Other acts regulative of interstate commerce and communication which belong to this period are the Federal Communications Act of 1934, which regulates, through the Federal Communications Commission,[395] "interstate and foreign communication by wire and radio"; the Federal Motor Carrier Act of 1935, which, through the Interstate Commerce Commission, governs the transportation of persons and property by motor vehicle common carriers;[396] the Civil Aeronautics Act of 1938, enacted for the purpose of bringing under the control of a central agency, called "the Civil Aeronautics Authority" (functioning through the Civil Aeronautics Administrator and the Civil Aeronautics Board) all phases of airborne commerce, foreign and interstate.[397] None of these measures have provoked challenge to the power of Congress to enact them.
ACTS OF CONGRESS PROTECTIVE OF LABOR ENGAGED IN INTERSTATE TRANSPORTATION
In the course of the years 1903 to 1908 Congress enacted a series of such measures which were notable both on account of their immediate purpose and as marking the entry of the National Government into the field of labor legislation. The Safety Appliance Act of 1893,[398] which applied only to cars and locomotives engaged in moving interstate traffic, was amended in 1903 to embrace "all trains, locomotives, tenders, cars," etc., "used on any railway engaged in interstate commerce * * * and to all other locomotives * * * cars," etc., "used in connection therewith."[399] In Southern Railway Company v. United States,[400] the validity of this extension of the act was challenged. The Court sustained the measure as being within Congress's power, saying: "* * * this is so, not because Congress possesses any power to regulate intrastate commerce as such, but because its power to regulate interstate commerce is plenary and competently may be exerted to secure the safety of the persons and property transported therein and of those who are employed in such transportation, no matter what may be the source of the dangers which threaten it. That is to say, it is no objection to such an exertion of this power that the dangers intended to be avoided arise, in whole or in part, out of matters connected with intrastate commerce."[401]
Four years later the Hours of Service Act of 1907[402] was passed, requiring, as a safety measure, that carriers engaged in the transportation of passengers or property by railroad in interstate or foreign commerce should not work their employees for longer periods than those prescribed by the Act. In sustaining this legislation the Court, speaking through Justice Hughes, said: "The fundamental question here is whether a restriction upon the hours of labor of employés who are connected with the movement of trains in interstate transportation is comprehended within this sphere of authorized legislation. This question admits of but one answer. The length of hours of service has direct relation to the efficiency of the human agencies upon which protection of life and property necessarily depends. * * * In its power suitably to provide for the safety of the employés and travelers, Congress was not limited to the enactment of laws relating to mechanical appliances, but it was also competent to consider, and to endeavor to reduce, the dangers incident to the strain of excessive hours of duty on the part of engineers, conductors, train dispatchers, telegraphers, and other persons embraced within the class defined by the act."[403]
But by far the most notable of these safety measures were the Federal Employers Liability Acts of 1906 and 1908,[404] the second of which merely reenacted the first with certain "unconstitutional" features eliminated. What the amended act does, in short, is to modify, in the case of injuries incurred by the employees of interstate carriers while engaged in interstate commerce, the defenses that had hitherto been available to the carriers at common law. The principal argument against the acts was that the commerce clause afforded no basis for an attempt to regulate the relation of master and servant, which had heretofore in all cases fallen to the reserved powers of the States; that indeed the rules of common law modified or abrogated by the act existed solely under State authority, and had always been enforced, in the main, in the courts of the States.[405] Countering this argument, the Court, speaking by Justice Van Devanter, quoted the following passage from the brief of the Solicitor-General: "Interstate commerce—if not always, at any rate when the commerce is transportation—is an act. Congress, of course, can do anything which, in the exercise by itself of a fair discretion, may be deemed appropriate to save the act of interstate commerce from prevention or interruption, or to make that act more secure, more reliable or more efficient. The act of interstate commerce is done by the labor of men and with the help of things; and these men and things are the agents and instruments of the commerce. If the agents or instruments are destroyed while they are doing the act, commerce is stopped; if the agents or instruments are interrupted, commerce is interrupted; if the agents or instruments are not of the right kind or quality, commerce in consequence becomes slow or costly or unsafe or otherwise inefficient; and if the conditions under which the agents or instruments do the work of commerce are wrong or disadvantageous, those bad conditions may and often will prevent or interrupt the act of commerce or make it less expeditious, less reliable, less economical and less secure. Therefore, Congress may legislate about the agents and instruments of interstate commerce, and about the conditions under which those agents and instruments perform the work of interstate commerce, whenever such legislation bears, or in the exercise of a fair legislative discretion can be deemed to bear, upon the reliability or promptness or economy or security or utility of the interstate commerce act."[406]
The Adair Case
But while the idea expressed here that the human agents of commerce, in the sense of transportation, are instrumentalities of it, and so, in that capacity, within the protective power of Congress, signalized the entrance of Congress into the field of labor legislation, the Court was not at the time prepared to give the idea any considerable scope. Pertinent in this connection is the case of Adair v. United States,[407] which was decided between the two Employers' Liability Cases. Here was involved the validity of § 10 of the "Erdman Act" of 1898,[408] by which it was made a misdemeanor for a carrier or agent thereof to require of an employee, as a condition of employment, that he should not become or remain a member of a trade union, or to threaten him with loss of employment if he should become or remain a member. This proviso the Court held not to be a regulation of commerce, there being no connection between an employee's membership in a labor organization and the carrying on of interstate commerce. Twenty-two years later, however, in 1930, the Court conceded that the connection between interstate commerce and union membership was a real and substantial one, and on that ground sustained the power of Congress in the Railway Labor Act of 1926[409] to prevent employers from interfering with the right of employees to select freely their own collective bargaining representatives.[410]
Still pursuing the idea of protecting commerce and the labor engaged in it concurrently, Congress, by the Railroad Retirement Act of June 27, 1934,[411] ordered the compulsory retirement of superannuated employees of interstate carriers, and provided that they be paid pensions out of a fund comprising compulsory contributions from the carriers and their present and future employees. In Railroad Retirement Board v. Alton R.R. Company,[412] however, a closely divided Court held this legislation to be in excess of Congress's power to regulate commerce and contrary to the due process clause of Amendment V. Said Justice Roberts for the majority: "We feel bound to hold that a pension plan thus imposed is in no proper sense a regulation of the activity of interstate transportation. It is an attempt for social ends to impose by sheer fiat noncontractual incidents upon the relation of employer and employee, not as a rule or regulation of commerce and transportation between the States, but as a means of assuring a particular class of employees against old age dependency. This is neither a necessary nor an appropriate rule or regulation affecting the due fulfillment of the railroads' duty to serve the public in interstate transportation."[413] Chief Justice Hughes, speaking for the dissenters, contended, on the contrary, that "the morale of the employees [had] an important bearing upon the efficiency of the transportation service." He added: "The fundamental consideration which supports this type of legislation is that industry should take care of its human wastage, whether that is due to accident or age. That view cannot be dismissed as arbitrary or capricious. It is a reasoned conviction based upon abundant experience. The expression of that conviction in law is regulation. When expressed in the government of interstate carriers, with respect to their employees likewise engaged in interstate commerce, it is a regulation of that commerce. As such, so far as the subject matter is concerned, the commerce clause should be held applicable."[414] Under subsequent legislation, an excise is levied on interstate carriers and their employees, while by separate but parallel legislation a fund is created in the Treasury out of which pensions are paid along the lines of the original plan. The constitutionality of this scheme appears to be taken for granted in Railroad Retirement Board v. Duquesne Warehouse Company.[415]
BILLS OF LADING; THE FERGER CASE