Annotation 29 - Article I

Congressional Regulation of Waterways

Navigation .--In Pennsylvania v. Wheeling & Belmont Bridge Co., 633 the Court granted an injunction requiring that a bridge, erected over the Ohio River under a charter from the State of Virginia, either be altered so as to admit of free navigation of the river or else be entirely abated. The decision was justified on the basis both of the commerce clause and of a compact between Virginia and Kentucky, whereby both these States had agreed to keep the Ohio River ''free and common to the citizens of the United States.'' The injunction was promptly rendered inoperative by an act of Congress declaring the bridge to be ''a lawful structure'' and requiring all vessels navigating the Ohio to be so regulated as not to interfere with it. 634 This act the Court sustained as within Congress' power under the commerce clause, saying: ''So far . . . as this bridge created an obstruction to the free navigation of the river, in view of the previous acts of Congress, they are to be regarded as modified by this subsequent legislation; and, although it still may be an obstruction in fact, [it] is not so in the contemplation of law. . . . [Congress] having in the exercise of this power, regulated the navigation consistent with its preservation and continuation, the authority to maintain it would seem to be complete. That authority combines the concurrent powers of both governments, State and federal, which, if not sufficient, certainly none can be found in our system of government.'' 635 In short, it is Congress, and not the Court, which is authorized by the Constitution to regulate commerce. 636  

The law and doctrine of the earlier cases with respect to the fostering and protection of navigation are well summed up in a frequently cited passage from the Court's opinion in Gilman v. Philadelphia. 637 ''Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the nation, and subject to all requisite legislation by Congress. This necessarily includes the power to keep them open and free from any obstruction to their navigation, interposed by the States or otherwise; to remove such obstructions when they exist; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders. For these purposes, Congress possesses all the powers which existed in the States before the adoption of the national Constitution, and which have always existed in the Parliament in England.'' 638  

Thus, Congress was within its powers in vesting the Secretary of War with power to determine whether a structure of any nature in or over a navigable stream is an obstruction to navigation and to order its abatement if he so finds. 639 Nor is the United States required to compensate the owners of such structures for their loss, since they were always subject to the servitude represented by Congress' powers over commerce, and the same is true of the property of riparian owners that is damaged. 640 And while it was formerly held that lands adjoining nonnavigable streams were not subject to the above mentioned servitude, 641 this rule has been impaired by recent decisions; 642 and at any rate it would not apply as to a stream rendered navigable by improvements. 643  

In exercising its power to foster and protect navigation, Congress legislates primarily on things external to the act of navigation. But that act itself and the instruments by which it is accomplished are also subject to Congress' power if and when they enter into or form a part of ''commerce among the several States.'' When does this happen? Words quoted above from the Court's opinion in the Gilman case answered this question to some extent; but the decisive answer to it was returned five years later in the case of The Daniel Ball. 644 Here the question at issue was whether an act of Congress, passed in 1838 and amended in 1852, which required that steam vessels engaged in transporting passengers or merchandise upon the ''bays, lakes, rivers, or other navigable waters of the United States,'' applied to the case of a vessel that navigated only the waters of the Grand River, a stream lying entirely in the State of Michigan. The Court ruled: ''In this case it is admitted that the steamer was engaged in shipping and transporting down Grand River, goods destined and marked for other States than Michigan, and in receiving and transporting up the river goods brought within the State from without its limits; . . . . So far as she was employed in transporting goods destined for other States, or goods brought from without the limits of Michigan and destined to places within that State, she was engaged in commerce between the States, and however limited that commerce may have been, she was, so far as it went, subject to the legislation of Congress. She was employed as an instrument of that commerce; for whenever a commodity has begun to move as an article of trade from one State to another, commerce in that commodity between the States has commenced.'' 645  

Counsel had suggested that if the vessel was in commerce because it was part of a stream of commerce then all transportation within a State was commerce. Turning to this point, the Court added: ''We answer that the present case relates to transportation on the navigable waters of the United States, and we are not called upon to express an opinion upon the power of Congress over interstate commerce when carried on by land transportation. And we answer further, that we are unable to draw any clear and distinct line between the authority of Congress to regulate an agency employed in commerce between the States, when the agency extends through two or more States, and when it is confined in its action entirely within the limits of a single State. If its authority does not extend to an agency in such commerce, when that agency is confined within the limits of a State, its entire authority over interstate commerce may be defeated. Several agencies combining, each taking up the commodity transported at the boundary line at one end of a State, and leaving it at the boundary line at the other end, the federal jurisdiction would be entirely ousted, and the constitutional provision would become a dead letter.'' 646 In short, it was admitted, inferentially, that the principle of the decision would apply to land transportation, but the actual demonstration of the fact still awaited some years. 647  

Hydroelectric Power; Flood Control .--As a consequence, in part, of its power to forbid or remove obstructions to navigation in the navigable waters of the United States, Congress has acquired the right to develop hydroelectric power and the ancillary right to sell it to all takers. By a long-standing doctrine of constitutional law, the States possess dominion over the beds of all navigable streams within their borders, 648 but because of the servitude that Congress' power to regulate commerce imposes upon such streams, the States, without the assent of Congress, practically are unable to utilize their prerogative for power development purposes. Sensing no doubt that controlling power to this end must be attributed to some government in the United States and that ''in such matters there can be no divided empire,'' 649 the Court held in United States v. Chandler-Dunbar Co., 650 that in constructing works for the improvement of the navigability of a stream, Congress was entitled, as part of a general plan, to authorize the lease or sale of such excess water power as might result from the conservation of the flow of the stream. ''If the primary purpose is legitimate,'' it said, ''we can see no sound objection to leasing any excess of power over the needs of the Government. The practice is not unusual in respect to similar public works constructed by State governments.'' 651  

Since the Chandler-Dunbar case, the Court has come, in effect, to hold that it will sustain any act of Congress, which purports to be for the improvement of navigation, whatever other purposes it may also embody, nor does the stream involved have to be one ''navigable in its natural state.'' Such, at least, seems to be the sum of its holdings in Arizona v. California, 652 and United States v. Appalachian Power Co. 653 In the former, the Court, speaking through Justice Brandeis, said that it was not free to inquire into the motives ''which induced members of Congress to enact the Boulder Canyon Project Act,'' adding: ''As the river is navigable and the means which the Act provides are not unrelated to the control of navigation . . . the erection and maintenance of such dam and reservoir are clearly within the powers conferred upon Congress. Whether the particular structures proposed are reasonably necessary, is not for this Court to determine. . . . And the fact that purposes other than navigation will also be served could not invalidate the exercise of the authority conferred, even if those other purposes would not alone have justified an exercise of congressional power.'' 654  

And in the Appalachian Power case, the Court, abandoning previous holdings laying down the doctrine that to be subject to Congress' power to regulate commerce a stream must be ''navigable in fact,'' said: ''A waterway, otherwise suitable for navigation, is not barred from that classification merely because artificial aids must make the highway suitable for use before commercial navigation may be undertaken,'' provided there must be a ''balance between cost and need at a time when the improvement would be useful. . . . Nor is it necessary that the improvements should be actually completed or even authorized. The power of Congress over commerce is not to be hampered because of the necessity for reasonable improvements to make an interstate waterway available for traffic. . . . Nor is it necessary for navigability that the use should be continuous. . . . Even absence of use over long periods of years, because of changed conditions, . . . does not affect the navigability of rivers in the constitutional sense.'' 655  

Furthermore, the Court defined the purposes for which Congress may regulate navigation in the broadest terms. ''It cannot properly be said that the constitutional power of the United States over its waters is limited to control for navigation. . . . That authority is as broad as the needs of commerce. . . . Flood protection, watershed development, recovery of the cost of improvements through utilization of power are likewise parts of commerce control.'' 656 These views the Court has since reiterated. 657 Nor is it by virtue of Congress' power over navigation alone that the National Government may develop water power. Its war powers and powers of expenditure in furtherance of the common defense and the general welfare supplement its powers over commerce in this respect. 658  

Congressional Regulation of Land Transportation

Federal Stimulation of Land Transportation .--The settlement of the interior of the country led Congress to seek to facilitate access by first encouraging the construction of highways. In successive acts, it authorized construction of the Cumberland and the National Road from the Potomac across the Alleghenies to the Ohio, reserving certain public lands and revenues from land sales for construction of public roads to new States granted statehood. 659 Acquisition and settlement of California stimulated interest in railway lines to the west, but it was not until the Civil War that Congress voted aid in the construction of a line from the Missouri River to the Pacific; four years later, it chartered the Union Pacific Company. 660  

The litigation growing out of these and subsequent activities settled several propositions. First, Congress may provide highways and railways for interstate transportation; 661 second, it may char ter private corporations for that purpose; third, it may vest such corporations with the power of eminent domain in the States; and fourth, it may exempt their franchises from state taxation. 662  

Federal Regulation of Land Transportation .--Congressional regulation of railroads may be said to have begun in 1866. By the Garfield Act, Congress authorized all railroad companies operating by steam to interconnect with each other ''so as to form continuous lines for the transportation of passengers, freight, troops, governmental supplies, and mails, to their destination.'' 663 An act of the same year provided federal chartering and protection from conflicting state regulations to companies formed to construct and operate telegraph lines. 664 Another act regulated the transportation by railroad of livestock so as to preserve the health and safety of the animals. 665  

Congress' entry into the rate regulation field was preceded by state attempts to curb the abuses of the rail lines in the Middle West, which culminated in the ''Granger Movement.'' Because the businesses were locally owned, the Court at first upheld state laws as not constituting a burden on interstate commerce; 666 but after the various business panics of the 1870s and 1880s drove numerous small companies into bankruptcy and led to consolidation, there emerged great interstate systems. Thus in 1886, the Court held that a State may not set charges for carriage even within its own boundaries of goods brought from without the State or destined to points outside it; that power was exclusively with Congress. 667 In the following year, Congress passed the original Interstate Commerce Act. 668 A Commission was authorized to pass upon the ''reasonableness'' of all rates by railroads for the transportation of goods or persons in interstate commerce and to order the discontinuance of all charges found to be ''unreasonable.'' The Commission's basic authority was upheld in ICC v. Brimson, 669 in which the Court upheld the validity of the Act as a means ''necessary and proper'' for the enforcement of the regulatory commerce power and in which it also sustained the Commission's power to go to court to secure compliance with its orders. Later decisions circumscribed somewhat the ICC's power. 670  

Expansion of the Commission's authority came in the Hepburn Act of 1906 671 and the Mann-Elkins Act of 1910. 672 By the former, the Commission was explicitly empowered, after a full hearing on a complaint, ''to determine and prescribe just and reasonable'' maximum rates; by the latter, it was authorized to set rates on its own initiative and empowered to suspend any increase in rates by a carrier until it reviewed the change. At the same time, the Commission's jurisdiction was extended to telegraphs, telephones, and cables. 673 By the Motor Carrier Act of 1935, 674 the ICC was authorized to regulate the transportation of persons and property by motor vehicle common carriers.

The powers of the Commission today are largely defined by the Transportation Acts of 1920 675 and 1940. 676 The jurisdiction of the Commission covers not only the characteristics of the rail, motor, and water carriers in commerce among the States but also the issuance of securities by them and all consolidations of existing companies or lines. 677 Further, the Commission was charged with regulating so as to foster and promote the meeting of the transportation needs of the country. Thus, from a regulatory exercise originally begun as a method of restraint there has emerged a policy of encouraging a consistent national transportation policy. 678  

Federal Regulation of Intrastate Rates (The Shreveport Doctrine) .--Although its statutory jurisdiction did not apply to intrastate rate systems, the Commission early asserted the right to pass on rates, which, though in effect on intrastate lines, gave these lines competitive advantages over interstate lines the rates of which the Commission had set. This power the Supreme Court upheld in a case involving a line operating wholly intrastate in Texas but which paralleled within Texas an interstate line operating between Louisiana and Texas; the Texas rate body had fixed the rates of the intrastate line substantially lower than the rate fixed by the ICC on the interstate line. ''Wherever the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is Congress, and not the State, that is entitled to prescribe the final and dominant rule, for otherwise Congress would be denied the exercise of its constitutional authority and the States and not the Nation, would be supreme in the national field.'' 679  

The same holding was applied in a subsequent case in which the Court upheld the Commission's action in annulling intrastate passenger rates it found to be unduly low in comparison with the rates the Commission had established for interstate travel, thus tending to thwart, in deference to a local interest, the general purpose of the act to maintain an efficient transportation service for the benefit of the country at large. 680  

Federal Protection of Labor in Interstate Rail Transportation .-- Federal entry into the field of protective labor legislation and the protection of organization efforts of workers began in connection with the railroads. The Safety Appliance Act of 1893, 681 applying only to cars and locomotives engaged in moving interstate traffic, was amended in 1903 so as to embrace much of the intrastate rail systems on which there was any connection with interstate commerce. 682 The Court sustained this extension in language much like that it would use in the Shreveport case three years later. 683 These laws were followed by the Hours of Service Act of 1907, 684 which prescribed maximum hours of employment for rail workers in interstate or foreign commerce. The Court sustained the regulation as a reasonable means of protecting workers and the public from the hazards which could develop from long, tiring hours of labor. 685  

Most far-reaching of these regulatory measures were the Federal Employers Liability Acts of 1906 686 and 1908. 687 These laws were intended to modify the common-law rules with regard to the liability of employers for injuries suffered by their employees in the course of their employment and under which employers were generally not liable. Rejecting the argument that regulation of such relationships between employers and employees was a reserved state power, the Court adopted the argument of the United States that Congress was empowered to do anything it might deem appropriate to save interstate commerce from interruption or burdening and that inasmuch as the labor of employees was necessary for the function of commerce Congress could certainly act to ameliorate conditions that made labor less efficient, less economical, and less reliable. Assurance of compensation for injuries growing out of negligence in the course of employment was such a permissible regulation. 688  

Legislation and litigation dealing with the organizational rights of rail employees are dealt with elsewhere. 689  

Regulation of Other Agents of Carriage and Communications .--In 1914, the Court affirmed the power of Congress to regulate the transportation of oil and gas in pipe lines from one State to another and held that this power applied to the transportation even though the oil or gas was the property of the lines. 690 Subsequently, the Court struck down state regulation of rates of electric current generated within that State and sold to a distributor in another State as a burden on interstate commerce. 691 Proceeding on the assumption that the ruling meant the Federal Government had the power, Congress in the Federal Power Act of 1935 conferred on the Federal Power Commission authority to regulate the wholesale distribution of electricity in interstate commerce 692 and three years later vested the FPC with like authority over natural gas moving in interstate commerce. 693 Thereafter, the Court sustained the power of the Commission to set the prices at which gas originating in one State and transported into another should be sold to distributors wholesale in the latter State. 694 ''The sale of natural gas originating in the State and its transportation and delivery to distributors in any other State constitutes interstate commerce, which is subject to regulation by Congress. . . . The authority of Congress to regulate the prices of commodities in interstate commerce is at least as great under the Fifth Amendment as is that of the States under the Fourteenth to regulate the prices of commodities in intrastate commerce.'' 695  

Other acts regulating commerce and communication originating in this period have evoked no basic constitutional challenge. These include the Federal Communications Act of 1934, providing for the regulation of interstate and foreign communication by wire and radio, 696 and the Civil Aeronautics Act of 1938, providing for the regulation of all phases of airborne commerce, foreign and interstate. 697  


[Footnote 633]   54 U.S. (13 How.) 518 (1852).

[Footnote 634] 10 Stat 112, 6 (1852).

[Footnote 635] Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421, 430 (1856). ''It is Congress, and not the Judicial Department, to which the Constitution has given the power to regulate commerce with foreign nations and among the several States. The courts can never take the initiative on this subject.'' Transportation Co. v. Parkersburg, 107 U.S. 691, 701 (1883). See also Prudential Ins. Co. v. Benjamin, 328 U.S. 408 (1946); Robertson v. California, 328 U.S. 440 (1946).

[Footnote 636] But see In re Debs, 158 U.S. 564 (1895), in which the Court held that in the absence of legislative authorization the Executive had power to seek and federal courts to grant injunctive relief to remove obstructions to interstate commerce and the free flow of the mail.

[Footnote 637]   70 U.S. (3 Wall.) 713 (1866).

[Footnote 638] Id., 724-725.

[Footnote 639] Union Bridge Co. v. United States, 204 U.S. 364 (1907). See also Monongahela Bridge Co. v. United States, 216 U.S. 177 (1910); Wisconsin v. Illinois, 278 U.S. 367 (1929). The United States may seek injunctive or declaratory relief requiring the removal of obstructions to commerce by those negligently responsible for them or it may itself remove the obstructions and proceed against the responsible party for costs. United States v. Republic Steel Corp., 362 U.S. 482 (1960); Wyandotte Transportation Co. v. United States, 389 U.S. 191 (1967). Congress' power in this area is newly demonstrated by legislation aimed at pollution and environmental degradation. In confirming the title of the States to certain waters under the Submerged Lands Act, 67 Stat. 29 (1953), 43 U.S.C. Sec. 1301 et seq., Congress was careful to retain authority over the waters for purposes of commerce, navigation, and the like. United States v. Rands, 389 U.S. 121, 127 (1967).

[Footnote 640] Gibson v. United States, 166 U.S. 269 (1897). See also Bridge Co. v. United States, 105 U.S. 470 (1882); United States v Rio Grande Irrigation Co., 174 U.S. 690 (1899); United States v. Chandler- Dunbar Co., 229 U.S. 53 (1913); Seattle v. Oregon & W.R.R., 255 U.S. 56, 63 (1921); Economy Light Co. v. United States, 256 U.S. 113 (1921); United States v. River Rouge Co., 269 U.S. 411, 419 (1926); Ford & Son v. Little Falls Co., 280 U.S. 369 (1930); United States v. Commodore Park, 324 U.S. 386 (1945); United States v. Twin City Power Co., 350 U.S. 222 (1956); United States v. Rands, 389 U.S. 121 (1967).

[Footnote 641] United States v. Cress, 243 U.S. 316 (1917).

[Footnote 642] United States v. Chicago, M., St. P. & P.R. Co., 312 U.S. 592, 597 (1941); United States v. Willow River Co., 324 U.S. 499 (1945).

[Footnote 643] United States v. Rio Grande Irrigation Co., 174 U.S. 690 (1899).

[Footnote 644]   77 U.S. (10 Wall.) 557 (1871).

[Footnote 645] Id., 565.

[Footnote 646] Id., 566. ''The regulation of commerce implies as much control, as far-reaching power, over an artificial as over a natural highway.'' Justice Brewer for the Court in Monongahela Navigation Co. v. United States, 148 U.S. 312, 342 (1893).

[Footnote 647] Congress had the right to confer upon the Interstate Commerce Commission the power to regulate interstate ferry rates, N.Y. Central R.R. v. Hudson County, 227 U.S. 248 (1913), and to authorize the Commission to govern the towing of vessels between points in the same State but partly through waters of an adjoining State. Cornell Steamboat Co. v. United States, 321 U.S. 634 (1944). Congress' power over navigation extends to persons furnishing wharfage, dock, warehouse, and other terminal facilities to a common carrier by water. Hence an order of the United States Maritime Commission banning certain allegedly ''unreasonable practices'' by terminals in the Port of San Francisco, and prescribing schedules of maximum free time periods and of minimum charges was constitutional. California v. United States, 320 U.S. 577 (1944). The same power also comprises regulation of the registry enrollment, license, and nationality of ships and vessels, the method of recording bills of sale and mortgages thereon, the rights and duties of seamen, the limitations of the responsibility of shipowners for the negligence and misconduct of their captains and crews, and many other things of a character truly maritime. See The Lottawanna, 88 U.S. (21 Wall.) 558, 577 (1875); Providence & N.Y. SS. Co. v. Hill Mfg. Co., 109 U.S. 578, 589 (1883); The Hamilton, 207 U.S. 398 (1907); O'Donnell v. Great Lakes Co., 318 U.S. 36 (1943).

[Footnote 648] Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845); Shively v. Bowlby, 152 U.S. 1 (1894).

[Footnote 649] Green Bay & Miss. Canal Co. v. Patten Paper Co., 172 U.S. 58, 80 (1898).

[Footnote 650]   229 U.S. 53 (1913).

[Footnote 651] Id., 73, citing Kaukauna Water Power Co. v. Green Bay & Miss. Canal Co., 142 U.S. 254 (1891).

[Footnote 652]   283 U.S. 423 (1931).

[Footnote 653]   311 U.S. 377 (1940).

[Footnote 654] 283 U.S., 455-456. See also United States v. Twin City Power Co., 350 U.S. 222, 224 (1956).

[Footnote 655] 311 U.S., 407, 409-410.

[Footnote 656] Id., 426.

[Footnote 657] Oklahoma v. Atkinson Co., 313 U.S. 508, 523 -533 passim (1941).

[Footnote 658] Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936).

[Footnote 659] Cf. Indiana v. United States, 148 U.S. 148 (1893).

[Footnote 660] 12 Stat. 489 (1862); 13 Stat. 356 (1864); 14 Stat. 79 (1866).

[Footnote 661] The result then as well as now might have followed from Congress' power of spending, independently of the commerce clause, as well as from its war and postal powers, which were also invoked by the Court in this connection.

[Footnote 662] Thomson v. Union Pacific Railroad, 76 U.S. (9 Wall.) 579 (1870); California v. Pacific Railroad Co. (Pacific Ry. Cases), 127 U.S. 1 (1888); Cherokee Nation v. Southern Kansas Railway Co., 135 U.S. 641 (1890); Luxton v. North River Bridge Co., 153 U.S. 525 (1894).

[Footnote 663] 14 Stat. 66 (1866).

[Footnote 664] 14 Stat. 221 (1866).

[Footnote 665] 17 Stat. 353 (1873).

[Footnote 666] Munn v. Illinois, 94 U.S. 113 (1877); Chicago B. & Q. R. Co. v. Iowa, 94 U.S. 155 (1877); Peik v. Chicago & Nw. Ry. Co., 94 U.S. 164 (1877); Pickard v. Pullman Southern Car Co., 117 U.S. 34 (1886).

[Footnote 667] Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U.S. 557 (1886). A variety of state regulations have been struck down on the burdening-of-commerce rationale. E.g., Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761 (1945) (train length); Napier v. Atlantic Coast Line R., 272 U.S. 605 (1926) (locomotive accessories); Pennsylvania R. v. Public Service Comm., 250 U.S. 566 (1919). But the Court has largely exempted regulations with a safety purpose, even a questionable one. Brotherhood of Firemen v. Chicago, R. I. & P. R. Co., 393 U.S. 129 (1968).

[Footnote 668] 24 Stat. 379 (1887).

[Footnote 669]   154 U.S. 447 (1894).

[Footnote 670] ICC v. Alabama Midland Ry., 168 U.S. 144 (1897); Cincinnati, N.O. & Texas Pacific Ry. v. ICC, 162 U.S. 184 (1896).

[Footnote 671] 34 Stat. 584 (1906).

[Footnote 672] 36 Stat. 539 (1910).

[Footnote 673] These regulatory powers are now vested, of course, in the Federal Communications Commission.

[Footnote 674] 49 Stat. 543 (1935).

[Footnote 675] 41 Stat. 474 (1920).

[Footnote 676] 54 Stat. 898 (1940), U.S.C. Sec. 1 et seq. The two acts were ''intended . . . to provide a completely integrated interstate regulatory system over motor, railroad, and water carriers.'' United States v. Pennsylvania Railroad Co., 323 U.S. 612, 618 -619 (1945). The ICC's powers include authority to determine the reasonableness of a joint through international rate covering transportation in the United States and abroad and to order the domestic carriers to pay reparations in the amount by which the rate is unreasonable. Canada Packers v. Atchison, T. & S. F. Ry. Co., 385 U.S. 182 (1966), and cases cited.

[Footnote 677] Disputes between the ICC and other Government agencies over mergers have occupied a good deal of the Court's time. Cf. United States v. ICC, 396 U.S. 491 (1970). See also County of Marin v. United States, 356 U.S. 412 (1958); McLean Trucking Co. v. United States, 321 U.S. 67 (1944); Penn-Central Merger & N & W Inclusion Cases, 389 U.S. 486 (1968).

[Footnote 678] Among the various provisions of the Interstate Commerce Act which have been upheld are: a section penalizing shippers for obtaining transportation at less than published rates, Armour Packing Co. v. United States, 209 U.S. 56 (1908); a section construed as prohibiting the hauling of commodities in which the carrier had at the time of haul a proprietary interest, United States v. Delaware & Hudson Co., 213 U.S. 366 (1909); a section abrogating life passes, Louisville & Nashville R. Co. v. Mottley, 219 U.S. 467 (1911); a section authorizing the ICC to regulate the entire bookkeeping system of interstate carriers, including intrastate accounts, ICC v. Goodrich Transit Co., 224 U.S. 194 (1912); a clause affecting the charging of rates different for long and short hauls. Intermountain Rate Cases, 234 U.S. 476 (1914).

[Footnote 679] Houston & Texas Railway v. United States, 234 U.S. 342, 351 -352 (1914). See also, American Express Co. v. Caldwell, 244 U.S. 617 (1917); Pacific Tel. & Tel. Co. v. Tax Comm., 297 U.S. 403 (1936); Weiss v. United States, 308 U.S. 321 (1939); Bethlehem Steel Co. v. State Board, 330 U.S. 767 (1947); United States v. Walsh, 331 U.S. 432 (1947).

[Footnote 680] Wisconsin Railroad Comm. v. Chicago, B. & Q. R. Co., 257 U.S. 563 (1922). Cf. Colorado v. United States, 271 U.S. 153 (1926), upholding an ICC order directing abandonment of an intrastate branch of an interstate railroad. But see North Carolina v. United States, 325 U.S. 507 (1945), setting aside an ICC disallowance of intrastate rates set by a state commission as unsupported by the evidence and findings.

[Footnote 681] 27 Stat. 531, 45 U.S.C. Sec. Sec. 1-7.

[Footnote 682] 32 Stat. 943, 45 U.S.C. Sec. Sec. 8-10.

[Footnote 683] Southern Railway Co. v. United States, 222 U.S. 20 (1911). See also Texas & Pacific Ry. Co. v. Rigsby, 241 U.S. 33 (1916); United States v. California, 297 U.S. 175 (1936); United States v. Seaboard Air Line R., 361 U.S. 78 (1959).

[Footnote 684] 34 Stat. 1415, 45 U.S.C. Sec. Sec. 61-64.

[Footnote 685] Baltimore & Ohio Railroad v. ICC, 221 U.S. 612 (1911).

[Footnote 686] 34 Stat. 232, held unconstitutional in part in the Employers' Liability Cases, 207 U.S. 463 (1908).

[Footnote 687] 35 Stat. 65, 45 U.S.C. Sec. Sec. 51-60.

[Footnote 688] The Second Employers Liability Cases, 223 U.S. 1 (1912). For a longer period, a Court majority reviewed a surprising large number of FELA cases, almost uniformly expanding the scope of recovery under the statute. Cf. Rogers v. Missouri Pacific R., 352 U.S. 500 (1957). This practice was criticized both within and without the Court, cf. Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 524 (1957) (Justice Frankfurter dissenting); Hart, ''Foreword: The Time Chart of the Justices,'' 73 Harv. L. Rev. 84, 96-98 (1959), and has been discontinued.

[Footnote 689] Infra, pp. 189-190, 191 n. 739.

[Footnote 690] The Pipe Line Cases, 234 U.S. 548 (1914). See also State Comm. v. Wichita Gas Co., 290 U.S. 561 (1934); Eureka Pipe Line Co. v. Hallanan, 257 U.S. 265 (1921); United Fuel Gas Co. v. Hallanan, 257 U.S. 277 (1921); Pennsylvania v. West Virginia, 262 U.S. 553 (1923); Missouri ex rel. Barrett v. Kansas Gas Co., 265 U.S. 298 (1924).

[Footnote 691] Public Utilities Comm. v. Attleboro Co., 273 U.S. 83 (1927). See also Utah Power & Light Co. v. Pfost, 286 U.S. 165 (1932); Pennsylvania Power Co. v. FPC, 343 U.S. 414 (1952).

[Footnote 692] 49 Stat. 863, 16 U.S.C. Sec. Sec. 791a-825u.

[Footnote 693] 52 Stat. 821, 15 U.S.C. Sec. Sec. 717-717w.

[Footnote 694] FPC v. Natural Gas Pipeline Co., 315 U.S. 575 (1942).

[Footnote 695] Id., 582. Sales to distributors by a wholesaler of natural gas delivered to it from out-of-state sources are subject to FPC jurisdiction. Colorado-Wyoming Co. v. FPC, 324 U.S. 626 (1945). See also Illinois Gas Co. v. Public Service Co., 314 U.S. 498 (1942); FPC v. East Ohio Gas Co., 338 U.S. 464 (1950). In Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672 (1954), the Court ruled that an independent company engaged in one State in production, gathering, and processing of natural gas, which it thereafter sells in the same State to pipelines that transport and sell the gas in other States is subject to FPC jurisdiction. See also California v. Lo-Vaca Gathering Co., 379 U.S. 366 (1965).

[Footnote 696] 48 Stat. 1064, 47 U.S.C. Sec. 151 et seq. Cf. United States v. Southwestern Cable Co., 392 U.S. 157 (1968), on the regulation of community antenna television systems (CATV).

[Footnote 697] 52 Stat. 973, as amended. The CAB has now been abolished and its functions are exercised by the Federal Aviation Commission, 49 U.S.C. Sec. 106, as part of the Department of Transportation.

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