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Published online by Cambridge University Press: 02 September 2013
No one who has followed the steady expansion of federal authority over the business of interstate carriers sanctioned by the Supreme Court in the Shreveport Case, Illinois Central R. Co. v. Public Utilities Commission, and Railroad Commission v. Chicago, B. & Q. R. Co., will view with surprise the unanimous decision of that tribunal in Dayton-Goose Creek R. Co. v. United States, sustaining the validity of the “recapture” clause of the Transportation Act of 1920. This clause provided in substance that since it is impossible to establish uniform rates upon competitive traffic which will adequately sustain all the carriers needed to do the business, without giving some of them a net income in excess of a fair return, any carrier receiving such excess shall place one-half of it in a reserve fund to be maintained by the carrier for certain specified purposes, and shall pay the other half into a general railroad revolving fund to be maintained in the interstate commerce commission. This fund is to be used by the commission to make loans to carriers to meet expenditures for capital account, and so forth.
1 Houston, E. & W. T. R. Co. v. United States, 234 U. S. 342.
2 245 U. S. 493.
3 257 U. S. 563. See comment in this Review, vol. 16, p. 618.
4 263 U. S. 456. Nineteen railroads besides the plaintiff in the present case filed briefs attacking the constitutionality of the statute.
5 Act of Feb. 28, 1920, Chap. 91, Sec. 422, 41 Stat. at L. 456, 489–491.
6 At page 480.
7 263 U. S. 515.
8 United States v. American Railway Exprese Co., 265 U. S. 425, held that the express company is not deprived of its property without due process of law by giving the shipper of express the right to give routing instructions where there is competitive express service, since it has no property right in the transportation of traffic delivered by it to destination. See also United States v. New River Co., 265 U. S. 533, holding valid a rule of the interstate commerce commission limiting the total orders for cars of the owner of a mine served by two carriers to the gross daily rating of the needs of the mine.
9 See the earlier cases commented on in this Review, vol. 16, p. 629, and vol. 18, p. 60.
10 265 U. S. 545.
11 Act of Nov. 23, 1921, Chap. 134, 42 Stat. at L. 222.
12 “And if the act is within the power confided to Congress, the Tenth Amendment, by its very terms, has no application, since it only reserves to the states ‘powers not delegated to the United States by the Constitution.’”
13 August 9, 1921. The resolution read: “The Federal Trade Commission be and is hereby directed to investigate the tobacco situation in the United States as to the domestic and export trade, with particular reference to the market price to producers for tobacco and the market price for manufactured tobacco and the price of leaf tobacco exported, and report to the Senate as soon as possible the results of such investigation.” Quoted in 283 Fed. 999,1003.
14 264 U. S. 298.
15 In Hester v. U. S., 265 U. S. 57, a man was chased across a field by a prohibition agent and dropped and broke a jug. The officers analysed the contents of the jug and used the evidence against him. It is held that this does not compel him to give evidence against himself, nor does it invade the constitutional guaranty against unreasonable searches and seizures.
16 Act of Oct. 22, 1919, Chap. 80, 41 Stat. at L. 297.
17 256 U. S. 135. See comments in this Review, vol. 16, p. 33.
18 Act of Aug. 24,1921, Chap. 91, 42 Stat. at L. 200; Act of May 22,1922, Chap. 197, 42 Stat. at L. 543.
19 264 U. S. 543.
20 Justice Brandeis wrote a concurring opinion in which he held that the procedural requirements of the statute had not been complied with so that the plaintiffs were not bound by the order of the rent commission issued against them. This being the case the question of the constitutionality of the act was not raised and should not have been considered by the court.
21 Act of May 10,1920, Chap. 174, 41 Stat. at L. 593.
22 264 U. S. 32.
23 3 Dall. 386.
24 170 U. S. 189.
25 The court found, however, that the warrant for deportation was defective in not reciting that the secretary of labor had found the petitioner an “undesirable resident.” He was ordered to be retained in custody pending the correction of this defect.
26 264 U. S. 131.
27 United States ex rel. Bilokumsky v. Tod, 263 U. S. 149, deals in some detail with the regularity of the hearing allowed an alien in deportation proceedings.
28 263 U. S. 510.
29 263 U. S. 365.
30 108 U. S. 76.
31 The court does not deal separately with the plea for $5000 damages for injuries resulting to state property.
32 263 U. S. 255.
33 253 U. S. 149. See comment in this Review, vol. 15, p. 55.
34 Act of June 10, 1922, Chap. 216, 42 Stat. at L. 634.
35 264 U. S. 219.
36 264 U. S. 109.
37 April 19, 1920, Chap. 275, amended Mar. 1, 1921, Chap. 14.
38 Justice McReynolds, who wrote the majority opinions in Knickerbocker Ice Co. v. Stewart, and Washington v. Dawson & Co., dissented in this case, holding the New York statute inapplicable to a maritime contract.
39 264 U. S. 375.
40 Act of Mar. 4, 1915, Chap. 153, 38 Stat. at L. 1185.
41 263 U. S. 640.
42 May 11, 1911, 29 Ops. Atty. Gen. 81. Justice Van Devanter dissented vigorously on the ground that national banks, being created by the United States for public purposes essentially national in scope, are wholly immune from any state laws purporting to control their powers or functions.
43 Hauenstein v. Lynham, 100 U. S. 483, Blythe v. Hinckley, 180 U. S. 333.
44 These statutes were so worded as not to conflict with any rights guaranteed to aliens by treaty.
45 263 U. S. 197.
46 The court discusses the propriety of this method of testing the constitutionality of the act and concludes that it is permissible since the penalty for violation of the act is so severe as to make it virtually impossible to raise the constitutional question by violating the statute and subsequently pleading its invalidity as a defense.
47 239 U. S. 33.
48 37 Stat. at L. 1504, Feb. 21, 1911.
49 Justices McReynolds and Brandeis took the view that no justiciable question is involved in the case and that it should have been dismissed on that ground.
50 263 U. S. 225.
51 263 U. S. 313.
52 263 U. S. 326.
53 265 U. S. 332.
54 264 U. S. 504.
55 198 U. S. 45.
56 Adkins v. Children's Hospital, 261 U. S. 525.
57 264 U. S. 292.
58 See above, note 56.
59 265 U. S. 371.
60 263 U. S. 282.
61 264 U. S. 370.
62 265 U. S. 254.
63 262 U. S. 522. See comment in this Review, vol. 18, p. 67.
64 264 U. S. 286.
65 See Hill v. Wallace 259 U. S. 44, as applying the same rule to an act of Congress.
66 Cudahy Packing Co. v. Parramore, 263 U. S. 418, involved the constitutionality of the application of the Utah Workmen's Compensation Act to industrial accidents occurring under somewhat unusual circumstances. Jones v. Union Guano Co., 264 U. S. 171 upheld the validity of a statutory provision that no action for damages for failure of crops could be brought against a seller of fertilizer until the state chemist had first analysed the fertilizer.
67 264 U. S. 79.
68 264 U. S. 140.
69 265 U. S. 403.
70 The validity of certain taxes imposed on public utility corporations is involved in Puget Sound Power & Light Co. v. King County, 264 U. S. 22, South eastern Express Co., v. Robertson, 264 U. S. 535, New York, Phila. & N. Teleg. Co. v. Dolan, 265 U. S. 96, Baker v. Druesdow, 263 U. S. 137.
71 264 U. S. 137.
72 Raley & Brothers v. Richardson, 264 U. S. 157, Butters v. Oakland, 263 U. S. 162, McGregor v. Hogan, 263 U. S. 234.
73 265 U. S. 298.
74 264 U. S. 150.
75 263 U. S. 545.
76 July 9, 1918, Chap. 143, 40 Stat. at L. 845.
77 263 U. S. 341.
78 4 Wheat. 316.
79 264 U. S. 472.
80 263 U. S. 125.
81 263 U. S. 444.
82 264 U. S. 29.
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