¹ Decided May 15.

² “It [the act],” he writes, “provides a heavy exaction for a departure from a detailed and specified course of conduct in business. That course of business is that employers shall employ in mines and quarries, children of an age greater than sixteen years; in mills and factories, children of an age greater than fourteen years; and shall prevent children of less than sixteen years in mills and factories from working more than eight hours a day or six days in the week. If an employer departs from this prescribed course of business, he is to pay to the government one tenth of his entire net income in the business for a full year. The amount is not to be proportioned in any degree to the extent or frequency of the departures, but is to be paid by the employer in full measure whether he employs five hundred children for a year, or employs only one for a day. Moreover, if he does not know the child is within the named age limit, he is not to pay; that is to say it is only where he knowingly departs from the prescribed course that payment is to be exacted. Scienters are associated with penalties not with taxes. The employer's factory is to be subject to inspection at any time not only by the taxing officers of the Treasury, the Department normally charged with the collection of taxes, but also by the Secretary of Labor and his subordinates, whose normal function is the advancement and protection of the welfare of the workers. In the light of these features of the act, a court must be blind not to see that the so-called tax is imposed to stop the employment of children within the age limits prescribed. Its prohibitory and regulatory effect and purpose are palpable. All others can see and understand this. How can we properly shut our minds to it?”

And again: “Taxes are occasionally imposed in the discretion of the legislature on proper subjects with the primary motive of obtaining revenue from them, and with the incidental motive of discouraging them by making their continuance onerous. They do not lose their character as taxes because of the incidental motive. But there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty, with the characteristics of regulation and punishment. Such is the case in the law before us. Although Congress does not invalidate the contract of employment, or expressly declare that the employment within the mentioned ages is illegal, it does exhibit its intent practically to achieve the latter result by adopting the criteria of wrongdoing, and imposing its principal consequence on those who transgress its standard.”

His contention, however, that, “Grant the validity of this law, and all that Congress would need to do hereafter, in seeking to take over to its control any one of the great number of subjects of public interest, jurisdiction of which the states have never parted with, and which are reserved to them by the Tenth Amendment, would be to enact a detailed measure of complete regulation of the subject and enforce it by a so-called tax upon departures from it” cannot be conceded. See discussion of The Future Trading Act just below.

³ 195 U. S. 27; and cases there cited.

⁴ 8 Wall. 533. See, e.g. the court's remarks in Flint v. Stone Tracy Co., 220 U. S. 107.

⁵ “The absolute power to levy taxes,” says Story, “includes the power in every form in which it may be used, and for every purpose to which the legislature may choose to apply it. This results from the very nature of such an unrestricted power. A fortiori it might be applied by Congress to purposes for which nations have been accustomed to apply it.” The entire paragraph should be read. Commentaries, §965. For the opposing view, which was first formulated by the “tariff for revenue” school, see Cooley's, Principles of Constitutional Law (3rd ed.), p. 58.Google Scholar

⁶ 4 Wheat. 316.

⁷ That he does assume such an apportionment is proved by his quotation of the following passage from C. J. Marshall's opinion in McCulloch v. Md.: “Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.”

The quotation is entirely misapplied. Marshall is here discussing the powers of Congress under the “necessary and proper” clause, and is saying that these must have some relation to its substantive powers; he is not suggesting that the latter were granted for only limited purposes.

⁸ U. S. v. the Brigantine William, Federal Cases, No. 16,700. This is the famous “Embargo Case,” and was decided, in 1808, by Judge John Davis of the United States district court of Massachusetts. “It was perceived,” Judge Davis's opinion continues, “that, under the power to regulate commerce, Congress would be authorized to abridge it, in favor of the great principles of humanity and justice. Hence the ‥‥ clause, in the Constitution ‥‥ to interdict a prohibition of the slave trade, until 1808.” Compare with these words the following passage from C. J. Taft's opinion, in comment on Hammer v. Dagenhart, 247 U. S. 251, in which the first Child Labor Act was set aside:

“The analogy of the Dagenhart case is clear. The congressional power over interstate commerce is, within its proper scope, just as complete and unlimited as the congressional power to tax; and the legislative motive in its exercise is just as free from judicial suspicion and inquiry. Yet when Congress threatened to stop interstate commerce in ordinary and necessary commodities, unobjectionable as subjects of transportation, and to deny the same to the people of a state, in order to coerce them into compliance with Congress's regulation of state concerns, the court said this was not in fact regulation of interstate commerce, but rather that of state concerns, and was invalid.”

This is the clearest intimation that we have had that the Dagenhart case stands for the idea that Congress may regulate commerce only from the point of view of benefiting the commerce. See next note.

⁹ Hoke v. U. S., 227 U. S. 308, where it is said: “Our dual form of government has its perplexities, 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 conferred on the nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material and moral.” See further note 85.

¹⁰ Annals of Congress, II, col. 1891. See the discussion of the railway rate cases, infra.

¹¹ See, e.g., J. Harlan's statement in his dissenting opinion in the Alabama Midland Ry. case, 168 U. S. 176, that the court had rendered the interstate commerce commission “a useless body for all practical purposes.” This was in 1898.

¹² Decided May 15.

¹³ It may be argued perhaps that by the scheme of the Future Trading Act immunity from regulation was exchanged for immunity from taxation. Undoubtedly, certain constitutional rights and immunities may be waived by the individual, but not those, it is submitted, which are incidental to the maintenance of the structure of the government and the distribution of powers effected by the Constitution, for in such cases the individual right is only a resultant of something more fundamental. In this connection compare two cases decided this term of court: Terral v. Burke Construction Co., discussed infra, under B., III, and Pierce Oil Corp. v. Phoenix Refining Co. (May 15).

¹⁴ Decided June 5.

¹⁵ 252 U. S. 189; discussed in this Review, XVI, p. 635 ff.

¹⁶ Miles v. Safe Deposit and T. Co. (May 29).

¹⁷ U. S. v. Phellis (Nov. 21); also, Rockefeller v. U. S., which was decided the same day, and in which the facts were substantially the same. J. J. McReynolds and Van Devanter dissented, on the basis of Eisner v. Macomber.

¹⁸ Greiner v. Lewellyn (Apr. 10). In differentiating the case from a tax on income derived from state and municipal bonds, J. Brandeis speaks of the latter as “a direct tax,” which flies directly in the face of what was said in the Brushaber case, 240 U.S. 1.

¹⁹ Heald v. D. C. (May 15): “There is no constitutional provision which so limits the power of Congress that taxes can be imposed only on those who have political representatives.” A series of cases, decided May 1st, rule that the Estate Tax of 1916 does not extend to trusts created before its passage.

²⁰ 234 U. S. 342.

²¹ Decided Feb. 27.

²² Same date.

²³ Decided Mar. 13.

²⁴ Cf. Brooks-Scanlon Co. v. R.R. Comm, 251 U. S. 396, and Bullock v. R.R. Comm., 254 U. S. 513.

²⁵ Decided May 1.

²⁶ The decision does not, in fact, go beyond Swift & Co. v. U. S., 196 U. S. 375, where certain practices of the great packers were condemned under the Sherman Act. The principle involved is indicated by the caveat quoted from the opinion in U. S. v. Ferger, 250 U. S. 199, that it is a mistake to assume “that the power of Congress is to be necessarily tested by the intrinsic existence of commerce in the particular subject dealt with, instead of by relation of that subject to commerce and its effect upon it.”

²⁷ Alaska v. Troy (Feb. 27).

²⁸ Balzac v. P. R. (Apr. 10).

²⁹ Decided Feb. 27.

³⁰ 253 U. S. 221 and 231.

³¹ See in this connection Haire v. Rice, 204 U. S. 291; also Marshall Field & Co. v. Clark, 143 U. S., 649, and cases there cited.

³² Eberlein v. U. S. (Nov. 7).

³³ Norris v. U. S. (Nov. 7).

³⁴ Wallace v. U. S. (Feb. 27).

³⁵ Same parties (Apr. 10).

³⁶ Decided Mar. 27.

³⁷ 135 U. S. 1.

³⁸ U. S. v. Weeks (May 29). The leading cases are Wilcox v. Jackson, 13 Pet. 498, and Williams v. U. S., 1 How. 290.

³⁹ International R'y. Co. v. Davidson (Jan. 30). A leading case in this connection is Morrill v. Jones, 106 U. S. 466. Kern River Co. v. U. S. (Nov. 21), emphasizes the respect to be paid a construction put upon a statute “by the head of the Department charged with administering it.”

⁴⁰ Two cases, decided Mar. 13. Compare Union Tool Co. v. Wilson (May 15).

⁴¹ Decided Feb. 27.

⁴² Texas v. I. C. C. (Mar. 6). See also Muskrat v. U. S. 219 U. S. 346.

⁴³ Georgia v. S. C. (Jan. 30), and Oklahoma v. Tex. (May 1).

⁴⁴ Wyoming v. Colo. (June 5).

⁴⁵ North Dakota v. Chic. & N. W. R'y Co. (Jan. 23) and Texas v. I. C. C. (Mar. 6).

⁴⁶ Sloan Shipyards Corp. v. U. S. S., Bd. E. F. Corp. (May 1).

⁴⁷ Citing Osborn v. Bank of U. S., 9 Wheat 738, and United States v. Lee, 106 U. S. 196.

⁴⁸ United States v. Thompson (Jan. 3). J. McKenna, speaking for himself and J. J. Day and Clarke in dissent, has much the better argument from authority. See The Siren, 7 Wall. 152.

⁴⁹ 253 U. S. 149; see also Southern Pacific R'y Co. v. Jensen, 244 U. S. 205.

⁵⁰ Western Fuel Co. v. Garcia (Dec. 5), followed by Grant Smith-Porter Ship Co. v. Rhode (Jan. 3), and State Industrial Comm. v. Nordenholt Corp. (May 29).

⁵¹ Decided Feb. 27.

⁵² Decided May 29.

⁵³ United States v. Ju Toy, 198 U. S. 253.

⁵⁴ The position of such Chinese is akin to that of people of color who were arrested as fugitive slaves, before the Civil War. See Prigg v. Pa., 16 Pet. 539.

⁵⁵ United States v. Balint (Mar. 27).

⁵⁶ United States v. Moreland, decided Apr. 17. Moreland had been sentenced to the District of Columbia workhouse for six months at hard labor, his offence being failure to support his children. The statute under which he was convicted designated this offence a “misdemeanor.” The decision seems to be based on a strained interpretation of Wong Wing v. U. S., 163 U. S. 228. J. Brandeis filed a dissenting opinion for himself, the Chief Justice, and J. Holmes.

⁵⁷ John Horstmann Co. v. U. S. (Nov. 21).

⁵⁸ United States v. Bethlehem Steel Co. (Apr. 10). The right of Congress to ratify an unauthorized collection of duties in certain circumstances was sustained in Rafferty v. Smith, Bell & Co. (Dec. 5). For a different result in closely parallel facts, see Forbes Pioneer Boat Line v. Bd. of Commrs. (Apr. 10).

⁵⁹ Decided June 5.

⁶⁰ “At common law,” the opinion reads, “an unincorporated association of persons was not recognized as having any other character than a partnership in whatever was done, and it could only sue or be sued in the name of its members, and their liability had to be enforced against each member, ‥‥ But the growth and necessities of these great labor organizations have brought affirmative legal recognition of their existence and usefulness and provisions for their protection, which their members have found necessary. Their right to maintain strikes, when they do not violate law or the rights of others, has been declared. The embezzlement of funds by their officers has been especially denounced as a crime. The so-called union label, which is a quasi trademark to indicate the origin of manufactured product in union labor, has been protected against pirating and deceptive use by the statutes of many states, and in many states authority to sue to enjoin its use has been conferred on unions. They have been given distinct and separate representation and the right to appear to represent union interests in statutory arbitrations, and before official labor boards.‥‥ More than this, equitable procedure adapting itself to modern needs has grown to recognize the need of representation by one person of many, too numerous to sue or be sued‥‥; and this has had its influence upon the law side of litigation, so that, out of the very necessities of existing conditions and the utter impossibility of doing justice otherwise, the suable character of such an organization as this has come to be recognized in some jurisdictions, and many suits for and against labor unions are reported in which no question has been raised as to the right to treat them in their closely united action and functions as artificial persons, capable of suing and being sued. It would be unfortunate if an organization with as great power as this international union has in the raising of large funds and in directing the conduct of 400,000 members in carrying on, in a wide territory, industrial controversies and strikes, out of which so much unlawful injury to private rights is possible, could assemble its assets to be used therein free from liability for injuries by torts committed in the course of such strikes. To remand persons injured to a suit against each of the 400,000 members to recover damages and to levy on his share of the strike fund would be to leave them remediless.” The Taff Vale decision is invoked; and a marginal note furnishes an extended reference to legislation by the states protective of labor unions.

⁶¹ Decided Dec. 5.

⁶² Duplex Printing Co. v. Deering, 254 U. S. 443.

⁶³ This is in flat conflict with J. Pitney's statement in the Duplex case that §20 “imposes an exceptional and extraordinary restriction upon the equity powers of the courts of the United States and upon the general operation of the Anti-Trust Laws.” The practical effect of this difference of point of view may appear in future cases.

⁶⁴ 158 U. S. 564.

⁶⁵ American Column & Lumber Co. v. U. S. (Dec. 19).

⁶⁶ Federal Trade Commission v. Beech-Nut Packing Co. (Jan. 3).

⁶⁷ Standard Fashion Co. v. Magrane-Houston Co. (Apr. 10).

⁶⁸ United Shoe Machinery Corp. v. U. S. (Apr. 17).

⁶⁹ United States v. So. Pac. Co. (May 29).

⁷⁰ Federal Baseball Club v. National League etc. (May 29). Compare Pigg v. International Text B'k Co., 217 U. S. 91.

⁷¹ Corneli v. Moore (Jan. 30).

⁷² Anchor Line v. Aldridge (May 15).

⁷³ Street v. Lincoln Safety Deposit Co. 254 U. S. 88.

⁷⁴ Vigliotti v. Pa. (Apr. 10).

⁷⁵ United States v. Behrman (Mar. 27).

⁷⁶ Federal Trade Commission v. Winsted Hosiery Co. (Apr. 24).

⁷⁷ Central Railroad Co. of N. J. v. U. S. (Dec. 5).

⁷⁸ Industrial Accident Commission v. Payne (May 29).

⁷⁹ See especially Dahnke-Walker Milling Co. v. Bondurant (Dec. 12). The case is discussed under B., I. infra, in another connection. Commissioners of Road Improvement Dist. No. 2 v. St. Louis, S.W. R. Co. determined that proceedings in an Arkansas county court to assess damages and benefits growing out of a road improvement constituted “a suit at common law” within the meaning of §28 of the Judicial Code, which provides for removals of such suits by a non-resident party to the proper federal district court, notwithstanding that they involved a mixture of legislative, administrative, and judicial elements.

⁸⁰ Smietanka v. Indiana Steel Co. (Oct. 24).

⁸¹ Decided Dec. 12.

⁸² 120 U. S. 489. The case lays down the doctrine that the negotiation of sales in a state of goods to be introduced into it from another state is interstate commerce.

⁸³ Brown v. Md., 12 Wheat. 419, is the leading case.

⁸⁴ Decided Feb. 27.

⁸⁵ This language, while far from unambiguous, is evidently intended to convey that such power as is withdrawn by this decision from the state may in case of necessity—a legislative question—be exercised by Congress; a deduction which is confirmed by the grounds of the decision itself, unless a new “twilight zone” has been created. And whatever the decision signifies, the doctrine illustrated by it is obviously applicable to traffic in any of the principal commodities.—It is worth noting, in passing, that this new extension of the “commerce” clause probably takes away from the states much more valuable “sovereignty” than the Child Labor decision saves to them; and this is done by judicial interpretation alone.

⁸⁶ Eureka Pipe Line Co. v. Hallanan, and United Fuel Gas Co. v. Same (Dec. 12).

⁸⁷ 116 U. S. 517. Cf. So. Pacific Terminal Co. v. I. C. C., 219 U. S. 498.

⁸⁸ Crescent Cotton Oil Co. v. Miss. (Nov. 14).

⁸⁹ Decided Apr. 17.

⁹⁰ 256 U. S. 642; commented on in this Review, XVI, p. 239. See also Askren v. Continental Oil Co., 252 U. S. 444, to the same effect.

⁹¹ 114 U. S. 622.

⁹² 246 U. S. 135.

⁹³ Hump Hairpin M'f't'g. Co. v. Emerson (Mar. 27).

⁹⁴ Decided Dec. 19.

⁹⁵ See supra, under A, ix, 1.

⁹⁶ J. Pitney also argues that the discrepancy, pointed out by C. J. Taft between the position before the law of plaintiffs' competitors, on the one hand, and that of their former employees, on the other, “is not a matter of which plaintiffs are entitled to complain under the ‘equal protection’ clause,” there being “no discrimination against them.” This both overlooks the purely illustrative purpose of the Chief Justice's argument at this point, and implies that no one is entitled to complain under the clause unless he has been subjected to some disability in comparison with others similarly situated. But while it is true that most of the cases have arisen in consequence of complaints of this sort, there can be no question that the clause always had the broader application given it in this case. Why, indeed, should not one who finds it impossible to obtain judicial protection for his acknowledged rights because of the immunity of his adversary, be entitled to complain that he is being denied the “equal protection of the laws,” especially since it is evident that he is? Nor should it make any difference that he is the member of a class similarly disadvantaged and his adversary the member of a class correspondingly advantaged; the discrimination is one which must be justified by the ordinary tests—must, in short, be reasonable. As a matter of fact, one of the earliest cases in which the principle of legal equality was successfully invoked against legislative action in this country invoked it in this broader sense: Holden v. James, 11 Mass. 396. See also the two earliest cases under the Amendment: Barbier v. Connolly, 113 U. S. 27, and Yick Wo v. Hopkins, 118 U. S. 356; also Cooley's, Constitutional Limitations, p. *390ff.Google Scholar Furthermore the Chief Justice might well have been content to rest his argument exclusively on the “due process” clause, pointing to the notorious fact that, whatever the Arizona supreme court intended in designating defendants' conduct as “lawful,” practically there was no remedy against it except injunction—that in such cases, injunction is, if not due process of law, at any rate the only process even measurably efficient.

⁹⁷ Decided Mar. 20.

⁹⁸ Block v. Hirsh 256 U. S. 135, and Marcus Brown Holding Co. v. Feldman, ibid, 170; commented on in this Review, XVI, pp. 33–35, 240, 242.

⁹⁹ On the subordination of the obligation of contracts to the police power, J. Clarke cites Manigault v. Spring, 199 U. S. 473, Louisville & Nashville R. Co. v. Mottley, 219 U. S. 467, and other cases.

¹⁰⁰ In this connection the opinion cites, first, “the notorious fact that a grave social problem has arisen from the insufficient supply of dwellings in all large cities of this and other countries” in consequence of the cessation of building activities traceable in turn to the war; secondly, certain official reports on the situation in New York; and thirdly, “the very great respect which courts must give to the legislative declaration” of an emergency. And the emergency being granted, the relation of landlord and tenant becomes one affected with a public interest and so subject to regulation in the way attempted by the acts.

¹⁰¹ Decided June 5.

¹⁰² Same date.

¹⁰³ 236 U. S. 1.

¹⁰⁴ Chicago, Rock Island, & Pacific R. Co. v. Perry (June 5).

¹⁰⁵ Newton v. Consol. Gas Co. (Mar. 6).

¹⁰⁶ Galveston Electric Co. v. Galveston (Apr. 10).

¹⁰⁷ Oklahoma Natural Gas Co. v. Okla. (Mar. 20).

¹⁰⁸ Crescent Cotton Oil Co. v. Miss. (Nov. 14).

¹⁰⁹ Pierce Oil Corporation v. Phoenix Refining Co. (May 15).

¹¹⁰ Decided Nov. 7. A leading case in connection with the general subject is Union Refrigerator Transit Co. v. Ky. 199 U. S. 194.

¹¹¹ A few minor cases under the Amendment, turning often on peculiar situations, are not listed here. Under both the “due process” clause and the “obligation of contracts” clause, it was held in Atchafalaya Land Co. v. Williams Cypress Co. (Mar. 13), that a state may enact statutes of limitation, provided “They allow a reasonable time after their enactment for the assertion of an existing right on the enforcement of an existing obligation.” The two or three other cases under the “obligation of contracts” clause are uninstructive. Ferry v. Spokane, P. & S. R. Co. (Apr. 10) teaches that “dower is not a privilege or immunity of citizenship” either within the meaning of Article IV, §2, or the Fourteenth Amendment.

¹¹² Decided Feb. 27. Compare the cases cited in Notes 107 and 108, supra.

¹¹³ Doyle v. Continental Ins. Co., 94 U. S. 535, and Security Mutual Life Ins. Co. v. Prewitt, 202 U. S. 246. Compare Home Insurance Co. v. Morse, 20 Wall. 455, where the present doctrine is foreshadowed.

¹¹⁴ Burrill v. Locomobile Co. (Feb. 27).

¹¹⁵ Irwin v. Webb (Mar. 20), and Gillespie v. Okla. (Jan. 30). The leading case is Van Brocklin v. Tenn., 117 U. S. 151.

¹¹⁶ First National Bank v. Adams (Apr. 10).