*1 Islands55; arid, with this modification, the judgments of Supreme Court of the Philippine Islands are affirmed.
Affirmed. took no part the consideration Me. Justice Caedozo or decision of these cases.
NEW STATE ICE CO. v. LIEBMANN. Argued February 19, No. 1932. Decided March 21, 1932. Dudley Guy John B. L. Andrews, Messrs. with H. Everest was on the whom Mr. J. brief, for appellant. *4 Nicholson, with whom George Mr. M. Messrs. Thomas Looney M. A. on the brief, Owen and were for ap- H. pellee. *8 delivered of opinion Justice Sutherland
Mr.
Court. engaged Ice business Company, State
The.New under a manufacturing, distributing ice selling duly Com- permit by Corporation license or issued Oklahoma, brought against mission of this suit Liebmann district the federal court the western district enjoin selling Oklahoma him from manufacturing, within distributing City ice Oklahoma without hav- first like ing obtained a license or from the commis- permit or permit required by sion. The license an act of the That legislature, Laws, Oklahoma Session c. manufacture, act declares sale and distribution business; a that no one shall be permitted ice is manufacture, sell or distribute within the state -first a license for having purpose without secured commission; shall engage from the that whoever such guilty without the license shall be obtaining $25, fine each misdemeanor, punishable by a not exceed offense, a day’s separate violation and that constituting the, commission, not to exceed order fine general $500 may imposed for each violation. 3 of act provides:
Section “ issue shall not Corporation Commission That manu- for the corporation firm or any person, license to them, ice, distribution of or facture, either sale State, except upon hearing said Com- within this had hearing, competent testimony which said mission at showing the for the presented necessity shall be proof them, ice, sale or either manufacture, distribution *9 If or desired. the facts community place the point, at for disclose that facilities hearing at said proved by of ice distribution some person, sale and manufacture, already firm licensed said commission or corporation are meet community place, or sufficient to at said point, Commis- therein, Corporation needs said public applicant deny [application] refuse and may sion authority, In license. addition to said the said for said right shall have the to take into considera- Commission qualifications responsibility, reliability, and ca- tion the firm or for corporation applying of the pacity person, already firm or corporation of the person, said-license and community, as to afford all rea- or place licensed said to facilities, conveniences and services the pub- sonable authority require have the to power lic shall to be afforded the public; pro- facilities and services such vided, prevent herein shall to nothing operate firm or any person, corporation engaged now licensing manufacture, ice, sale and distribution of or either in the town, State, or any city community -this them, shall and issued Com- granted license said whose firm corpora- of such or application person, mission fee.” tion and of license payment immediately in question section here portion forbids the commission to issue license which .that necessity any applicant except upon proof sought ice at the where it is place estab supply business, which authorizes a denial' of the lish licensed existing facilities are suf where application needs therein.” The district ficient meet the complaint equity, for want of the bill court dismissed sale of ice the manufacture and is a ground on subjected not be to the fore may which private (2d) appeals 42 F. 913. The court of regulation. going (2d) 52 F. affirmed. subject are that all businesses It must be conceded
. And that the business regulation. of some measure like ice, that of distributing selling manufacturing, *10 may the baker be or the butcher dairyman, grocer, in the interest of regulations subjected appropriate to here question but the doubted; cannot be health public to a use as public with charged the business so whether If this stated. restriction above particular justify power within the constitutional restriction be legislative license or per- it follows that the legislature, state to which franchise, a to constitutes mit, appellant, issued against one who will afford equity protection a court of obtaining business without on the same carry seeks to or to do so. Frost v. permit a license from the commission Commission, In 278 U. S. 519-521. that Corporation ais to be exer- privilege in the business view, engagement ,a not a common grant, and only public in virtue cised (id.) by any com- independently exercised right to be regulations to reasonable conformably petent person all choose to therein. engage to who equally applicable That case dealt' with case is relied on here. The Frost gin. a cotton It was conceded operating the business ,a interest, a public clothed with that this was business requiring showing public necessity a that the statute of a was valid. permit to the issue precedent as a condition which warranted concession there But the conditions wanting long recognized here. It been wholly are has similar serv- grain performing mills for the or grinding ,are subject to a use and for all comers devoted ices direct au- control, they operated by whether to public entirely individual initiative. upon of the state thority of the states had early majority adopted a very period At in in- authorizing taking flowage, acts general In for their erection vitum, of lands and maintenance. no acts, legislatures these the attention of'the passing mills; but some grist to doubt principally was directed inor their application, terms acts, precise either Amoskeag of mills. Head v. other kinds were to extended Edwards, v. 86 Me. 9, 16-19; State Mfg. Co., U. S. mills usually oper- Atl. were 102, 104-106; 29 this method of water but power, ated the use Ed- State v. has said not to be been essential. operation to wards, at 106. It was p. open proprietor supra, mill for his own a mill it as private grinding maintain to if the free from but legislative control; thus grain, and thereby to he general public assumed serve the proprietor mill to the it subjected dedicated his use and status. appropriate such control as was législative necessary the mills regarded In such cases were as so of the communities which served as they the existence them, fostering maintaining justify government limitations their for the operation imposing *11 of the public. Id. protection Cotton Oil County Co., In Co. v. Cotton Gin Chickasha judges three circuit the (2d) 846, passed upon con- F. stitutionality of Oklahoma cotton ginning Opin- the act. seriatim, all to the but for effect, ions were delivered gins that the of varying reasons, operating cotton a public was interest. One in Oklahoma clothed with of respect that rule in mills thought grist the of judges the analogy, ground similarity the of the on apply should whose open The rule that services are mills of service. a public are clothed with was for- to interest all comers the light, upon basis, and of mulated in the historical had the limitations otherwise survived that which usage, process the due clause of the Four- might imposed be the cotton gin While has no such Amendment. teenth and, ancient as background usage, opinion by Judge of the out, always there is Phillips danger being of our points over-much by relying analogies, led afield the anal- helpful not without here is significance. ogy Nash, Clark v. may we also consider In that connection Co., Mining Strickley Highland Boy v. 361, and S.U. of cognate question with the 527, which dealt 200 U. S. right of respect of which use what The involved exercised. cases may eminent domain be Utah, of declared: which of the State a statute irrigation soil, produc- and cultivation The of are vital ores, necessity reduction of to and tion in which all are Utah; of are pursuits the State people of benefit; and all derive a and the from which interested of waters of the unappropriated application use and water courses of the State to the natural streams force or to be energy employed of electrical generation utility. are pursuits great public benefit industrial land, mining, smelting irrigation milling, So ores, application such use other reduction generation for be power of electrical such waters for the hereby as aforesaid are declared employed use, right may and the of eminent domain be exer- 95, §. Utah, behalf thereof.” c. Laws of cised in In case, court, applying statute, this the Nash right way the condemnation across the sustained convey for a ditch lands of one owner water private irrigating the lands another purpose private The explicitly upon owner. decision was rested of conditions state. These con- peculiar existence legislative in the declaration epitomized ditions are above 369-370) its decision quoted. (pp. court said approving proposi- was not to be understood broad *12 might in cases tion be taken all private property that might the interest and taking the promote where but, the natural of the state, tend to resources develop “ that reference to the conditions there having appearing, of' the public one, although taking right is a the use way simply thereby obtaining is for the purpose individual, it necessary for absolutely water an where any use whatever enable him to make of his land, fertile if only valuable water which will be can be obtained.” Strickley
This followed case, where, was mining chief industries of the being one state its peculiarly important for the development public welfare, of a right way the condemnation for an aerial bucket lands, for private purpose across of transporting line in private ores from a-mine ownership, was upheld under the same statute. though not cases, strictly
These analogous, furnish for persuasive ground upholding declaration of the Oklahoma legislature respect public nature of state. The gins production cotton of cotton is the chief of the State industry Oklahoma, and is of such importance justify as to paramount the assertion that the general prosperity welfare and very large state a depend upon and real sense its maintenance. Cotton which ginning process must take place before the in a for the cotton is condition market. cotton gin relation to the cotton grower bears same that the old mill grist grower did to the wheat. The individual grower of the product raw is generally financially unable up plant himself; set but the service is a neces- sary one with which, ordinarily, he cannot afford to dis- He is pense. compelled, therefore, to resort for- such service to establishment which operates in his locality. So dependent, generally, is he upon the neighborhood cotton gin he faces the practical being danger of placed mercy at the the operator in respect of exorbi- tant charges and arbitrary control. The relation between of cotton, who constitute growers a very large propor- tion of the population, and those engaged in furnishing the service, is thus seen to abe peculiarly close one of an respect industry of vital concern to the general public. These considerations it not render unreasonable *13 “ has been to a the business devoted that conclude to in effect, granted the thereby, and its use use public Banton, 418, 434; Tyson & Bro. v. 273 U. S. public.” Court, 535, 538; 262 U. S. Industrial Co. v. Wolff et seq. 552, 563, S. case, same 267 U. discussed the particularity, have with some thus,
We is the of Oklahoma so far as State which, circumstances concerned, legislative the ground sustaining afford operating gins that the business of cotton pronouncement in con- use, a order to them charged public put is with unlike circumstances which completely trast with the manufacturing, selling attend the business dis-. dealing ordinary with an busi- tributing Here we áre ice. which the ness, industry not with paramount a large depends. state in measure the entire prosperity as nature the essentially private a business as its It is butcher, dairyman, the grocer, of the the the or baker, tailor, the each of whom shoemaker, per- extent, which, a or less greater forms a service having is community dependent upon interested no such maintained; pub- bears relation to but which category as its busi- lic to warrant inclusion.in quite use. It may true nesses with charged in Oklahoma ice is not an only that article of neces- prime certainly more sity, indispensable; but but not so than or clothing food shelter a home. And this court has definitely said or sale of food or production subjected legislative clothing regulation cannot be on use; the basis and that the same true respect renting apartments, the business houses and except temporary grave measures to over emer- tide Banton, & Tyson supra, Bro. v. gencies. 437-438, See pp. and cases cited. requires
It been has the manufacture of ice an said means of expensive plant beyond average citizen, thát since the use ice is indispensable, patronage by the consumer is unavoidable. The producer however, same might, be said of other articles respect beyond of a clearly the reach restriction like that here But, for moment ma- conceding under review. *14 statement, now teriality true, it is not whatever may know, have been the fact in the We it past. since knowledge, say is that today, nothing common to of other wherever means, electricity or available gas (and is one or the other in practically every is.available of the part country), anyone comparatively outlay for a moderate in his may have set kitchen an up appliance by means of may he manufacture ice for which himself. Under such hardly it will do to say circumstances that people gener- mercy manufacturer, are ally at the seller and dis- for ordinary Moreover, tributer needs. the prac- tendency restriction, tical of the trial sug- as the court is case, in the to shut out gested present new enterprises, and thus create and foster monopoly the hands of rather existing establishments, against, than in of, aid consuming interest of the public. which regulation a has the Plainly, effect of denying curtailing unreasonably right- the common or to engage in business, lawful private a such that under review, can- with upheld consistently be the Fourteenth not Amend- Under amendment, nothing ment. that is more clearly than that it beyond power settled state, under the guise protecting public, arbitrarily inter- [to] with private fere business or. prohibit lawful occupations or impose unreasonable unnecessary restrictions upon Baking Bryan, them.” Burns Co. v. 504, 513, U. S. cited; Liggett and authorities Co. v. Baldridge, 278 U. S. 105, 113. succinctly,
Stated a private corporation here seeks to prevent competitor from entering the business of mak- ing selling ice. It claims to be endowed with state authority to achieve this exclusion. There is question no' regulation by state to any protect us of now before either to conditions of consuming respect with purity prod- and distribution or. to insure manufacture here asserted extortion. The control uct or prevent to foster but tends to it. protect against monopoly, not does but encourage competition, prevent not to The aim is to persons but regulate business, preclude not it; in principle There is no difference engaging from it. under dairyman and the attempt this case between cows keeping another from prevent authority state enough there are ground milk that on the and selling or a shoemaker business; to*prevent in the from dairymen making already selling shoes because shoemakers all are make and sell the shoes can occupation anything peculiar are able to see needed. We not distinguishes from here which it question It ordinary production. said manufacture *15 the it the of business and not recent; but is character began is It not when it that determinative. is date enterprise or of an in monopoly, of natural a its case grant of dependent upon privileges. nature evidently before us was not particular requirement The of practical a imposed prevent monopoly business, to quite contrary. is Nor is-it tendency its to since n of natural resources. There protection is case can nothing product perceive in the that we on which to in respect attempted of this distinction, control, rest in common use products other which enter into from free subject, of to competition, course, regulations reasonable applied' prescribed protection impartiality. with appropriate plain
And that arbitrary it is unreasonable interfer- cannot be or restrictions saved from the ence condemna- merely by calling experi- Amendment them tion challenge to the authority mental. It not necessary is in indulge experimental legislation; to of the states but 280 strange
it unwarranted doctrine to hold that would do the limi they may so enactments which transcend imposed them federal upon tations Constitution. system is imbedded our principle constitutional are certain with liberty there essentials which the dispense not entitled the interest experi state this principle applied by ments. This has been court Dorchy Kansas, 264 U. S. many 286; cases. v. Wolff Court, 262 Industrial U. S. Co. v. U. S. 552; Sisters, 510; 268 U. S. Nixon v. Pierce Herndon, v. Ohio, 536; Tumey 273 U. 510; U. S. v. S. Manley v. Washington Roberge, U. S. Georgia, 1; v. 278 U. S. Chicago, P., Ry. &M. 116; Holmberg, St. Co. v. O. Stromberg California, 283 S. 359; U. S. v. U. Near v. Minnesota, 283 U. In. the S. case last .cited the experimentation not theory censorship permitted was with the fundamental doctrine of to interfere the-freedom The opportunity apply press. one’s labor and ordinary in an with occupation proper regard' skill for all regulations no less protection. entitled reasonable
Decree affirmed. part Cardozo took no in the Mr. Justice consideration or decision of this case. Brandéis, Justice dissenting.
Mr. 147 of the Chapter Oklahoma, Session Laws of declares that the manufacture ice for sale and distribu- “ a public ”; tion is confers Corporation Commission it the respect powers regulation cus- *16 ,and tomarily exercised over public utilities; -provides for specifically adequate securing service. The statute it engage makes a misdemeanor to in without business a from license the Commission; that directs license shall issue except not a pursuant prescribed written after application, a formal hearing upon adequate notice to be and to the community general served both to the competent evidence, a showing upon public, “ desired;” and it that the place provides at the necessity denied, other if may among grounds, application disclose that the for hearing facts at said facilities proved sale and distribution of some manufacture, by ice firm licensed said corporation already Com- person, community or are point, place mission at said sufficient to meet the needs therein.” license, a so the New granted,
Under
State Ice Company
been,
for some
has
is,
years
in the manu
engaged
facture,
distribution
sale and
at
City,
Oklahoma
1500,000.
and has invested
that business
While it was
without
engaged, Liebmann,
having
so
obtained or applied
license,
for a
purchased
land in
parcel
that
city
the construction
commenced
thereon of an ice
plant
purpose
entering
competition with
enjoin
To
him
plaintiff.
from
so
doing
this suit was
brought by the Ice Company. Compare Frost v. Corpora
Commission,
tion
First. The Oklahoma statute makes entry into the busi- of manufacturing ness ice for sale and distribution de- pendent, effect, upon a certificate of public convenience *17 necessity. Such a certificate was unknown to the law. It age, common is creature machine in are plants displaced which have tools businesses sub- of purpose requiring for trades. The it to pro- stituted mote interest Particu- preventing the waste. in which larly in those businesses interest and deprecia- charges large tion constitute a element in the plant on has fi- taught of the production, experience cost of duplication nancial burdens incident to unnecessary rates and likely bring high poor are service.1 facilities other dependent, among things, usually cost is There, of among possible patronage and division upon volume; of opera- raise unit cost may concerns so competing adequate it service impossible provide tion as make The introduction the United reasonable rates. at of convenience and neces- of States certificate certain growing conviction that under sity marked harmful to the might free competition circumstances freedom that, so, when it was absolute community and denied. of one’s choice should be the business to enter enactment of Oklahoma statute Long before requirement had become common challenged a like here lines of some business. cer- United States in the then for street railroads; first required -was tificate utilities whose operation other public then for railways; special some grant privilege.2 dependent “ 1 Society,” p. Sliebter, Modem Economic H. Compare Sumner “ Principles of Bigham, Public Utili and T. C. 326-328; Eliot Jones Competition Industry Ruinous,” Jones, 34 “Is p. 70; Eliot ties,” Economics, 473, 488. Quarterly Journal “ Necessity,” Convenience Hall, Certificates of P. Ford See Wihhoft, 276; Certificates Con-' Waldo O. Rev. Mich. L. Bar Journal Necessity Michigan,” Mich. State verbenee Encouragement Monopoly “Public 257; Hyneman, Charles S. Academy Pobtical Industries,” of American Utility Annals 1930, p. January, 24 Col. L. Rev. Science, and Social them forty-three states, most Hall lists statutes Professor Latterly, requirement has widely been extended com mon carriers motor vehicle which highways, use unlike which, railways but street and electric com light' dependent upon grant are not panies, any special *18 3 In Oklahoma the certificate was as privilege. required, for then 1915, gins as cotton business declared early —a and, one, ice,, of manufacturing a like the business public Laws, Sess. wholly upon private property. conducted Commission, 176, § 3. 1915, Corporation c. See Frost v. utilities, As 515, applied 278 U. 517. public. S. of the re under the Fourteenth Amendment
validity successfully has never been of the certificate quirement questioned. of manufac- the business Second. Oklahoma declared “ ” business; a public for sale and distribution ice
turing far So as it utility. appears, was is, public a by- course, legislature Of a cannot to do so.4 first State enacted, years, operas requiring a within the-last 20 certificate public Before the classes of utilities. advent tion of various necessity, similar flexible public convenience but less certificate of entry many public of utilities into business was exer over the control grant municipal through franchises, of state. Eliot cised or See “ Principles Utilities,” Public Bigham, C. of III. and T. c. Jones Transportation into federal law the was first introduced certificate pars. 1920, 91, 402, 18-20, 456, Compare 41 Stat. 477. Act, c. § “ Kennedy, Necessity The Certificate of Convenience and Thomas H. Transportation,” Air 1 Law Applied to Journal Air 76. “ 3 Rosenbaum, Regu Lilienthal and E. I. S. Motor See D. Carrier Necessity Convenience,” by Certificates of 36 Yale lation L. J. Carrier"Regulation: State, Municipal,” “Motor Federal, Compare Reg 954'. LaRue Scott, 26 Col. L. Rev. Brown N.S. Constitution,” ulation the Contract Motor Carrier 44 Under 530. Harv. L. Rev. passed Acts, a has Such law since been in Arkansas. Ark. No. 55. The court held that the measure violated the con .State State right as engage stitution insofar it sanctioned denial in the Cap. Co., F. Bourland Ice v. Franklin business. Co. Utilities (2d) provisions regulation 180 Ark. S. W. 993. The for the Amendment, under rates, attacked the Fourteenth were sustained. public into a mere fiat a business legislative convert Comm v. Railroad utility. Transportation Co. Producers pub But the a ission, conception U. S. T community lic he welfare of utility is not static.5 made ice be supplying the business may require that water supplying a business of as well public utility, If the commodity necessary or or service. any other a must be utility, it is, made, can a prerequisite a certificate the issue of to make possible engaging it. con justify are as to local conditions such Whether the one is matter business into a private verting state, legislature. determination for the primarily judicial review; but subject Its determination attends the enactment.6 validity usual presumption declaring manu the business of 414. Bills Louis L. Rev. See 15 St. *19 Kansas, utility Louisi have been introduced in facturing Refrigeration and Michigan, Texas. See 70 Ice & ana, New York, “Com 172, 239; 110; 216, 217; Hill, 76 H. P. 425; id. 74 id. id. 72 Industry,” Ice of the ibid. 80. Control mission 5“ any precedent matter of moment no can it a Neither is It busi precisely like this. is conceded that the found for'a statute origin, growth rapid,, that its been and that has ness is one of recent great importance. presents, therefore, It a case already of it ... a'long-known principle application for of well-established the meet science, simply extends law so as to and this statute the social Illinois, progress.” developmént of commercial Munn v. this new Utilities,” Hardman, P. 94 133. See Thomas “Public S. 113, U. Q. 37 L.Va. 250. W. 6 Young, Co., & Inc. O’Gorman v. Fire Ins. 282 U. 251. S. Hartford “ validity Every possible presumption statute, is in favor of the of a contrary beyond the this continues until is shown and' a rational government branch of the can not upon doubt. One encroach the danger. safety of The domain without of our another institutions depends, degree on a strict salutary no observance of small this Sinking-Fund 700, Cases, Legal rule.” 99 also U. S. 718. See Ten Cases, 457, Cases, der Trade-Mark 82, Wall. 100 U. S. 96. “ Thayer, Origin Scope See James B. The of the American Doc 142, Law,” trine of Constitutional 7 Harv. L. Rev. must clearly The action the State be held valid unless “ - arbitrary, unreasonable. capricious legislature or familiar being is, with local primarily, conditions the judge necessity the enactments. such The mere fact may that a court legislature differ with its views hold policy, judges may or that views inconsistent with the no propriety legislation question, affords Ar- judicial McLean ground interference, for . . .” v. are kansas, grievances U. S. 547. Whether the foolish, real or are fancied, whether the remedies wise may are not which the concern matters about Court Our statute present duty pass. upon itself.7 us, before if it has been enacted belief their evils that measure ex- arbitrary is not we cannot estimate of Tanner against legislature.” tent v. Little, A legisla- U. S. decision that arbitrary, unrea- capricious ture’s belief of evils was enquiry into facts may sonable not be made without it with reference which acted. the statute —not an order challenges Liebmann
Third. If he for applied had Commission. Corporation of the one, we should have been and been a license denied introduced before obliged enquire whether evidence 7 " whether is based on unwise, the enactment is wise or it Whether is the best achieve the theory, sound whether it means to economic legislative short, result, whether, discretion within desired its particular exercised in prescribed manner, limits should be are .a legislature, judgment and the earnest matters conflict opinion bring them range does not suffice to within the serious Q. judicial cognizance.” Chicago, McGuire, B. & Co. v. R. 219 U. S. 549, 569. *20 policy judicial of áre not determination, submitted to
“Questions general authority and the courts have supervision no over the exercise of system which under our reposed discretion is in people the departments government.” or other Frazier, Green v. 253 U. S. 233, 240. Price v. Illinois, also 451, See Rast v. 446, 238 U. S. Co., Van Deman & Lewis 342, 357; S.U. Merrick v. N. W. Halsey Co., & 586, 587. U. S. to justified refusing it in. permission the Commission Oklahoma As plant City. an ice in establish additional our itself, not the statute challenges he but apply did entirely is of an different nature. Liebmann enquiry his the claim that the Federal upon Tests defense broad enter' business him to the gives right Constitution the doing ice for even if his so found manufacturing sale be constituted, authority the to inconsistent properly He the with the welfare. claims whatever that, the Com- may demand, local to confer upon conditions right unreasonable, an arbi- mission to that power deny his trary liberty. restraint capricious to determine primarily The function Court in Oklahoma are such that the whether conditions the the reasonably (1) that legislature could not conclude required. the manufacture of ice treating welfare “public business”; for sale distribution as a some (2) that in order to ensure to inhabitants rates of ice at adequate supply communities an reasonable to exclude give power to Commission necessary it was ice places of an additional plant the establishment well Unless already served. community where was the Federal Constitution confers say the Coürt can engage anywhere an absolute right it cannot decide properly manufacturing sale, first ascertain- unreasonably acted without legislators respect of Oklahoma experience what was ing appear, part, relevant facts the ice business. knowledge matters of common Others are record. Muller v. Compare ice business. those with the familiar the. actual They U. show Oregon, S. conditions, on acted. beliefs, legislators which the In considering not, these matters do a strict we sensei- judicial take notice of' embodying statements them only uncontrovertible facts. Our function is deter- in the legislature’s mine reasonableness of belief remedy existence" of the effectiveness evils and in
287 In this function no performing provided. we have whether all the occasion to consider statements of fact may the-prevailing which be belief are well- basis weigh course, no have, we to founded; right conflicting evidence. In Oklahoma a
(A) regular supply may reason ice life, a necessary be considered to that ably comparable gas electricity. water, height The which climate, the need of ice for living, comfortable wholesome ens precludes resort the natural product.8 as else There, of the where, development manufactured ice industry years in recent been attended deep-seated altera has. tions in the economic structure in changes radical popular thought habits of and living. Ice has come household, aas regarded necessity, indispensable to the of' food and preservation, so to household economical management and the maintenance of health.10. Its.crm temperature May Sep The mean normal in the State from Climatological Data, degrees. tember 76.4 United States Weathef 13, p. xxxix, Í93, vol. No. The mean Bureau, tempera 53. normal January, month, ture in the coldest degrees; December,' is 38.3 degrees. appears, 39.2 . far as no Ibid. So natural ice is harvested Guy for purposes. commercial L.-Andrews, State See “State Regulation Industry Refrigerating of Ice Sept- World, Oklahoma/’ 1928, p. industry importance first assumed commercial in the United 9 The Refrigeration See States about 1880. Ice and (10th, Blue ed.), Book pp. Reports of the Bureau of 12-18. the Census indicate .in only 1869 there were four producing establishments ice; artificial 1879, 35;' in. 775. See Thorp, Willard L. Integration Operation/’--United “The of Industrial Census .States Monographs, III, 1924, pp. 49, 50.- In the Census of Manu 4,110 making shows factures establishments product ice their as Refrigeration of chief value. Ice and 1927, p. 30,- Blue Book for the', 7,338 plants actually producing lists sale. estimates It for. production year total 52,202,160 against at tons, 4,294,439 tons, reported by Bureau of the Census for 1899. ~7 Conjmittee Report See on Equipment Fundamentar submitted the President’s on Home and Home Building Conference Owner- they communities, In urban are extensive. uses mercial manu total of ice proportion amount large absorb storage and dis transportation, for sale.11 The factured - great part supply nation’s food tribution *22 continuous, dependable supply a and dependent upon from record that in certain Of appears parts ice.12 It in large dairy products a trade other has Oklahoma ship, 3, 1931, p. 107; Wolcott, December Elsie P. and Cost “Use Children,” published by Department Ice in Families with City Chicago. ice, seasons, of the Lack of in hot Public Welfare danger compels pur in constant waste and to health. It results quantities higher prices. The chase of food in small at intimate long preservation health, mortality, infant has relation of food recognized. Ordinary perishable foodstuffs, generally it is con been temperatures sidered, safely kept in excess of from 45 cannot be at degrees. Report Equipment, 50 of Committee on Fundamental supra, p. 110. Sanders, Application Refrigeration See Walter R. Industrial States,” Proceedings in United Fourth International Con London, 1924, p. gress Refrigeration, 967. that It was testified cent, City April, 1930, per in' Oklahoma in 46.4 of the sales of ice cent, per trade, trade, were to the retail 37.12 to the commercial cent, per-cent, per icing, trade, 13.81 wholesale 2.92 for car shipments city. the remainder for In carload out of the products loaded in there were Oklahoma' 1676 cars of food under refrigeration; cars; in and in 3347. The Ice and Refrigeration (10th ed.), pp. 22, 23, Blue Book lists 198 industries using refrigeration. great impracticable In a number of these it is private plant. a install ice refrigeration, perishable 12 Were it the market for food not.
stuffs, seasons, in warm would be in limited area to a few miles and days, part A time to few or even hours. considerable of this in refrigeration supplied by manufacturing is concerns ice for sale. commonly supply car-icing. concerns ice "used in Mechanical Such refrigeration beyond many the means of small retail dealers. More over, decay food, begun, since once cannot subse be arrested refrigeration, substitute, ice, on the quent often essential D.-Greenlee, Pennington Refrigera M. E. and A. farm. See “The Poultry Department Transit,” of Dressed Bulletin tion No. U. S. Agriculture, p. up rulings built as a result of been of the Corporation under the of 1925, compelling Commission Act licensed agricultural to serve manufacturers communities;13 and if destroyed this trade would be the supply of ice. say were withdrawn.14 cannot that the legislature of .We Oklahoma acted arbitrarily declaring ice is an n article of primary necessity, industry agriculture as household, partaking well in the the fundamental of electricity, gas, water, transportation character and' communication. can the take properly judicial
Nor Court notice that, ice,for Oklahoma, manufacturing means of private use are within reach of all persons who are dependent it has In Certainly it. not been so. 1925 domestic refrigeration mechanical had scarcely emerged from the experimental stage.15 Since that time, production manufactured, and consumption of for sale, far from *23 13 cent, per More than 80 the milk and cream of sold from farms in produced the United States is in sections where natural ice can be " Department harvested. See U. S. of Agriculture, Cooling Milk and Farm,” Cream on the 976, p. Farmers' Bulletin No.' dairy 1. The industry in Oklahoma, however, wholly dependent upon artificial ice, Refrigeration or its substitutes. indispensable on the farm is marketing dairy safe of products, any at season when thetemper degrees. exceeds ature 50 See John T. Application, Bowen, The of Refrigeration to Handling Milk," Bulletin 98, Depart No. U. S. Agriculture, pp. 2, ment of seq. 65 et power 14 The compel the Commission to this service, of course, depends upon the status of the ice business as a utility. The evidence shows that the distribution of ice in rural communities not possessing plants themselves ice has developed wholly almost since such, passage of the Act of 1925. There testimony was that dis impracticable tribution would be protection without the by afforded the Act. 15 refrigerators The total number of household country in the entire manufactured sold before was approximately 10,000. In 1924, production 30,000; the annual 1925, reached 75,000. Elec 1932, Refrigerating News, February trical 17, In increased.16 Oklahoma steadily has
diminishing, article of refrigerator is still an household mechanical the protection essential to luxury.17 Legislation relative not no means is invalidated of limited or individuals financially individuals are circumstance that other com- The of power businesses protect themselves.. able railway, steam common street and of carriers panies fall within the field of motor vehicle railroad or modest although relatively possible, it is control, power plants, purchase individual install outlay, to Industries testi Secretary Association Ice of the National The years had the. last eleven increased fied that ice for the cent, average per year; per capita in 1919 the of 5.35 each that an consumption great pounds; pounds. of ice was 712 A 1929, consumption Oklahoma, deal of the of ice in increase in another wit testified, among ness inwas rural communities urban dwellers poorer classes. 17 The number of domestic meters electric installed in Oklahoma as August 31, 1930, only according was 222,237, to a tabulation of the Foreign Bureau of and Domestic The population Commerce. 2,396,000. in 1930 Census, State was I, p. Fifteenth vol. 18. It 965,000 refrigerators estimated household 1931, were sold in only 10,146 were which sold in Refrigerating Oklahoma. Electrical February 24, News, Approximately 3,578,000 refrigera 1932. such Id., throughout tors are in use country. now February figures may From these it refriger be calculated that the number in use 35,000 40,000. ators in Oklahoma is between average refrigerator of a household (cid:127)cost electric in 1925 $425; was Refrigerating February $245. News, Electrical price 1932. The of ice for use in domestic Oklahoma’ varies from 40 to 70 cents the hundredweight. New use families as much as three or four tons of year.. in a facts, In view of these this scarcely Court can have knowledge judicial in Oklahoma all families or businesses which *24 purchase purchase ice able to are able are a refriger mechanical Report ator. See Committee on Fundamental Equipment, sub mitted to the President’s on Home Building Conference and Home Ownership, pp. Ill, 128-129. This Committee impossible found it ordinary to recommend even an refrigerator, using ice, families for and-suggested low design income, and marketing specially of a constructed ice-chest. goods. or carriage passengers private for vehicles motor securing means of in Oklahoma whether question The manufactured sale than ice otherwise refrigeration destroy popu- toas general so has become distribution and appropri- peculiarly is one plants ice dependence lar peculiarly and legislature its determination ate for Court, which can- this for determination inappropriate facts. , all the relevant knowledge of have not necessity, not only ice is of supplying The business clothing shelter, or but food or supplying that of like it is one which lends also consider could legislature monopoly.18 Characteristically peculiarly itself in local with market nar- plants is conducted for the area,19 and this reason that limited ice rowly noteworthy industry the ice has It is the characteristic of common uniformity product or service to most utilities, distinguishing it from businesses in which quality other differences in regulation. style make difficult effective S. See Howard Patterson “ Economic Scholz, Life,” (2d Karl W. H. Problems of Modem 1931), p. 426. ed. tendency industry
The to be conducted utility as a widespread entry years is reflected in into it recent of electrical, utilities, companies gas, and water and the like. Such in Oklahoma operate plants. more than one-third of the ice Refriger- See Ice and (10th ed.), pp. Book Compare Light ation Blue 1268-88. Oklahoma Corporation Commission, & Power Co. v. 96 Okla. Pac. 54. engaged extensively
Municipalities have in the business of manu- facturing selling foreign countries, ice in and to a lesser extent in occasions, departments On several the United States. of the Federal Government, regarded unable secure at what were as reason- prices, plants. have installed able their own ice Both in Philip- pine plants Islands Panama operated have been which sell government employees. ice to Thompson, See Carl D. “Public Ownership,” pp. 301-305; Wentworth, Jeanie Wells Report “A on Municipal Plants,” and Government Ice submitted to Borough Manhattan, President of December Thorp, Integration Willard L. See of Industrial Operation,” Monographs, III, 1924, United States Census pp. 49, 50. Neither ownership production consolidation of increase nor has had the *25 292 compete effectively
manufactured at distance cannot a with In a and rural plant ground.20 on small towns communities21 duplication plants, larger and in duplication communities the of delivery service,22 is waste- ful and ultimately burdensome to same consumers. At the time the relative cheapness ease with which an ice and plant may exposes be constructed the industry to destruc- and frequently tive competition. in Competition ruinous (cid:127) tends to industry destructive because ice plants have a determinate capacity, charges and inflexibledixed costs, in operating because a' market of limited the volume sales not Thus, area readily expanded. erection of a new plant in locality already adequately served often causes to to managers go extremes in cutting in order secure business. prices Trade journals meetings of association of ice reports manufacturers bear hostility to the witness ample industry to such corn- greatly increasing plants the size of effect in the ice business. only twenty in 1927' were plants Thus in Oklahoma there manufactur- ihgáice capacity exceeding for sale which had a day, 200 tons a eight City Refrigera- were in Oklahoma and Tulsa. Ice and Which (10th ed.), pp. Blue tion. Book 1268-1288. 20 given were testimony reasons in the Several this localization Freight high óf the ice on proportion business. rates ice are charges Handling put storage value. are doubled if the icé is in cold point consignment; and, kept if car, at in the ice loses weight quality period during and deteriorates of a week community. more carload before a will be exhausted in small Shrinkage weather, of course varies with the but at all times considerable. 21 predominantly population. a state Only Oklahoma is of rural 2,500. of its inhabitants live in towns or cities of more than 34.3% States, I, p. only Fifteenth Census has United vol. It 25,000; 10,000 12 from 25,000; four cities over cities cities 2,500 10,000. incorporated places from There are of less Ibid., pp. 2,500. than 895-98. May, 1928, Editorials, Refrigerating World, p. 5, June See ."Atlanta,” id., Reed, Delivery p. 6; Ice J. H. “Consolidate May, 1928, p. 15. through its as- unremitting efforts, and to trade
petition, of delivery- informal combination sociations, agreements, particular through consolidation systems, and against competition markets and plants, prices to protect *26 any character.23 in forces Oklahoma operative prior That these were review, from the Act under passage apparent in or Thus, it testified that six seven only record. was in the in the not containing, aggregate, localities State more than the total 235,000 population approxi “ there mately 2,000,000, was a semblance of competi in that even those localities the ”;24 prices tion ordinarily uniform. The balance of the popula ice were by was, is, companies enjoying still com tion served Illinois, Munn v. 94 Compare U. S. plete monopoly. Cases, Fund 700, 99 132; Sinking 131, 747; U. S. 113, Illinois, 118 Wabash, L. & P. Ry. St. Co. v. 557, 569; S. U. Schottler, 110 Works v. Valley Water U. Spring 347, S. York, 143 U. New Co. v. 354; Budd v. 545; S. Wolff Court, 522, 528. 262 U. S. Where there was Industrial disadvantage often resulted rather competition, it to. “ 23 g., Nickerson, Industry,” Consolidations Ice e. John See 70 id. 334; ; 69 id. 223 ; 357 72 id. ibid. Refrigeration 333, 39; Ice & 73 “ Mergers Recent on Hill, The Effect of the Ice P. In 282; Halbert Refrigerating World, February, pp. 15, 42; dustry,” W. F. “ Manufacturer,” Holds for the Ice Stevens, the Future 76 Ice What Foushee, The Ice Refrigeration 81, L. Business as a W. Public & v. Ada Tipton Ice ibid. Utility,” Co., See & Fuel 2d & 3d Ann. Corp. Comm. p. 358. Rep. Okla. 24 Refrigeration Blue for Book 1927 shows that The Ice and of 142 containing manufacturing plants sale, ice ice'for least at communities single plant plants or either several were served com seq. 1268-1288, et pp. ownership. See There mon is evidence practice it common for manufacturing was the record that estab ownership, different jointly-owned to make use lishments of a plants delivery company. -engaged Out -of listed as in manufac turing sale, corporations ice 101 were owned by owning or con trolling plants other within without the State. Ibid.
than the advantage of the public, both in respect prices and to service. Some communities were without alto- and the State gether, was without of assuring means their supply. There is abundant evidence of widespread dis-\ satisfaction with ice service to the prior Act of 1925,25 and of improvement material the situation subse- . quently. It is stipulated in the that the record ice indus- try as a whole acquiesced Oklahoma has and ac- cepted the Act status which it creates.
(B) The statute under review rests not
only upon
just
facts
detailed but
long
period
experience
in more
regulation
limited
dating
year
back
the first
of Oklahoma’s
For 17 years
statehood.
prior to the pas
sage of the Act of
Corporation Commission
§
under
13 of the
of.
10, 1908,
Act
June
had exercised
jurisdiction
rates,
practices
service of ice
oyer
plants,
its action in
case,
each
however, being predicated
*27
finding that
the company complained
enjoyed
of
a “virtual monopoly”
ice
in
the
business
the com
munity
jurisdiction
which it served.26 The
exer-
thus
in
passage
For accounts of
situation
Oklahoma before the-
the
“
Guy
Regulation
Andrews,
the
L.
of the
bill, see
Ice Business in Okla
“
Refrigeration
Regulation
homa,”
75 Ice &
State
of the lee In
ibid.,.437.
complaints
dustry,”
year 1924,
against
In the
375 formal
companies
ice
said
have been filed with the
are
to
Commission.
Laws, 1907-1908,
any
c. 83: “Section 13. Whenever
26 Okla. Sess.
by
nature,
or the
of a
reason of its
extent
existence
virtual
business,
monopoly therein,
public
same,
must use the
such
or its
by
services,
given
offered,
or the consideration
it
or taken- or
or the
bought
by purchase
or sold therein are offered
commodities
or taken
public
or
in
manner
to make
consequence,
sale
such a
as
it of
or to
large
community
supply,
affect the
to
price
at
as
demand or
or rate
thereof, or said business is conducted in violation of the
section
first
this.Aot,
business,
subject
said business is
and
to be con
by
by
Corporation
trolled
State,
by
Commission or
an action
any
State,
district court of the
as to
practices, prices,
all of its
rates
charges.
hereby
And
and
it is
duty
any
declared
be the
per
son,
corporation engaged
firm or
any
business to render its
Court of
State
Supreme.
upheld by
cised was
Corporation
&
Commis-
Power Co. v.
Light
Oklahoma
24:
said,
p.
The court
at
sion,
By communi- charged particular prices approved to be sold without discrimination28 required ties;27 either, upon terms commodities, reasonable its and offer services public, adequately the needs of the discrimination without of said business.5’ considering facilities Storage Rep. v. Mangum Co., & Cold 2d & Ann. Ice 3d Powers ibid., v. Ada Ice & Fuel p. 354; Tipton Co., p. Comm., Corp. Okla. ibid., Hill, ibid., v. 361; Worley v. Sass, p. p. 390; 358; Scanlon Light Co., Tishomingo Rep., Gillian v. & Power 4th Ann. Electric & v. Southern Co., Ice Utilities 13th Ann. Wadlington Rep., p. 103; Investigation Prices, Practices, Rates 235; General p. In re Co., Ice 15th Ann. In re Charges Rép., New p. State *28 Prices, Charges Investigation Practices, Rates and General Co., ibid., 177; v. p. McCartney & Ice Cream Steffens-Bretch Ice Co., ibid., 210; investigation p. the Matter of Kingfisher In Ice Oklahoma, by Guthrie, the Rummeli-Braun charged prices for ice at Co., ibid., p. 212. Storage Co., & 3d Ann. Tishomingo & Cold 2d Brenan v. Ice v. Tipton Co., Fuel Comm., 353; Ada & Rep. Corp. p. Ice Okla. to be as extent equitably possible distributed to the capacity plant;29 forbade short weights ordered scales to be carried on delivery wagons and ice weighed request;30 customer’s and under took to sanitary practices in compel manufacture ice31 courteous of patrons.32 service Many these regulations, than fixing other those prices, were embodied in a order to all ice general companies, issued July 15, 1921, are still in effect.33 Informally, the Commis- ibid., ibid., p. 361; p. 358; Sass, Scanlon v. 472, Order No. 4th Ann. v. & Rep., p. 40; Nunnery Mangum ibid., p. Storage Ice Cold Co., 63; Rep., 7; No. 650, ibid., p. 8; p. Order 6th Ann. Order No. 708, ibid., p. 10; Garner v. Order No. Co., Ice Rep., Tulsa 10th Ann. p. 336; Ratner v. Imperial Co., Ice 11th v. Rep., p. 205; Ann. Norton Co., p. 227; Ice 12th Vance v. Rep., Chandler Ann.. Tahlequah Light Co, Rep., p. & Power 13th Ann. 194. complaint In most instances of insufficient ice the Commission only equitable undertook to secure distribution of the available supply; gave and the terms greater of- statute it no authority. g., See, Mangum Powers v. Storage e. Ice & Cold 2d Co., 3d& Ann. Rep. p. 354; Corp. Comm., v. Geary Okla. Gardiner Light & Ice ibid., p. compare Co., 403. But v. Imperial Ratner Co., Ice 11th Rep., p. Ann. v. 205; Tipton Ada Co., Ice & Fuel 2d & 3d Ann. Rep., p. 358. no occasion, On before did the Commission undertake extend service to communities not theretofore supplied.
30 Brenan v. Ice & Cold Tishomingo Storage Co., 2d & 3d Arm. v. Mangum Rep. Corp. p. Comm., 353; Okla. Powers Ice & Cold Storage Co., ibid., p. 354; Tipton v. Ada Ice & Fuel Co., ibid., p. Sass, ibid., p. 361; Worley 358; Scanlon v. Hull, ibid., v. p. 390; Ralston v. Hobart Bottling Co., Ice & p. 4th Ann. Rep., 110; In Proposed Matter No. Order 6th id., Rep., p. 219, Ann. 7th p. 266; Langan v. McCoy 8th & 9th Bros., p. Rep., Ann. Ratner v. Imperial Co., Ice 11th Rep., p. 205; Ann. Norton v. Co., Chandler Ice Rep., p. 227; 12th Ann. Vance v. Tahlequah Light Co., & Rep., p. Power 13th Ann. 194. Geary Light Co., Gardiner v. & Rep. Ice 2d & 3d Ann. Okla. Corp. Comm., p. 403. v.
32 Worley Hull, Rep. 2d & Ann. Corp. 3d Okla. Comm., p. 390. 1906, 15th Rep. Corp. Comm., 33 OrderNo. Ann. p. Okla.
297 greater volume of adjusted complaints a much sion from the record It appears nature.34 similar one of each week day the Act 1925 years prior some complaints to hear rel by reserved the Commission was to the ice business. ative report in its annual as the Commission early 1911,
As legislation recommended more clear- the had Governor, its this field: delineating powers ly passed be a law putting regulation There should jurisdiction of the under Commission. plants of ice assuming this jurisdiction is now under The Commission known as by Legislature the anti-trust passed an Act upon subject would obviate specific any A law this law. jurisdiction.” question was times in terms repeated, several This recommendation the extent and character public complaint revealing companies.36 ice practices against Rep. Corp. Comm., p. 8th 9th Okla. 1. & Ann. 34 See Comm., Rep. Corp. p. & Ann. Oída. 2d 3d Eighth Report, 20, Annual and Ninth dated November In its legislation 5, scope pertaining said: “The p. 1916, the Commission public generally should be which serve broadened. to those utilities plants compresses. and cotton conspicuous examples are ice Two jurisdiction Laws, 1915, extends of the Cor Chapter Session water, heat, light, power .companies, poration over Commission complaints plants. Numerous are received but not include ice does year practices as to of ice Commission each extortionate jurisdiction charged. prices The same companies and exorbitant plants Corporation over ice as it given Commission should companies.” water gas, electric and exercises over p. xxii, it Report, Annual October was In its Eleventh distributing manufacturing business of as said: “The rendering matter of concern much a regu- subject water, gas should be to the same electric or service and being Commission Complaints continuously made are lation. companies, or service prices ice, practices of ice in reference frequently been companies, rendered such and the Commission lias jurisdiction Anti-Trust under the so-called called to exercise legislation to these Specific Laws. should be enacted reference The enactment of the Ice Act 1925 enlarged so-called in. the existing jurisdiction Commission Corporation by removing the requirement of a finding of virtual in each monopoly particular case, compare Budd v. New *30 York, U. 517, S. 545, Stoeser, with Brass v. 153 U. S. 403; by conferring 391, 402, the same authority to compel in service as the case of adequate other public utilities; committing to the by and Commission the function of equivalent to issuing licenses certificate public con- necessity. venience With the of the exception grant- and denying such and the ing licenses exertion of wider regulatory the service, activity control over Com- in respect changed in to ice has not plants mission charac- have appears ter 1925. It to since diminished somewhat in volume.37 regulation power should madé definite and
companies and the be certain:” 18, 1919, Report, p. Again, the Twelfth Annual November 1: against prac- During past complaints numerous summer season the utilities have arisen from at least hundred
tices and rates of ice jurisdiction throughout should the The same towns and cities State. plants as it given Corporation exercises be Commission over companies.” electric, gas, over and water 33, supra note continuing 1906, Order Besides in effect No'. particularly general pertaining Commission has issued further orders Rep. accounting practices. 3843, Corp. to Okla. No. 20th Ann. Order Ip p. prescribed following cases it has rates: Comm., In re Application Co., p. 601; Rep., Marietta Ice Water 22d Ann. & In Application Charged re for in Ice Rates the Sallisaw Reduction ibid., p. Co., 816; Charged by Ice In Reduction of Rates re Con p. Co., ibid., 859; Application sumers Light Ice In re of Southwestern Co., Rep. p. & Power 23d In Application Ann. re of the Ward Ice Rates, Industries for Reduction Ice p. 757. In In re ibid., Application of the Shawnee Co. Ice for capacity increase of in its plant, 22d Ann. Rep., applicant p. was allowed to withdraw application, its intervening application of E. A. Liebemann plant to erect a.new was In denied. Burbank City Ice Co. Kaw Co., Ice & Rep., Power 23d p, Ann. permit defendant's In 1916, the. Commission urged, its report to Governor, that all public jurisdiction utilities under its required to secure from the Commission “what known as a ‘certificate of.public convenience and neces- ’ sity duplication before the of facilities.” “ This would prevent ruinous competition resulting driving out of business of small though' competent utilities more public powerful service corporations, consequent service, requir- often demoralization of or the ing of the in a patronize community two utilities adequate.” where one would be convenience to that a certificate of
Up time applied had been the business necessity engage 176, § c. 3: only gins. Laws, cotton Okla. Sess. was declared In 1917 a certificate from Commission or tele- of new telephone construction prerequisite to the the operation In was required 1923 it graph lines.39 *31 Ice in the 1925, year In the which of motor carriers.40 also to extended was requirement passed, Act was the pro- companies water electric or heat, light, gas, power, showing that upon a Shidler was revoked distribute ice in the town of plaintiff’s the only and that months during summer the it distributed meet adequate to throughout year, was plant operated the local was could not be maintained in the face needs, and local defendant’s ibid., Co., Application New Ice competition. In re of State See also formal orders of the Commission have been issued p. 748. Other opinion. without 38 Rep. Corp. Comm., pp. 5, 6. 8th & 9th Ann. Okla. 39 Laws, 1917, c. 270. Okla. Sess. 40 113, Laws, c. 4. This Okla. Sess. statute was held valid § against objections under both the Federal State Constitutions parte Tindall, 192; Ex 229 Walker, Barbour v. 102 Okla. Pac. ; Chicago, Ry. 126 Okla. 229 259 R. I. & P. Pac. See also State, 190; Chicago, Co. 849; v. 252 Ry. 123 Okla. Pac. R. I. & P. Co. State, 48; v. 126 258 Okla. Pac. 874. As to certificates public necessity operation convenience and for the of a gin, cotton see 4 . State, Hohman v. Okla. Pac. 51 already possessing any locality
posing to do business utility.41 one such that it these facts light
Fourth. Can it said discretion legislative not an exercise appropriate was to enter deny a license Commission to authorize for another plant necessity in localities where business for the evil remedy some not exist? The need of did had existed, competition destructive where competition, did not competition been and was felt. Where widely been proven. had exist, propriety public regulation all. The with ice at Many supplied communities not were hastily. was not enacted particular remedy adopted state policy long-established statute was based a upon business, of the ice recognizing the public importance experience administrative years’ legislative and regulation advisability treating in the of it. The to it the utility applying public necessity certificate of convenience and been under had many legislation consideration for Similar had been years. under similar circumstances enacted Oklahoma with to other services. The bore a sub- respect measure stantial relation to the evils found to exist. Under these circumstances, unreasonable, to hold Act void as being func- would, my opinion involve the exercise not of the of judicial tion but the function review, super-legis- lature. If down, the Act is to be stricken it must be on ground the Federal Constitution guarantees individual right business, the absolute to enter the ice right may however detrimental exercise be to o(f Such,' indeed, welfare. to be the appears contention made. *32 41 Laws, 1925, 102, 5, entry c. into Okla. Sess. 6. Control over §§ businesses, power plants, like, and water
these and the had thereto (cid:127) requirement fore been exercised of a franchise from the See Pawhuska v. Pawhuska Oil & Gas municipality to be served. Co., Fairfax, 563, 568; 353; 28 Okla. 115 Pac. v. 115 Okla. Huffaker 73; 242 Const., IX, 2, 254. Cf. Okla. XVIII, Pac. art. art. 5. § § claim, The is that manufacturing ice for sale Fifth. and distribution inherently private, is a business and, effect, no state of facts can of justify right denial engage supply water, it. To one’s self elec with tricity, gas, article, ice or other any inherently is a matter of also private may concern. So be the business of sup the same plying compensation. articles others for But the business of supplying others, compensation, any or a may article service whatsoever become matter of is, concern. or public not, depends upon Whether it conditions If existing community affected.42 it is a concern, of it may matter be regulated, whatever business. concern a public’s may limited to feature of single business, so the needed protec tion can be aby relatively degree secured slight regu lation. Such is concern possible over incompetence, which licensing dictates the Dent dentists, v. West Vir Noble, 129 U. ginia, 114, 122; Douglas S. v. 165, U. S. or the possible concern over which dishonesty, led to or licensing auctioneers Baccus hawkers, v. Louisi U. 338. On the ana, hand, S. the public’s other about particular concern a be so pervasive business may varied require as to constant supervision detailed very high degree regulation. true, Where this is it is “ ” common to business speak being as although one, privately it- owned. It is to such busi “ ” that the designation public utility nesses is commonly they applied; spoken.of are with affected a public interest.” Alliance Lewis, German Ins. Co. v. 233 U. S. 408. regulation
A for one valid kind may, course, be invalid for another; since the reasonableness'
“42 Plainly may change circumstances so in time or so differ in [public] an space as to clothe with such what interest at other times places purely, private be a matter other would or in concern.” Hirsh, Block v. S. U. *33 of is the relevant facts. every regulation dependent upon no regulate, But so far to there is power as concerns the called essence, private a business difference between “ and one a or said to be affected public utility called nature of the with a interest.” Whatever the busi- public ness, of the regulation the or character whatever scope invoked the same. power the source applied, upon the limitation And likewise constitutional n The power. limitation police The source the power. clause, construed, which, process the due is that set unreasonable, not regulation shall be requires- that of regulation and that the means capricious; arbitrary to or substantial relation have real shall selected distinct, The notion of a to obtained. sought object “ interest,” affected with public business category “ use,” to a rests upon devoted public employing property consequences sought which it is to error. historical meaning are belied phrases those from draw ago,43and by first used centuries the de- they were which Illinois, Munn v. 94 U. S. Court, this cision into the law of the Constitu- introduced them first which the true is that principle In my opinion, tion.44 “ Hargrave, Sea,” Ports of Treatise on the In Hale’s Lord “ speaking particulars, Lord was Tracts,” pp. 77-78. Hale Law generalize purport ports; and did not and cranes in (cid:127)wharves persons at circum obligation all reasonable rates other to serve “ McAllister, Lord Hale and Business Affected See Breck P. stances. speaking of Interest,” 43 Harv. L. 759. He was Public Rev. With a upon legis arising law, common and not limitations at duties Cqn McClain, Jr., A. “The See power lative of Parliament. J. Concept,” L. He Interest 15 Minn. Rev. 546. of the Public venience England for in speaking limitations, been such not could have regulate prices accustomed they exist; and Parliament was did not injra. kinds. of commodities of all See note p. Waite, opinion, generally, wrote the said Chief Justice who Property when does become clothed with a interest consequence, and affect used in a manner make it every regulation any extends power State’s for the appropriate public pro- required reasonably no other in the due clause limi- process I find tection. or the scope regulation character tation *34 permissible. urged specifically manufacturing that It is
Sixth.
calling;
a common
that
and- distribution is
for sale
in
is
of the
engage
calling
a common
one
right
to
the
process
due
guaranteed
fundamental
liberties
ice-manufacturing
of the
business as
To think
clause.
origin
is
in
calling
difficult;
is
so recent
it
a common
in
Moreover,
character.
the Constitution does
peculiar
so
calling which has been common
require
every
not
liberty
engage
The
to
ever remain so.
common
shall
be
liberties, may
like other
limited
calling,
exercise
slaughtering
The
of cattle had
police power.
been
calling in New Orleans
a common
before the monopoly
Slaughter-House Cases,
lating prices of bread and the rates of chimney-sweepers, as well callings regulated. persons still in other See as of Walton H. Hamil- with a Public ton, Interest,” “Affectation Yale L. [sic] J. Alliance Lewis, also German Ins. Co. v. 1095-1096. See 233 U. S.
389, 408. power commonly invoked police It is settled extends safety morals, equally health,
(cid:127)in aid of just cited welfare.45- cases public promotion com-, competition in ordinarily, free while, that, show public may encouraged, has been welfare callings mon monopolies Upon demand that other times created. at practice our modern public is based whole principle this objection validity It is to the no utility regulation. That, assailed that it fosters monopoly. here the statute design. The certificate conven indeed, is its recent and invention is a device—a social-economic ience under thrqugh monopoly kept which the invention — in a commission by vesting the power effective control required whenever that course terminate it any as a grant monopoly any person interest. To ' where, if favor is even terminable. But forbidden for the ground legislative is reasonable con- there ['here, *35 in order to a service at necessary elusion secure that : may right rates, necessary reasonable it to curtail ij calling, is, my opinion,-consistent enter it in with Jito due to whatever nature of the so, clause do process in legislature business. The existence such power in ever-changing our . indispensable society. seems It is settled unanimous of this Court, decisions city the due not or prevent clause does a State process supplying from the business of its inhabitants engaging use, it is general they when with articles believed that 45 Ry. Ohio, M. 292; Lake Shore & S. Co. v. Chi 285, 173 U. S. cago Tranbarger, 67, 77; Chicago, & R. Co. v. & Alton B. 238 U. S. Q. Drainage 592; Commissioners, R. Bacon v. 200 Co. v. U. S. Walker, recognized was 317. “But it cases U. S. in the others, qualified cited, many as in freedom of contract a right. absolute not an absolute There is no freedom do as one to Q. Chicago, B. & R. Co. v. wills as one or contract chooses.” McGuire, Compare Walls v. Midland Carbon 219 U. S. Co. U. S. 300. at reasonable from the prices private
cannot be secured Thus, city buy dealers. a if the local law may, permits, Portland, wood, sell at retail coal and Jones v. Lincoln, 275 U. S. or Standard Oil Co. v. gasoline, U. a if its own may, permitted by S. 504. And State Constitution, "elevators, build operate warehouses, packinghouses, flour mills other v. factories, Green Frazier, 253 U. busi may S. 233. As States a engage ness, in because it is a to assure to their public purpose articles, may adequate habitants an supply necessary they not achieve this as Oklahoma has public purpose, done, by exercising single the lesser power preventing from wantonly engaging individuals the business and thereby making impossible a dependable private source of supply? may As a so entering State taxing' exert all individual dealers power may be driven from If calling unequal competition. States are power prevent entry denied the the harmful business, thus, few individuals’into a they may effect, it-altogether private close enterprise. emergencies The economic were past
Seventh. In scarcity. days incidents those it was preeminently callings subjects regulation. the common that were the danger threatening then was excessive To prices. prevent extortion, what was English deemed Parlia- ment fixed the of commodities prices services from time to time the four during preceding centuries Declaration of Independence.46 legislation Like en- was comprehended activity
46 “In Hale’s time all Lord ... under business, subject price we was and all of it public, what con .call *36 Hamilton, trol.” Walton H. “Affectation With a Public Inter [sic] est,” 1089, 39 Yale For voluminous L. J. 1094.' collections of statutes relating Parliamentary Eng and materials control of business in prior Revolution, to the American see in land the references- Edward Adler, Jurisprudence,” 135; “Business A. 28 L. Rev. J. Harv. A. “ McClain, Concept,” The Convenience Interest Jr., of the Public 15
306 States, after Colonies;
acted in the
the Revo
process
first due
clause
writ
lution.47 When
was
.the
Constitution,
of
ten into the Federal
bread was
price
least
by
States,
fixed
statute
at
two of
being
long
Dwelling
thereafter.48
this
continued
practice
preeminently
owner are
occupied
houses when
From the
of our
private
foundation
Govern
property.
to lease
property
ment
who wished
residential
had
those
tenants
rentals
they
been free to
such
charge
years
ended,
after the
War
But
World
pleased.
had
of
scarcity
dwellings
City
of
New York was
legislative
such
the State’s
was
power
invoked
constitutionality
rentals. The
ensure reasonable
by this
statute
sustained
Court.
Brown
was
Marcus
Feldman,
Eighth. now con emergency an more serious with 'than war. fronted time, in a wide-spread, not of of scarcity, Misc.y but long-continued The has depression over-abundance. a fall unemployment, catastrophic brought unprecedented volume of commodity economic losses prices institutions.49 our financial Some people threatens which Hale McAllister, “Lord and Business Break P. L. Rev. Minn. Interest,” 759, 767; 43 Rev. Milton Public Harv. L. Affected With Constitutionality Investigations Federal Handler, Commission,” 708, Col. Rev. 712-714. L. Trade passed during eight of the thirteen States the Revo Statutes commodity market, price every fixing almost lution, and 838, Rev. 839. 33 Harv. L. are listedin Herty’s Digest 1789, 2, Maryland Laws-of c. the Laws § p. Carolina 250; 1 South Maryland, Statutes South 1791-1794, p. Assembly, Carolina Acts 49 Hearings La Follette before the subcommittee the Senate See First Seventy-second Congress, Session, on Manufactures, Committee
307 threaten even conditions existing that believe are system.50 Economists stability capitalistic and are reexamin of this disorder for the causes searching men Business structure. of our industrial the bases ing realize that Most of them remedies. seeking possible are industry has widely profits distribute failure to or rightly But plight. present of our cause prime been n major one that think many wrongly, persons competition.51 unbridled has been contributing causes economically isit whether expressed doubt is Increasingly, permitted men should morally wise, right, Economic a National (71st Congress), to establish Bill 6215 on Senate 19, 1931), particu- (October 22 December Council, and Parts 1 of research Goldenweiser, director testimony of Dr. E. A. larly the Sloan, Board, vice- of Mr. L. H. Reserve the Federal statistics of Miss Frances Company, and of president Standard Statistics pp. 3- York, New of the State of Perkins, Industrial Commissioner Plan,” Graphic Survey, March To 150; 1, Choose “When We 1931-January 1932, 9, the La Hearings 28, December on See also (72d Follette-Costigan Bills, Bills Senate Nos. Congress). Corwin, Planning Constitution,” under the Edward S. Social See 1; Donham, Political 26 American Science Review W. B. “Business p. 165; (1931), “America Faces Adrift,” Future,” edited 1-10; Beard, (1932), pp. Mazur, Charles A. Paul M. “New Roads Prosperity,” (1931), c. V. Donham, Adrift,” pp. 51 W.B. “Business 141, 142; “The Swope George Plan,” by J. Frederick, (1931), edited pp. 70, Rich Way Ely, Times, ard “Hard T. Way In Out,” (1931), pp. 135, 137; 62-64, “The Menace of Overproduction,” edited Hamlin, (1930); Scoville Dexter M. Keezer Stacy May, “The Business,” Public Control of (1930), p. 83; Walker Hines, D. “Plan ning in a Industry,” Particular Bulletin of Taylor Society, Octo 1931; Philip ber, Cabot, “The Vices of Free Competition,” The Yale Autumn, 1931; Review, Julius H. Barnes, “Business Looks at Unem ployment,” Atlantic Monthly, August, 1931;' “The Federal Anti Symposium,” Trust A Laws: edited by Milton (December Handler 1931). add to the facilities' an producing industry which is already suffering In over-capacity. justification from doubt, men excess-capacity of our point pro resulting ductive facilities' from their vast expansion without increase corresponding consumptive *38 of capacity people. They assert that through methods of improved manufacture, possible made in invention advances science and vast accumulation of our of capital, industries become capable produc had cent, thirty to hundred ing per from more than was one in of days even and that prosperity; consumed vaunted will, for a capacity time, exceed the present long in All that agree irregularity needs business.52 employ greatest ment —the of our evils —cannot be overcome consumption nearly unless are more bal production Many must some form of anced. insist there economic There for proration. many are There? are plans control. ' thoughtful for stabilization.53 And some men proposals began greatly depression which 1929 has reduced The the. consumptive capacity; export trade, and the present loss of and the growth population (resulting from the lessened birth arrest practical stoppage immigration), apparently preclude rate and the consumptive rapid which the earlier increase followed capacity periods depression. Future,” Beard, “America pp. Charles A. Faces the (1932), See 117-140; Swope by George Plan,” (1931); “The edited Frederick J. Report Continuity on 12 of the Committee of Business No. and Em ployment Commerce,- Chamber of 2-3, United States October 1931; Report Council, of the Executive American-Federation of Labor Convention, 5, 1931; to the 51st Annual óctober Chase, Stuart “A Harpers' America,” Magazine, June, 1931; Ten Year Plan for George Planning Do,” Might Soule, “ Republic, 11, 1931; “What New March “ Plan,” Graphic Choose Survey, When We 1932; March The Challenge Management,” Taylor New to Scientific Bulletin Society, April, 1931; id., “Planning McFall, Industry,” Robert J. “ June, 1931; Horace id., Business,” B. The Drury, Hazard of Decern-' A, ber, 1931; Planning,” id., February, Whalen, Grover “National all experience projects insist of wide business must futile prove unless, and proration stabilization equivalent certificate con wáy, some made a to embark necessity prerequisite venience arid capacity in an industry which capital new ing already production exceeds the schedules.54 The nobody objec- knows. sound
Whether view remedy The grave. are obvious and proposal to the tions present than disease.. The evils worse bring might “ Survey, Epoch,” Graphic Smith, End of An 1932; Russell J. Paradox,” Planning World Kleeck, and the 1931; Mary July 1, van Origins of Economic Lorwin, “The 1, 1931; Lewis L. id., November Manage Person, H. “Scientific February 1,1932; Planning,” id., S. Progressive Technique Industrial Philosophy and ment as a Congress, presented at World paper Social Economic Stabilization,” Begin to Plan?” Christian Will America August, “WThen generally, Hearings the La See, before Century, 11, 1931. March Compare Editorial subcommittee, on note 49. supra, S. Follette August Washington, August 8, December Reports, C., D. Research *39 3, 1931. Way Stevenson, Out,” (1932), particularly “The
54 SeeCharles R. Competition,” “The 33; Philip Cabot, Vices Free The 27, 31, pp. Organ Autumn, 1931;'J. Hobson, A. “The as an State Review, Yale 1931; Quarterly, January-March, Political and Rationalization,” by Swope, Chase, Beard and Professor Messrs. Soule the discussions Concerning supra, business, 53. Smith, note bituminous coal and Commission, Report I, pp. 268, Final Part see Coal 1925, United States “ Opening Way Public 269; New Mines on the Domain: A of Order by Coal,” Wright, Walter Hamilton for Bituminous H. and Helen R. “ Coal,” pp. 35-37; The of Bituminous H. Case Walton Hamilton 170-173; 264; Wright, pp. 263, Atkins, al., Willard E. et Helen.R. XXII; Behavior,” (1931), c. “Economic Senate Bill No. §§ (72d Congress)', Davis, report introduced Senator' of Hearings, ' 15, 1932, p. Concerning Daily, petroleum S. March and gas, U. see “ Fuchs, Legal Technique Ralph H. and National Control of Pe Industry,” 389; Louis L. 16 St. Rev. Howard troleum J. Marshall “ Legal Meyers, Planning L. of Petroleum Production,” Norman “ 33; Slichter, H. Modern Society,” YaleL. J. Samuel Economic 861,862. obstacles to success seem insuperable.55 The economic and social sciences are largely uncharted seas. We have been none too successful-in the modest essays in economic control already upon. entered new proposal The involves a vast extension of the area of control. Merely acquire knowledge essential ás a basis for the exercise of this judgments multitude of would be a formidable task; and each of judgments the thousands these would call for some measure of Even prophecy. more serious are the obstacles success inherent in the demands which exe human make upon intelligence cution of the would project the character of Man is men. weak and his judgment at best fallible.
Yet the advances in the exact sciences and the achieve- ments in invention remind us the seemingly impos- sible There are men happens. many sometimes now liv- using age-old in the habit of ing expres- who were impossible flying.” sion: “It-is as The discoveries triumphs physical science, invention, attest In value of of trial and process large measure, error. have experimentation. these advances been In due.to. has, experimentation fields for two centuries, those been encouraged. people Some assert that only not free but due, part, limitations plight our set present Slichter, Modem Economic Compare Society,” H. Sumner Whiting “Pathways 872-888; Back Baker, Charles (1931), pp. 59-61; Crowther, “A (1932), pp. Samuel Sta Prosperity,” Basis 3-17; Ebersole, Franklin J. “National Plan bility,” (1932),.pp. Society, Virgil Taylor 1931; August, Jordan, ning,” Bulletin of Stabilization,” Engineering, Mechanical Aspects of National Some Stability,” Annalist, Price October January, “What *40 Plans,” Business, Rain Bishop, “The The Nation’s 1931; Warren Philosophy Myron Watkins, “The Economic 1931; W. October, Academy of the- American Legislation,” Annals Politi Anti-Trust “ Atwood, January, Albert The Craze W. Science, and Social cal Saturday Evening Post, Planning,” March National of social fields experimentation courts by to which discouragement to the science; economic other subjected have been there for betterment proposals Nation and the States in the power There must be wise.. prac our economic through experimentation, remould, to and eco social changing to meet institutions tices and framers of the- believe I cannot nomic needs. it, Amendment, ratified or States which Fourteenth evils correct power us of the to deprive intended to excess ca. productive technological unemployment useful arts.56 progress have attended which pacity economic things social and experimentation To stay to right experi- Denial of the responsibility. grave is a consequences with may fraught ment be serious (cid:127) happy one of the incidents federal It is Nation. if single courageous may, State its citizens that a system laboratory; try as a novel social and choose, serve without risk to the rest of the experiments economic power This Court has the ah country; prevent experi- down the We strike statute which may ment.57 embodies ground that, our opinion, on the it measure is We unreasonable. have arbitrary, capricious power the due clause this, process do because has been held the Court matters substantive applicable law procedure. matters But well as to exercise must ever our high power, guard, of this we be on lest legal into prejudices principles. our If we we would erect light reason, we must let our minds guide bold. joins in opinion.
Me. Justice this Stone ’ .‘ “ Compare Warren, Liberty The New Charles under the Four Amendment,” 39 Harv. L. Rev. 431. teenth 57Compare Frankfurter, Felix The Public and Its Government,” pp. 49-51.