tion of anti to labor forbidden Section 6 is aimed at a recall of the decision in the Danbury (3) ApplicaHatters case. In this case it will be remembered that the trust laws anti-trust laws were invoked against a labor union in the case organizaof a boycott. In the Clayton Law it is specifically declared "that tions the labor of a human being is not an article or commodity of commerce," and that "nothing contained in the anti-trust laws shall be construed to forbid the existence of labor, agricultural, or horticultural organizations from carrying out the legitimate objects thereof; nor shall such organization, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade under the anti-trust laws." solidations Corporations engaged in commerce are forbidden to acquire (4) Conthe whole or a part of the stock of other corporations where the and comeffect would be to lessen competition substantially. Exceptions binations are allowed in the acquisitions of stock for investment and not for the purpose of control; and in the formations of subsidiary companies and feeders for the lines of common carriers. locking Investigation showed that many banks and corporations, (5) Internominally in competition, had boards of directors containing directorates many of the same persons. Moreover, certain companies sold securities to or bought supplies from banks or corporations which had large representation upon both boards. Sections 8 and 10 of the Clayton Act attempt to check this. ment Any person who is injured by anything forbidden in the anti- (6) Enforcetrust laws may sue in the court of the district where the defendant resides, or is found, or has an agent, without respect to the amount in the controversy, and may recover threefold damages and a reasonable attorney's fee if his suit is sustained. The carrying out of the administrative provisions of the act are vested, for banks, in the Federal Reserve Board; for common carriers, in the Interstate Commerce Commission; for other corporations, in the Federal Trade Commission. Cases are taken directly to the Circuit Court of Appeals, which is directed to expedite them and give them precedence. In both the Trade Commission Act and the Clayton Act, the Commission and the court are forbidden to relieve or absolve any person from any liability under the anti-trust laws. Thus 1 Loewe v. Lawlor, see p. 508. Effect of Act on it would appear that the policy of the government is still largely of a prohibitive or negative nature and that little advance has been made towards providing a body which can engage in constructive regulation. Such a commission should be able to do what the court has done in applying the rule of reason, namely, authorize harmless or beneficial combinations, perhaps allow price fixing in cases where it seemed beneficial, and have power to approve of practices which it deemed were not unfair. As it is, the order of the Commission gives no legal immunity. The case may be carried to the courts and the same principles applied as in the application of the Sherman Law. In one sense, however, these laws are of great importance and advantage. They provide for close and frequent supervision, and the mere publicity of their investigations and hearings will do much to prevent unfair practices and perhaps to influence public opinion in favor of a more constructive policy. Sept 17 CHAPTER XX THE EXERCISE OF THE POLICE POWER BY THE FEDERAL GOVERNMENT power The Supreme Court has briefly defined the police powers The police as ". . . nothing more nor less than the powers of government inherent in every sovereignty . . . that is to say, . . to govern men and things.” 1 the power The police inherent in power the states may power in delegated The federal government, being one of delegated powers and this power not being delegated, it is consequently left with the states. It cannot be taken from them, either in whole or in part, and exercised by Congress. All that the federal government can do is to see that the states exercise this power under the limitations of the Constitution and do not, under the guise of exercising it, encroach upon the field granted to the national government.2 But if the police power be the power of government, Congress Congress must possess this power in the fields which are delegated to it exercise for control. Congress, therefore, while possessing no general the police police power, has, in exercising its right of controlling commerce those fields and the other functions granted to it, the right to enact measures to it for the government of these functions; and these measures may affect the health, safety, and morals not only of persons engaged in the conduct of these functions but of the people at large. Thus, while it seems unlikely that Congress could, for example, establish a universal eight-hour day for all persons engaged in industry, yet it can place and has placed limitations upon the hours of labor of those engaged in interstate commerce. So also while a state has not the power to prevent the immigration of the Chinese, yet Congress through its control over immigration has not only excluded the Chinese but has enacted regulations for the protection of immigrant women after they have settled 1 License Cases, 5 How. 504, 583. 2 See T. M. Cooley, Limitations (6th ed.), pp. 705-707. Congress may not exercise the police power generally but only in those fields it controls Interstate commerce legislation (1) The Safety Appliance Act within the states. Again, although Congress cannot prevent the publication of obscene or libelous matter, it may exclude the same from the mails. A very considerable number of statutes have been passed in which it appears that Congress is exercising a federal police power. On examination, however, it will be found that this police power is never exerted because Congress possesses such a general power but solely because Congress has been given certain fields of action, in which, having absolute power, it may legislate concerning the health and morals of the people in those fields. In other words, within the fields of delegated powers Congress may exercise a police power. Without attempting to enumerate all these statutes the following classification will show the extent to which legislation of this kind has been carried. GENERAL POLICE REGULATIONS FOR THE CONDUCT OF INTERSTATE COMMERCE Under this head would naturally be found all the legislation concerning interstate railroads, rates, and rebates, and the antitrust laws, the latest example of which is the Clayton Act. These have just been discussed in the previous chapter and need not be reëxamined. They were passed under the power of Congress to regulate commerce but contain, none the less, many provisions which are in the nature of pure police regulations. POLICE REGULATIONS CONCERNING THOSE ENGAGED IN INTERSTATE COMMERCE An example of the legislation concerning those engaged in interstate commerce is found in the Safety Appliance Act of 1893 with its various amendments. This act, which originally required that all trains employed in interstate commerce should be supplied with certain automatic safety appliances, was sustained in 1904 and 1907.1 In 1903 an amendment applied the provisions of the act to all trains and vehicles used on any railroads 1 Johnson v. Southern Pacific R. R. Co., 196 U. S. 1; and (1907) St. Louis, Iron Mountain & Southern R. R. Co. v. Taylor, 210 U.S. 281. engaged in interstate commerce. In 1911 the court, in upholding the amended act, said: [Upheld by the court state com merce because of the interdependence We come then to the question whether these acts are within the power of Congress under the commerce clause of the Constitution, considering that they are not confined to vehicles used in moving to both interstate interstate traffic. . . . Is there a real or substantial relation or connection and intrabetween what is required by these acts in respect of vehicles used in moving intrastate traffic, and the object which the acts obviously are designed to attain, namely, the safety of interstate commerce and of those who are employed in its movement? . . . Both classes of traffic of the two] are at times carried in the same car and when this is not the case the cars in which they are carried are frequently commingled in the same train and in the switching and other movements at terminals. . . . Besides, the several trains on the same railroad are not independent in point of movement and safety, but are interdependent, for whatever brings delay or disaster to one, or results in disabling one of its operatives, is calculated to impede the progress and imperil the safety of other trains. And so the absence of appropriate safety appliances from any part of any train is a menace not only to that train but to others.1 ... ployers' In 1906 Congress passed an act intended to alter the old (2) Emcommon-law relations between employers and their employees. Liability The statute made interstate carriers liable for damages for the Act of 1906 death or injury of "any" of their employees resulting from negligence on the part of the employers, or the insufficiency of the equipment; it altered the old common-law rule in that it allowed the employee to recover, although the injury had been the result of negligence on the part of another employee or upon his own part. This act applied to "any" employees in every carrier engaged in interstate or foreign commerce. stitutional by the In 1907 the court held that although Congress had the power [Held unconto alter common-law rules concerning the relation between employers and their employees, the act under consideration, in court] applying its regulations to "any" employee and to "any" of the officers of the carriers, touched not only those engaged in interstate commerce but also those who were engaged in purely intrastate commerce. The act was therefore a regulation of intrastate commerce which was beyond the power of Congress to make, 1 Southern Railway Co. v. United States, 222 U.S. 20, 26, 27. |