pensation and impaired the obligation of contracts. Neither case involved a dispute as to the precise amount of rent to be charged, so that the question of just compensation did not enter. If, however, the taking was for a private rather than for a pubcuse, it was concededly unjustified. The statutes were sustained as proper police measures for an emergency and not an exercise of eminent domain. Contracts are made subject to modification by exercises of the police power, under which, as Mr Justice Holmes pointed out, "property rights may be cut down, and to that extent, taken without pay." The basis of the decision of the majority is that circumstances had clothed the letting of buildings "with a public interest ", and that rateregulation is one of the first forms in which a conceded public interest is asserted. This substitutes the term "clothed with a public interest" for the previously established though amorphous test of whether the property is "devoted to a public use." Mr Justice Holmes adduces cases recognizing insurance, irrigation and mining as enterprises clothed with a public interest as illustrations that "the use by the public generally of each specific thing affected cannot be made the test of public interest." Regulation of rents is treated as somewhat analogous to restrictions on the height of buildings and on the size and location of billboards and to requirements that watersheds be kept clear and that safe pillars be maintained in coal mines. Such approved exercises of the police power show that the owner's use of his land and buildings may be restricted. The only question is whether the present restriction goes too far. It does not, Says Mr. Justice Holmes, and Justices Day, Pitney, Brandeis and Clarke agree with him. What would go too far is not clearly indicated, but it is conceded that a line would be drawn mewhere. The decision does not put dwellings in the general class of public utilities where the duty to serve all without discrimination must be observed. It holds merely that in a tem rary emergency rents may be reasonably restricted and that tenants already in occupancy may remain upon paying reasonabe rents The dissenting opinion criticizes the majority opinion for not teng dehnitely where it would draw the line; but for lack of definiteness no judicial opinion in a long time has surpassed the vehement oratory of Mr. Justice McKenna. He inquires rhetorically whether conditions have come to the world "that are not amenable to passing palliatives, and that Socialism, or some form of Socialism, is the only permanent corrective or accommodation," whether the Constitution has "become an anachronism" and is "to become an archeological relic'." He asserts that constitutional limitations are "as absolute as axioms", that emergencies and the limited duration of statutes cannot justify measures otherwise unconstitutional, and he warns us that it is safer and saner "to regard the declaration of the Constitution as paramount and not to weaken it by refined dialectics or bend it to some impulse or emergency 'because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment'." Of some of the approved exercises of police power brought forward by Mr. Justice Holmes as illustrations of what may be done, Mr. Justice McKenna says that “it is difficult to handle the cases or the assertion of what they decide"; and he adds that "an opposing denial is only available." Other precedents are dismissed because they sanction prohibitions on the noxious use of property, not requirements that the owner of property must allow others to occupy it at a price fixed by public authority. The dissenting opinion insists that if the police power may allow a tenant to remain after he has agreed to quit and may fix a reasonable rent and forbid the landlord to charge what he pleases, it may do everything under the sun. This terrifying conclusion, however, is based upon the assumption that the exercise of power declared by the majority to be permitted by the Constitution is in fact forbidden by it. From this it follows that if state power is superior to one limitation of the Constitution, it is superior to all. Mr. Justice McKenna would of course be the first to refute any contention of counsel in future litigation that the rent cases sanction all that he now in dissent insists that they sanction. He would not convert his parade of imaginary horribles into a line of authoritative precedents in favor of the constitutionality of all sorts of legislative mon. strosities. A calm view assures us that the rent cases decide For an excellent example of an approach to constitutional issues that is temperate, rational, relative and not absolute, we have only to appeal from Mr. Justice McKenna in the Rent Cases to Mr. Justice McKenna in Walls v. Midland Carbon Co. sustaining a statute of Wyoming which as applied to the complainant before the court prohibited the use of natural gas for the manufacture of carbon black and permitted only its use for heat for manufacturing and domestic purposes. The facts were greatly in dispute but the court seemed to be convinced that complainant's use of the gas would exhaust it in short order while there was still enough to heat factories and homes in nearby towns for ten years. While use for carbon black yielded greater financial returns than use for heat, the former involved great waste which the latter did not. The essence of the decision is that "a state may consider the relation of rights and accommodate their co-existence, and, in the interest of the community, limit one that others may be enyed." Conceding that the police power extends to regulation of the subject matter," a comparison of the value of the industries and a judgment upon them as affecting the state, was for at to make." The fact that the statute applied only to wells within ten miles of an incorporated town or industrial plant was held not to deprive the law of its character as a conservation measure nor to make it deny to persons within the restricted zone the equal protection of the laws. The complaint that the enforcement of the statute impaired the obligation of contracts was apparently not deemed of sufficient importance to require specific refutation even by Mr. Justice McKenna, who relied so strongly on the interference with contracts wrought by the rent regulation laws. In the gas case the Chief Justice and Justices Van Devanter and McReynolds dissented, but without opinion. Workmen's compensation legislation came before the court in two cases to have minor complaints dismissed as minor Lower Vein Coal Co. r. Industrial Board of Indiana' found it proper to make a compensation statute compulsory for coal 1-1921) 254 U. S. 300, 41 Sup (1. 118. *(1921) 255 U. S. —, 41 Sap. Ct. 253. mines though elective for other enterprises except railroads, which were excluded entirely. Mr. Justice McKenna affirmed that coal mines are peculiar and may be so regarded by the state even though there may be other industries equally dangerous. The fact that all employees of coal mines are within the compulsory law even though many of them are engaged in non-hazardous tasks is not objectionable, since it would be confusing to make distinctions on the basis of the particular job of each particular employee. The exclusion of railroads received no consideration. It is clearly justified by the fact that so many injuries to railway employees come within the federal Employers' Liability Law and are necessarily excluded from state compensation laws. Thornton v. Duffy' reaffirmed the power of the state to compel employees to insure in a state fund. Mr. Thornton thought that this requirement impaired the obligation of his existing contract with a private insurance company. While the court found that the permission given by an earlier statute to take out private insurance was declared in the statute to be revocable, and the case technically must be confined to such a state of facts, Mr. Justice McKenna declared more broadly that" an exercise of public policy cannot be resisted because of conduct or contracts done or made upon the faith of former exercises of it upon the ground that its later exercises deprive of property or invalidate those contracts." It has long been established that, where public authorities granting franchises have power to contract as to the rates which recipients of franchises shall charge, these rates may continue to be enforced even after they become confiscatory. This principle was reaffirmed in two decisions handed down at the last term, although in both cases the court found that no contracts existed and that therefore it was a denial of due process to require the company to charge less than enough to yield it a fair return on the fair value of its property. In Southern Iowa Electric Co. v. Chariton,' state decisions were adduced to show that Iowa municipalities had never been granted power to con 1 (1920) 254 U. S. 361, 41 Sup. Ct. 137. 497 tract as to rates. San Antonio v. San Antonio Public Service Co.' relied on a Texas decision which had held that a prohibition in the state constitution against making irrevocable grants of special privileges deprived a city of power to sanction by contract a five-cent fare as against a later statute requiring school children to be carried at half-fare. Chief Justice White declared that if Texas cities had no power by contract to authorize a certain fare, they had no power to impose a certain fare as a condition of the enjoyment of the franchise. His chain of reasoning is not completely compelling, and a judgment as to the soundness of his conclusion would require more details as to the state statutes than those contained in his opinion. The question of the original power of municipalities to contract with donees of franchises is a question of state law. State decisions on the question are accepted by the United States Supreme Court except when they are regarded as erroneous afterthoughts which really approve of statutes impairing the obligation of a contract under the guise of declaring that no contract existed. These two decisions, therefore, have not the wide scope attributed to them in some newspaper comment. Public utilities are still bound by rates validly fixed by contract. Questions whether contracts have in fact been made or whether cities professing to make them have had valid statutory authority to do so are questions which depend for their answer upon the varying provisions of state statutes and constitutions. One of the objections urged against the Minnesota espionage law sustained in Gilbert v. Minnesota, was that its restraint on freedom of speech violates the due-process clause of the Fourteenth Amendment. The majority, without deciding whether the Fourteenth Amendment restricts the states as the First Amendment restricts the United States, declared that advice not to enlist or not to aid the United States in war is not within any constitutional protection. Mr. Justice Brandeis had "difficulty in believing that the liberty guaranteed" by the Fourteenth Amendment "does not include liberty to teach, either in the 1(1921) 256 U. S. —, 41 Sup. Ct. 428. |