PROCEEDINGS

OF THE

SECTION OF PUBLIC UTILITY LAW

The Third Annual Meeting of the Section of Public Utility Law of the American Bar Association was held in the Daniel Boone Room of the Statler Hotel, St. Louis, Missouri, on Tuesday, August 24, 1920. There were three sessions, 10 A. M., 2 P. M. and 8 P. M., respectively.

Bentley W. Warren, of Massachusetts, Vice-Chairman of the Section, presided.

Upon calling the meeting to order the Vice-Chairman stated that William C. Niblack, of Illinois, the Chairman of the Section, died on the sixth day of May, 1920, and called upon Stephen S. Gregory, of Illinois, a life-long friend, who followed this with the reading of a memorial tribute prepared by him.

(See Report of Committee on Memorials, page 304.)

Stephen S. Gregory then read a paper entitled "Some Phases of Public Utility Law."

(The Address follows these minutes, page 447.)

The report of the Secretary was read containing a plea for the recognition of the value of the service as the basis for a reasonable rate.

The Committee on Nominations was appointed, consisting of L. D. H. Gilmour, of New Jersey, Francis B. James, of the District of Columbia, and R. F. Davidson, of Indiana.

The Vice-Chairman of the Section delivered an address on what he termed "A Form of Creeping Confiscation," which was very interesting and considerably discussed.

Proposed By-Laws for the Section were presented and adopted. The open forum inaugurated at the last meeting was then opened and several questions submitted by members for discussion at the sessions.

William G. Busby delivered an address on " State vs. Municipal Regulation."

(The Address follows these minutes, page 457.)

Very full and free discussion, participated in by a great number of members of the Section, as well as of the papers presented, was had at the open forum, and it was decided to make this an outstanding feature of the meetings of this Section.

The Committee on Nominations presented the following report:

For Chairman, Bentley W. Warren, of Boston, Massachusetts. For Vice-Chairman, Edgar A. Bancroft, of Chicago, Illinois. For Secretary, Edward A. Armstrong, of Newark, New Jersey. For Treasurer, John Randolph Tucker, of Richmond, Virginia. For Council, Charles R. Brock, of Denver, Colorado; Robert E. L. Saner, of Dallas, Texas; John B. Sanborn, of Madison, Wisconsin; David A. Frank, of St. Louis, Missouri; Richard T. Higgins, of Hartford, Connecticut; S. S. Gregory, of Chicago, Illinois; Julius Henry Cohen, of New York, New York; and Horace D. Pillsbury, of San Francisco, California.

They were unanimously elected.

The Section then adjourned.

E. A. ARMSTRONG, Secretary.

SOME PHASES OF PUBLIC UTILITY LAW.

BY

S. S. GREGORY,

OF ILLINOIS.

I have some comments to offer on some things that interstate public utilities have a right to expect.

The things that I have in mind are two: First, freedom from regulation by state authority; second, reasonably fair treatment from the public and the representatives thereof.

The second is no doubt the most basic and elementary necessity. But perhaps it is more appropriate first to consider the simpler and more concrete proposition. Moreover, perhaps before dealing with the principles on which the power to regulate should be exercised it may be more logical to indicate where that power should be reposed.

It is now some 46 years since I heard Mr. Justice Davis of the Supreme Court of the United States, sitting at circuit with Judge Drummond of Chicago and Judge Hopkins of Madison, announce, at that sitting, the first opinion rendered by a Federal Court so far as I know, sustaining the power of a state to regulate railroad rates.

The case in which this decision was announced was Peik vs. Chicago & Northwestern Railroad, afterwards affirmed in the Supreme Court-94 U. S. 165.

But the principles on which that case was decided were fully stated and elaborated in the opinion of Mr. Chief Justice Waite in the historic case of Munn vs. Illinois, decided about the same time, 94 U. S. 113.

It is only necessary to refer, however, very briefly to the opinion in the first of these two cases to show that there was reached in that case a conclusion long since abandoned, but which for many years was the basis of an entirely erroneous attitude on the part of the national government.

At page 175 the learned Chief Justice said:

These suits present the single question of the power of the legislature of Wisconsin to provide by law for a maximum of

(447)

charge to be made by the Chicago and Northwestern Railway Company for fare and freight upon the transportation of persons and property carried within the state, or taken up outside the state and brought within it, or taken up inside and carried without."

The court affirmed this power though counsel for the railway contended the legislation in question was unconstitutional as a regulation of interstate commerce.

So the law remained until 1886 when the case of Wabash Railway vs. Illinois, 118 U. S. 557, was decided. In that case a great Judge, Samuel F. Miller, pronounced a great opinion. Judge Miller was an old fashioned man, with broad shoulders, a large head, a weighty looking man; you couldn't look at him, you couldn't hear him speak with his deep voice without being impressed by the fact of his poise. And usually, on the circuit, at least when I met him, he wore, as was the custom when I was a child in the east, a full dress suit; in evening, a low cut vest and a so-called swallow tailed coat.

I had a case which I did not argue, but which was argued by the Nestor of the Nebraska Bar, Mr. John L. Webster, of Omaha. And while we were sitting there waiting for our case, Mr. N. S. Harwood, of Lincoln, a very excellent lawyer, was arguing a municipal bond case before Justices Miller and Dunn, and he had made a very good argument, when he turned to some point that was obviously weak. Justice Miller shifted about in his seat very little, a moment or two, and then he spoke in that deep voice of his, “Oh, Mr. Harwood, you have made altogether too good an argument to talk any such nonsense as that." And Mr. Harwood suspended his statement. Mr. Webster, a fine lawyer, a fine man, laid his hand on my knee and said, "I never sit in any court where Justice Miller is presiding without feeling humiliated to think that the Bar is not more nearly what it ought to be."

And it is true; a great judge is an inspiration to the Bar, and can do so much. I wish the judges appreciated it; I wish some of our judges did; if they would exercise their powers and set before the Bar high standards, the Bar would respond to them.

Well, in this case to which I last referred, is to be found a weighty and authoritative exposition of Munn vs. Illinois which has stood in essence substantially undisturbed. However, in the later case the court entirely overruled the holding in its prior

adjudication that a state might thus establish a rate for interstate carriage. The learned Justice conceded that he must take his share of the responsibility for the language used in that opinion. He called attention to the fact that the strongest language used by the court in any of those cases against its ruling in the Wabash case was to be found in Peik vs. Chicago & Northwestern Railway, and proceeded to quote it. And after an elaborate review of the authorities and a quotation from the opinion of Chief Justice Marshall in Gibbons vs. Ogden, he used this weighty language:

"But when it is attempted to apply to transportation through an entire series of states a principle of this kind, and each one of the states shall attempt to establish its own rates of transportation, its own methods to prevent discrimination in rates, or to permit it, the deleterious influence upon the freedom of commerce among the states and upon the transit of goods through those states can not be over-estimated. That this species of regulation is one which must be, if established at all, of a general and national character, and can not be safely and wisely remitted to local rules and local regulations, we think is clear from what has already been said. And if it be a regulation of commerce, as we think we have demonstrated it is, and as the Illinois court concedes it to be, it must be of that national character, and the regulation can only appropriately exist by general rules and principles, which demand that it should be done by the Congress of the United States under the commerce clause of the Constitution."

The judgment in this case was not concurred in by Mr. Justice Bradley, who wrote an elaborate dissent to which the Chief Justice and Mr. Justice Gray assented.

Justice Bradley was also a very picturesque character. He was a little man; Judge Miller would have made about three of him. And he used to wear an old-fashioned stock, I remember, and to see him walking down Pennsylvania Avenue, he would look like an exquisite little cameo cut out of the preceding generation.

This is one of the historic judicial debates, of which there are several conspicuous instances, between those two great judges, Joseph P. Bradley and Samuel F. Miller, and in which, as it has appeared to those coming after them, notwithstanding the great learning and attainments of Mr. Justice Bradley, he was wrong and Mr. Justice Miller was right.

This opinion settled the law and relieved interstate corporations, particularly interstate carriers, from all burdens.