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afforded the means of and the opportunity for combinations of trade and capital. Along with these, a change has come to pass in the attitude of the people to the government and in the relation of the State to the individual. No longer can he, fighting single-handed, hope to secure those things essential to his life, liberty and pursuit of happiness, and which in the early days of the republic he was able to obtain for himself. The government is his agent, and the instrument of all the people, and it is called upon to do for the individual that which he either cannot do for himself at all or cannot do so well as can be done for him by it.
When our forbears were engaged in taking this country from the savage and reclaiming it from the wilderness, their wants were few and easily supplied. They gave to, rather than asked of, the State. The early settlers of Tennessee frequently complained of the neglect of the governments at Raleigh and Washington. They asked protection from the ravages of the Indians and the lawlessness of the backwood desperadoes. They frequently asked in vain. You will remember that it was when repeated petitions of this kind had been declined that John Sevier and his associates organized the State of Franklin and undertook to provide for themselves that which North Carolina had refused to give.
Now all is changed. The State is the Great Father, with bottomless credit. We, especially of the South, decried the paternal when it fostered wealth. We now demand that the government protect the people from its power, irrespective of whether it was fostered by legislation or is the result of natural causes. The common law condemned as unlawful unreasonable restraint of trade, but we have provided by State and National legislation more drastic laws whereby to curb the ever-increasing power of the combinations of trade and capital. We have found that in many instances employes, individually and collectively, are not at arm's length with the employers in the matter of contract. So we have limited the right of the individual to make contracts, yet when these laws have been attacked as unconstitutional they have had as their defenders, not the many whose right is thus curtailed, but the few whose growing powers they were enacted to curb. We protect by
statute the miners and the factory laborers from contracting to receive their wage in script, provide when and how it shall be paid, as well as guard those engaged in hazardous occupations from agreeing to assume the dangers incident to their employment by laws denying the employes the right of releasing the employers from negligence, and the like.
To be sure, the State has always regarded the common carrier as subject to its regulation, but only since it has come to pass that railroads cover the continent with their network of rails, number their employes by the hundreds of thousands, and, upon their operation, the people depend for the interchange of practically all commerce, has the government provided commissions for their supervision, regulated by statute the instrumentalities to be used by them, the hours of work of the employes, the contractual relation of employer and employe the rates, fares and charges permitted to be made for services performed, and prohibited rebates and special contracts of every kind whereby one shipper is given any privilege not common to all.
In some States laws have been enacted providing compensation to be made by the employer to an employe injured or killed in service, and such laws when within constitutional limitations are upheld. It is argued that the compensation for injuries is a legitimate charge upon the business, and should be borne by the community at large, and not by the unfortunate employe or his family. It would seem that the end has not been reached in the matter of regulation of carriers, for if the State may regulate them in the above matters, it sooner or later, of necessity, must regulate the wages paid for their labor.
At common law the innkeeper was subject to certain restrictions, but it has remained for the State in our day to provide by statute the length of the sheets with which “mine host” shall cover his guest. The State as the guardian of the public health prohibits the use of the public drinking cup, the roller towel and the ancient and service-worn comb and brush. To protect the health of the individual it encourages hygiene, promotes cleanliness, establishes quarantines, enforces screen ordinances and encourages the killing of flies, even as our forbears did the wolves—all in the interest of the public, whose servant it is.
The Department of Agriculture instructs the farmer how and when to plow, sow and reap. It furnishes seed, builds silos, issues bulletins, conducts experiment stations, inspects fertilizers and gives from time to time information as to crop conditions and estimates as to probable yields. The city man is not overlooked, for the government provides for his light by night, water by day and night, regulates the means of taking him to his business, and generally watches out for his health and comfort. The man in the city does not know, and has never seen his milkman, unless, perchance, he has met him by accident, as he has come in at an early hour from the club. So the State inspects his milk as it does the other articles of his food and his drugs, because he is powerless to do these things for himself. This is done not to serve one individual, but to serve the many, whose agent the State is.
It is said by some, who in my judgment have taken a superficial view, that the spirituality of the people is declining, and that religious life is at a low ebb. To that opinion I cannot subscribe. Whether it be true or not, at no period of time in all the history of the world have any people been so alive or so moved to suppress vice, certainly in its most hideous forms, and to promote morality, as we are now. Hence the laws regulating and prohibiting the sale of intoxicating liquors, the “white slave" act recently sustained by the Supreme Court of the United States as a constitutional measure, and numerous others.
We do not stop with laws upon these several subjects, but to ascertain the condition of the poor and to devise by law for their relief, have established commissions to conduct investigations as to the conditions of shop girls, the relation of low wages to the social vice, and, in fact, these investigations cover almost every subject from the money trust to the cause and extent of pallagra and the hookworm. It is no wonder that we have increased the volume of legislation!
Where the States have been slow to act, or where their action has not been effective, the national government has been called upon to legislate upon the subject, and the call has seldom been in vain. I might go on adding example to instance and multiplying illustrations to sustain my statement that we are becoming a people whose life is marked out by law and regulated by statute, even almost to the extend that it was with the Israelites when God, through his prophets and law-givers, regulated and governed their lives as to the most minute matters. It will be conceded that there is a point where the resemblance ceases, for he would be credulous indeed who would credit to our present legislators that divine inspiration and wisdom which guided Moses.
The student of government may well ask, Whither is this drift taking us? and where will the line be drawn beyond which the State may not go in regulating the life of the individual citizen? Will it ultimately either manage or regulate or own all business and trade? Already there are many who demand that it shall take charge of the telegraph and telephone companies, and men, high in official station, have advocated the Federal ownership of all lines of interstate railroads, with State ownership of lines engaged in intrastate commerce. Already a vast army are engaged in the government service in one form or another, and out of the public treasury, many, many thousands draw the means for their daily subsistence. If the trend continues the inquiry may well be made if all will not in the end depend upon the State for daily bread ?
The majority of the laws to which I have referred have been upheld under what is called police power. Of that, Mr. Justice Holmes said in a recent opinion (219 U. S. 110, and this statement of the learned jurist has been used as a text by the leader of the Progressive Party in the attack upon the courts for striking down those laws which do not square with the Constitution):
“It may be said in a general way that the police power extends to all the great public needs. Camfield v. United States, 167 U. S., 518. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to public welfare.”' 219 U. S., 110.
In the same case, where the Oklahoma Bank Guarantee bill was before the Supreme Court of the United States, and it was asked whether the State could require all corporations or all merchants to help to guarantee each other's solvency, and where the courts were going to draw the line beyond which the legislatures could not go, he said:
“But the last is a futile question, and we will answer the others when they arise. With regard to the police power, as elsewhere in the law, lines are pricked out by the gradual approach and contact of decisions on the opposing
In the same opinion he announced as a rule governing the courts in construing the limitations of the police power as follows:
“In answering that question we must be cautious about pressing the broad words of the Fourteenth Amendment to a drily logical extreme. Many laws which it would be vain to ask the Court to overthrow could be shown, easily enough, to transgress a scholastic interpretation of one or another of the great guaranties in the Bill of Rights. They more or less limit the liberty of the individual or they diminish property to a certain extent. We have few scientifically certain criteria of legislation, and as it often is difficult to mark the line where what is called the police power of the States is limited by the Constitution of the United States, judges should be slow to read into the latter a volumus mutare as against the law-making power.”
Far-reaching as the police power of the State, as thus indicated, is on a petition to rehear the court, gave little comfort to those who think we have gone far enough, when it said:
“The analysis of the police power, whether correct or not, was intended to indicate an interpretation of what has taken place in the past, not to give a new or wider scope to the power. The propositions with regard to it, however, in any form, are rather in the nature of preliminaries.” 219 U. S., 580.
We cannot see the end of all this. Rather, I think, that we are only at the beginning of a new era. The laws are changing with the times and with the customs of the people. Notwithstanding the increase of laws curtailing the rights of the individual, and the further fact that almost daily the strong