, security and protec 
 tion" of her property? But if they are con 
 ceded as I think they must be then Congress, 
 under the construction now placed by the court 
 on the statute, is put in the anomalous position 
 of allowing a married woman to sue her hus 
 band separately, in tort, for the recovery of her 
 property, but denying her the right or privilege 
 to sue him separately, in tort, for damages aris 
 ing from his brutal assaults upon her person. 
 I will not assume that Congress intended to 
 bring about any such result. I cannot believe 
 that it intended to permit the wife to sue the 
 husband separately, in tort, for the recovery, 
 including damages for the detention, of her 
 property, and at the same time denying her the 
 right to sue him, separately, for a tort com 
 mitted against her person. 
 
 I repeat that with the policy, wisdom or jus 
 tice of the legislation in question this court can 
 
160 CHARLES E. HUGHES 
 
 have no rightful concern. It must take the law 
 as it has been established by competent legisla 
 tive authority. It cannot, in any legal sense, 
 make law, but only declare what the law is, as 
 established by competent authority. 
 
 My brethren feel constrained to say that the 
 present case illustrates the attempt, often made, 
 to effect radical changes in the common law by 
 mere construction. On the contrary, the judg 
 ment just rendered will have, as I think, the 
 effect to defeat the clearly expressed will of 
 the legislature by a construction of its words 
 that cannot be reconciled with their ordinary 
 meaning. 
 
 A year later there was before the Supreme 
 Court another cause which had important bear 
 ing upon the validity of modern legislation for 
 the better safeguarding of the status of the 
 wife under the marital contract, so far as the 
 earnings and property of the husband are con 
 cerned. The Massachusetts Legislature had en 
 acted elaborate provisions as to the assign 
 ment by wage-earners of their future earnings. 
 Among other things, it was required that if the 
 employe were a married man, the written con 
 sent of his wife must be attached to the written 
 instrument of assignment. The Massachusetts 
 Supreme Judicial Court had "justified the par 
 tial restriction of the statute on the ground that 
 the extravagance or improvidence of the wage- 
 earner might tempt to the disposition of wages 
 to be earned, and he and his family, deprived 
 
EIGHTS OF WOMEN 161 
 
 01 the means of support, might become a public 
 charge. It was pointed out besides that his 
 needs might be taken advantage of by the un 
 scrupulous. . . . The Court found more diffi 
 culty with the provision which requires the con 
 sent of the wage-earner's wife to the assign 
 ment, but justified it on the general considera 
 tions we have mentioned, and on the ground of 
 her interest in the right use of his wages, though 
 she have no legal title in them." 
 
 In sustaining the statute, the Supreme Court 
 of the United States continued by saying, 1 in an 
 opinion concurred in by Justice Hughes and all 
 his colleagues : 
 
 We cannot say, therefore, that the statute as 
 a police regulation is arbitrary and unreason 
 able and not designed to accomplish a legiti 
 mate public purpose. 
 
 Elsewhere in the same opinion, the Supreme 
 Court, brought face to face with traditional 
 rules which take no account of the dawning of 
 a new day in the concept of property rights 
 under the contract of marital partnership, said : 
 
 Legislation cannot be judged by theoretical 
 standards. It must be tested by the concrete 
 conditions which induced it. 
 
 Basic questions as to the industrial status 
 of women and the power of the State to protect 
 
 1 Mutual Loan Co. vs. Kartell (222 U. S. Reports, page 225). 
 
162 CHARLES E. HUGHES 
 
 itself by intervening to protect them, were 
 passed upon by Justice Hughes in the case of 
 Miller against Wilson * and in Bosley against 
 McLaughlin, 2 both of which were argued before 
 the Supreme Court by Louis D. Brandeis, ap 
 pearing in behalf of the constitutionality of the 
 California statutes under review. In the Miller 
 case, a hotel proprietor had been arrested for 
 requiring a chambermaid to work in his hotel 
 for nine hours a day, in violation of the provi 
 sion of law which prohibited the employment 
 of any woman "in any manufacturing, mechan 
 ical or mercantile establishment, laundry, hotel 
 or restaurant, or telephone or telegraph estab 
 lishment or office, or by any express or trans 
 portation company in this State more than eight 
 hours during any one day or more than forty- 
 eight hours in one week." 
 
 Upon the vital question "whether the restric 
 tions of the statute have a reasonable relation 
 to a proper purpose," Mr. Justice Hughes said 
 that l ' the recent decisions of this Court uphold 
 ing other statutes limiting the hours of labour of 
 women must be regarded as decisive. In Muller 
 v. Oregon (208 U. S. Reports, page 412) ... 
 the decision was based upon considerations re 
 lating to woman's physical structure, her mater 
 nal functions, and the vital importance of her 
 protection in order to preserve the strength 
 and vigour of the race." 
 
 1 236 U. S. Keports, page 373. 
 J 236 U. S. Reports, page 385. 
 
EIGHTS OF WOMEN 163 
 
 "She is properly placed in a class by her 
 self, ' ' said the Court in the portion of the opin 
 ion in the Muller case quoted by Justice Hughes, 
 "and legislation designed for her protection 
 may be sustained, even when like legislation is 
 not necessary for men and could not be sus 
 tained. . . . The limitations which this statute 
 places upon her contractual powers, upon her 
 right to agree with her employer as to the time 
 she shall labour, are not imposed solely for her 
 benefit, but also largely for the benefit of all." 
 
 The opinion written by Justice Hughes for a 
 unanimous Court in the Miller case sustained 
 the constitutionality of the California eight- 
 hour work-day statute, including the power of 
 the Legislature to make the regulation apply to 
 certain vocations of women and not to others. 
 In the Bosley case, Justice Hughes likewise 
 wrote for a unanimous Court, and held that in 
 view of the nature of the work done by student 
 nurses and pharmacists in hospitals and the 
 public importance that work of that kind should 
 not be done by persons overfatigued, the Legis 
 lature had the right to limit their daily service 
 to eight hours, and did not act arbitrarily or 
 unreasonably in exempting graduate nurses 
 from the operation of the statute, in view of 
 the disclosed differences in the conditions under 
 which they perform their work. 
 
CHAPTER IX 
 
 FRANCHISE OBLIGATIONS AND VESTED RIGHTS 
 
 IT was a reasonable expectation that one who 
 in high administrative position had worked 
 long and patiently with public utility problems 
 in a great City and State, would bring to judi 
 cial service a broad, fair and constructive point 
 of view as to the duration and scope of fran 
 chise grants, and as to the reciprocal rights and 
 obligations arising under them, on the part 
 alike of the municipality and the corporation 
 receiving the grant. Governor Hughes went to 
 the Supreme Court fresh from the considera 
 tion of many franchise and public service prob 
 lems in New York City and State, and he 
 brought a definite, forward-looking grasp of the 
 legal principles which govern the vesting of 
 franchise rights and the results which the public 
 has the right to expect from the bestowal of 
 privileges of user of public thoroughfares. 
 
 In New York Electric Lines Company against 
 Empire City Subway Company, 1 decided in 
 1914, there was a corporate challenge of the 
 right and power of the City of New York to re- 
 
 *235 U. S. Eeports, page 179. 
 J64 
 
FRANCHISE OBLIGATIONS 165 
 
 yoke, in 1906, a franchise which had been 
 granted in 1878, for the laying of wires or 
 other conductors of electricity in conduits under 
 the streets. The New York Electric Lines Com 
 pany did virtually nothing with the franchise 
 certainly nothing by way of using it or giving 
 the public any service under it; but when the 
 privilege had become very valuable, the com 
 pany sought to assert tardily the right which 
 it had been treating "as susceptible of prac 
 tically indefinite retention unused. " Justice 
 Hughes held that the public had a right to re 
 ceive beneficial results from franchise grants or 
 terminate them; "the right conferred was to be 
 used within a reasonable time or lost." His 
 opinion said, in part: 
 
 It has always been recognised that, as a fran 
 chise is given in order that it may be exercised 
 for the public benefit, the failure to exercise it 
 as contemplated is ground for revocation or 
 withdrawal. In the cases where the right of 
 revocation in the absence of express condition 
 has been denied, it will be found that there has 
 been performance at least to some substantial 
 extent or that the grantee is duly proceeding 
 to perform. And when it is said that there is 
 vested an indefeasible interest, easement, or 
 contract right*, it is plainly meant to refer to 
 a franchise not only granted but exercised in 
 conformity with the grant. 
 
 It is a tacit condition annexed to grants of 
 franchises that they may be lost by mis-user 
 
166 CHAELES E. HUGHES 
 
 or non-user. . . . The conception of the permis 
 sion as giving rise to a right of property in no 
 way involves the notion that the exercise of 
 the franchise may be held in abeyance for an 
 indefinite time, and that the right may thus be 
 treated as a permanent lien upon the public 
 streets, to be enforced for the advantage of the 
 owner at any time, however distant. Although 
 the franchise is property, "it is subject to 
 defeasance or forfeiture by failure to exercise 
 it, or by subsequent abandonment after it has 
 been exercised." If "no time is prescribed, the 
 franchise must be exercised within a reasonable 
 time." It follows that where the franchise has 
 not been exercised within a reasonable time in 
 accordance with the condition which inheres in 
 the nature of the grant, its revocation upon this 
 ground cannot be regarded as an impairment of 
 contractual obligation. 
 
 In other causes, likewise, Justice Hughes re 
 vealed a broad and common-sense view as to 
 the essential elements of an "impairment of 
 the obligation of" a franchise contract. In 
 Louisiana Railway & Navigation Company 
 against the City of New Orleans, 1 he declared 
 that "while we are to give to public grants a 
 fair and reasonable interpretation, they are not 
 to be extended by implication beyond their clear 
 intent," and that "the contract" on which the 
 plaintiff relies" to sustain the claim that a sub 
 sequent repealing ordinance impaired contract 
 
 1 235 U. S. Reports, page 164. 
 
FRANCHISE OBLIGATIONS 167 
 
 rights of the company "was subject, in any as 
 pect, to a suspensive, condition, that the event 
 in which the obligation was to arise did not hap 
 pen, and hence that the subsequent enactment 
 was not open to the objection raised." In Mis 
 souri and Kansas Interurban Ry. Co. against 
 the City of Olathe, Kansas, 1 in view of the de 
 cision of the State Court that the company had 
 in fact had substantially all the privileges in 
 fact conferred by the franchise contract claimed 
 to be "impaired," he held that no question was 
 presented for Federal review. In Chicago, M. 
 & St. P. Ry Co. against the City of Minneap 
 olis, 2 a broad and practical construction was 
 given to the obligations of the company under 
 its franchise and the State law, as to the erec 
 tion of bridges or viaducts to carry streets over 
 tracks or tracks over streets, in connection with 
 a new waterway being constructed for recrea 
 tional purposes between two lakes in public 
 parks. On the other hand, his solicitude for 
 public interests led to no sanctioning of strained 
 constructions to extort some advantage from 
 a franchise-holding corporation. As he said 
 in Russell against Sebastian, 3 where sections of 
 the California Constitution and municipal ordi 
 nances of Los Angeles were under review: 
 
 The established and salutary rule is invoked 
 that public grants are to be construed strictly 
 
 *222 U. S. Keports, page 187. 
 a 232 U. S. Keports, page 430. 
 3 233 U. S. Beports, page 195. 
 
168 CHAELES E. HUGHES 
 
 in favour of the public; that ambiguities are 
 to be resolved against the grantee. ... It has 
 often been stated, as one of the reasons for the 
 rule, that statutes and ordinances embodying 
 such grants are usually drawn by interested 
 parties and that it serves to frustrate efforts 
 through the skilful use of words to accomplish 
 purposes which are not apparent upon the face 
 of the enactment. . . . But it must also be 
 recognised that this principle of construction 
 does not deny to public offers a fair and reason 
 able interpretation, or justify the withholding 
 of that which it satisfactorily appears the grant 
 was intended to convey. . . . Here, the pro 
 vision was presented by a constitutional conven 
 tion for adoption by the people as the deliberate 
 expression of the policy of the State in order to 
 secure the benefits of competition in public ser 
 vice, and it will not be questioned that it must 
 receive, as the State Court said in People v. 
 Stephens (62 California Reports, page 233), "a 
 practical, common-sense construction.'' 
 
 Upon no other matter did Justice Hughes find 
 himself so often or so sharply at variance with 
 the prevailing judgment of his gifted col 
 leagues, as concerning assertions of the per 
 petual character of granted franchises and de 
 nials of the reserved power of the public to 
 repeal, modify or revoke such grants. In City 
 of Owensboro against the Cumberland Tele 
 phone and Telegraph Company* the company 
 said the municipality had no power to revoke 
 
 *230 U. S. Eeports, page 58. 
 
FRANCHISE OBLIGATIONS 169 
 
 the franchise granted to it by a municipal ordi 
 nance. The City replied that the franchise ordi 
 nance itself provided that "this ordinance may 
 be altered or amended as the necessities of the 
 City may demand, ' ' and the City, moreover, as 
 serted that it had no possible power to grant a 
 franchise perpetual and irrevocable, for the 
 reason that the City Charter, under which alone 
 the municipality had power to pass the fran 
 chise ordinance at all, provided that the Com 
 mon Council should have "full power to make, 
 publish and repeal all ordinances for the fol 
 lowing purposes " among others, "to regulate 
 the streets," which included the granting of 
 franchises to use the streets. 
 
 Five of the justices held that the provisions 
 of the franchise ordinance as to alteration or 
 amendment thereof did not amount to a reserva 
 tion of the right to repeal the ordinance alto 
 gether, and that the provision of the City Char 
 ter as to the power of the Common Council to 
 "repeal all ordinances" "to regulate the 
 streets" "obviously refers to ordinances which 
 are legislative in character, and exertions of 
 the governmental power of the municipal coun 
 cil, a power in its nature not to be abridged 
 by irrepealable ordinances." Four of the Jus 
 tices, among them Justice Hughes, dissented 
 strongly from the majority view that the ordi 
 nance franchise was perpetual and subject to 
 no revocation by the municipality. The minor 
 ity held that "the permission. to place poles and 
 
170 CHAELES E. HUGHES 
 
 string wires in the City of Owensboro was 
 granted under a charter which expressly re 
 served the right to repeal by subsequent act of 
 the municipal legislature. In the face of this 
 authority and presumably with knowledge of 
 it, the company has entered upon the streets 
 and made use of them for the purposes in 
 tended. Holding its grant subject to the supe 
 rior right of the City to end it, I think the sub 
 sequent repealing ordinance was within the 
 power of the municipality. " 
 
 In Grand Trunk Western Railway Company 
 against the City of South Bend? the municipal 
 ity had granted the company a franchise to lay 
 a double track on certain streets, and in so do 
 ing had failed to reserve specifically any right 
 to alter or repeal the grant. After the company 
 had built and operated the double track over a 
 large part of the distance, the City sought to 
 repeal the ordinance, to the extent of taking 
 away any right to maintain more than one track 
 over the franchise route. This action was 
 sought on grounds of the safety and conveni 
 ence of the major portion of the public, and 
 justification was claimed under the "police 
 power" to which every franchise is impliedly 
 subject. The majority of the Court held that 
 the City had the power to regulate the use of the 
 franchise, but not to destroy it or take it away, 
 and that the company had a vested right which 
 the City's subsequent acts threatened to im- 
 
 1 227 U. S. Reports, page 544. 
 
FRANCHISE OBLIGATIONS 171 
 
 pair. From this view Justices Hughes and Pit 
 ney again dissented. 
 
 Upon the question of the regulative power of 
 government to require extensions and additions 
 to the facilities afforded by franchise-holding 
 public utilities, Justice Hughes declared, in 
 Union Lime Company against the Chicago & 
 Northwestern Railway Company: 1 
 
 It is urged, further, that the statute is neces 
 sarily invalid because it establishes as the cri 
 terion of the Commission's action the exigency 
 of a private business. This objection, however, 
 fails to take account of the distinction between 
 the requirements of industry and trade which 
 may warrant the building of a branch track and 
 the nature of the use to which it is devoted when 
 built. A spur may, at the outset, lead only to 
 a single industry or establishment; it may be 
 constructed to furnish an outlet for the prod 
 ucts of a particular plant ; its cost may be de 
 frayed by those in special need of its service at 
 the time. But none the less, by virtue of the 
 conditions under which it is provided, the spur 
 may constitute at all times a part of the trans 
 portation facilities of the carrier which are op 
 erated under the obligations of public service 
 and are subject to the regulations of public au 
 thority. As was said by this court in Hairston 
 v. Danville & Western Ry. Co.: "The uses for 
 which the track was desired are none the less 
 public because the motive which dictated its lo 
 cation over this particular land was to reach a 
 
 1 233 U. S. Eeports, page 211. 
 
172 CHAELES E. HUGHES 
 
 private industry, or because the proprietors of 
 that industry contributed in any way to the 
 cost." There is a clear distinction between 
 spurs which are owned and operated by a com 
 mon carrier as a part of its system and under 
 its public obligation and merely private 
 sidings. . . . 
 
 While common carriers may not be com 
 pelled to make unreasonable outlays, it is com 
 petent for the State, acting within the sphere 
 of its jurisdiction, to provide for an extension 
 of their transportation facilities, under reason 
 able conditions, so as to meet the demands of 
 trade; and it may impress upon these exten 
 sions of the carriers' lines, thus furnished un 
 der the direction or authority of the State, a 
 public character regardless of the number 
 served at the beginning. The branch or spur 
 comes into existence as a public utility and as 
 such is always available as localities change 
 and communities grow. The Supreme Court of 
 Wisconsin has left no doubt with respect to the 
 public obligations imposed upon the carrier in 
 relation to the spurs and branches to be pro 
 vided under the statute in question, and we find 
 no ground for the conclusion that this enact 
 ment was beyond the State power. 
 
CHAPTER X 
 
 PKEJUDICIAL RESTRAINT OF TRADE AND THE NEED 
 FOR CERTAINTY IN THE ANTI-TRUST ACTS 
 
 JUSTICE HUGHES went to the Supreme Court 
 from the forum of public affairs. He had often, 
 in public addresses, given expression to his 
 views as to the advisable form and scope of the 
 statutes aimed at oppressive combinations in 
 restraint of trade, and the means of making 
 such enactments workable, understandable, and 
 effective. Perhaps for the reason that he had 
 thus recently been active, in the political sphere, 
 in the formulation of policy-determining opin 
 ion as to what the law of the subject ought to 
 be, he was not, during the months first follow 
 ing his translation to the judicial sphere, as 
 signed to prepare opinions of the Court on ques 
 tions of what the law was under the enactments 
 then in force. Upon issues of the inherent fair 
 ness and permissibleness of challenged methods 
 of competition with trade rivals, he prepared 
 several opinions to which reference will be made 
 in this chapter; but upon issues involving the 
 interpretation of the Sherman Anti-Trust Act, 
 his participation was not reflected by the prep 
 aration of published opinions. 
 
 173 
 
174 CHARLES E. HUGHES 
 
 In 1908 he had declared 1 that "the battle for 
 free institutions has been a struggle against 
 special privilege. " At Chicago in the same 
 year he had said 2 that 
 
 We desire to put an end to unfair practices, 
 unjustifiable preferences, and oppressive pro 
 ceedings by which, apart from proper economic 
 advantages or superior skill in industry, rivals 
 are barred from equal opportunities and thrust 
 out of the way or destroyed. ... In a free 
 country it is intolerable that one should be de 
 nied equal access to markets by discriminating 
 rates or allowances, or that he should be the 
 victim of a conspiracy to deprive him of his 
 business, or that he should be crushed by the 
 misuse of large aggregations of capital in un 
 fair competition. . . . Laws, State and Federal, 
 should be as definite as possible, and should 
 apply with becoming precision to the practices 
 sought to be reached. ... It is possible and 
 advisable in dealing with this subject that there 
 should be a more explicit and appropriate state 
 ment than we now have in the Sherman Act: 
 that fair agreements as to railroad rates which 
 may receive the approval of the Interstate Com 
 merce Commission, and that associations and 
 agreements for reasonable and obviously prop 
 er purposes, should not be included in a sweep 
 ing condemnation; that it should point with a 
 more definite aim at the evils which afflict inter- 
 
 1 Address before the Kepublican Club of the City of New 
 York on January 31, 1908. 
 
 'Address before the Union League Club of Chicago on 
 February 22, 1908. 
 
RESTRAINT OF TRADE 175 
 
 state commerce and for which it is in the power 
 of Congress to provide a remedy. 
 
 The evils in question will not be eradicated 
 by mere changes in forms of organisations. . . . 
 The way to get rid of abuses is to attack them 
 directly. And I believe the most efficacious 
 means is definition and proscription, and ade 
 quate punishment of the offenders. The pun 
 ishment is most salutary when visited upon the 
 guilty individuals. Few men can be hired to 
 go to jail. 
 
 Summoned to the Supreme Court and called 
 on to decide what the law already was, Justice 
 Hughes concurred in the judgment of all except 
 Justice Harlan of his colleagues 1 that, under 
 precedents fairly operative and upon unmistak 
 able evidence of the intention of Congress in 
 passing the Sherman Law, the latter could not 
 be construed by the Court to do more than pro 
 hibit those contracts, agreements, or combina 
 tions which operate to the prejudice of public 
 interests by unduly restricting the wholesome 
 play of trade competition o^r unduly obstructing 
 the beneficial course of trade, or which, either 
 because of their inherent nature or effect or be 
 cause of the evident purpose of the acts done, 
 injuriously restrain the accustomed activities 
 of trade. He joined in the conclusion that the 
 statute as it stood "did not forbid or restrain 
 the power to make normal and useful contracts 
 
 1 Standard Oil Co. vs. U. S. (221 U. S. Beports, page 1); 
 U. S. vs. American Tobacco Co. (221 U. S. Eeports, page 106). 
 
176 CHARLES E. HUGHES 
 
 to further trade by resorting to all normal 
 methods, whether by agreement or otherwise, 
 to accomplish such purpose " and that the words 
 11 restraint of trade " should be given a reason 
 able meaning and interpretation which would 
 protect the public interests involved and " would 
 not destroy the individual right to contract and 
 render difficult, if not impossible, any movement 
 of trade in the channels of interstate commerce 
 the free movement of which it was the purpose 
 of the statute to protect. ' ' Justice Hughes as 
 sented likewise to the conclusion that the statute 
 "embraced every conceivable act which could 
 possibly come within the spirit or purpose of 
 the prohibitions of the law, without regard to 
 the garb in which such acts were clothed, ' ' and 
 that "there was no possibility of frustrating 
 that policy (of the Act) by resorting to any dis 
 guise or subterfuge of form, since resort to rea 
 son rendered it impossible to escape by any in 
 directions the prohibitions of the statute." 
 
 As to the historical basis for this construc 
 tion of the existing statute, or as to the prac 
 ticability or adequacy of the statute as thus in 
 terpreted for present-day business conditions, 
 discussion is not within the scope of this vol 
 ume. It may be sufficient to say that upon ques 
 tions of the meaning and scope of the Sherman 
 Act, Justice Hughes, with a single interesting 
 exception, continued in accord with a majority 
 of his colleagues and concurred in their opinions 
 as prepared. 
 
RESTRAINT OF TRADE 177 
 
 As an interpreter of existing law, no less than 
 when an advocate of changes therein, he felt 
 that there should be definiteness as well as fair 
 ness of standards, to which business men might 
 conform the conduct of their business, and this 
 rule of certainty in standards he applied to 
 cases arising under .the Anti-Trust Acts. In 
 Collins against Kentucky? Collins and other to 
 bacco growers of Mason County, Kentucky, had 
 entered into an agreement with a "tobacco 
 pool" society authorised by the State statute, 
 whereby they consigned to the pool their respec 
 tive crops of tobacco, to be sold by the society 
 as their agent upon such terms as it prescribed, 
 not less than a fixed minimum. The statute for 
 bade a person entering such a pool to dispose of 
 his crop without the consent of the society; 
 Collins did so and was indicted. The statute 
 had been construed by the Kentucky courts as 
 necessarily to be read in connection with the 
 Anti-Trust Acts of the State, by which persons 
 were prohibited from entering into any "pool 
 or agreement" "to fix, control or regulate the 
 price of any commodity or article by raising or 
 depreciating, or attempting to raise or depre 
 ciate, it above or below its real value." As to 
 this kind of legislation and the conviction of 
 Collins under it, Justice Hughes said : 
 
 The statute, in its reference to "real value," 
 prescribed no standard of conduct that it was 
 
 1 234 U. S. Eeports, page 634. 
 
178 CHABLES E. HUGHES 
 
 possible to know; ... it violated tlie funda 
 mental principles of justice embraced in the 
 conception of due process of law in compelling 
 men on peril of indictment to guess what their 
 goods would have brought under other condi 
 tions not ascertainable. 
 
 The Harvester Company was prosecuted l for 
 being a party to a price-raising combination; 
 Collins, for breaking a combination agreement 
 and selling outside the pool which he had joined. 
 With respect to each, the test of the legality of 
 the combination was said to be whether it raised 
 prices above the "real value." If it did in 
 Collins' case he would be subject to penalties 
 for remaining in the combination ; if it did not, 
 he would be punishable for not keeping his to 
 bacco in the pool. He was thus bound to ascer 
 tain the "real value" ; to determine his conduct 
 not according to the actualities of life, or by ref 
 erence to knowable criteria, but by speculating 
 upon imaginary conditions and endeavouring to 
 conjecture what would be the value under other 
 and so-called normal circumstances with fair 
 competition, eliminating the abnormal influence 
 of the combination itself, and of all other like 
 combinations, and of still other combinations 
 which these were organised to oppose. The 
 objection that the statute, by reason of its un 
 certainty, was fundamentally defective, was as 
 available to Collins as it was to the Harvester 
 Company. 
 
 1 International Harvester Company vs. Kentucky (234 U. S. 
 Keports, page 216). 
 
RESTRAINT OF TRADE 179 
 
 The instance of variance from the views of 
 his colleagues in this branch of the law arose 
 in one of that interesting series of cases in re 
 lation to the right of the manufacturer to fix 
 the prices at which his product may be sold by 
 the wholesaler, the retailer, and other vendors. 
 In Dr. Miles Medical Company against Park & 
 Sons Company* the manufacturer of a proprie 
 tary medicine, prepared pursuant to a secret 
 but unpatented formula and sold with distinc 
 tive labels, packages and trade-marks, sought 
 to maintain certain prices fixed by it for all 
 sales of its products, at either wholesale or re 
 tail. This result was accomplished through so- 
 called "restrictive agreements.'' The Court 
 held, through an opinion prepared by Justice 
 Hughes, that both at common law and under 
 the Sherman Act, agreements or combinations 
 between dealers, having for their sole purpose 
 the destruction of competition and the fixing of 
 prices, are injurious to the public interest and 
 void, and added: 
 
 The complainant's plan falls within the prin 
 ciple which condemns contracts of this class. 
 It, in effect, creates a combination for the pro 
 hibited purposes. No distinction can properly 
 be made by reason of the particular character 
 of the commodity in question. It is not entitled 
 to special privilege or immunity. It is an arti 
 cle of commerce and the rules concerning the 
 
 *220 U. S. Reports, page 373. 
 
180 CHAELES E. HUGHES 
 
 freedom of trade must be held to apply to it. 
 Nor does the fact that the margin of freedom 
 is reduced by the control of production make 
 the protection of what remains, in such a case, 
 a negligible matter. And where commodities 
 have passed into the channels of trade and are 
 owned by dealers, the validity of agreements to 
 prevent competition and to maintain prices is 
 not to be determined by the circumstances 
 whether they were produced by several manu 
 facturers or by one, or whether they were pre 
 viously owned by one or by many. The com 
 plainant having sold its product at prices satis 
 factory to itself, the public is entitled to what 
 ever advantage may be derived from competi 
 tion in the subsequent traffic. 
 
 In Henry Company against Dick Company* 
 however, Justice Hughes found himself in a 
 minority of the Court, along with Chief Justice 
 White and Justice Lamar. This case involved, 
 not a proprietary medicine, an unpatented ar 
 ticle, or a secret formula, but a rotary mimeo 
 graph machine covered by letters patent. 
 Neither the patent on the machine, nor any in 
 dependent patents, covered the ink, stencil 
 paper, or other supplies used on or in connec 
 tion with the mimeograph. The Dick Company, 
 owner of the patent and manufacturer of the 
 machine, sold one of the mimeographs to a Miss 
 Skou. The sale was complete and uncondi 
 tional ; there was no condition imposed affecting 
 
 1 224 U. S. Beports, page 1. 
 
RESTRAINT OF TRADE 181 
 
 the title or the uses of the machine. There was, 
 however, upon the machine what was called a 
 "License Restriction," which recited that the 
 mimeograph "may be used only with the stencil 
 paper, ink and other supplies made by the A. B. 
 Dick Co." The Henry Company sold to Miss 
 Skou ink which could as well be used on the 
 Dick Company machine. The ink was not a pat 
 ented article, and was not made by the Dick 
 Company. The majority of the Court held that 
 inasmuch as the use of the Henry ink by Miss 
 Skou would be a use of the mimeograph by her 
 in a prohibited way and would subject her to 
 liability to the Dick Company for infringement 
 of the letters-patent on the machine sold to her, 
 the Henry Company was liable in damages to 
 the Dick Company, on the theory that in aid 
 ing and abetting Miss Skou in violating this 
 "license restriction" the Henry Company was 
 itself infringing the patent on a machine which 
 the Henry Company did not own and was not 
 using. The majority were of the opinion that 
 the patent laws were enacted to create the most 
 genuine of all monopolies; that this monopoly 
 power was granted to subserve a broad public 
 policy ; and that the patent laws should be con 
 strued and applied to give effect to what Con 
 gress has thus far regarded as a wise and bene 
 ficial purpose in the stimulation of invention. 
 
 Chief Justice White, with Justice Hughes and 
 Justice Lamar concurring, registered a spirited 
 protest against this departure from what they 
 
182 CHAELES E. HUGHES 
 
 regarded as the salutary rule laid down by Jus 
 tice Hughes in the Miles Medical Company 
 case. "It is not, as I understand it, denied," 
 declared the Chief Justice, ' ' that the particular 
 contract which operates this result, if tested by 
 the general law, would be void as against public 
 policy. The contract, therefore, can only be 
 maintained upon the assumption that the patent 
 law and the issue of a patent is the generating 
 source of an authority to contract to procure 
 rights under the patent law not otherwise with 
 in that law and which could not be enjoyed 
 under the general law of the land." The idea 
 that the casual dealer who sold ink to a jmblic 
 stenographer who happened to own a Dick Com 
 pany mimeograph, was infringing the patent 
 on the machine in making the sale, if the dealer 
 knew the ink was for use on the mimeograph, 
 seemed untenable, and the empowering of the 
 Dick Company to dictate that no ink, stencil 
 paper, and the like, should be bought, by an 
 owner of the Dick machine, from any one except 
 the Dick Company, seemed subversive of public 
 policy. Against the judicial sanction of this 
 form of monopoly control through giving effect 
 to the "license restriction" against the use of 
 any incidental materials except those manufac 
 tured or sold by the manufacturer of the ma 
 chine, the minority opinion is a very earnest 
 plea. 
 
 The pendulum of decision soon swung strik 
 ingly in the other direction. The Dick Com- 
 
RESTRAINT OF TRADE 183 
 
 pany case had been argued in October, 1911, 
 after the death of Justice Harlan and during 
 the absence of Justice Day. Application for 
 re-hearing was made, in which the Attorney- 
 General of the United States and others asked 
 leave to intervene, but a re-hearing was denied. 
 The following Spring the Court heard and de 
 cided the case of Bauer & Cie v. O'Donnell?- 
 the so-called "Sanatogen price-cutting case." 
 In this case it appeared that O'Donnell was 
 proprietor of a retail drug store in Washing 
 ton. He bought of the Bauer Company pack 
 ages of Sanatogen, which bore the following: 
 
 Notice to Retailers. This size package is li 
 censed by us for sale and use at a price not 
 less than one dollar ($1.00). Any sale in viola 
 tion of this condition, or use when so sold, will 
 constitute an infringement of our patent. . . . 
 A purchase is an acceptance of this con 
 dition. . . . 
 
 'Donnell sold these packages at retail at less 
 than a dollar, and when the Bauer Company re 
 fused to supply him further, he bought from 
 jobbers and went on selling at such price as he 
 saw fit, and said he proposed to continue doing 
 that. The Court of Appeals for the District 
 of Columbia asked the Supreme Court whether 
 the acts of this retail druggist constituted an 
 infringement of the Sanatogen patent. 
 
 Justice Day had now returned to the bench, 
 and wrote the opinion of the Court. Justice 
 
 *229 U. S. Keports, page 1. 
 
184 CHAELES E. HUGHES 
 
 Pitney had meanwhile taken his seat as suc 
 cessor of Justice Harlan. Justices Lurton, Mc- 
 Kenna, Holmes, and Van Devanter, who had 
 constituted the majority in the Dick Company 
 case, found themselves now in a minority. Jus 
 tice Hughes, who, with Chief Justice White and 
 Justice Lamar, had dissented from the Dick 
 Company decision, joined with them and Jus 
 tices Day and Pitney in returning a negative 
 answer to the question certified. The Dick Com 
 pany decision was now at .least ostensibly ex 
 plained by calling attention to the fact that "it 
 was expressly stated in the opinion that the ma 
 chine was sold at cost or less and that the pat 
 entee depended on the profit realised from the 
 sale of the non-patented articles to be used with 
 the machine for the profit which he expected 
 to realise from his invention. ' ' In any event, a 
 majority of the Court, with Justice Hughes con 
 curring, now held that a patentee might not by 
 notice limit the price at which retailers might 
 make future sales of the patented article, at 
 least as against a retailer who buys the pat 
 ented article from jobbers who paid to the pat 
 entee the full wholesale price for the article 
 sold. The Court also held that where the trans 
 fer of the patented article is full and complete, 
 an attempted reservation of the right to fix the 
 price at which the article itself may be sold by 
 the vendee is not in any sense a license for 
 qualified use by the vendee, but an attempt un 
 duly to extend the right to vend the patented 
 
EESTRAINT OF TRADE 185 
 
 article, and is therefore futile under the statute. 
 The passing of the title to the purchaser was 
 said to place the article beyond the limits of the 
 monopoly secured by the patent laws. 
 
 Justice Hughes' outlook upon business ques 
 tions brought before the Court was strikingly 
 direct and cognate to disclosed facts. Where 
 " there is no rule of public policy which denies 
 effect to the expressed intention " of the par 
 ties, he declared, 1 and "the matter lies within 
 the range of permissible agreement, the highest 
 public policy is found in the enforcement of the 
 contract which was actually made. ' ' "It was not 
 the purpose or effect of the copyright law to ren 
 der secure the fruits of piracy, ' ' was his concise 
 method 2 of forestalling the claim of the pro 
 prietors of a "piratical composition" to the 
 protection of the statute as against the rightful 
 owners. "It cannot be supposed that Congress 
 contemplated such a disregard of the facts of 
 trade, and such a departure from the policy of 
 former tariff legislation, " said he, 3 "as would 
 be involved in" such a construction of the Tar 
 iff Act as was contended for by one of the par 
 ties before the Court in a case involving the 
 status of "drilled pearls." Recognised trade 
 usages were given force and effect, when con 
 travening no fundamentals of public policy. In 
 
 1 Santa Fe Ey. Co. vs. Grant Bros. (228 U. S. Eeports, page 
 177). 
 
 2 Ferris vs. Frohman (223 U. S. Eeports, page 424). 
 8 U. S. vs. Citroen (223 U. S. Eeports, page 407). 
 
186 CHARLES E. HUGHES 
 
 Taney against Penn Bank, 1 where established 
 practices of the distillers' business were chal 
 lenged, he replied: 
 
 The fundamental objection is that the custom, 
 to which the entire trade is adjusted, is op 
 posed to public policy. But we know of no 
 ground for thus condemning honest transac 
 tions which grow out of the recognised neces 
 sities of a lawful business. The case is not one 
 where credit may be assumed to be given upon 
 the faith of the ostensible ownership of goods 
 in the debtor's possession. Every one dealing 
 with distillers is familiar with the established 
 practice in accordance with which spirits are 
 held in store, under governmental control, and 
 are transferred by the delivery of such docu 
 ments as we have here. There is no warrant 
 for saying that the creditors are misled by 
 delusive appearances. The usage serves a fair 
 purpose and there is no public policy which re 
 quires that the trade should be thrown into dis 
 order by a refusal to uphold it. 
 
 In enacting the Trade-Mark Act of 1905, 
 "it was not the intention of Congress," as in 
 terpreted by Justice Hughes, "thus to provide 
 for a barren notice of ineffectual claim, but to 
 confer definite rights." In Thaddeus Davids 
 Company against Davids, 2 the complainant 
 commonly put its mark "DAVIDS" promi 
 nently at the top of its labels. The defendants, 
 
 1 232 U. S. Eeports, page 174. 
 1 233 U. S. Keports, page 461, 
 
RESTRAINT OF TRADE 187 
 
 in the same position on its labels, developed a 
 coincident custom of placing the designation* ' C. 
 I. Davids. " At the bottom of their label, the 
 defendants placed "DAVIDS MFG. CO." The 
 use of the name in this manner seemed in fact 
 to be a mere simulation of the complainant's 
 mark which it had duly registered; it consti 
 tuted a ' ' colourable imitation ' ' within the mean 
 ing of the Act. The decree of the Circuit Court 
 accordingly restrained the defendants from the 
 use of the words "Davids Manufacturing Com 
 pany " and from the use of the word "Davids" 
 at the top of their labels, in connection with the 
 business of making and selling inks. 
 
 In sustaining this action of the lower Court, 
 Justice Hughes said : 
 
 In the case, therefore, of marks consisting of 
 names or terms having a double significance, 
 and being susceptible of legitimate uses with 
 respect to their primary sense, the reproduc 
 tion, copy or imitation which constitutes in 
 fringement must be such as is calculated to mis 
 lead the public with respect to the origin or 
 ownership of the goods and thus to invade the 
 right of the registrant to the use of the name or 
 term as a designation of his merchandise. This 
 we conceive to be the meaning of the statute. 
 It follows that where the mark consists of a 
 surname, a person having the same name and 
 using it in his own business, although dealing in 
 similar goods, would not be an infringer, pro 
 vided that the name was not used in a manner 
 
188 CHARLES E. HUGHES 
 
 tending to mislead and it was clearly made to 
 appear that the goods were his own and not 
 those of the registrant. This is not to say that, 
 in this view, the case becomes one simply of 
 unfair competition, as that category has been 
 defined in the law; for, whatever analogy may 
 exist with respect to the scope of protection in 
 this class of cases, still the right to be protected 
 against an unwarranted use of the registered 
 mark has been made a statutory right, and the 
 courts of the United States have been vested 
 with jurisdiction of suits for infringement, re 
 gardless of diversity of citizenship. Moreover, 
 in view of this statutory right, it could not be 
 considered necessary that the complainant in 
 order to establish infringement should show 
 wrongful intent in fact on the part of the de 
 fendant, or facts justifying the inference of 
 such an intent. Having duly registered under 
 the act, the complainant would be entitled to 
 protection against any infringing use; but, in 
 determining the extent of the right which the 
 statute secures and what may be said to con 
 stitute an infringing use, regard must be had, 
 as has been said, to the nature of the mark and 
 its secondary, as distinguished from its pri 
 mary, significance. 
 
 The distinction between permissible and pro 
 hibited uses may be a difficult one to draw in 
 particular cases but it must be drawn in order 
 to give effect to the act of Congress. That the 
 distinction may readily be observed in practice 
 is apparent. In this case, for instance, if the 
 defendants had so chosen, they could have 
 adopted a distinct mark of their own, which 
 
RESTRAINT OF TRADE 189 
 
 would have served to designate their inks and 
 completely to distinguish them from those of 
 the complainant. It was not necessary that, in 
 exercising the right to use their own name in 
 trade, they should imitate the mark which the 
 complainant used, and was entitled to use under 
 the statute, as a designation of its wares; or 
 that they should use the name in question upon 
 their labels without unmistakably differenti 
 ating their goods from those which the com 
 plainant manufactured and sold. 
 
 Justice Hughes' outlook upon business prob 
 lems would seem to be four-square with his 
 declaration of 1908: 
 
 It is the function of law to define and punish 
 wrong-doing, and not to throttle business. In 
 the fields of industrial activity the need is that 
 trade should be fair; that unjust discrimina 
 tions and illegal allowances giving preferential 
 access to markets should *be prevented; that 
 coercive combinations and improper practices 
 to stifle competition should be dealt with re 
 gardless of individuals; but that honest indus 
 try, obtaining success upon its merits, denying 
 no just opportunity to its competitors, should 
 net be put under prohibitions which mingle the 
 innocent and the guilty in a common condemna 
 tion. 
 
 The line of progress lies not in arbitrary ac 
 tion but in securing suitable publicity and su 
 pervision, and by accurate definition of wrongs 
 and the infliction of proper punishment. The 
 processes of justice may be slower and more 
 
190 CHARLES E. HUGHES 
 
 laborious; but if we desert the lines of sober 
 ness and fair play to get quick results through 
 arbitrary interferences with trade, we shall find 
 that such short cuts lead only to disaster. 
 
CHAPTER XI 
 
 THE CASE OF LEO M. FKANK AND A PUZZLING QUES 
 TION OF NATIONAL EESPONSIBILITY 
 
 OCCASIONALLY there comes to that august 
 chamber in the Capitol a cause on fire with the 
 heat of racial or social controversy a cause in 
 which men's deepest feelings have been aroused, 
 public opinion has been sharply aligned, and 
 elemental forces of prejudice and passion have 
 entered an atmosphere where should prevail 
 only impersonal arbitrament under law. At 
 such a time and in such a cause, it becomes one 
 of the great stabilising prerogatives of our 
 revered tribunal to restore to the final determi 
 nation of the case that perfect fairness, that 
 assurance of freedom from outside influence, 
 and that deep regard for the substance of right 
 and the fundamentals of fair trial, which are 
 the heritage of Anglo-Saxon jurisprudence and 
 the high privilege of every person accused of 
 crime in an American State. In the impressive 
 presence of the Nation's Court and in the con 
 templation of all it has typified in the imperish 
 able traditions of the Republic, the voices of 
 tumult and antagonism are stilled, and the ran 
 cour of the city street and countryside gives way 
 
 191 
 
192 CHARLES E. HUGHES 
 
 to the reasoned impartiality of a law-governed 
 Court. Passion and prejudice may have might 
 ily muddled the facts and the issues; public 
 opinion may have found itself unable to see 
 truly or think clearly, in judging of the merits 
 of the bitter controversy; yet amid such a set 
 ting of the cause before it, the Supreme Court 
 performs one of its most valuable functions as 
 an expert interpreter and aid of the ultimate 
 consensus of public opinion, through a clear and 
 patient statement of the facts, a fair demarca 
 tion of the real issues, and a resolute re-formu 
 lation of the applicable essentials. 
 
 Such a controversy was presented by the ap 
 peal to the Supreme Court from the refusal of 
 the United States District Court for the North 
 ern District of Georgia to grant or hear and 
 try the writ of habeas corpus for which appli 
 cation was made in behalf of Leo M. Frank, a 
 former resident of New York City, who had 
 been convicted in the Georgia State Courts of 
 the murder of a girl of tender years, employed 
 in an Atlanta pencil factory, of which he was 
 superintendent. The resources of appeal and 
 motions for a new trial had been exhausted in 
 behalf of the accused, so far as the State Courts 
 were concerned, and the regularity of the pro 
 ceedings incident to his trial and conviction 
 had been in all respects sustained. The Su 
 preme Court of the United States was not unan 
 imous in its approval of the action of the United 
 
THE CASE OF LEO M. FRANK 193 
 
 States District Judge, in refusing the appli 
 cation for the writ without the taking of testi 
 mony to ascertain the truth or falsity of the seri 
 ous allegations of the petition; Justice Holmes 
 and Justice Hughes were in fact constrained to 
 dissent from the prevailing view; but no one 
 can read or re-read the majority and minority 
 opinions in this case 1 without gaining a higher 
 respect for the Court which DeTocqueville said, 
 eighty-one years ago, was "at the head of all 
 known tribunals." 
 
 The issue before the Supreme Court was not 
 whether Frank was innocent or guilty of mur 
 der, or whether he should be sentenced to death 
 or set free; No one denied that these matters 
 were to be decided, in all respects, by the State 
 Courts of Georgia and under its laws. The is 
 sue before the Supreme Court was not whether 
 incidents of outside influence and manifesta 
 tions of prevalent hostility to the accused, had 
 in fact brought about his conviction under cir 
 cumstances denying the fundamentals of a fair 
 trial. The United States District Judge had 
 taken no proof to determine the truth or falsity 
 of these allegations, and the Supreme Court, on 
 the appeal from his refusal of the writ, was at 
 least in no better position to judge of the facts 
 on that issue. The question was not at all one 
 of racial hostility to Frank in Georgia, if there 
 was such hostility, or of racial interference in 
 behalf of Frank, if there had been such inter- 
 
 1 Frank vs. Mangum (237 U. S. Eeports, page 309). 
 
194 CHAELES E. HUGHES 
 
 ference. The Supreme Court cut straight 
 through all of these matters to the question 
 necessarily to be decided a question of the 
 most far-reaching importance to our whole ju 
 dicial and governmental system, rising far 
 above the eventualities of the fate of the par 
 ticular prisoner at the bar. 
 
 The actual point of decision was whether the 
 United States District Court was right, upon 
 the allegations of the petition as to the pro 
 ceedings had with reference to Frank, in re 
 fusing to entertain the writ and proceed to de 
 termine whether there was foundation in fact 
 for the charges that Frank did not have a trial 
 uninfluenced by external pressure of angered 
 public opinion. The majority of the Supreme 
 Court upheld this refusal, on the ground that 
 inasmuch as there was no challenge of the con 
 stitutionality or validity of any statute under 
 which he was tried and the conduct of his trial 
 conformed to all the forms of law, and inasmuch 
 as the State Supreme Court had decided, after 
 having before it evidence adduced on the sub 
 ject, that there was no foundation in fact for 
 Frank's charges of "mob influence" on the 
 jury's action, every requirement of a fair trial 
 and "due process" had been met and the Fed 
 eral Courts had no reason or right to proceed 
 to inquire into the facts and consider substitu 
 tion of their judgment for that of the highest 
 Court of the State on the question whether the 
 
THE CASE OF LEO M. FRANK 195 
 
 requirements of fair trial had in fact been ful 
 filled. 
 
 From the majority determination Justice 
 Holmes and Justice Hughes dissented, because 
 of a belief that under the "due process" clause, 
 the Nation's Supreme Court has the ultimate 
 responsibility for determining whether any per 
 son, of high or low estate, of any race or creed, 
 has in fact been convicted of high crime under 
 circumstances where external influence made 
 the court-room proceedings a mere form and 
 shell, so far as fair determination of actual 
 guilt or innocence was concerned. They did not 
 undertake to say that Frank had or had not a 
 fair trial, or should have a new trial ; they did 
 not undertake to say whether the allegations 
 made in his behalf were true or false ; they did, 
 however, believe that when such an issue was 
 raised, it was the solemn duty of the Federal 
 Court to take the testimony and find out the 
 facts on that issue, and that under the great 
 guaranties of Magna Charta and the Bill of 
 Eights as embodied in the National Constitu 
 tion, the determination of even the highest State 
 Court cannot be accepted as in all events final 
 and conclusive upon the question whether those 
 guaranties were actually infringed. Said Jus 
 tice Holmes, in ruling that the matter should 
 go back to the District Court to take testimony 
 on the question whether there had been im 
 proper influences pervading the trial: 
 
196 CHARLES E. HUGHES 
 
 Mr. Justice Hughes and I are of opinion that 
 the judgment should be reversed. The only 
 question before us is whether the petition shows 
 on its face that the writ of habeas corpus should 
 be denied, or whether the District Court should 
 have proceeded to try the facts. The allega 
 tions that appear to us material are these. The 
 trial began on July 28, 1913, at Atlanta, and was 
 carried on in a court packed with spectators 
 and surrounded by a crowd outside, all strongly 
 hostile to the petitioner. On Saturday, August 
 23, this hostility was sufficient to lead the judge 
 to confer in the* presence of the jury with the 
 chief of Police of Atlanta and the Colonel of 
 the Fifth Georgia Eegiment stationed in that 
 city, both of whom were known to the jury. On 
 the same day, the evidence seemingly having 
 been closed, the public press, apprehending 
 danger, united in a request to the Court that 
 the proceedings should not continue on that eve 
 ning. Thereupon the Court adjourned until 
 Monday morning. On that morning when the 
 Solicitor General entered the court he was 
 greeted with applause, stamping of feet and 
 clapping of hands, and the judge before begin 
 ning his charge had a private conversation with 
 the petitioner's counsel in which he expressed 
 the opinion that there would be ' * probable dan 
 ger of violence" if there should be an acquittal 
 or a disagreement, and that it would be safer 
 for not only the petitioner but his counsel to 
 be absent from Court when the verdict was 
 brought in. At the judge's request they agreed 
 that the petitioner and they should be absent, 
 and they kept their word. When the verdict 
 
THE CASE OF LEO M. FRANK 197 
 
 was rendered, and before more than one of 
 the jurymen had been polled there was such a 
 roar of applause that the polling could not go 
 on until order was restored. The noise outside 
 was such that it was difficult for the judge to 
 hear the answers of the jurors although he was 
 only ten feet from them. With these specifica 
 tions of fact, the petitioner alleges that the trial 
 was dominated by a hostile mob and was noth 
 ing but an empty form. 
 
 We lay on one side the question whether the 
 petitioner could or did waive his right to be 
 present at the polling of the jury. That ques 
 tion was apparent in the form of the trial and 
 was raised by the application for a writ of 
 error ; and although after the application to the 
 full Court we thought that the writ ought to 
 be granted, we never have been impressed by 
 the argument that the presence of the prisoner 
 was required by the Constitution of the United 
 States. But habeas corpus cuts through all 
 forms and goes to the very tissue of the struc 
 ture. It comes in from the outside, not in sub 
 ordination to the proceedings, and although 
 every form may have been preserved opens the 
 inquiry whether they have been more than an 
 empty shell. 
 
 The argument for the appellee in substance 
 is that the trial was in a court of competent 
 jurisdiction, that it retains jurisdiction al 
 though, in fact, it may be dominated by a mob, 
 and that the rulings of the State court as to 
 the fact of such domination cannot be reviewed. 
 But the argument seems to us inconclusive. 
 Whatever disagreement there may be as to the 
 
198 CHAELES E. HUGHES 
 
 scope of the phrase "due process of law," there 
 can be no doubt that it embraces the funda 
 mental conception of a fair trial, with oppor 
 tunity to be heard. Mob law does not become 
 due process of law by securing the assent of a 
 terrorised jury. We are not speaking of mere 
 disorder, or mere irregularities in procedure, 
 but of a case where the processes of justice are 
 actually subverted. In such a case, the Federal 
 court has jurisdiction to issue the writ. The 
 fact that the State court still has its general 
 jurisdiction and is otherwise a competent court 
 does not make it impossible to find that a jury 
 has been subjected to intimidation in a particu 
 lar case. The loss of jurisdiction is not general 
 but particular, and proceeds from the control 
 of a hostile influence. 
 
 When such a case is presented, it cannot be 
 said, in our view, that the State court decision 
 makes the matter res judicata. The State acts 
 when by its agency it finds the prisoner guilty 
 and condemns him. We have held in a civil 
 case that it is no defence to the assertion of the 
 Federal right in the Federal court that the 
 State has corrective procedure of its own that 
 still less does such procedure draw to itself the 
 final determination of the Federal question. 
 Simon v. Southern Ry., 236 U. S. 115, 122, 123. 
 We see no reason for a less liberal rule in a 
 matter of life and death. When the decision of 
 the question of fact is so interwoven with the 
 decision of the question of constitutional right 
 that the one necessarily involves the other, the 
 Federal court must examine the facts. Kansas 
 Southern Ry. v. C. H. Albers Commission Co., 
 
THE CASE OF LEO M. FRANK 199 
 
 223 U. S. 573, 591. Nor. & West. Ey. v. Coriley, 
 March 8, 1915, 236 U. S. 605. Otherwise, the 
 right will be a barren one. It is significant that 
 the argument for the State does not go so far 
 as to say that in no case would it be permissible 
 on application for habeas corpus to override 
 the findings of fact by the State courts. It would 
 indeed be a most serious thing if this Court 
 were so to hold, for we could not but regard it 
 as a removal of what is perhaps the most im 
 portant guaranty of the Federal Constitution. 
 If, however, the argument stops short of this, 
 the whole structure built upon the State pro 
 cedure and decisions falls to the ground. 
 
 To put an extreme case and show what we 
 mean, if the trial and the later hearing before 
 the Supreme Court had taken place in the pres 
 ence of an armed force known to be ready to 
 shoot if the result was not the one desired, we 
 do not suppose that this Court would allow it 
 self to be silenced by the suggestion that the 
 record showed no flaw. To go one step further, 
 suppose that the trial had taken place under 
 such intimidation and that the Supreme Court 
 of the State on writ of error had discovered 
 no error in the record, we still imagine that this 
 court would find a sufficient one outside of the 
 record, and that it would not be disturbed in its 
 conclusion by anything that the Supreme Court 
 of the State might have said. We therefore lay 
 the suggestion that the Supreme Court of the 
 State has disposed of the present question by 
 its judgment on one side along with the question 
 of the appellant's right to be present. If the 
 petition discloses facts that amount to a loss of 
 
200 CHAELES E. HUGHES 
 
 jurisdiction in the trial court, jurisdiction could 
 not be restored by any decision above. And 
 notwithstanding the principle of comity and 
 convenience (for in our opinion it is nothing 
 more, United States v. Sing Tuck, 194 U. S. 161, 
 168), that calls for a resort to the local appel 
 late tribunal before coming to the courts of the 
 United States for a writ of habeas corpus, when, 
 as here, that resort has been had in vain, the 
 power to secure fundamental rights that had 
 existed at every stage becomes a duty and must 
 be put forth. 
 
 The single question in our minds is whether 
 a petition alleging that the trial took place in 
 the midst of a mob savagely and manif estly in 
 tent on a single result, is shown on its face un 
 warranted, by the specifications, which may be 
 presumed to set forth the strongest indications 
 of the fact at the petitioner's command. This 
 is not a matter for polite presumptions; we 
 must look facts in the face. Any judge who has 
 sat with juries knows that in spite of forms they 
 are extremely likely to be impregnated by the 
 environing atmosphere. And when we find the 
 judgment of the expert on the spot, of the judge 
 whose business it was to preserve not only form 
 but substance, to have been that if one juryman 
 yielded to the reasonable doubt that he himself 
 later expressed in court as the result of most 
 anxious deliberation, neither prisoner nor coun 
 sel would be safe from the rage of the crowd, we 
 think the presumption overwhelming that the 
 jury responded to the passions of the mob. Of 
 course we are speaking only of the case made 
 by the petition, and whether it ought to be 
 
THE CASE OF LEO M. FRANK 201 
 
 heard. Upon allegations of this gravity in our 
 opinion it ought to be heard, whatever the de 
 cision of the State court may have been, and it 
 did not need to set forth contradictory evidence, 
 or matter of rebuttal, or to explain why the 
 motions for a new trial and to set aside the ver 
 dict were overruled by the State court. There 
 is no reason to fear an impairment of the au 
 thority of the State to punish the guilty. We 
 do not think it impracticable in any part of this 
 country to have trials free from outside control. 
 But to maintain this immunity it may be neces 
 sary that the supremacy of the law and of the 
 Federal Constitution should be vindicated in a 
 case like this. It may be that on a hearing a 
 different complexion would be given to the 
 judge's alleged request and expression of fear. 
 But supposing the alleged facts to be true, we 
 are of opinion that if they were before the Su 
 preme Court it sanctioned u situation upon 
 which the Courts of the United States should 
 act, and if for any reason they were not before 
 the Supreme Court, it is our duty to act upon 
 them now and to declare lynch law as little valid 
 when practised by a regularly drawn jury as 
 when administered by one elected by a mob 
 intent on death. 
 
 There is an old maxim that "hard cases make 
 bad law," but the manner of its application 
 to the Frank case may not be beyond perad- 
 venture. Of course, it is a startling sugges 
 tion that, with all the difficulties already en 
 countered in making the processes of the crimi- 
 
202 CHAELES E. HUGHES 
 
 nal law prompt and efficacious, there should be 
 added the possibility of an appeal, in some in 
 stances, to the Federal Courts, through applica 
 tions for a writ of habeas corpus, with the re 
 sultant delay through the time required for 
 determination in the Federal jurisdiction. The 
 theory had been, and remains, that unless the 
 statutes under which the trial took place, or the 
 form of proceedings had, presented a clear Fed 
 eral question, challenging the validity of the 
 whole trial and the conviction ensuing thereon, 
 the action of the State Court was unreviewable 
 in the Federal Court, through writ of habeas 
 corpus or any other procedure which could de 
 lay the execution of the mandate of the State 
 Court without the affirmative action of the Su 
 preme Court or one or more Justices thereof. 
 The question raised by Justices Holmes and 
 Hughes may not, however, be regarded as dis 
 posed of never to recur. The question may per 
 haps be stated in this direct and concrete way : 
 Suppose John Jones, whom you knew well, in 
 stead of Leo Frank, whom you did not know at 
 all, were convicted of murder and was about 
 to be hanged. He had been tried in the State 
 Court, and his conviction had been confirmed on 
 appeal. Under the Federal law, available to 
 every man on equal terms, he was entitled to a 
 writ of habeas corpus if he were held in custody 
 as a result of proceedings violative of the Fed 
 eral Constitution. Provisions of the Federal 
 Constitution make it a National duty that the 
 
THE CASE OF LEO M. FRANK 203 
 
 Federal courts shall see to it that nothing hap 
 pening in a State court shall deprive any man 
 of his life or his liberty without a trial in fact 
 fair. Suppose the State court, the fairness 
 of whose proceedings was challenged, had de 
 cided that its proceedings were in fact fair 
 and violated no right under the constitutional 
 guaranties. Suppose John Jones then offered 
 to the Federal District Court evidence which, if 
 true, showed that his trial was not in fact fair, 
 within the meaning of the Federal Constitu 
 tion; and Jones said that he wanted his writ 
 of habeas corpus, which the Federal statute said 
 he was entitled to when he was held in custody 
 under proceedings not amounting to the fair 
 trial guaranteed by the Federal Constitution. 
 Would you think it would then be the duty of 
 the Federal court to go ahead, hear the other 
 side, take all the facts, and then see to it 
 whether Jones' story was true as to what took 
 place on the trial and whether any requirement 
 of the Federal Constitution had in fact been 
 violated, or ought the Federal court just to let 
 the decision of the State court on the question 
 stand as conclusive without hearing any of the 
 evidence on the question of the fairness of the 
 trial? 
 
 Has the National judicial power now no re 
 sponsibility as to what happens to Jones, if he 
 offers evidence and makes allegations which, if 
 true, would show that he had been convicted 
 through the withholding of the kind of a trial 
 
204 CHAELES E. HUGHES 
 
 which the Constitution says the National power 
 shall not permit any State to deny to any man? 
 Or shall the Fourteenth Amendment be 
 amended, by action of the States or judicial 
 construction, so as to read, in effect, that 
 
 No State shall deprive any person of life, lib 
 erty or property without due process of law; 
 . . . provided, however, that nothing herein 
 contained shall be construed to require or au 
 thorise the National judicial power to take any 
 action to prevent a State from depriving a per 
 son of life or liberty without a fair trial, if the 
 State shall have itself determined that a fair 
 trial was had. 
 
 That is a query rather more far-reaching 
 than the fate of your friend Jones or Leo M. 
 Frank. 
 
CHAPTER XII 
 
 COMMUNAL PEOPEETY AND EELIGIOUS OEDEES 
 
 IN determining an action brought by the Or 
 der, of St. Benedict of New Jersey against one 
 Steinhauser, 1 administrator of the estate of a 
 deceased member of the Order, the Supreme 
 Court, through Justice Hughes, drew clearly 
 the distinction between ecclesiastical require 
 ments and civil rights and laid down a broad 
 doctrine as to the lawfulness of communal 
 agreements such as those on which have been 
 based a considerable number of co-operative 
 communities, in the United States and abroad. 
 
 The complainant in the case was The Order 
 of St. Benedict of New Jersey, a corporation 
 of that State. 'This Order was a monastic 
 brotherhood, established at Subacio, Italy, by 
 St. Benedict in the early part of the sixth cen 
 tury. It was brought to America in 1846. One 
 of the distinctive features of the Order is the 
 obedience of its members to what is known as 
 "The Rule of St. Benedict," a collection of 
 mandates enjoining obedience, stability, chas 
 tity and poverty. In New Jersey the brother 
 hood was incorporated, in 1868, by special act 
 
 1 234 U. S. Reports, page 640. 
 205 
 
206 CHARLES E. HUGHES 
 
 of the Legislature, and therefore, as the opinion 
 of the Court indicated, at the outset : 
 
 "We are not concerned in the present case with 
 any question of ecclesiastical requirement or 
 monastic discipline. The question is solely one 
 of civil rights. The claim in suit rests upon the 
 Constitution of the complainant corporation, 
 and the obligations inherent in membership. 
 
 The incorporators of the New Jersey corpor 
 ation were described as being "a society of re 
 ligious men living in community and devoted to 
 charitable works and the education of youth." 
 Pursuant to the charter of incorporation, the 
 Order adopted a Constitution, which provided 
 that membership was "lost at once": 
 
 1. By being dismissed according to the dis 
 ciplinary statutes of the Order of Benedict of 
 New Jersey. . . . 
 
 2. By voluntarily leaving the Order for any 
 purpose whatsoever. 
 
 3. By joining any other order or secret so 
 ciety or any other religious denominations. 
 
 The Constitution also provided that 
 
 Since the Order of St. Benedict of New Jer 
 sey is solely a charitable institution, the real 
 estate of the said Order and the individual 
 earnings of its members are and must be con 
 sidered as common property of the Order. . . . 
 
COMMUNAL PROPERTY 207 
 
 It is therefore agreed upon by all the members 
 of the said Order of St. Benedict of New Jersey 
 that no member can or will claim at any time 
 or under any circumstances more than their 
 decent support for the time for which they are 
 members of the Charter of the Order of St. 
 Benedict of New Jersey and no further. 
 
 Augustin Wirth was a Bavarian, who took 
 the solemn vows of the Order in Pennsylvania 
 in 1852, and was ordained to the priesthood. 
 In 1888 he became a member of the Order in 
 New Jersey and remained in membership until 
 his death. From time to time he published 
 books on religious subjects. His contracts with 
 publishers were made, and the copyrights ob 
 tained by him, under the name of "Augustin 
 Wirth, 0. S. B." After his death the New 
 Jersey corporation claimed the royalties on the 
 books and personal property consisting chiefly 
 of the proceeds of sales of the books. The Su 
 preme Court, applying to the affairs of the cor 
 poration and the agreements of its members 
 the same standards which would and should be 
 applied in a case involving the rights of any 
 other corporation, held that 
 
 According to the principles of the complain 
 ant's organisation, Father Wirth was not en 
 titled to retain for his own benefit either the 
 moneys which he received for his services in the 
 various churches with which he was connected 
 or those which he derived from the sale of his 
 books. By the explicit provision of the Consti- 
 
208 CHARLES E. HUGHES 
 
 tution of the complainant, it was a necessary 
 consequence of his continued membership, that 
 his gains from whatever source belonged 
 to it. 
 
 Thus was a very simple question of the con 
 struction of corporate by-laws succinctly an 
 swered. Father Wirth's administrator con 
 tended, however, that the obligation embodied 
 in the Constitution of the New Jersey corpora 
 tion was one which the Courts should not en 
 force. To this the opinion of a unanimous 
 Court, prepared by Justice Hughes, replied : 
 
 We are thus brought to the question whether 
 the requirement, which lies at the foundation 
 of this suit, is void as against public policy; 
 that is, whether, by reason of repugnance to the 
 essential principles of our institutions, the ob 
 ligation though voluntarily assumed, and the 
 trust arising from it, cannot be enforced. In 
 support of this view, it seems to be premised 
 that a member of the Order can be absolved 
 from his vows only by the action of the Head of 
 the Church and that unless the requisite dis 
 pensation is thus obtained the member is bound 
 for life in temporal, as well as in spiritual, af 
 fairs. This, it is said, is the necessary import 
 of testimony given by the Abbot. It is thus as 
 sumed that the vows in connection with the 
 "Rule" bind the member in complete servitude 
 to the Order for life or until the Head of the 
 Church absolves him from his obligations ; and 
 it is concluded that an agreement for such a sur- 
 
COMMUNAL PROPERTY 209* 
 
 render, being opposed to individual liberty and 
 to the inherent right of every person to acquire 
 and hold property, is unenforceable in the civil 
 courts and cannot form the basis for an equita 
 ble title in the complainant. 
 
 This argument, we think, disregards the 
 explicit provision of the complainant's Con 
 stitution as to voluntary withdrawal. It over 
 looks the distinction between civil and ecclesi 
 astical rights and duties ; between the Order of 
 St. Benedict of New Jersey, a corporation of 
 that State, and the monastic brotherhood sub 
 ject to church authority; between the obliga 
 tion imposed by the corporate organisation and 
 religious vows. 
 
 As we have said, the question here is not one 
 of canon law or ecclesiastical polity. The re 
 quirement of complainant's Constitution must 
 be read according to its terms and its validity 
 must be thus determined. Granted that it is to 
 be examined in the light of that to which it 
 refers, still, obligations which are inconsistent 
 with its expressed provisions cannot be im 
 ported into it. This Constitution, as already 
 stated, definitely provides: "Membership is 
 lost at once : 2. By voluntarily leaving the Or 
 der for any purpose whatsoever." (Section 
 XL) This language cannot be taken to mean 
 other than what it distinctly says. So far as the 
 corporation, and the civil rights and obligations 
 incident to membership therein, are concerned, 
 it leaves no doubt that the member may volun 
 tarily leave the Order at any time. His mem 
 bership in the corporation, and the obligation 
 lie assumes, are subject to that condition. If 
 
*210 CHABLES E. HUGHES 
 
 he severs his connection with the corporation, 
 it cannot be heard to claim any property he 
 may subsequently acquire. His obligation runs 
 with his membership and the latter may be 
 terminated at wilL 
 
 With this privilege of withdrawal expressly 
 recognised, we are unable to say that the agree 
 ment expressed in Sec. XII of the complain 
 ant's Constitution that the gains and acqui 
 sitions of members shall belong to the corpora 
 tion, must be condemned. These go to the cor 
 poration in exchange for the privilege of mem 
 bership and to further the common purpose to 
 which the members are devoted. No consti 
 tutional right is invaded and no statutory re 
 striction is transgressed. The legislature of 
 New Jersey, which, subject to constitutional in 
 hibition, is the arbiter of the public policy of 
 that State, granted the charter by special act 
 to the Benedictine Society of "religious men 
 living in community, ' ' and it cannot be said that 
 the Constitution adopted by the Order was re 
 pugnant to the charter provisions or exceeded 
 the authority plainly intended to be conferred. 
 It would seem to be clear that the obligation 
 assumed instead of being opposed to the public 
 policy of the State where it was created was 
 directly sanctioned. 
 
 The decision has also interesting social as 
 pects because of its observations as to the law 
 fulness of a form of. agreement for living in 
 community and holding all property and income 
 
COMMUNAL PROPERTY 211 
 
 in common. * ' The validity of agreements pro 
 viding for community ownership, " declared 
 Justice Hughes, "with renunciation of individ 
 ual rights of property during the continuance 
 of membership in the community, where there 
 is freedom to withdraw, has been repeatedly 
 affirmed. " The legal sanction for several com 
 munal societies, such as the ' ' Separatists, ' ' 1 
 the "Harmony Society" community 2 of Penn 
 sylvania, and the "Oneida Community" 3 of 
 New York, is set forth. Viewing the matter 
 "solely as a business undertaking," the Court 
 found nothing subversive of law or public pol 
 icy in such a community arrangement, and 
 quoted with approval the New York Court of 
 Appeals' characterisation of the Oneida Com 
 munity, the "basic proposition" of which was 
 said to be 
 
 . . . the absolute and complete surrender of 
 the separate and individual rights of property 
 of the persons entering it ; the abandonment of 
 all purely selfish pursuits, and the investiture of 
 the title to their property and the fruits of their 
 industry in the common body, from which they 
 could not afterwards be severed or withdrawn 
 except by unanimous consent. It was fashioned 
 according to the Pentecostal ideal, that all who 
 
 *Goesele vs. Bimeler (14 Howard's Eeports, page 589). 
 
 a Schwartz vs. Duss (187 U. S. Keports, page 8). 
 
 *Burt vs. Oneida Community (137 N. Y. Reports, page 346). 
 
212 CHARLES E. HUGHES 
 
 believed should be together and have all things 
 common. It was intended to be in fact, as they 
 frequently styled themselves, but a single fam 
 ily upon a large scale with only one purse, 
 where self was to be abjured and the general 
 good alone considered. 
 
CHAPTER XIII 
 
 THE "SEPAKATE-COACH" LAW AND THE SLEEPING 
 
 CAR 
 
 CONSTITUTIONAL aspects of the perennial 
 problem of equality in transportation accom 
 modations for the white and African races, were 
 before the Supreme Court at the end of 1914, 
 in a controversy l involving the so-called "Sep 
 arate-Coach" law of the State of Oklahoma. A 
 day or two before this law was to go into effect 
 five negro citizens of the State applied to the 
 Federal courts for an injunction against five 
 railroad companies, to restrain th.e companies 
 from complying with the provisions of the stat 
 ute. They asked for this on the twofold ground, 
 in substance, that its plan of separate, but sup 
 posedly equal, facilities for the two races, was 
 repugnant to the "commerce clause" and to 
 the Fourteenth Amendment of the Federal Con 
 stitution. The United States Circuit Court and 
 the Circuit Court of Appeals for the Eighth 
 Circuit, which is one of the Western Circuits, 
 sustained demurrers to the bills filed by the 
 complainants and ruled adversely to their right 
 
 *McCabe vs. AtcUson, T. # S. F. Ey. Co. (235 U. S. Ee- 
 ports, page 151). 
 
 213 
 
214 CHAELES E. HUGHES 
 
 to stop the taking effect of the statute upon the 
 allegations made by them. When they brought 
 their complaints to the Supreme Court, that 
 tribunal without dissent affirmed the action of 
 the courts below and held that the suit could 
 not be maintained. Justice Hughes wrote the 
 opinion of the Court, and declared a result con 
 curred in by all his colleagues. 
 
 The social, political, or ethnological expedi 
 ency of the Oklahoma " Separate-Coach " law, 
 of course, was not passed upon by the Supreme 
 Court or written about by Justice Hughes. The 
 question before the Court and before him was 
 the legal and constitutional question of the cor 
 rectness of the challenge that the statute, in its 
 tenor and practical workings, would impinge 
 upon rights assured by the Federal Constitu 
 tion. Members of the Court, in passing upon a 
 statute enacted by a State, may feel the measure 
 to be very wise and salutary, yet unconstitu 
 tional; or they may deem the measure to be 
 highly unwise and inexpedient, yet unpro- 
 scribed by the fundamental law. Questions 
 of expediency have to be left to the Legis 
 latures and Governors, and questions of in 
 fringement of fundamental right have to be 
 faced, without expression of independent judg 
 ment as to the social wisdom of the meas 
 ures under consideration. No doubt some 
 of the members of the Supreme Court would 
 have voted for, and others would have voted 
 against, the "Separate-Coach" law had they 
 
THE "SEPARATE-COACH" LAW 215 
 
 been sitting, in December, 1907, as members of 
 the Oklahoma Legislature; but as Justices of 
 the Supreme Court, the men from New York, 
 New Jersey, Massachusetts, Ohio, Wyoming 
 and California voted in unison with the men 
 from Louisiana, Georgia and Tennessee, in 
 holding that the five negroes who started the 
 suit had not made out a case for redress under 
 the Federal Constitution. Upon one phase of 
 the provisions of the statute in relation to 
 Pullman and dining-car facilities Justice 
 Hughes reached a conclusion that the plan sanc 
 tioned might operate to deny to African citizens 
 the equal protection of the laws and so entitle 
 persons actually aggrieved to bring their com 
 plaints to Court. As to this aspect of the mat 
 ter, Chief Justice White and Associate Justices 
 Holmes, Lamar and McBeynolds evidently 
 found themselves more fully in accord with the 
 outcome reached than with the reasoning, and 
 so concurred "in the result." 
 
 The statute under attack required each rail 
 way company to " provide separate coaches or 
 compartments, for the accommodation of the 
 white and negro races, which separate coaches 
 or cars" shall "be equal in all points of comfort 
 and convenience." At passenger depots, "sep 
 arate waiting-rooms," likewise with equal fa 
 cilities, were required. The statute, moreover, 
 provided that the term "negro," as used there 
 in, should include every person of African de 
 scent, as defined by the State Constitution, and 
 
216 CHARLES E. HUGHES 
 
 that each compartment of a railway coach, "di 
 vided by a good and substantial wooden parti 
 tion, with a door therein, shall be deemed a 
 separate coach, ' ' within the meaning of the law. 
 
 Justice Hughes ruled that, as to the provi 
 sions above quoted, the statute gave the com 
 plainants no ground for objection to its en 
 forcement. "It had been decided by this Court, 
 so that the question could no longer be consid 
 ered an open one, that it was not an infraction 
 of the Fourteenth Amendment for a State to re 
 quire separate, but equal, accommodations for 
 the two races." So far as the Federal Consti 
 tution is concerned, a State, through its legis 
 lature, may require, as some States in effect 
 do, equal and common facilities for the two 
 races, or may, as some other States do, require 
 equal and separate facilities. Members of the 
 African race are entitled to address to the Fed 
 eral courts any complaint as to distinction in 
 extent or quality of the accommodations af 
 forded the two races on railroad trains; they 
 cannot be heard to complain to the court, as 
 distinguished from the legislature, of distinc 
 tion in identity of the accommodations afforded 
 or against separation in equal accommodations. 
 
 This was held in 'the case of Plessy against 
 Ferguson* cited in the opinion written by Jus 
 tice Hughes. The Plessy case involved a Louis 
 iana statute which required the carriers to pro 
 vide separate accommodations for the white and 
 
 1 Plessy vs. Ferguson (163 U. S. Eeports, page 540). 
 
THE "SEPARATE-COACH" LAW 217 
 
 coloured races. The Supreme Court not only 
 sustained the law but also justified as reason 
 able the distinction between the races on ac 
 count of which the statute was enacted and en 
 forced. The test of the reasonableness of leg 
 islation was declared to be "the established 
 usages, customs and traditions of the people" 
 and the "promotion of their comfort and the 
 preservation of public peace and good order"; 
 and in the action brought by one Chiles against 
 the Chesapeake and Ohio Railway Company? 
 it was held that the railway companies them 
 selves had the power to establish similar regula 
 tions, for a like purpose and to secure like re 
 sults, and at least in the absence of Congres 
 sional action on the subject, could make such 
 regulations applicable to interstate as well as 
 intrastate traffic. The Supreme Court in the 
 Chiles case added : 
 
 Eegulations which are induced by the general 
 sentiment of the community for whom they are 
 made and upon whom they operate cannot b 
 said to be unreasonable. 
 
 As to the charge that the statute contravened 
 the "commerce clause" of the Constitution, 
 through invasion of the interstate domain com 
 mitted to the exclusive power of Congress, the 
 Court, in the Oklahoma case, said : 
 
 1 Chiles vs. Chesapeake $ Ohio Ey. Co. (218 U. S. Eeports, 
 page 71). 
 
218 CHARLES E. HUGHES 
 
 The act, in the absence of a different con 
 struction by the State Court, must be construed 
 as applying to transportation exclusively intra- 
 state and hence did not contravene the com 
 merce clause of the Constitution. 
 
 This ruling was of course made in the light 
 of the previous holding of the Supreme Court 
 that "whether interstate passengers of one race 
 should, in any portion of their journey, be com 
 pelled to share their cabin accommodations with 
 passengers of another race, was a question of 
 interstate commerce, and to be determined by 
 Congress alone,' yi and that "the inaction of 
 Congress was equivalent to the declaration that 
 a carrier could by regulations separate coloured 
 and white interstate passengers." 2 
 
 The Oklahoma statute contained, however, a 
 proviso that nothing in it contained should be 
 construed to prevent railway companies "from 
 hauling sleeping cars, dining or chair cars at 
 tached to their trains to be used exclusively 
 by either white or negro passengers, separately 
 tut not jointly." It was contended, with a 
 great deal of vigour and plausibility, in behalf 
 of the railroad companies and the State of 
 Oklahoma, that this proviso, based palpably on 
 the necessities of "through" traffic, did not by 
 its terms offend against the rule of equal treat 
 ment which all men have a right to demand at 
 
 1 Louisville, etc., Ey. Co. vs. Mississippi (133 U. S. Reports, 
 pages 587, 590). 
 
 3 Hall vs. De Cuir (95 U. S. Reports, 485). 
 
THE "SEPARATE-COACH" LAW 219 
 
 the hands of utilities operating under public 
 franchises. It was argued that this clause sanc 
 tioned the hauling of sleeping cars and dining 
 and chair cars used exclusively and separately 
 by either race, and that violation of the rule 
 of equality in accommodations would take place 
 only if the railway companies provided cars of 
 this type and quality for the exclusive use of 
 white passengers and yet, in the face of consid 
 erable demand, failed to furnish similar and 
 separate facilities for negro passengers. The 
 Circuit Court and the Circuit Court of Appeals 
 sustained this view, and held that inasmuch as 
 these types of cars were, comparatively speak 
 ing, luxuries, it was competent for the legisla 
 ture and the railway companies to take into ac 
 count the limited demand for such accommoda 
 tions on the part of the African race, as com 
 pared with the more general demand on the 
 part of the white race. 
 
 With characteristic instinct for the substance 
 rather than the guise of things and for the facts 
 as to the way in which a statutory provision 
 actually works rather than for mere phrase 
 ology which may be employed to create an ap 
 pearance of consonance with fundamentals, Jus 
 tice Hughes was unable to give sanction to this 
 reasoning of the lower Court. 
 
 "It is not questioned," said he, after quoting 
 the statute, "that the meaning of this clause is 
 that the carriers may provide sleeping cars, 
 dining cars and chair cars exclusively for white 
 
220 CHAELES E. HUGHES 
 
 persons and provide no similar accommodations 
 for negroes. The reasoning is that there may 
 not be enough persons of African descent seek 
 ing these accommodations to warrant the out 
 lay in providing them. . . . This argument with 
 respect to volume of traffic seems to us to be 
 without merit. It makes the constitutional right 
 depend upon the number of persons who may be 
 discriminated against, whereas the essence of 
 the constitutional right is that it is a personal 
 one. Whether or not particular facilities shall 
 be provided may doubtless be conditioned upon 
 there being a reasonable demand therefor, but, 
 if facilities are provided, substantial equality 
 of treatment of persons travelling under like 
 conditions cannot be refused." 
 
 Justice Hughes expressed, however, the opin 
 ion of the Court that the allegations of the 
 complainants showed no discrimination in fact 
 against the constitutional rights of any of them, 
 and the Circuit Court's denial of injunctive re 
 lief was affirmed without dissent. 
 
CHAPTER XIV 
 
 STANDARDS OF OFFICIAL RESPONSIBILITY AND THE 
 EFFICIENCY OF ADMINISTRATIVE ADJUSTMENTS 
 
 IN a number of opinions prepared by Justice 
 Hughes there seems to be discernible a very 
 definite concept of the standards of official dis 
 cretion, duty and responsibility, and of the ex 
 pedients which make administrative mechan 
 isms workable and -efficient. In the United 
 States against Citroen, 1 after laying down an 
 interpretation of certain puzzling sections of 
 the Tariff Act of 1897, in harmony with the 
 known facts of the trade and the policy em 
 bodied in former tariff legislation, he added: 
 1 ' Such an interpretation provides a simple and 
 workable test, permitting certainty and impar 
 tiality in administration which should pre-em 
 inently characterise the operation of tariff laws, 
 and fulfils, as we believe, the purpose of Con 
 gress.'' In Collins against Kentucky? his 
 voice was raised in condemnation of a penal 
 statute which "prescribed no standard of con 
 duct that it was possible to know," a statute 
 which "violated the fundamental principles of 
 
 1 223 U. S. Eeports, page 424. 
 a 234 U. S. Reports, page 634. 
 221 
 
222 CHARLES E. HUGHES 
 
 justice .. . in compelling men on peril of in 
 dictment to guess " as to facts not ascertain- 
 able. In the United States against Smull, 1 the 
 United States District Court had held that a 
 false affidavit, made before a receiver of the 
 Land Office, that the applicant had not thereto 
 fore made any entry under the homestead laws, 
 did not warrant indictment of the affiant for per 
 jury, inasmuch as the taking of any such oath 
 was not authorised or required by any Act of 
 Congress, but only by a regulation of the Land 
 Department. Justice Hughes cut straight 
 through this claim by which the maker of a false 
 oath for the purpose of defrauding the Govern 
 ment was to go unpunished ; he held that know 
 ingly swearing falsely to an affidavit required 
 by an authorised regulation of the Land De 
 partment as fully sustained a charge of perjury 
 as though the oath had been explicitly required 
 by the wording of an Act of Congress. 
 
 In the United States against Birdsall, 2 a sim 
 ilar edifice of circumlocution had been reared 
 to persuade the United States District Court 
 that Birdsall was not guilty of bribery. The 
 District Court let Birdsall go free. Justice 
 Hughes, on the contrary, gave efficacy to the 
 anti-bribery statute. He held that "every ac 
 tion that is within the range of official duty 
 comes within the purview of " the anti-bribery 
 sections, and that "to constitute it official ac- 
 
 1 236 IP. S. Reports, page 405. 
 *233 U. S. Reports, page 223. 
 
OFFICIAL RESPONSIBILITY 223 
 
 tion, it was not necessary that it should be pre 
 scribed by statute; it was sufficient that it was 
 governed by a lawful requirement of the de 
 partment under whose authority the officer was 
 acting. . . . Nor was it necessary that the re 
 quirement should be prescribed by a written 
 rule or regulation. It might also be found in an 
 established usage which constituted the common 
 law of the department and fixed the duties of 
 those engaged in its activities. ... In numer 
 ous instances, duties not completely defined by 
 written rules are clearly established by settled 
 practice, and action taken in the course of their 
 performance must be regarded as within the 
 provisions of the above-mentioned statutes 
 against bribery. " And Justice Hughes was 
 one of the Justices concurring in that classic 
 opinion * sustaining the validity of President 
 Taft's order withdrawing from public entry, 
 without Congressional sanction, vast areas of 
 public lands on which oil had been discovered, 
 in which the Court declared that 
 
 . . . government is a practical affair intend 
 ed for practical men. Both officers, lawmakers 
 and citizens naturally adjust themselves to any 
 long-continued action of the Executive Depart 
 ment on the presumption that unauthorised 
 acts would not have been allowed to be so often 
 repeated as to crystallise into a regular prac 
 tice. That presumption is not reasoning in a 
 
 1 U. 8. vs. Midwest Oil Co. (236 U. S., 459). 
 
224 CHAELES E. HUGHES 
 
 circle but the basis of a wise and quieting rule 
 that in determining the meaning of a statute 
 or the existence of a power, weight should be 
 given to the usage itself even when the valid 
 ity of the practice is the subject of investiga 
 tion. 
 
 Perhaps there is an inkling, also, of an out 
 look upon problems of discipline and depart 
 mental authority in the Army and Navy, in a 
 decision like that in the United States against 
 Ross, 1 where Justice Hughes said: "If in the 
 practical judgment of the military authorities, 
 the efficient management of a general hospital 
 requires the maintenance of both a telephone 
 and telegraph office, we know of no reason for 
 * making a judicial determination based upon a 
 contrary assumption.' Certainly the question 
 was one calling in the first instance for the prac 
 tical judgment of the Department. ... In the 
 conduct of an institution like a general hos 
 pital . . . there is every reason for caution, and 
 for the exercise of careful official judgment. 
 . . . We are asked to overrule this depart 
 mental judgment. . . . We find no basis for 
 such action." Justice Hughes added that the 
 Court was not at liberty to do any such thing 
 " unless there is a clear abuse of the neces 
 sary official discretion. No such abuse is shown 
 here. ' ' Likewise in Reaves against Ainsworth, 2 
 
 1 239 U. S. Reports, page 530. 
 a 219 U. S. Eeports, page 296. 
 
OFFICIAL RESPONSIBILITY 225 
 
 a unanimous Court declared, on a question of 
 the retirement of an Army officer: 
 
 The courts have no power to review. The 
 courts are not the only instrumentalities of 
 government. They cannot command or regu 
 late the army. To be promoted or to be retired 
 may be the right of an officer, the value to him 
 of his commission, but greater even than that 
 is the welfare of the country, and, it may be, 
 even its safety, through the efficiency of the 
 army. ... If it had been the intention of Con 
 gress to give to an officer the right to raise is 
 sues and controversies with the board upon the 
 elements, physical and mental, of his qualifica 
 tions for promotion and carry them over the 
 head of the President to the courts, and there 
 litigated, it may be, through a course of years, 
 upon the assertion of error or injustice in the 
 board's rulings or decisions, such intention 
 would have been explicitly declared. The em 
 barrassment of such a right to the service, in 
 deed the detriment of it, may be imagined. 
 
 Elsewhere in the same opinion the Court 
 said : 
 
 What is due process of law must be deter 
 mined by circumstances. To those in the mili 
 tary or naval service of the United States the 
 military law is due process. The decision, 
 therefore, of a military tribunal acting within 
 the scope of its lawful powers cannot be re 
 viewed or set aside by the courts. 
 
226 CHAELES E. HUGHES 
 
 It remains to refer briefly to questions pre 
 sented by some of the newer governmental 
 mechanism, products of a popular disposition 
 to which Justice Hughes referred in his address 
 before the Bar Association: 
 
 "When the people have determined to exer 
 cise governmental control, they are disposed to 
 utilise freely whatever powers they find at their 
 immediate command, caring little for former 
 divergencies of political theory. 
 
 The first is as to the right of the people of a 
 State in their discretion to adopt and use ex 
 pedients such as the initiative, referendum and 
 recall, deemed by some to be the acceptable 
 means of ensuring to the repositories of the 
 sovereign political power an adequate ultimate 
 check upon the misuse of representative and 
 executive processes, and deemed by others to 
 usher in a radical subversion of fundamentals 
 of that "republican form of government" 
 which section four of article IV of the Consti 
 tution says "the United States shall guarantee 
 to every State in this Union." Justice Hughes 
 was a member of the Supreme Court at the time 
 it was asked to deny to the people of a State 
 the power to adopt measures of this character. 
 Although he did not prepare the opinion of the 
 Court in either of the cases 1 in which the issue 
 was determined, he was one of a unanimous 
 
 1 Pacific Telephone Co. vs. Oregon (223 U. S. Eeports, page 
 118) ; Kiernan vs. Portland, Oregon (223 U. S. Eeports, page 
 151). 
 
OFFICIAL BESPONSIBILITY 227 
 
 Court which ruled that the question is "political 
 and governmental, and embraced within the 
 scope of the powers conferred upon Congress, 
 and not therefore within the reach of judicial 
 power. " The Supreme Court held that noth 
 ing in the Constitution authorised the judiciary 
 to substitute its own judgment for the judg 
 ment of Congress upon a matter purely polit 
 ical and specifically committed to the judgment 
 of Congress. Every citizen would gain a 
 clearer idea of the fundamentals of government 
 and the necessary boundaries of political and 
 judicial power, from a reading of the opinions 
 of Chief Justice White in these two Oregon 
 cases. 1 
 
 It has been brilliantly said that "the capital 
 fact in the mechanism of modern states is the 
 energy of legislatures." Yet this fact, in itself, 
 does not seem to have been either surprising 
 or distressing to Justice Hughes. In the same 
 address before the New York State Bar Asso 
 ciation, he cited numerous instances of the 
 "new exertions " of governmental power which 
 "have followed each other in swift succession, 
 reflecting convictions of recent origin with re 
 spect to National needs, ' ' and added : 
 
 What this means is apparent. Abounding ac 
 tivities and facility of intercourse have been 
 
 1 Pacific Telephone Co. vs. Oregon (223 U. S. Keports, page 
 118) j Kiernan vs. Portland, Oregon (223 U. S. Eeports, page 
 151). 
 
228 CHARLES E. HUGHES 
 
 producing the natural legislative reactions. . . . 
 In the mere multiplication of laws, when this is 
 considered relatively to the growth of the coun 
 try, there is nothing novel. This is an ancient 
 grievance, and the significance of its continu 
 ance lies in the showing of the reluctance of 
 democracy to forego legislative opportunities 
 in the interest of simplicity and efficiency. I 
 see no prospect of remedying the evil of need 
 less multiplicity until in the place of merely gen 
 eral lamentations and futile inveighing against 
 "too much law," enlightened opinion shall aim 
 at securing improvement in those cases in which 
 the mischief is especially prominent and some 
 measure of relief is not wholly impracticable : 
 For example (1) by increasing restrictions 
 against special and private legislation, not only 
 through constitutional provisions where these 
 are appropriate, but by changes in the rules of 
 legislative bodies with respect to the considera 
 tion of private bills; (2) by the development in 
 local communities of the sense of civic responsi 
 bility which will lead to intrusting each muni 
 cipality with the care of its purely local affairs 
 under rules of its own making; (3) by seeking 
 to deal with matters of general concern, though 
 within State power, through uniform State laws 
 not only enacted but maintained as such both 
 by force of the public judgment and by the ef 
 forts of the Bench to avoid conflicting interpre 
 tations, and (4) by seeking to provide a simple 
 judicial procedure which shall not be a legisla 
 tive patchwork. We are apt to be suspicious of 
 everything but generalisations, and we find it 
 hard to agree on the details of constructive en- 
 
OFFICIAL RESPONSIBILITY 229 
 
 terprise. But gains are always possible through 
 a wise direction of effort, and if legislatures are 
 relieved of unnecessary burdens there will be 
 opportunity for increased care in formulating 
 and adopting new laws. 
 
 In his career at the Bar, and during his 
 service as Governor of New York, Mr. Hughes 
 had manifested a predilection for the reasoned 
 and impartial judgment of men of special 
 knowledge and qualifications, whenever any in 
 tricate matter of human welfare, public service 
 or trade adjustment was at issue. Where facts 
 were to be collected as basis for legislative or 
 executive judgment or the development of pub 
 lic opinion; when evidence was to be weighed 
 and relative advantages and disadvantages 
 sifted and counter-balanced; when a rule of 
 public policy determined by the people or legis 
 lature was to be applied to the multitudinous 
 details of a highly organised industry or com 
 munity life, he believed that the public should 
 call into action the best talent at its command, 
 instead of leaving the subject, for example, to 
 the slip-shod and off-hand manner in which leg 
 islative bodies often act upon matters of that 
 kind. His willingness to follow wherever the 
 facts and the ultimate preponderance of public 
 advantages seemed to advise, led him to insist 
 that the facts be first brought together by men 
 expert and disinterested; and his knowledge of 
 the history of human institutions persuaded 
 
230 CHARLES E. HUGHES 
 
 him that matters of inquiry, analysis and deter 
 mination may most effectively be conducted by 
 small and expert bodies, reserving to the peo 
 ple as a whole and their legislative representa 
 tives the basic task of deciding upon the con 
 trolling policies and principles. Several of his 
 most stirring contests as Governor were in vin 
 dication of this concept of genuinely expert 
 guidance and action, in the first instance, upon 
 matters of this kind. 
 
 It has been perhaps natural, therefore, that 
 in opinions 1 prepared by him as a member of 
 the Supreme Court, we find a disposition, on the 
 one hand, to uphold the efficacy of expert ad 
 ministrative commissions and give broad scope 
 to their "on-the-spot" judgment of conditions, 
 and, on the other hand, to confine the activities 
 of these agencies to the salutary limits of a 
 reasonable and open-minded exercise of discre 
 tion under the disclosed facts. The bearings of 
 the whole matter were clearly explained by him 
 before the Bar Association. After referring to 
 what he termed "a new era in the development 
 of our law," and pointing out the rapid ad 
 vances in the exercise of governmental power 
 for the better adjustment of public services and 
 the extension of human welfare, he commented 
 upon the propriety of committing certain 
 
 1 Louisville # N. E. E. Co. vs. Garrett (231 U. S. Eeports, 
 page 298) ; Los Angeles Switching Cases (234 U. S. Eeports, 
 page 294). 
 
OFFICIAL RESPONSIBILITY 231 
 
 phases of these matters to expert "administra- 
 trve agencies": 
 
 With this noteworthy change in point of view, 
 there have been constant manifestations of a 
 deepening conviction of the impotency of Legis 
 latures with respect to some of the most im 
 portant departments of lawmaking. Complaints 
 must be heard, expert investigations conducted, 
 complex situations deliberately and impartially 
 analysed, and legislative rules intelligently 
 adapted to a myriad of instances falling within 
 a general class. It was not difficult to frame 
 legislation establishing a general standard, but 
 to translate an accepted principle into regula 
 tions wisely adapted to particular cases re 
 quired an experienced body sitting continuously 
 and removed so far as possible from the blan 
 dishments and intrigues of politics. This 
 administrative type is not essentially new in it 
 self, but the extension of its use in State and 
 Nation constitutes a new departure. The doc 
 trine that the Legislature cannot delegate its 
 power has not been pushed so far as to make 
 needed adaptation of legislation impossible, and 
 reconciliation has been found in the establish 
 ment by the Legislature itself of appropriate 
 standards governing the action of its agency. 
 The ideal which has been presented in justifica 
 tion of these new agencies, and that which alone 
 holds promise of benefit rather than of hurt to 
 the community, is the ideal of special knowl 
 edge, flexibility, disinterestedness and sound 
 judgment in applying broad legislative princi 
 ples that are essential to the protection of the 
 
232 CHAELES E. HUGHES 
 
 community, and of every useful activity af 
 fected, to the intricate situations created by ex 
 panding enterprise. But mere bureaucracy 
 narrow, partisan or inexpert is grossly in 
 jurious ; it not only fails of the immediate pur 
 pose of the law and is opposed to traditions 
 which, happily, are still honoured, but its fail 
 ure creates a feeling of discouragement border 
 ing on pessimism which forms the most serious 
 obstacle to real improvements in the adjust 
 ment of governmental methods to new exi 
 gencies. 
 
 The standards which he felt should control 
 the action of these commissions and the work 
 able relation of the courts thereto, were like 
 wise pointed out by Justice Hughes in the same 
 address. Declaring that "the tendency to as 
 sign to the courts administrative duties which 
 do not belong to them" is "opposed to a proper 
 conception of the function of the Courts," he 
 continued : 
 
 Legislation of the first sort undoubtedly 
 arises from distrust of powerful administrative 
 agencies; it shows a desire to escape their au 
 thority and to have the judgment of judicial tri 
 bunals, with whose standards the public is fa 
 miliar, in the final decision of difficult admin 
 istrative problems. It seems to me to be the 
 wrong way to reach the right result. The only 
 reason for the creation of the new administra 
 tive instrumentalities which appear to present 
 government in a new phase is the complexity 
 
OFFICIAL RESPONSIBILITY 233 
 
 of the facts with which government undertakes 
 to deal and the necessity, if they are wisely 
 dealt with, for the continuous and expert atten 
 tion of a body exclusively concerned with the 
 particular subject. To put upon the courts the 
 burden of considering the details of administra 
 tive problems would be to overwhelm them ; but 
 for the courts to revise and rescind administra 
 tive action without a competent and close study 
 of all the pertinent facts would be not only to 
 destroy the effectiveness of the administrative 
 agencies, but also seriously to impair the con 
 fidence reposed in judicial tribunals. It cannot 
 be too strongly insisted that if we are to have 
 these important administrative instrumentali 
 ties properly perform their duty, they should 
 stand on their own footing, and that the public 
 should realise that their safeguard is not in in 
 jecting the courts into the work of administra 
 tion, to the confusion of both, but in maintain 
 ing an enlightened policy and in insisting upon 
 proper standards of official conduct. The courts 
 cannot be substituted for administrative agen 
 cies ; nor, as I believe, is it to the ultimate ad 
 vantage of the community to divide between 
 them the responsibility for purely administra 
 tive action. 
 
 This is not to say that the courts do not have 
 a very important function in connection with 
 the work of administrative commissions. These 
 bodies exercise prescribed powers, and the lim 
 its of these powers, as well as constitutional re 
 strictions, must be defined and maintained by 
 judicial tribunals. There is thus interposed one 
 of the most important safeguards of the com- 
 
234 CHAELES E. HUGHES 
 
 munity against all efforts on the part of ad 
 ministrative agents to draw to themselves pow 
 ers not conferred, and on the other hand, the 
 appropriate demand, intelligently enforced, for 
 the proper execution of the law, does not in any 
 way sacrifice administrative efficiency. Bather 
 it tends to conserve such efficiency by avoiding 
 the reactions which inevitably follow abuses of 
 authority. There is also apparent at times the 
 tendency, in a desire for the play of administra 
 tive discretion, to preserve opportunities for 
 arbitrary action without responsibility. The 
 requirement of a fair hearing, of action upon 
 evidence, of a disclosure of the basis of action 
 that all parties interested may have suitable 
 opportunity to challenge it, in no way trammels 
 the just administrator who is loyal to the stand 
 ards of democracy, but are very important safe 
 guards against the development of bureaucratic 
 despotism under democratic forms. 
 
CHAPTER XV 
 
 THE MAN WHO BROKE HIS WRITTEN CONTRACT 
 WITHOUT REPAYING HIS EMPLOYER WHAT HE 
 HAD BORROWED 
 
 IN Bailey against Alabama* decided by the 
 Supreme Court in January of 1911, Justice 
 Hughes was called upon to declare whether 
 vital principles of freedom, which under ordi 
 nary industrial conditions would be recognised 
 as fundamental in the relationship of employer 
 and employe, might be put aside by a State 
 perplexed by the conditions which have arisen 
 as to farm labour in many of the plantation dis 
 tricts of the South. 
 
 The State of Alabama had tried to make a 
 little more effective the legislation it already 
 had, along lines and for purposes by no means 
 unusual, in either North or South. The ques 
 tion was whether this amendment went too far. 
 The difficulty sought to be remedied was that 
 employes of an irresponsible and more or less 
 wandering type often go around and make writ 
 ten contracts with plantation owners, whereby 
 they hire out for a year; they do this with no 
 intention of remaining at work and with inten- 
 
 1 219 U. S. Reports, page 219. 
 235 
 
236 CHAELES E. HUGHES 
 
 tion only of "getting something for nothing' ' 
 from the employer; they obtain advances of 
 moneys or supplies on account of their prospec 
 tive services or as an initial payment under the 
 contract ; and then when the season of dire need 
 for their labour in the fields comes on, they dis 
 appear or do nothing, leaving the employer pos 
 sessed of a written contract but "out" both 
 money and farm hands. There would be no use 
 suing for the money, and no way of compelling 
 the man to work as he had agreed. The State 
 thought it was a reasonable thing to draft the 
 most effective law that could be perfected, un 
 der the Constitution and the American "way of 
 doing things, to protect employing owners 
 against this kind of fraud. So the State legis 
 lators kept experimenting on their form of 
 statute, making it a little more drastic from 
 time to time, as the need became greater and 
 new provisions suggested themselves. Now and 
 then they encountered difficulties with their 
 own State Supreme Court, 1 but matters worked 
 along until finally they passed an amendment 
 under which the mere failure to perform a con 
 tract to work for a specified time, coupled with 
 a failure to pay a debt for advances which were 
 to be liquidated during the contract period, 
 would, if shown in court, be sufficient evidence 
 to warrant the conviction of the defaulting em- 
 
 1 Toney vs. The State (141 Alabama Reports, page 120) ; 
 Ex parte Riley (94 Alabama Reports, page 82) ; Bailey vs. The 
 State (158 Alabama Reports, page 25). 
 
SERVITUDE FOB DEBT 237 
 
 ploye of a criminal offence, for which, in the 
 case of Bailey, punishment was inflicted in the 
 form of sentence for one hundred and sixteen 
 days at hard labour, in lieu of his prompt pay 
 ment of a fine amounting to twice the sum of 
 fifteen dollars, which he owed his former em 
 ployer, together with the costs. 
 
 There was no question as to the power of any 
 State to provide that any person who, with in 
 tent to injure or defraud his employer, entered 
 into a written contract to work for him and 
 thereby obtained from his employer money or 
 other personal property, and then with like 
 intent and without just cause and without re 
 funding the money or paying for the property 
 refused to perform the contract, should be pun 
 ished as if he had stolen it. Such a rule of law 
 obtains in many jurisdictions, and has not been 
 challenged by the Federal Court. Alabama had 
 such a statute, enacted in 1896. Under it, when 
 it appeared from all the circumstances that the 
 defaulting employe entered into the contract 
 with the intent not to perform it but to use it 
 as means of getting money or otherwise de 
 frauding the employer, failure to repay and re 
 fusal to perform subjected him to criminal lia 
 bility, if his non-performance was without just 
 cause and with like intent to injure and defraud 
 the man for whom he had promised to work. 
 1 ' The difficulty in proving the intent, made pat 
 ent by the decision" of the Alabama Supreme 
 Court as to the essential elements of this statu- 
 
238 CHAELES E. HUGHES 
 
 tory offence, "suggested the amendment of 
 1903," which, as amplified in 1907, was before 
 the United States Supreme Court in the Bailey 
 case. 
 
 This amendment made refusal or failure to 
 perform the service, or to refund the money or 
 pay for the property, if the employe quit work 
 without just cause before the contract time was 
 up, prima facie evidence of the intent to injure 
 or defraud the employer. Under a rule of evi 
 dence enforced in Alabama as to oral testi 
 mony rebutting or contradicting a statutory 
 presumption, an accused person is not per 
 mitted to testify "as to his uncommunicated 
 motives, purpose or intention," so that the 
 practical effect of the statute was to empower 
 the jury to convict and the appellate courts to 
 sustain conviction, if it appeared that the ac 
 cused had without just cause broken a written 
 contract of employment and had failed to repay 
 money which he had been expected to repay out 
 of the proceeds of the employment. 
 
 Of course, in New York City, for example, if 
 the employer who made a written contract for a 
 year with a salesman and advanced him money 
 on account of his anticipated earnings, could 
 hale the salesman into the criminal courts when 
 the salesman unwarrantedly left the employ 
 ment without repaying the moneys advanced, 
 and then could obtain the conviction of the 
 salesman and his sentence to hard labour 
 merely upon proof of the broken contract and 
 
SERVITUDE FOE DEBT 239 
 
 the moneys unrepaid, legislature and courts 
 alike would make short shrift of any statute 
 which authorised such a proceeding, especially 
 if conviction meant so large a fine as virtually 
 to compel the man to work the rest of the year 
 or languish in jail. The matter presents a seri 
 ous question at all only when urged in the light 
 of conditions in plantation districts of Southern 
 States. As incumbent of a judicial office, Jus 
 tice Hughes ruled promptly that questions of a 
 racial or sectional character could not be per 
 mitted to enter into the judicial disposition of 
 the case. 
 
 "We at once dismiss from consideration," 
 said he, "the fact that the plaintiff in error is 
 a black man. While the action of a State 
 through its officers charged with the adminis 
 tration of a law, fair in appearance, may be of 
 such a character as to constitute a denial of the 
 equal protection of laws, such a conclusion is 
 here neither required nor justified. The stat 
 ute, on its face, makes no racial discrimination, 
 and the record fails to show its existence in 
 fact. No question of a sectional character is 
 presented, and we may view the legislation in 
 the same manner as if it had been enacted in 
 New York or in Idaho. Opportunities for coer 
 cion and oppression, in varying circumstances, 
 exist in all parts of the Union, and the citizens 
 of all the States are interested in the mainte 
 nance of the constitutional guaranties, the con 
 sideration of which is here involved/' 
 
240 CHABLES E. HUGHES 
 
 The opinion proceeds with an analysis of the 
 provisions of the statute and its practical 
 workings : 
 
 "Was not the case the same in effect as if the 
 statute had made it a criminal offence to leave 
 the service without just cause and without liqui 
 dating the debt ? To say that he has been found 
 guilty of an intent to injure or defraud his em 
 ployer, and not merely for breaking his contract 
 and not paying his debt, is a distinction without 
 a difference to Bailey. 
 
 Consider the situation of the accused under 
 this statutory presumption. If at the outset 
 nothing took place but the making of the con 
 tract and the receipt of the money, he could 
 show nothing else. If there was no legal justi 
 fication for his leaving his employment, he could 
 show none. If he had not paid the debt there 
 was nothing to be said as to that. The law of 
 the State did not permit him to testify that he 
 did not intend to injure or defraud. Unless he 
 were fortunate enough to be able to command 
 evidence affirmatively showing good faith, he 
 was helpless. He stood, stripped by the statute 
 of his presumption of innocence, and exposed 
 to conviction for fraud upon evidence only of 
 breach of contract and failure to pay. . . . 
 
 We cannot escape the conclusion that, al 
 though the statute in terms is to punish fraud, 
 still its natural and inevitable effect is to ex 
 pose to conviction for crime those who simply 
 fail or refuse to perform contracts for personal 
 service in liquidation of a debt, and judging its 
 purpose by its effect that it seeks in this way 
 
SERVITUDE FOE DEBT 241 
 
 to provide the means of compulsion through 
 which performance of such service may be se 
 cured. The question is whether such a statute 
 is constitutional. 
 
 Upon the question whether the statute as 
 actually operative offended against constitu 
 tional guaranties, Justice Hughes continued: 
 
 In this class of cases, where the entire sub 
 ject-matter of the legislation is otherwise with 
 in State control, the question has been whether 
 the prescribed rule of evidence interferes with 
 the guaranteed equality before the law or vio-, 
 lates those fundamental rights and immutable 
 principles of justice which are embraced within 
 the conception of due process of law. But where 
 the conduct or fact, the existence of which is 
 made the basis of the statutory presumption, 
 itself falls within the scope of a provision of the 
 Federal Constitution, a further question arises. 
 It is apparent that a constitutional prohibition 
 cannot be transgressed indirectly by the crea 
 tion of a statutory presumption any more than 
 it can be violated by direct enactment. The 
 power to create presumptions is not a means of 
 escape from constitutional restrictions. And 
 the State may not in this way interfere with 
 matters withdrawn from its authority by the 
 Federal Constitution or subject an accused to 
 conviction for conduct which it is powerless to 
 prescribe. 
 
 In the present case it is urged that the statute 
 as amended, through the operation of the pre 
 sumption for which it provides, violates the 
 
242 CHAELES E. HUGHES 
 
 Thirteenth Amendment of the Constitution of 
 the United States and the act of Congress 
 passed for its enforcement. 
 
 The Thirteenth Amendment provides: 
 
 "Section 1. Neither slavery nor involuntary 
 servitude, except as a punishment for crime 
 whereof the party shall have been duly con 
 victed, shall exist within the United States, or 
 any place subject to their jurisdiction. 
 
 1 ' Section 2. Congress shall have power to en 
 force this article by appropriate legisla 
 tion." . . . 
 
 The language of the Thirteenth Amendment 
 was not new. It reproduced the historic words 
 of the ordinance of 1787 for the government of 
 the Northwest Territory and gave them unre 
 stricted application within the United States 
 and all places subject to their jurisdiction. 
 While the immediate concern was with African 
 slavery, the Amendment was not limited to that. 
 It was a charter of universal civil freedom for 
 all persons, of whatever race, colour or estate, 
 under the flag. 
 
 The words involuntary servitude have "a 
 larger meaning than slavery." "It was very 
 well understood that in the form of apprentice 
 ship for long terms, as it had been practised in 
 the West India Islands, on the abolition of slav 
 ery by the English government, or by reducing 
 the slaves to the condition of serfs attached to 
 the plantation, the purpose of the article might 
 have been evaded, if only the word slavery had 
 been used." (Slaughter House Cases, 16 Wall, 
 p. 69.) The plain intention was to abolish slav 
 ery of whatever name and form and all its 
 
SERVITUDE FOE DEBT 243 
 
 badges and incidents ; to render impossible any 
 state of bondage ; to make labour free, by pro 
 hibiting that control by which the personal serv 
 ice of one man is disposed of or coerced for 
 another's benefit which is the essence of invol 
 untary servitude. . . . 
 
 The act of March 2, 1867, was a valid exercise 
 of this express authority. It declared that all 
 laws of any State, by virtue of which any at 
 tempt should be made "to establish, maintain, 
 or enforce, directly or indirectly, the voluntary 
 or involuntary service of labour of any persons 
 as peons, in liquidation of any debt or obliga 
 tion, or otherwise, ' ' should be null and void. 
 
 Peonage is a term descriptive of a condition 
 which has existed in Spanish America, and espe 
 cially in Mexico. The essence of the thing is 
 compulsory service in payment of a debt. A 
 peon is one who is compelled to work for his 
 creditor until his debt is paid. And in this ex 
 plicit and comprehensive enactment, Congress 
 was not concerned with mere names or manner 
 of description, or with a particular place or sec 
 tion of the country. It was concerned with a 
 fact, wherever it might exist ; with a condition, 
 however named and wherever it might be estab 
 lished, maintained or enforced. 
 
 The fact that the debtor contracted to per 
 form the labour which is sought to be compelled 
 does not withdraw the attempted enforcement 
 from the condemnation of the statute. The full 
 intent of the constitutional provision could be 
 defeated with obvious facility if, through the 
 guise of contracts under which advances had 
 been made, debtors could be held to compulsory 
 
244 CHARLES E. HUGHES 
 
 service. It is the compulsion of the service 
 that the statute inhibits, for when that occurs 
 the condition of servitude is created, which 
 would be not less voluntary because of the orig 
 inal agreement to work out the indebtedness. 
 The contract exposes the debtor to liability for 
 the loss due to the breach, but not to enforced 
 labour. . . . 
 
 The act of Congress, nullifying all State laws 
 by which it should be attempted to enforce the 
 i l service or labour of any persons or peons, in 
 liquidation of any debt or obligation, or other 
 wise," necessarily embraces all legislation 
 which seeks to compel the service or labour by 
 making it a crime to refuse or fail to perform 
 it. Such laws would furnish the readiest means 
 of compulsion. The Thirteenth Amendment 
 prohibits involuntary servitude except as pun 
 ishment for crime. But the exception, allow 
 ing full latitude for the enforcement of penal 
 laws, does not destroy the prohibition. It does 
 not permit slavery or involuntary servitude to 
 be established or maintained through the opera 
 tion of the criminal law by making it a crime to 
 refuse to submit to the one or to render the 
 service which would constitute the other. The 
 State may impose involuntary servitude as a 
 punishment for crime, but it may not compel 
 one man to labour for another in payment of a 
 debt, by punishing him as a criminal if he does 
 not perform the service or pay the debt. 
 
 If the statute in this case had authorised the 
 employing company to seize the debtor and hold 
 him to the service until he paid the fifteen dol 
 lars, or had furnished the equivalent in labour, 
 
SEEVITUDE FOB DEBT 245 
 
 its invalidity would not be questioned. It 
 would be equally clear that the State could 
 not authorise its constabulary to prevent the 
 servant from escaping and to force him to work 
 out his debt. But the State could not avail itself 
 of the sanction of the criminal law to supply the 
 compulsion any more than it could use or au 
 thorise the use of physical force. u ln con 
 templation of the law the compulsion of such 
 service by the fear of punishment under a crim 
 inal statute is more powerful than any guard 
 which the employer could station." 
 
 What the State may not do directly, it may 
 not do indirectly. If it cannot punish the serv 
 ant as a criminal for the mere failure or refusal 
 to serve without paying his debt, it is not per 
 mitted to accomplish the same result by creat 
 ing a statutory compulsion which upon proof of 
 no other fact exposes him to conviction and 
 punishment. Without imputing any actual mo 
 tive to oppress, we must consider the natural 
 operation of the statute here in question, and 
 it is apparent that it furnishes a convenient 
 instrument for the coercion which the Consti 
 tution and the act of Congress forbid; an in 
 strument of compulsion peculiarly effective as 
 against the poor and the ignorant, its most 
 likely victims. There is no more important con 
 cern than to safeguard the freedom of labour 
 upon which alone can enduring prosperity be 
 based. The provisions designed to secure iU 
 would soon become a barren form if it were pos 
 sible to establish a statutory presumption of 
 this sort and to hold over the heads of the la 
 bourers the threat of punishment for crime, 
 
246 CHAELES E. HUGHES 
 
 under the name of fraud but merely upon evi 
 dence of failure to work out their debts. The 
 act of Congress deprives of effect all legislative 
 measures of any State through which directly 
 or indirectly the prohibited thing, to wit, com 
 pulsory service to secure the payment of a debt, 
 may be established or maintained; and we con 
 clude that Sec. 4730, as amended, of the Code 
 of Alabama, in so far as it makes the refusal 
 or failure to perform the act or service, without 
 refunding the money or paying for the property 
 received, prima facie evidence of the commis 
 sion of the crime which the section defines, is 
 in conflict with the Thirteenth Amendment and 
 the legislation authorised by that Amendment, 
 and is therefore invalid. 
 
 It may be unfortunate and regrettable that 
 the State of Alabama could not continue this 
 particular method of dealing with a situation 
 which its legislature long deemed serious. On 
 the other hand, it may be better, in the long 
 run, for the people of that State and all the 
 States, that even an apparent need was not 
 permitted to warp or weaken a fundamental 
 which may some day be acclaimed as of imper 
 ishable value. With the expediency of the en 
 forcement or the abrogation of the legislation, 
 the Supreme Court and Justice Hughes of 
 course had no concern. Sworn to defend the 
 Constitution and apply the law, they had only 
 to answer the question whether the amendment 
 in its actual workings brought about results 
 which the Constitution and statutes were de- 
 
SERVITUDE FOE DEBT 247 
 
 signed to prevent. Was Justice Hughes right 
 or wrong in his analysis of actual workings? 
 If right, then the appeal for withdrawal of the 
 barriers to this Alabama legislation must be 
 made at least to the Congress which, after all 
 the years, still keeps in force the old "peonage 
 statute " of 1867. The President and Congress, 
 not the Supreme Court, have continued on the 
 statute books the 1867 enactment under which 
 the Alabama statute was held unconstitutional, 
 by Chief Justice White of Louisiana, as well as 
 Justice Hughes of New York. 
 
CHAPTER XVI 
 
 AMERICA AND THE IMMIGRANT OF TO-DAY AND 
 YESTERDAY 
 
 NOTABLY as Governor of New York, Mr. 
 Hughes had taken a deep and active interest in 
 proposals for bettering, within acceptable lines, 
 the conditions under which newcomers to 
 American shores make their start in the indus 
 trial and social life of their adopted land. A 
 Commission of notable experts and humanitari 
 ans was created, upon his recommendation, in 
 1908; this body reported a comprehensive 
 series of constructive measures in 1910, which 
 he in turn commended to the favourable con 
 sideration of the Legislature; and in conse 
 quence, New York was first in putting in effect 
 many of those measures for State co-operation 
 in the "Americanisation" and better distribu 
 tion of immigrants, which have subsequently 
 been endorsed by most of those who have given 
 the subject careful study. Said Governor 
 Hughes at that time : 
 
 Our laws should be adapted to meet the exi 
 gency which arises from the introduction of 
 so many into our population who are unfamiliar 
 with our usages and laws and are the ready vic- 
 
 248 
 
AMERICA AND THE IMMIGRANT 249 
 
 tims of manifold impositions. We cannot afford 
 to regard with cynical indifference the condi 
 tion and opportunities of those who have re 
 cently come to us from foreign lands, and we 
 should be solicitous to make such improvement 
 in our laws and administration as will reach the 
 special abuses which have been found to exist. 
 It should be considered to what extent they 
 may be reached through existing governmental 
 agencies and how far it may be necessary to 
 improve these agencies to ensure practical cor 
 rection. It is desirable that there should be 
 legislation imposing more effective restrictions 
 upon the business of private individuals who 
 receive deposits of money in small sums. 1 The 
 condition of labour camps in connection with 
 public works should also receive proper atten 
 tion. The importance of suitable vital statis 
 tics and of public records of aliens remaining 
 in our State should be recognised, and it should 
 also be considered whether it is not feasible to 
 adopt some means to promote their better dis 
 tribution. 
 
 As early as October 19, 1907, in an address 
 at the dedication of a statue erected in memory 
 of a distinguished citizen of foreign extraction, 
 
 J In Engel vs. O'Malley (219 TJ. S. Eeports, page 128), the 
 Court upheld the constitutionality, under the "police power," 
 of the banking legislation enacted in pursuance of this rec 
 ommendation by Governor Hughes. The statute was upheld 
 largely on the ground that it placed needed safeguards around 
 the relations between "private bankers," who accepted sums 
 largely for transmission abroad, and "newly arrived immi 
 grants," as yet unaccustomed to the business practices of a 
 strange, new country. 
 
250 CHARLES E. HUGHES 
 
 he had indicated his mode of approach to the 
 problems of an unqualified Americanism : 
 
 Fortunate also is it that we are becoming 
 more and more free from racial and provincial 
 prejudices, and are able to make a truer esti 
 mate of the many sources from which we have 
 derived our National strength and the virtues 
 of our citizenship. It is a pleasant thought, 
 which frequently has been expressed, that the 
 ancestors of most of those who settled the coun 
 try in colonial days once lived in the German 
 forests ; and we witness here, on a large scale, 
 and after centuries of varied experience, what 
 is virtually a reuniting of the descerdants of a 
 common stock. But however pleasing this may 
 be to the historical imagination, our unity in 
 fact is not racial and does not depend upon 
 blood relationship, whether near or remote. It 
 is the unity of a common National ideal; it is 
 the unity of a common conception of the dig 
 nity of manhood; it is the unity of a common 
 recognition of equal civil rights; it is unity in 
 devotion to liberty expressed in institutions 
 designed to give every man a fair opportunity 
 for the exercise of his talents and to make the 
 activities of each subordinate to the welfare of 
 all. To the maintenance of this ideal and to 
 the fulfilment of the purposes of our National 
 organisation, each race has made its contribu 
 tion. And we are not truly Americans if we do 
 not greatly rejoice in the fact that here is more 
 than the work of any one people, and more 
 than the product of any one experience ; that to 
 the making and to the prosperity of this com- 
 
AMERICA AND THE IMMIGRANT 251 
 
 monwealth humanity has given of its best ; and 
 that its vigour and unprecedented strength are 
 due in no small degree to the fusion of its 
 diverse elements. . . . 
 
 This is our common country. Whatever the 
 abode of our ancestors, this is our home and 
 will be the home of our children, and in our 
 love for our institutions, and in our desire to 
 maintain the standards of civic conduct which 
 are essential to their perpetuity, we recognise 
 no difference in race or creed we stand united, 
 a contented people rejoicing in the privileges 
 and determined to meet the responsibilities of 
 American citizenship. 
 
 In view of the part which, as Governor of 
 New York, he had taken in awakening public 
 thought and effort in behalf of a more patri 
 otic handling of governmental responsibilities 
 towards newcomers to this country, it was per 
 haps more than coincidence that in the Supreme 
 Court he was called upon to prepare the opin 
 ion of the Court in several important cases 
 where the rights of immigrants were at stake. 
 For example, at the end of 1914, the voters of 
 Arizona had utilised the initiative provision of 
 their State Constitution to put in force a 
 measure which was frankly called "an act to 
 protect the citizens of the United States in 
 their employment against non-citizens of the 
 United States, in Arizona, and to provide pen 
 alties and punishment for the violation there 
 of." The Act itself required every employer 
 
252 CHAELES E. HUGHES 
 
 of more than five persons, "regardless of kind 
 or class of work, or sex of workers/' to "em 
 ploy not less than eighty per cent, qualified elec 
 tors or native-born citizens of the United States 
 Or some sub-division thereof. " A man named 
 Eaich was working in a restaurant conducted by 
 one Truax, in Bisbee, Arizona. He had been 
 born in Austria and had not yet been natural 
 ised. Of his eight fellow employes, only two 
 were either "native-born" citizens of the 
 United States or qualified electors. When the 
 Act went into effect, Truax was afraid of its 
 penalties, told Raich so, and discharged him. 
 
 Raich took the case into Court. 1 He said that 
 inasmuch as the United States had admitted 
 him into the country, the United States ought 
 not to permit any State to create arbitrary con 
 ditions preventing his continuance in employ 
 ment here ; that if under the laws an alien was 
 entitled to come in and live here, he was enti 
 tled to have no legal barriers put in the way of 
 his purpose to earn here a livelihood. Accord 
 ingly he asked the Supreme Court to sanction 
 an injunction restraining the enforcement of 
 the statute, on the ground that it denied to him 
 the ' l equal protection of the laws. ' ' The Court, 
 through Justice Hughes, held that the State 
 statute did go too far and operated to deny to 
 non-naturalised inhabitants of Arizona essen 
 tial rights to which they were fairly entitled 
 
 1 Truax vs. Eaich (239 U. S. Reports, page 33). 
 
AMERICA AND THE IMMIGRANT 253 
 
 under the American form of government. Said 
 the opinion read by Justice Hughes : 
 
 The complainant, a native of Austria, has 
 been admitted to the United States under the 
 Federal law. He was thus admitted with the 
 privilege of entering and abiding in the United 
 States, and hence of entering and abiding in 
 any State in the Union. . . . Being lawfully an 
 inhabitant of Arizona, the complainant is enti 
 tled under the Fourteenth Amendment to the 
 equal protection of its laws. The description 
 "any person within its jurisdiction" as it 
 has frequently been held, includes aliens. 
 " These provisions, " said the Court in Yick Wo 
 v. Hopkins, 118 U. S. 356, 369 (referring to the 
 due process and equal protection clauses of the 
 Amendment), "are universal in their applica 
 tion, to all persons within the territorial juris 
 diction, without regard to any differences of 
 race, of colour, or of nationality ; and the equal 
 protection of the laws is a pledge of the pro 
 tection of equal laws." See also Wong Wing 
 v. United States, 163 U. S. 228, 242; United 
 States v. Wong Kim Ark, 169 U. S. 649, 695. 
 The discrimination defined by the act does 
 not pertain to the regulation or distribution of 
 the public domain, or of the common property 
 or resources of the people of the State, the 
 enjoyment of which may be limited to its citi 
 zens as against both aliens and the citizens of 
 other States. ... It should be added that the 
 act is not limited to persons who are engaged on 
 public work or receive the benefit of public 
 moneys. The discrimination here involved is 
 
254 CHAELES E. HUGHES 
 
 imposed upon the conduct of ordinary private 
 enterprise. 
 
 As the appellants rightly say, there has been 
 no subterfuge. It is an act aimed at the em 
 ployment of aliens, as such, in the businesses 
 described. Literally, its terms might be taken 
 to include with aliens those naturalised citizens 
 who by reason of change of residence might 
 not be at the time qualified electors in any sub 
 division of the United States, but we are deal 
 ing with the main purpose of the statute, defi 
 nitely stated, in the execution of which the com 
 plainant is to be forced out of his employment 
 as a cook in a restaurant, simply because he is 
 an alien. 
 
 It is sought to justify this act as an exercise 
 of the power of the State to make reasonable 
 classifications in legislating to promote the 
 health, safety, morals and welfare of those 
 within its jurisdiction. But this admitted au 
 thority, with the broad range of legislative dis 
 cretion that it implies, does not go so far as 
 to make it possible for the State to deny to 
 lawful inhabitants, because of their race or na 
 tionality, the ordinary means of earning a live 
 lihood. 'It requires no argument to show that 
 the right to w T ork for a living in the common 
 occupations of the community is of the very 
 essence of the personal freedom and opportu 
 nity that it was the purpose of the Amendment 
 to secure. If this could be refused solely upon 
 the ground of race or nationality, the prohibi 
 tion of the denial to any person of the equal 
 protection of the laws would be a barren form 
 of words. It is no answer to say, as it is 
 
AMERICA AND THE IMMIGRANT 255 
 
 argued, that the act proceeds upon the assump 
 tion that "the employment of aliens unless 
 restrained was a peril to the public welfare." 
 The discrimination against aliens in the wide 
 range of employments to which the act relates 
 is made an end in itself and thus the authority 
 to deny to aliens, upon the mere fact of their 
 alienage, the right to obtain support in the 
 ordinary fields of labour is necessarily involved. 
 It must also be said that reasonable classifica 
 tion implies action consistent with the legiti 
 mate interests of the State, and it will not be 
 disputed that these cannot be so broadly con 
 ceived as to bring them into hostility to ex 
 clusive Federal power. The authority to con 
 trol immigration to admit or exclude aliens 
 is vested solely in the Federal government. 
 The assertion of an authority to deny to aliens 
 the opportunity of earning a livelihood when 
 lawfully admitted to the State would be tanta 
 mount to the assertion of the right to deny them 
 entrance and abode, for in ordinary cases they 
 cannot live where they cannot work. And, if 
 such a policy were permissible, the practical 
 result would be that those lawfully admitted to 
 the country under the authority of the acts of 
 Congress, instead of enjoying in a substantial 
 sense and in their full scope the privileges con 
 ferred by the admission, would be segregated 
 in such of the States as chose to offer hospi 
 tality. 
 
 It is insisted that the act should be sup 
 ported because it is not "a total deprivation 
 of the right of the alien to labour "; that is, 
 the restriction is limited to those businesses in 
 
256 CHAKLES E. HUGHES 
 
 which more than five workers are employed, 
 and to the ratio fixed. It is emphasised that 
 the employer in any line of business who em 
 ploys more than five workers may employ 
 aliens to the extent of twenty per cent, of his 
 employes. But the fallacy of this argument 
 at once appears. If the State is at liberty to 
 treat the employment of aliens as in itself a 
 peril requiring restraint regardless of kind or 
 class of work, it cannot be denied that the au 
 thority exists to make its measures to that end 
 effective. If the restriction to twenty per cent, 
 now imposed is maintainable, the State undoubt 
 edly has the power if it sees fit to make the per 
 centage less. We have nothing before us to 
 justify the limitation to twenty per cent, save 
 the judgment expressed in the enactment, and 
 if that is sufficient, it is difficult to see why the 
 apprehension and conviction thus evidenced 
 would not be sufficient were the restriction ex 
 tended so as to permit only ten per cent, of the 
 employes to be aliens or even a less percentage, 
 or were it made applicable to all businesses in 
 which more than three workers were employed 
 instead of applying to those employing more 
 than five. We have frequently said that the leg 
 islature may recognise degrees of evil and adapt 
 its legislation accordingly; but underlying the 
 classification is the authority to deal with that 
 at which the legislation is aimed. The restric 
 tion now sought to be sustained is such as to 
 suggest no limit to the State's power of ex 
 cluding aliens from employment if the principle 
 underlying the prohibition of the act is con 
 ceded. No special public interest with respect 
 
AMERICA AND THE IMMIGRANT 257 
 
 to any particular business is shown that could 
 possibly be deemed to support the enactment, 
 for as we have said it relates to every sort. 
 The discrimination is against aliens as such in 
 competition with citizens in the described range 
 of enterprises and in our opinion it clearly falls 
 under the condemnation of the fundamental 
 law. 
 
 On the other hand, the Court has manifested 
 no disposition to sanction misuse of the high 
 privileges of citizenship through naturalisation 
 or to withhold from American citizens the pref 
 erences which may be accorded them along 
 lines consonant with fundamental rights. It 
 unanimously affirmed 1 the cancellation of a 
 naturalisation certificate obtained by one 
 Luria, where it appeared that "Luria did not 
 at the time intend to become a permanent citizen 
 of the United States, but only to obtain the 
 indicia of such citizenship in order that he 
 might enjoy its advantages and protection and 
 yet take up and maintain a permanent resi 
 dence in a foreign country." There is a fine 
 summary of the fundamentals of the obligations 
 of naturalised citizenship in this opinion, joined 
 in by Justice Hughes and his colleagues on 
 October 20, 1913: 
 
 Citizenship is membership in a political so 
 ciety and implies a duty of allegiance on the 
 part of the member and a duty of protection on 
 
 1 Luria vs. U. S. (31 U. S. Eeports, page 9). 
 
258 CHAELES E. HUGHES 
 
 the part of the society. These are reciprocal 
 obligations, one being a compensation for the 
 other. Under our Constitution, a naturalised 
 citizen stands on an equal footing with the 
 native citizen in all respects, save that of eli 
 gibility to the Presidency. Turning to the nat 
 uralisation laws preceding the act of 1906, be 
 ing those under which Luria obtained his cer 
 tificate, we find that they required, first, that 
 the alien, after coming to this country, should 
 declare on oath, before a court or its clerk, 
 that it was bona fide his intention to become a 
 citizen of the United States and to renounce 
 forever all allegiance and fidelity to any foreign 
 sovereignty; second, that at least two years 
 should elapse between the making of that decla 
 ration and his application for admission to citi 
 zenship; third, that as a condition to his ad 
 mission the court should be satisfied, through 
 the testimony of citizens, that he had resided 
 within the United States five years at least, and 
 that during that time he had behaved as a man 
 of good moral character, attached to the prin 
 ciples of the Constitution of the United States, 
 and well disposed to the good order and hap 
 piness of the same ; and, fourth, that at the time 
 of his admission he should declare on oath that 
 he would support the Constitution of the 
 United States and that he absolutely and en 
 tirely renounced and abjured all allegiance and 
 fidelity to every foreign sovereignty. These 
 requirements plainly contemplated that the ap 
 plicant, if admitted, should be a citizen in fact 
 as well as in name that he should assume and 
 bear the obligations and duties of that status 
 
AMERICA AND THE IMMIGRANT 259 
 
 as well as enjoy its rights and privileges. In 
 other words, it was contemplated that his ad 
 mission should be mutually beneficial to the 
 government and himself, the proof in respect 
 of his established residence, moral character, 
 and attachment to the principles of the Con 
 stitution being exacted because of what they 
 promised for the future, rather than for what 
 they told in the past. 
 
 By the clearest implication those laws show 
 that it was not intended that naturalisation 
 could be secured thereunder by an alien whose 
 purpose was to escape the duties of his native 
 allegiance without taking upon himself those of 
 citizenship here, or by one whose purpose was 
 to reside permanently in a foreign country and 
 to use his naturalisation as a shield against the 
 imposition of duties there, while in his absence 
 he was avoiding his duties here. Naturalisa 
 tion secured with such a purpose was wanting 
 in one of its most essential elements good 
 faith on the part of the applicant. It involved 
 a wrongful use of a beneficent law. 
 
 The Supreme Court likewise, in Helm against 
 McCall^ decided in November of 1915, held that 
 the State as an employer, in entering into or 
 authorising contracts for the doing of work for 
 which it was to pay, wholly or in part, has a 
 plenary right to prefer its own citizens to 
 aliens without incurring the condemnation of 
 the National or State Constitution. On public 
 works, therefore, the State and its sub-divisions 
 
 1 239 U. S. Beports, page 175. 
 
260 CHAELES E. HUGHES 
 
 have the same power which any employer would 
 have, of his own volition, to give the prefer 
 ence to citizens of the State which is paying for 
 the work. And in Tang Tun against Edsell, 1 
 the Supreme Court was asked by a Chinese 
 person who sought entry to the United States, 
 to review and reverse, in effect, a determina 
 tion of the inspector at the port of application, 
 affirmed by the Secretary of Commerce and La 
 bour, denying to the petitioner the right of ad 
 mission to this country. The denial of admis 
 sion was on the ground that, under all of the 
 circumstances, Tang Tun had not sufficiently 
 established his American citizenship, as was 
 necessary were he to be entitled to pass the bar 
 riers of the Exclusion Act. The United States 
 District Court, upon Tang Tun's application 
 for a writ of habeas corpus after the Secretary 
 of Commerce and Labour had sustained the 
 action of the local immigration officials, decided 
 that Tang Tun was entitled to come in, and so 
 reversed the order of the inspector "on the 
 spot." The Circuit Court of Appeals and the 
 Supreme Court were of the opinion that all the 
 requirements of fair hearing and open-minded 
 decision had been fulfilled by the local officers, 
 and that there was no ground for judicial inter 
 ference with their salutary discretion, based on 
 first-hand information and observation. 
 
 "If it does not affirmatively appear," said 
 Justice Hughes, in construing the applicable 
 
 1 223 U. S. Reports, page 673. 
 
AMERICA AND THE IMMIGRANT 261 
 
 statutes, "that the executive officers have acted 
 in some unlawful or improper way and abused 
 their discretion, their finding upon the question 
 of citizenship must be deemed to be conclusive 
 and is not subject to review by the Court. . . . 
 The record fails to show that their authority 
 was not fairly exercised, that is, consistently 
 with the fundamental principles of justice em 
 braced within the conception of due process 
 of law. And, this being so, the merits of the 
 case were not open to judicial examination." 
 
CHAPTER XVH 
 
 THE COURTS AS "EXPEKT AGENTS OF DEMOCRACY*' 
 
 IN the address which he delivered before the 
 New York State Bar Association last January, 
 Justice Hughes discussed phases of the work of 
 the courts, and indicated lines along which 
 the constructive statesmanship of the future, 
 on the bench and in legislative councils, may 
 proceed in obtaining a better organisation and 
 adjustment of the American judicial system. 
 His statement of the standards which should 
 prevail in the interpretation of statutes will 
 long be quoted as a classic exposition of the 
 judicial function in a democracy and of the 
 forward-looking spirit which has come more 
 and more to pervade the law : 
 
 I like to think of the courts as in the truest 
 sense the expert agents of democracy, express 
 ing deliberate judgment under conditions essen 
 tial to stability, and therefore in their proper 
 action the necessary instrumentalities of prog 
 ress. We are constantly reminded of the fact 
 that legislation, even when making important 
 changes, is new only in part. It cannot escape 
 its roots. In providing what is new, it also 
 brings forward what is old. Concepts long fa- 
 
 262 
 
" EXPERT AGENTS OF DEMOCRACY " 263 
 
 miliar in the law are introduced into new stat 
 utes; language can hardly be used otherwise, 
 despite crudities in drafting, and in nearly 
 every line is a connection with the past which 
 demands the expert judicial interpreter. And 
 further, what may seem at the time to be an 
 abrupt or catastrophic change takes ultimately 
 its place in legal history, when causes and ef 
 fects are better understood, as a natural evolu 
 tion. It is undoubtedly the duty of the courts 
 to construe legislation according to the intent 
 of the Legislature. But the question remains, 
 What is the intent of the Legislature! The 
 man in the street will tell you at once what it is, 
 but when you put the case to him in its details 
 he hesitates. What seemed clear becomes 
 doubtful as the particular application to con 
 crete facts is faced. Much that arises in the 
 controversies which the courts must decide was 
 not or could not have been foreseen and actual 
 intent to deal with it was lacking. There is no 
 one who has had anything to do with legislation 
 but knows how various are the views inducing 
 votes, and it is recognised that it would be 
 highly unsafe to take even expressions in de 
 bate as representing the opinions of others 
 whose concurrence was necessary to the passage 
 of the measure. The intent of the Legislature 
 is sometimes little more than a useful legal fic 
 tion, save as it describes in a general way cer 
 tain outstanding purposes which no one dis 
 putes, but which are frequently of little aid in 
 dealing with the precise points presented in 
 litigation. Moreover, legislative ambiguity 
 may at times not be wholly unintentional. It is 
 
264 CHAELES E. HUGHES 
 
 not to be forgotten that important legislation 
 sometimes shows the effect of compromises 
 which have been induced by exigencies in its 
 progress, and phrases with a convenient vague 
 ness are referred to the courts for appropriate 
 delimitation, each group interested in the 
 measure contending that the language adopted 
 embodies its views. Legislation does not exe 
 cute itself; very rarely does it fully explain 
 itself; and with the legislative word, in order 
 to make it effective, must go the judicial judg 
 ment. How important this work is in connec 
 tion with recent legislation is at once appar 
 ent. For it is through the courts that consist 
 ency and symmetry will be given to new depart 
 ments of law. 
 
 I have said that every statute shows its con 
 nection with the past and contains in its lan 
 guage references to familiar legal concepts, but 
 the work of interpretation cannot faithfully be 
 performed in a technical spirit which would 
 sacrifice the growing substance of the law to a 
 lifeless formalism. Nor can it in linking the 
 future with the past ignore the evident purpose 
 of many legislative changes. Thus, in the case 
 of our Uniform State Laws, formulated and 
 adopted with the purpose of unifying the com 
 mercial law of the country, nothing could be 
 more lamentable than to treat the Uniform Act 
 as an outgrowth of the separate law of the 
 State and through conflicting interpretations to 
 create a new diversity in place of the desired 
 unity. It is an old maxim that in construing 
 statutes the court should consider the old law, 
 the mischief and the remedy. The maxim has 
 
"EXPEET AGENTS OF DEMOCRACY" 265 
 
 become so hackneyed that its fine quality is 
 often not perceived. It calls for a statesman 
 like appreciation of past, present and future, 
 through which alone the judge can meet his 
 responsibilities as the interpreter of legislation 
 in the expanding life of democracy. In judi 
 cial tribunals, the Legislature is happily, though 
 somewhat mythically, personified as possessed 
 of all accessible information, learned in the law 
 of the past, wise to the point of infallibility in 
 matters of legislative discretion, generally 
 using legal language with legal acumen and cer 
 tainty and imbued with the spirit of unfailing 
 consistency. The intent of this ideal legislative 
 intelligence is found in the words it employs, 
 and when found must be faithfully applied ; and 
 the general success of the courts in this ardu 
 ous endeavour is shown by the fact that al 
 though the Legislature is always free to re 
 pudiate any misconstruction of its purpose, 
 such action is rarely taken. 
 
 "A tendency . . . opposed to a proper con 
 ception of the function of the Courts, " in the 
 opinion of Justice Hughes, is that 
 
 . . . which denies to judges the authority which 
 would seem to be needed for the efficient dis 
 charge of judicial duty. Thus in some juris 
 dictions the freedom of the judge in instructing 
 the jury is very considerably curtailed in a 
 manner which betrays a regrettable distrust. 
 This of course carries the lesson of the extreme 
 importance of such conduct on the part of our 
 judges as will commend their office to the com- 
 
266 CHAELES E. HUGHES 
 
 inanity they serve. But I venture to say that 
 no intelligent citizen has ever taken part as a 
 juryman in a trial over which presided a thor 
 oughly competent judge, who swiftly, fairly and 
 firmly applied the law, extricating the essential 
 merits of the controversy from the confusing 
 details of testimony and argument, without 
 profound respect for the expert knowledge and 
 trained capacity which successfully meets a test 
 so severe. There can be no respect for the law 
 without competent administration, and there 
 can be no competent administration without 
 adequate power. We shall never rise to our 
 opportunities in this country and secure a 
 proper discharge of the public business until we 
 get over our dislike of experts ; and the difficul 
 ties in the way of needed improvements in the 
 administration of justice will not be overcome 
 by tying the hands of those most competent 
 to deal with them. 
 
 On the vital topic of betterment in the me 
 chanics of court procedure, Justice Hughes con 
 tinued by saying : 
 
 And this leads me to speak briefly, in con 
 clusion, of the urgent needs of reform in judi 
 cial procedure. If I may be permitted to speak 
 with the liberty of a member of this association, 
 I am very glad that at last the time has arrived 
 when we may reasonably expect radical changes 
 in our procedural law. We have very unneces 
 sary differences with respect to different 
 courts. The essentials of procedure are simple, 
 and they should conform to one simple type, 
 
"EXPEBT AGENTS OF DEMOCBACY" 267 
 
 with, only such, modifications as are necessary 
 to adapt it to differences in jurisdiction. "We 
 have become accustomed to a network of legis 
 lative rules of practice which in their complex 
 ity are a reproach to the State. The remedy, 
 I believe, is to replace these rules with a few 
 statutory provisions forming the basis of pro 
 cedure, leaving all the details to be supplied 
 by rules of court. The important equity prac 
 tice of the Federal courts of the country is 
 governed without difficulty by a few rules pro 
 mulgated by the Supreme Court. There is no 
 other way, it seems to me, to give the requisite 
 simplicity and elasticity to procedure. There 
 may be a prejudice among lawyers to commit 
 ting this power to the Bench, because of the fear 
 that rules of practice will be removed from the 
 range of the just influence of the Bar. This I 
 think is a misapprehension. It would be far 
 easier to convince a court of the necessity of a 
 change in its rules than to convince the Legis 
 lature, while, on the other hand, unnecessary 
 tinkering would be made more difficult. When 
 the Federal equity rules were adopted commit 
 tees of lawyers were appointed through the cir 
 cuit judges of each circuit, and thus the expert 
 opinion of the entire country was obtained, to 
 the great advantage of those engaged in formu 
 lating the rules. Instead of being withdrawn 
 from the influence of lawyers, the regulation of 
 practice by rules of court would permit that in 
 fluence to be exerted in the most intelligent man 
 ner. Proposed changes would emerge from the 
 discussions of Bar associations and would be 
 presented finally to those who were most sensi- 
 
268 CHAELES E. HUGHES 
 
 tive to professional opinion and most compe 
 tent, by reason of constant experience, to pass 
 upon the questions submitted. In this way the 
 rigidity of statutory enactments will be avoided 
 and judicial procedure will cease to be the mere 
 sport of those whose game is to avoid decisions 
 on the merits. 
 
 Justice in the minor courts the only courts 
 that millions of our people know administered 
 without favouritism by men conspicuous for 
 wisdom and probity is the best assurance of 
 respect for our institutions. The administra 
 tion of commercial law by recognised experts in 
 a direct fashion appropriate to the subject is 
 needed quite as much as uniform State acts to 
 commend the law to practical men of affairs. 
 The stripping of criminal procedure of needless 
 requirements, without impairing the security of 
 innocence, and in general the fearless destruc 
 tion of provisions which only embarrass the 
 just disposition of controversies, should not be 
 long delayed. 
 
 Quotation at length from this address has 
 seemed warranted, because these excerpts re 
 veal, more accurately than anything except a 
 detailed examination of many volumes of the 
 official reports by a trained legal mind could 
 do, the spirit which seemed to dominate and 
 distinguish the public service of Mr. Hughes 
 in the Supreme Court. To him, the law was a 
 vital, reasonable, living instrumentality not 
 an end in itself, not a tradition to be cherished 
 or preserved for its own sake not a substi- 
 
"EXPERT AGENTS OF DEMOCRACY" 269 
 
 tute for the mature judgment of the people, 
 but their "living voice, " and the courts their 
 most expert aid and accurate expositor. As it 
 seems that he saw it, an accused person should 
 be assured, at every cost and hazard, every 
 essential of a fair trial on the merits, with the 
 full benefit of every proper presumption; but 
 the public also had rights the right, as he 
 stated it, 1 "at all times to take proper measures 
 to prevent the perversion of its legal ma 
 chinery "; the right to see to it that no subter 
 fuges and artifices and no incidents of trial 2 
 that stop short of actual prejudice, are per 
 mitted either to defeat or delay a just deter 
 mination on the real merits ; the right to go for 
 ward and put in force such new, direct and hu 
 manitarian methods of administration as a pa 
 tient experience from time to time shows to be 
 consonant with the fundamentals of fair adju 
 dication. 
 
 He could not accept the contention that the 
 Fourteenth Amendment, with its requirement 
 of ."due process" coming down from the con 
 flicts of European tyrannies, fastened upon this 
 day and generation the precise methods, for 
 mulae, institutions, or procedural concepts 
 which were held when our Constitutions were 
 
 1 Fraternal Mystic Circle vs. Snyder (227 U. S. Eeports, 
 page 503). 
 
 3 Illinois Cent. E. E. Co. vs. Skaggs (240 U. S. Eeports, 
 page 66) ; Eerencia vs. Guzman (219 U. S. Eeports, page 44) ; 
 Norfolk $ W. By. Co. vs. Holbrook (235 U. S. Eeports, page 
 625). 
 
270 CHARLES E. HUGHES 
 
 adopted. In Graliam against West Virginia? 
 the Supreme Court was asked to condemn, un 
 der the "due process" clause, a West Virginia 
 statute based upon some recommendations of 
 what is referred to as "the new penology." 
 The statute provided a new system for the 
 identification of ' ' second offenders ' ' ; it made a 
 start in the direction of a better way of ascer 
 taining the identity and separately determin 
 ing the guilt of those who had been hitherto 
 convicted of crime. Mr. Justice Hughes 
 brushed aside the contention that this withheld 
 "due process" or denied "the equal protection 
 of the laws," saying: 
 
 The Fourteenth Amendment is not to be con 
 strued "as introducing a factitious equality 
 without regard to practical differences that are 
 best met by corresponding differences of treat 
 ment." ... A State may make different ar 
 rangements for trials under different circum 
 stances of even the same class of offences . . . 
 and certainly it may suitably adapt to the exi 
 gency the method of determining whether a 
 person found guilty of crime has previously 
 been convicted of other offences. All who were 
 in like case with the plaintiff in error were 
 subject to the same procedure. He belonged 
 to a class of persons convicted and sentenced to 
 the penitentiary whose identity as former con 
 victs had not been determined at the time of 
 their trial. As to these, it was competent for 
 
 *224 U. S. Eeports, page 616. 
 
"EXPERT AGENTS OF DEMOCRACY" 271 
 
 the State to provide appropriate means for 
 determining such identity. 
 
 He was impatient with suggestion that the 
 Constitution should be construed to prevent the 
 punishment of men whom a fair trial would 
 send to punishment, unless such construction 
 were successfully invoked in their behalf. 
 "The Constitution of the United States is not 
 intended as a facility for crime/' declared he 
 with vehemence, in Brown against Elliott* 
 where artful issues of venue and jurisdiction 
 were invoked to forestall the condemnation of 
 men charged with conspiracy to defraud. "It 
 is intended to prevent oppression, and its letter 
 and spirit are satisfied if, where a criminal 
 purpose is executed, the criminal purpose is 
 punished. ' ' 
 
 His inclinations seemed, in fairness, to be 
 ever to give a construction to statutes which 
 would ensure their efficacy for the intended pur 
 poses and enable legal machinery to cut directly 
 through to a determination of the merits under 
 all the existent and relevant facts. He was not 
 impressed ^wlth ingenious reasons why those 
 accused of crimes against the public rights 
 should be permitted, in effect, to withhold books 
 and papers which would have important bear 
 ing upon the question of their innocence or guilt 
 in fact. All he wanted was the eliciting of the 
 facts, and then a fair determination on the facts 
 
 1 225 U. S. Eeports, page 402. 
 
272 CHAELES E. HUGHES 
 
 and law. When Christopher C. Wilson, versa 
 tile president of the United Wireless Company 
 of Maine and the universe, was indicted for 
 fraudulent use of the mails, among other things, 
 the Federal Grand Jury, in the course of its 
 continued investigations, developed a pardon 
 able interest as to the contents of the books of 
 the corporation in very pertinent respects. 
 Wilson was subpoenaed to produce them, and 
 his able counel developed a multitude of arti 
 ficial reasons why the books should not be dis 
 closed to the matter-of-fact curiosity of a grand 
 jury seeking whom else it ought to indict on 
 United Wireless transactions. In this and simi 
 lar cases, 1 Justice Hughes made short shrift of 
 objections. In the Wilson case, he said: 
 
 The appellant held the corporate books sub 
 ject to the corporate duty. If the corporation 
 were guilty of misconduct, he could not with 
 hold its books to save it ; and if he were impli 
 cated in the violation of law, he could not with 
 hold the books to protect himself from the effect 
 of their disclosures. The reserved power of 
 visitation would seriously be embarrassed, if 
 not wholly defeated in its effective exercise, if 
 guilty officers could refuse inspection of the 
 records and papers of the corporation. No per 
 sonal privilege to which they are entitled re 
 quires such a conclusion. It would not be a 
 
 1 Wilson vs. U. S. (221 U. S. Reports, page 361) ; Dreier vs. 
 U. S. (221 U. S. Reports, page 394); Grant vs. U. S. (227 
 U. S. Reports, page 74) ; American Lithograph Co. vs. Werck- 
 meister (221 U. S. Reports, page 603). 
 
"EXPEKT AGENTS OF DEMOCRACY" 273 
 
 recognition, but an unjustifiable extension, of 
 the personal rights they enjoy. They may de 
 cline to utter upon the witness stand a single 
 self -criminating word. They may demand that 
 any accusation against them individually be 
 established without the aid of their oral tes 
 timony or the compulsory production by them 
 of their private papers. But the visitatorial 
 power which exists with respect to the corpora 
 tion of necessity reaches the corporate books 
 without regard to the conduct of the custodian. 
 Nor is it an answer to say that in the present 
 case the inquiry before the grand jury was not 
 directed against the corporation itself. The 
 appellant had no greater right to withhold the 
 books by reason of the fact that the corpora 
 tion was not charged with criminal abuses. 
 That, if the corporation had been so charged, 
 he would have been compelled to submit the 
 books to inspection, despite the consequences to 
 himself, sufficiently shows the absence of any 
 basis for a claim on his part of personal privi 
 lege as to them; it could not depend upon the 
 question whether or not another was accused. 
 The only question was whether as against the 
 corporation the books were lawfully required 
 in the administration of justice. When the ap 
 pellant became president of the corporation and 
 as such held and used its books for the trans 
 action of its business committed to his charge, 
 he was at all times subject to its direction, and 
 the books continuously remained under its con 
 trol. If another took his place his custody 
 would yield. He could assert no personal right 
 to retain the corporate books against any de- 
 
274 CHARLES E. HUGHES 
 
 mand of government which the corporation was 
 bound to recognise. 
 
 In Arizona $ New Mexico Ey. Co. <against 
 Clark? a verdict had been obtained in a negli 
 gence action, after a trial on which the plaintiff 
 testified freely and at length regarding his 
 bodily condition, and also called his nurse as a 
 witness in his behalf, on the question of the 
 extent of his injuries. His testimony covered 
 the time when he was under a doctor 's care, 
 and the defendant sought subsequently to in 
 troduce the doctor's testimony as to the condi 
 tions which he found, upon examinations of the 
 plaintiff and during treatment. Upon the 
 plaintiff's objection, the trial court refused to 
 let the jury have the benefit of the doctor's 
 testimony, on the ground that an Arizona stat 
 ute provided that ' i a physician or surgeon can 
 not be examined, without the consent of his pa 
 tient, as to any communication made by his pa 
 tient ... or any knowledge obtained by a per 
 sonal examination of such patient; provided, 
 that if a person offer himself as a witness and 
 voluntarily testify with reference to such com 
 munications, that is to be deemed a consent to 
 the examination of such physician." 
 
 The majority of the Supreme Court held 
 that, despite the testimony of the plaintiff and 
 his nurse, there was no waiver of the plain 
 tiff's right to restrain his physician from tes- 
 
 1 235 U. S. Reports, page 669. 
 
"EXPEBT AGENTS OF DEMOCRACY" 275 
 
 tifying as to " knowledge obtained by a personal 
 examination of such patient. " The minority of 
 the Court did not think this ruling conduced to 
 giving the jury fairly the benefit of the facts, 
 and so, in an opinion written by Justice 
 Hughes, they declared: 
 
 It should be supposed that it was the legis 
 lative intent to protect the patient in preserving 
 secrecy with respect to his ailments and not to 
 give him a monopoly of testimony as to his con 
 dition while under treatment. ... To permit 
 him, while thus disclosing his physical disorders 
 (through the testimony of himself and his 
 nurse), to claim a privilege in order to protect 
 himself from contradiction by his physician as 
 to the same matter, would be, as it seems to 
 me, so inconsistent with the proper administra 
 tion of justice that we are not at liberty to find a 
 warrant for this procedure in the statute unless 
 its language prohibits any other construction. 
 
 In City of Memphis against the Cumberland 
 Telephone and Telegraph Company? what 
 seemed to be technicalities of procedure and 
 the record were invoked to sustain a result far 
 short of a determination on the merits of the 
 question really at issue, and Justice Hughes 
 aligned himself again with a minority of the 
 Court in behalf of what seemed to him the rule 
 more in accord with the fair meaning of the 
 statute and the public rights involved. The 
 
 *218 U. S. Reports, page 624. 
 
276 CHARLES E. HUGHES 
 
 Circuit Court had enjoined the enforcement of 
 an ordinance of the City of Memphis which 
 sought to regulate the telephone rates charged 
 by the complainant company. The bill for in 
 junction had alleged that the ordinances and 
 rates complained of were unauthorised and 
 illegal, and were discriminatory and confisca- 
 tory; the opinion of the Circuit Court stated 
 that the result of the ordinances was "destruc 
 tive of the complainant's rights under the Fed 
 eral Constitution "; and the enforcement of the 
 ordinances was halted. On the appeal of the 
 City to the Supreme Court, counsel for the 
 company successfully urged that the allegations 
 of the bill must be construed as referring only 
 to the State Constitution and that nothing in 
 the record showed that a Federal question had 
 been passed upon or was presented by the bill 
 filed by the company. Therefore it was con 
 cluded that there was no jurisdiction or basis 
 for the taking of jurisdiction by the Supreme 
 Court to review the action of the Federal Court, 
 there being no "Federal question" involved, 
 and the appeal was dismissed. Thereby was 
 continued in effect the injunction, based wholly 
 or in part upon the Federal Constitution, as the 
 opinion of the Court would have disclosed, had 
 the majority felt that they had a right to read 
 the opinion in order to learn the basis on which 
 the injunction had been granted below. 
 
 Justice Hughes was one of the minority 
 judges who felt that it was absurd for the Su- 
 
"EXPERT AGENTS OF DEMOCRACY" 277 
 
 preme Court to refuse, on the ground that no 
 Federal question was involved, to consider the 
 correctness of a decision by the Circuit Court 
 that the ordinances enjoined were "destructive 
 of the complainant's rights under the Federal 
 Constitution" and were accordingly to be en 
 joined. The minority contended that the opin 
 ion below, as well as the bill, was a part of the 
 record, and could be freely consulted, in good 
 sense, to see if a reviewable issue was in fact 
 decided below. Where the Court below had en 
 joined the enforcement of a municipal ordi 
 nance by deciding a question of Federal consti 
 tutionality and right adversely to the munici 
 pality, the minority thought that the Supreme 
 Court had power and duty to review and cor 
 rect the error committed by the Court below 
 and dissolve the -injunction, regardless whether 
 such error arose from a wrong decision of the 
 Federal question actually passed upon or from 
 a mistake in assuming that the Federal ques 
 tion was before it for decision. 
 
 The most notable opinion which Justice 
 Hughes prepared upon a procedural and law- 
 reform topic was in Slocum against the New 
 York Life Insurance Company \ l It was a dis 
 senting opinion, and with him concurred Jus 
 tices Holmes, Lurton and Pitney. The question 
 came up in this manner : The plaintiff had re 
 covered a verdict on a life insurance policy, 
 after trial in a Federal Court in Pennsylvania, 
 
 >228 U. S. Eeports, page 364. 
 
278 CHARLES E. HUGHES 
 
 before the Court and a jury. On appeal, the 
 central issue in the case, as to whether the pol 
 icy was in law and fact in force at the time of 
 the death of the insured, was determined in the 
 negative by the Circuit Court of Appeals. In 
 consequence, it became certain that in no event 
 could the plaintiff recover upon the policy in 
 suit, and that a repetition of the trial would be 
 only a waste of time for the litigants and a 
 burden upon those who pay the revenues which 
 maintain the Courts. Under one of the " prac 
 tical reforms" instituted in the Pennsylvania 
 State Courts 1 "for facilitating business with 
 out impairing settled legal principles," a State 
 appellate Court was authorised, where it ap 
 peared clearly that the plaintiff could not, as a 
 matter of law, possibly recover as result of a 
 re-trial of the case, to end the matter and avoid 
 further expense, by directing then and there the 
 ultimate verdict which would be inevitable if 
 the case went back for re-trial nominally be 
 fore a jury, although with no prospect that the 
 case could ever again go to the jury or that 
 another verdict for the plaintiff could possibly 
 stand, under the law of the case as settled by 
 the appellate Court. Under the familiar rules 
 by which Federal Courts within a State are 
 governed by the State procedure and practice 
 as to purely procedural matters, the Circuit 
 Court of Appeals felt authorised to follow in 
 the case at bar the salutary Pennsylvania prao- 
 
 l Dalmas vs. Kemble (215 Pa. State Keports, page 410). 
 
. . 
 
 EXPERT AGENTS OF DEMOCRACY " 279 
 
 tice, and so directed a verdict for the defend 
 ant, without sending the case back for re-trial. 
 
 A majority of one in the Supreme Court held 
 that under the Seventh Amendment, which as 
 sures right of trial by jury in the Federal 
 Courts, there could be no such direction of a 
 verdict by an appellate Court when it reached a 
 decision that the verdict returned by the jury 
 must be set aside and a rule of law declared 
 which will preclude the possibility of the plain 
 tiff's ultimate recovery in the action. The ma 
 jority of the Court held that trial by jury was a 
 substantial right, and that it included the right 
 to trial before a jury every time the case was 
 to be determined, and that the appellate Court 
 could not, even in the interests of directness 
 and simplicity, itself determine questions of 
 fact. 
 
 Four Justices of the Court, for whom Jus 
 tice Hughes wrote the memorandum of dissent, 
 contended strongly that the Pennsylvania prac 
 tice was valid and beneficial, and that the Sev 
 enth Amendment was no bar to such a pro 
 cedural reform. Justice Hughes argued ear 
 nestly against the majority opinion, on the 
 ground that 
 
 ... it erects an impassable barrier unless 
 the Constitution be amended to action by Con 
 gress along the same line for the purpose of 
 remedying the mischief of repeated trials and 
 of thus diminishing in a highly important de- 
 
280 CHARLES E. HUGHES 
 
 gree the delays and expense of litigation. . . . 
 We have here a simplification of procedure 
 adopted in the public interest to the end that 
 unnecessary litigation may be avoided. The 
 party obtains the judgment which in law he 
 should have according to the record. I submit, 
 with deference, that in now condemning this 
 practice, long followed in the Courts below, this 
 Court is departing from, instead of applying, 
 the principles of the common law, and is ex 
 tending rather than enforcing the constitutional 
 provision. 
 
 The necessary limitations in the length of 
 this volume have prevented quotation from 
 some of the opinions filed by Justice Hughes 
 and have curtailed comment upon others. In 
 the appendices, however, all of the opinions 
 which he rendered in behalf of the Court, and 
 all of the views expressed by him in dissent from 
 those of the majority of his colleagues, have 
 been summarized, and his entire judicial record 
 may there be scrutinized, in so far as the same 
 is revealed by rendered opinions. It is, of 
 course, as has been said, "an unfortunate 
 feature of public work, in any department, that 
 it is very difficult to interpret it in all its details 
 to the people w r hose service is being per 
 formed"; but it would seem that from the judi 
 cial utterances of Justice Hughes there is re 
 flected a view of National life and power which 
 grows and changes through the years and gives 
 ever-suitable vitality to National and State sov- 
 
"EXPERT AGENTS OF DEMOCRACY" 281 
 
 ereignties alike; a conviction that, as Henry 
 George said, 1 1 social reform is not to be secured 
 by noise and shouting; by complaints and de 
 nunciation; by the formation of parties or the 
 making of revolutions; but by the awakening 
 of thought and the progress of ideas"; a real 
 ization that in this Nation and under the Fed 
 eral Constitution a Nation and Constitution 
 composing perhaps the greatest of all human 
 innovations and experiments the way must be 
 kept ever open for patient, accurate examina 
 tion of facts as from time to time developed, 
 and then free-spirited following of the facts to 
 their fair conclusions open also for political 
 and social as well as purely mechanical experi 
 mentation and discovery. And we gain also a 
 vision of a day when jurisprudence and states 
 manship shall join hands to "put the human 
 factor in the central place " in government, and 
 "Ring put the feud of rich and poor; 
 Ring in redress to all mankind." 
 
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 A corporation defendant, in a suit 
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 The length of hours of service 
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 agreement of distribution, and before 
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 The U. S. is entitled to maintain an 
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 Congress has power to make effec 
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 liability shall be void, and that the 
 acceptance of benefits under a relief 
 contract, whether existing at the time 
 of the enactment of the statute or 
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 convicted of crime, if previously con 
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 a manner separate from the determi 
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torney must be produced by him if 
 they are subpoenaed, notwithstanding 
 his claim of professional privilege 
 and notwithstanding his plea that 
 they would incriminate him. 
 
 The Tennessee statute, authorizing 
 the imposition upon insurance com 
 panies of an additional specified pro 
 portionate amount of the policy, 
 where the company has interposed an 
 unsuccessful defence in bad faith, is 
 not unconstitutional and does not im 
 pair the obligation of the contract be 
 tween the insured and the company. 
 
 Goods brought from another State, 
 taken from the carrier and held by 
 the owner with full power of disposi 
 tion, become subject to local taxation, 
 notwithstanding an intent on the part 
 of the owner ultimately to forward 
 the goods to a destination outside the 
 State. 
 
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and the Federal Court has jurisdic 
 tion, even though the criminal was not 
 an Indian. 
 
 Certain sections of the California Con 
 stitution and the municipal ordinances 
 of Los Angeles were ineffectual, un 
 der the contract clause of the Fed 
 eral Constitution, to deprive a corpo 
 ration which had obtained a fran 
 chise, before the amendment of the 
 State Constitution now in force, of 
 its right to continue to lay pipes in 
 the streets of Los Angeles. 
 
 The Wisconsin statute investing rail 
 way corporations with power of emi 
 nent domain to condemn right of 
 way for spur tracks, is constitutional, 
 even though only one industry was in 
 position to use such spur at the out 
 set. 
 
 Sections 39 and 117 of the Criminal 
 Code, defining and punishing the giv 
 ing and accepting of bribes, cover 
 every action within the range of of 
 ficial duty, whether or not specifically 
 prescribed by statute. 
 
 
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"Bights become vested under a mu 
 nicipal franchise when the same have 
 been exercised as well as. granted; 
 where there has been a non-user for 
 an unreasonable time, revocation by a 
 municipal authority does not contra 
 vene the "impairment of obligation" 
 clause of the Federal Constitution. 
 
 The Supreme Court is not authorised 
 to review a judgment or decree of 
 the Circuit Court of Appeals other 
 wise than by a writ of error or other 
 proceedings directed to that Court. 
 
 Until a stockholder of a corporation 
 can clearly show that he has exhaust 
 ed the means within his reach to ob 
 tain action by the corporation to re 
 strain the enforcement of a statute 
 which he regards an an unconstitu 
 tional deprivation of the property 
 rights of the corporation, he may not 
 himself maintain the action. 
 
 Although this court has an undoubted 
 right of review of the construction 
 which the Supreme Court of Okla 
 homa has placed upon a tribal law, it 
 
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 The California statute 
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does not prescribe an arbitrary basis 
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 Miller v. Wilson (supra) followed, 
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 from the operation of the statute 
 held to be a matter for legislative 
 rather than judicial control. 
 
 Bona fide purchase for value of a 
 homestead patent obtained through 
 fraud is a defence which must be af 
 firmatively established, in order to de 
 feat the cancellation of the patent. 
 
 Knowingly swearing falsely to an af 
 fidavit required either expressly by 
 statute or by an authorised regula 
 tion or long-standing and customary 
 procedure of the Land Department, 
 will sustain an indictment for perjury. 
 
 The North Dakota Legislature ex 
 ceeded its authority in enacting a 
 statute which prescribed maximum 
 intrastate rates on coal in carload 
 lots so low as to require the carrier 
 to transport the commodity for less 
 than the cost of transportation or 
 virtually at cost. 
 
 
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INDEX 
 
 ADMINISTRATIVE EFFICIENCY, Justice Hughes quoted as to 
 standards of, 221-234. 
 
 ADULTERATION, of foods and drugs, 101-126. 
 
 ALABAMA, validity of legislation of, as to employes breaking 
 written contract while in debt to employer, 235-247. 
 
 ALIENS, Justice Hughes quoted as to discrimination against, 
 248-262. 
 
 AMERICANISM, Justice Hughes quoted as to elements of an 
 unqualified, 248-262. 
 
 ANTI-TRUST ACTS, standards of unreasonableness under, 173- 
 185. 
 
 ARMY AND NAVY, departmental discretion of, 224-225. 
 
 BEVERIDGE, ALBERT J., as pioneer in fight for National child- 
 labour legislation, 70. 
 
 " BILLS OF RIGHTS," standards of judicial definition and ap 
 plication of, 98 et seq.; address of Justice Hughes 
 concerning, quoted, 74-100; question of State and Na 
 tional duty as to, 194-204. 
 
 BORIC ACID, presence of, in "Mrs. Price's Canning Com 
 pound," 117-121. 
 
 BRANDEIS, Louis D., appointment as a Justice of the Supreme 
 Court, 5; argument in Oregon "minimum-wage" case, 
 138-143; argument in California "hours of labor" cases, 
 162. 
 
 BREWER, DAVID J., vacancy caused by death of, filled by ap 
 pointment of Mr. Hughes, 2. 
 
 BRYCE, JAMES, quoted, as to the Supreme Court, ii; quoted, as 
 to John Marshall, 12. 
 
 BURKE, EDMUND, definition of a statesman by, applied to 
 Justice Hughes, 11. 
 
 BUSINESS QUESTIONS, outlook of Justice Hughes upon, 185- 
 190; tariff laws, 185, 221. 
 
 CAFFEINE, as an ingredient in "Coca Cola," 106-115. 
 
 CALIFORNIA, "hours of labour" statute of, upheld, 128, 162-163. 
 
 CAMPBELL, JOHN ARCHIBALD, remarks of former Justice, at 
 exercises in commemoration of Justice Curtis, 14. 
 
 "CANCERINE," opinion of Justice Hughes as to false state 
 ments regarding curative properties, quoted, 101-104. 
 347 
 
348 INDEX 
 
 "CANNING COMPOUND/' opinion of Justice Hughes as to pres 
 ence of boric acid as a preservative in Mrs. Price's, 117- 
 121. 
 
 CHAMBERLAIN, MARY, article by, in the Survey, quoted, 137- 
 144. 
 
 CHILD-LABOUR LEGISLATION, constitutional views of President 
 concerning, vi, vii; services of Justice Hughes as to con 
 stitutionality of National, 70-72; opinion of Justice 
 Hughes in Illinois case, quoted, 83; further quoted, 131. 
 
 "CocA COLA," opinion of Justice Hughes as to ingredients of 
 and application of statute to, quoted, 106-117. 
 
 COTTON, JOSEPH P., JR., introductory note to "Constitutional 
 Decisions of John Marshall," quoted, i; definition of 
 juristic attributes, quoted, 10. 
 
 COURTS, improvement of the work of the, 262-280. 
 
 CRIMINAL LAW AND PROCEDURE, views of Justice Hughes as to, 
 269-273. 
 
 CURTIS, BENJAMIN E., death of, as Justice of the Supreme 
 Court, 14. 
 
 DAY, WILLIAM E., as Justice of the Supreme Cpurt, 4-5. 
 
 DE TOCQUEVILLE, quoted as to the Supreme Court, ii. 
 
 "DUE PROCESS," conflicting standards of judicial definition 
 of, 75-78; views of Justice Hughes as to what elements 
 make procedure fair, 84-85; as to procedure of regulative 
 commissions, 92-95. 
 
 "ECKMAN'S ALTERATIVE," opinion of Justice Hughes as to 
 "mis-branding" of, as tuberculosis cure, 105-106. 
 
 ELLSWORTH, OLIVER, service as Commissioner to France with 
 out resignation as Chief Justice, 3. 
 
 EMPLOYERS' LIABILITY ACT (see "Workmen's Compensation 
 Laws," post). 
 
 FARMERS, statutes regulating sale of "concentrated commer 
 cial food" for live-stock, upheld by Justice Hughes, 121- 
 122. 
 
 FOOD AND DRUGS ACT (see "Pure Food Legislation," post). 
 
 FRANCHISES AND VESTED EIGHTS, opinions of Justice Hughes 
 as to, quoted, 164-172. 
 
 FRANK, LEO M., decision of action of Supreme Court as to, 
 191-204. 
 
 "FREEDOM OF CONTRACT," opinion of Justice Hughes quoted 
 as to the constitutionality of legislative limitation of, 85- 
 88; in relation to retention of trades-union membership, 
 149-153. 
 
 FULLER, MELVILLE W., death of, as Chief Justice, 4. 
 
 GEORGIA, action of the State Courts of, in the case of Leo 
 M. Frank, 191-204. 
 
 HARLAN, JOHN MAYNARD, as presiding Justice, 4; death of, 5. 
 
 "HARMONY SOCIETY" COMMUNITY, legal status of, 211. 
 
INDEX 349 
 
 HEADLIGHTS, for locomotives, power of the State to prescribe, 
 53-56. 
 
 HOLMES, OLIVER WENDELL, as Justice of Supreme Court, 4-5; 
 quoted, as to impossibility of quantitative legal determina 
 tion of considerations of social advantage, 98. 4 
 
 ' ' HOURS OF LABOUR, ' ' opinions of Justice Hughes as to legisla 
 tive limitation of, quoted, 127-131; as to women, 162-163; 
 decisions on, as bearing on validity of " minimum- wage " 
 legislation, 141-145. 
 
 HUGHES, CHARLES E., appointment of, to the Supreme Court, 
 1-4; previous professional career of, summarised, 1-2; col 
 leagues of, in Supreme Court, 4-5; judicial career of, sum 
 marised, 5-7; resignation of, commented upon, 7-9; not 
 a "dissenting judge," 9, 13; qualities of judicial work 
 commented upon, 10-14; all opinions and dissents by, 
 summarised (see Appendices, ante) ; labors of, in the 
 State Bate Cases, pages 15-49; his freedom from theoris 
 ing and preconception, and devotion to ascertained facts, 
 95-100; his services to the administration of the "pure 
 food" laws, 101-125; his outlook upon business problems, 
 173-190; his standards of official responsibility and ad 
 ministrative efficiency, 221-234; his outlook upon "new 
 exertions of National power," 227-234; his predilection 
 for trained judgment on intricate situations, 229-230; his 
 outlook upon the Courts, 262-268; his view of the law 
 and legal procedure, 268-280. 
 
 ILLINOIS, child labor law of, opinion of Justice Hughes as to, 
 quoted, 83, 131; action of State authorities of, as to 
 "Mrs. Price's Canning Compound," upheld by Justice 
 Hughes, 117-121. 
 
 IMMIGRANTS, Justice Hughes quoted as to rights and duties 
 of, 248-262. 
 
 INDIANA, statute of, regulating sale of "concentrated commer 
 cial food" for live stock, upheld, 121-122. 
 
 INITIATIVE AND REFERENDUM, their adoption regarded as ques 
 tions for the legislature and people, not the courts, 226- 
 227. 
 
 INTOXICATING LIQUORS, power of State to determine and make 
 effective its policy as to, upheld by Justice Hughes, 123- 
 125. 
 
 "INVOLUNTARY SERVITUDE," defined and applied, 242-247. 
 
 IOWA, statute of, regulating sale of "concentrated commer 
 cial food" for live-stock, upheld, 122; statute of, prohibit 
 ing contracts limiting employes' recovery for industrial 
 accidents, upheld, 134. 
 
 JAY, JOHN, service as Minister to England without resignation 
 as Chief Justice, 3. 
 
350 INDEX 
 
 KANSAS, statute of, prohibiting agreements requiring em 
 ployes to withdraw from trades-union membership, 146- 
 153. 
 
 LABOUR, opinions of Justice Hughes as to the scope of the 
 regulative power of the Nation to protect, 74-85; as to so- 
 called "freedom of contract" of, 85-88; regulation of 
 hours of, 127-131; of women, 162-163; opinion upholding 
 validity of statutes prohibiting limitation of employes' 
 recovery, 134; "minimum wage" legislation, 141-145; 
 validity of Kansas statute prohibiting agreements requir 
 ing employes to withdraw from union membership, 146- 
 153; statute as to validity of assignments of future earn 
 ings, 160-161; statutes compelling service in payment of 
 debt, 235-247. 
 
 LAMAR, JOSEPH EUCKER, as Justice of the Supreme Court, 4-5. 
 
 LIVE-STOCK, statutes regulating sale of "concentrated commer 
 cial foods" for, upheld by Justice Hughes, 121-122. 
 
 LURTON, HORACE H., as Justice of the Supreme Court, 4-5. 
 
 MALT LIQUORS, power of State to prohibit sale of, 123-125. 
 
 MARSHALL, JOHN, his constructive statesmanship expressed 
 solely in judicial opinions, i; Mr. Bryce's characterisation 
 of, quoted and applied, 12; re-definition of concepts of 
 National power, 16; application to unanticipated condi 
 tions, 18. 
 
 MCKENNA, JOSEPH, as Justice of Supreme Court, 4-5. 
 
 MCEEYNOLDS, JAMES C., as Justice of the Supreme Court, 5. 
 
 MIMEOGRAPH, validity of "license restriction" placed by Dick 
 Co. on sale of, 181-183. 
 
 "MINIMUM WAGE" LEGISLATION, hearing before the Supreme 
 Court as to the Oregon statute, described, 136-145. 
 
 MINNESOTA KATE CASES, monumental service of Justice Hughes 
 in, 15-49; holding of, summarised, 20-23; opinion of 
 Justice Hughes in, quoted at length, 23-50. 
 
 " MIS-BRANDING, " of foods and drugs, 101-126. 
 
 MISSISSIPPI, prohibition against sale of malt liquors, upheld, 
 123-125. 
 
 MONOPOLY AND SPECIAL PRIVILEGE, application of Anti-Trust 
 Acts to, 173-185. 
 
 MOODY, WILLIAM H., as Justice of the Supreme Court, 4; 
 quoted by Justice Hughes, 86, 99. 
 
 NATURALISATION, purposes of and obligations created by, 257- 
 262. 
 
 NEW YORK COUNTY LAWYERS ' ASSOCIATION, address of Justice 
 Hughes before, quoted, 13. 
 
 NEW YORK STATE BAR ASSOCIATION, address of Justice Hughes 
 before, quoted: as to State and National power, 56-64; 
 as to applications of the "Bills of Eights," 98-100; as 
 
INDEX 351 
 
 to "the Courts as expert agents of democracy " and the 
 reform of legal procedure, 262-268. 
 
 OHIO, "hours of labour" statute of, upheld, 127. 
 
 OKLAHOMA, validity of " separate-coach ' ' law of, 213-224. 
 
 ONEIDA COMMUNITY, legal status of, 211. 
 
 ORDER OF ST. BENEDICT, opinion of Justice Hughes as to status 
 and rights of members of, 205-212. 
 
 OREGON, "hours of labour " statute of, upheld, 127; hearing 
 before the Supreme Court as to the " minimum- wage ' ; 
 statute of, described, 137-145. 
 
 PATENT LAWS, "monopoly power" and "license restrictions" 
 under, 181-185. 
 
 "PEONAGE," application of unrepealed Federal statute of 
 1867 regarding, to Alabama legislation, 243-247. 
 
 PITNEY, MAHLON, as Justice of the Supreme Court, 5. 
 
 "POINSETTA," power of State to prohibit sale of, 123-125. 
 
 "POLICE POWER," standards of judicial definition of the, 
 76-78, 150-153. 
 
 POUND, EOSCOE, quoted, as to the sociological movement in 
 jurisprudence, 97. 
 
 "PRICE EESTRICTIONS, " on sale of a proprietary medicine, 179- 
 180; on sale of mimeograph, 180-182; on sale of "Sana- 
 togen," 183-185. 
 
 PROCEDURE, Justice Hughes quoted as to the reform of legal, 
 262-280. 
 
 PROHIBITION, power of State to make its policy effective, up 
 held, 123-125. 
 
 PUBLIC SERVICE EEGULATION, connection of Governor Hughes 
 with, 1; boundaries of National and State power, 20-50; 
 standards of determining whether rate or service orders 
 are " confiscatory, " 88-95; franchise obligations and 
 vested rights, 164-172. 
 
 PUBLIC WELFARE AND NEEDS, as elements in "police power" 
 definition, 76-78, 150-153. 
 
 "PURE FOOD" LEGISLATION, dissent as to the meaning of 
 "mis-branding," 6; opinions of Justice Hughes concern 
 ing, quoted, 101-126. 
 
 EACIAL CONTROVERSIES, the Frank case in Georgia, 191-204; 
 "separate coach" laws, 213-220; Alabama "peonage" 
 statute, 235-247; immigration and discrimination against 
 aliens, 248-259; the citizenship of Chinese persons, 260- 
 261. 
 
 EAILROADS, boundaries of State and National power concern 
 ing, 20-50; prescribing of head-lights, 53-56; standards 
 for determining remunerativeness of rates, 88-95; regula 
 tion of hours of labour of employes of, 127-131; fran 
 chise obligations and vested rights of, 164-173; validity 
 of Oklahoma "separate-coach" law, 213-220. 
 
352 INDEX 
 
 REASONABLE RELATIONSHIP, DOCTRINE OF, as element in deter 
 mining " police power" and "due process" scope, 74-79; 
 opinions of Justice Hughes quoted concerning, 79-83; in 
 connection with "pure food" laws, 119-120; as to "pro 
 hibition" laws, 124-125; as to hours of labour, 127-128; 
 as to child labour, 131; as to "minimum wage" laws, 141- 
 145; as to prohibition of agreements requiring withdrawal 
 from union membership, 150. 
 
 RELIGIOUS ORDERS, status of Order of St. Benedict, 205-212. 
 
 RESTRAINT OF TRADE, standards of, unreasonableness in, 173- 
 185. 
 
 RUTLEDGE, JOHN, failure to confirm as Chief Justice, 3. 
 
 "SANATOGEN," validity of attempted restriction of retail 
 price of patented article, 183-185. 
 
 "SEPARATE-COACH" LAWS, validity of, opinion of Justice 
 Hughes, quoted, 213-224. 
 
 "SHERLEY AMENDMENT," to the definition of ''mis-brand 
 ing" in the Food and Drugs Act, 104-105. 
 
 "SHREVEPORT CASE," as to interstate and intrastate rates, 
 referred to, 18-19; holding of, summarised, 20. 
 
 SLEEPING-CARS, rule of equality in transportation facilities 
 applied to, 218-220. 
 
 STANDARD OIL CASE, action of Justice Hughes in, 175-176. 
 
 STATE RATE CASES (see Minnesota Rate Case, ante, and in 
 "Table of Cases," ante). 
 
 SURVEY, article in, as to hearing of "minimum-wage" case, 
 quoted, 137-145. 
 
 TAFT, WILLIAM HOWARD, appointment of Mr. Hughes to the 
 Supreme Court, 1; re-constituting of personnel of Court, 
 4-5. 
 
 TALMUD, tale adapted from, applied to judicial statesmanship 
 of Mr. Hughes, 14. 
 
 TARIFF LAWS, qualities which should characterise the opera 
 tion of, indicated by Justice Hughes, 221. 
 
 TRADE-MARKS, unfair imitation of, 186-189. 
 
 TRADES-UNIONS, rights of employes to retain membership in, 
 146-153. 
 
 "UNFAIR COMPETITION," opinion of Justice Hughes as to, 
 quoted, 179-190. 
 
 UNIFORM STATE LAWS, Justice Hughes quoted as to, 264-265. 
 
 VAN DEVANTER, WILLIS, as Justice of the Supreme Court, 4-5. 
 
 VON HOLST, DR. H., "Constitutional Law of the United 
 States," quoted as to the qualifications of American 
 statesman and jurist, iii. 
 
 WHITE, EDWARD D., appointment of, as Chief Justice, 4. 
 
 "WHITE SLAVE" CASES, quotation from opinion in, 67. 
 
 WILLOUGHBY, WESTEL W., "The Supreme Court of the U. S.," 
 quoted, 3. 
 
INDEX 353 
 
 WILSON, WOODROW, appointment of Mr. McReynolds and Mr. 
 Brandeis to the Supreme Court by, 5. 
 
 WOMEN, rights and marital status of, 5; regulation of hours 
 of labour of, 127-131, 161-163; "minimum-wage" legisla 
 tion affecting, 137-145; right of wife to sue husband in 
 tort, 154-160; status of wife as to assignments of the hus 
 band's earnings, 160-161; status in industry, 162-163. 
 
 WORKMEN'S COMPENSATION LAWS, Governor Hughes' connec 
 tion with the work of the Wainwright Commission for, 
 2; messages to the legislature concerning, quoted, 132-133; 
 opinions as to validity of statutes prohibiting contracts 
 limiting indemnity, quoted, 134. 
 
THIS BOOK IS DUE ON THE LAST DATE 
 STAMPED BELOW 
 
 RENEWED BOOKS ARE SUBJECT TO IMMEDIATE 
 RECALL 
 
 JUKI 01985 
 RET 1965 
 
 DUE MAR 1 7 197 
 1 5 REITD 
 
 
 LIBRARY, UNIVERSITY OF CALIFORNIA, DAVIS 
 
 Book Slip-10m-l,'63(D5068s4)458 
 
Ransom, W.L. 
 
 Charles E. Hughes 
 
 Call Number: 
 
 H86 
 R2 
 
 E664 
 
 292O03