could be effected through suitable interconnection and coordination of the Nation's power facilities, the economy of such a procedure is strongly emphasized. When there is added the consideration that the safety of the Nation itself in time of war is dependent upon the existence of adequate power facilities which must have been installed before the outbreak of hostilities, its vital importance from a national standpoint would appear to be fully demonstrated" (p. 55).

The unanimity of opinion regarding the vast saving to be accomplished by the proper coordination of power facilities, and the need for a centralized control of the coordination process furnishes a formidable basis for the exercise of congressional power provided in title II of the present bill.

That the uncontrolled and uncoordinated generation and transmission of electricity results in a duplication of facilities and uneconomical operation, which increases the price to the consumer, and obstructs the free flow of electric energy in interstate commerce, are facts thoroughly established by governmental and private studies. That it is within the power of those generating and selling electric energy in interstate commerce to charge excessive wholesale prices to distributing companies, thereby imposing a similar burden upon interstate commerce, is equally demonstrable. Both the present bill and the court decisions indicating the limits of legislative power should be read with these facts in view. The decisions under both the commerce clause and the due process clause will be reviewed to show that Congress, and Congress alone, has power to prescribe the remedy which the bill proposes.

THE COMMERCE CLAUSE

The power of Congress over interstate commerce has been recognized from the days of Chief Justice Marshall as a "power to regulate; that is, to prescribe the rule by which commerce is to be governed. "This power", Marshall wrote, "like all others vested in Congress, is complete in itself, may be exercised to its utmost extent and acknowledges no limitations other than are prescribed in the Constitution" (Gibbons v. Ogden, 9 Wheat. 1, 196). In defining the scope of this power, the Supreme Court has consistently paid heed to Marshall's famous declaration that, "We must never forget, that it is a constitution we are expounding' * "a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs" (McCulloch v. Maryland, 4 Wheat. 316, 407, 415). The same point was made by Mr. Justice Holmes in referring to the powers reserved to the States by the tenth amendment: "We must consider what this country has become in deciding what that amendment has reserved" (Missouri v. Holland 252 U. S. 416). What this country has become in the field of electric power transmission is described in the official reports to which reference has been made.

It has been definitely settled by the Supreme Court that the transmission of electricity from one State to another is interstate commerce within the meaning of the Constitution (Public Utilities Commission v. Attleboro Steam & E. Co., 273 U. S. 83). The power of Congress to regulate such commerce, the Court has often said, is the power to enact whatever legislation is appropriate to "foster, protect, control, and restrain" interstate commerce (Second Employers' Liability Cases, 223 U. S. 1; The Daniel Ball, 10 Wall. 557, 564; Mobile County v. Kimball, 102 U. S. 691, 697). In Dayton-Goose Creek Ry. Co. v. United States (263 U. S. 456, 478), the Court said: "* * To regulate in the sense intended is to foster. protect, and control the commerce with appropriate regard to the welfare of those who are immediately concerned, as well as the public at large and to promote its growth and insure its safety.

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The Supreme Court has held that this regulatory power is the only legislative authority under which the price of electricity sold at wholesale in interstate commerce may be regulated. In denying the power of the Rhode Island commission to fix the rate for a bulk sale of energy to a Massachusetts company at the State line, the Court said: "Plainly, however, the paramount interest in the interstate business carried on between the two companies is not local to either State, but is essentially national in character. The rate is therefore not subject to regulation by either of the two States in the guise of protection to their respective local interests; but, if such regulation is required it can only be attained by the exercise of the power vested in Congress" (Public Utilities Commission v. Attleboro Steam & E. Co., 273 U. S. 83, 90). The wholesale rates governed by this decision are the only rates which under this title are to be fixed by the Federal commission. Distribution rates which the Supreme Court has held subject to regulation by the States in the absence of Federal legislation (Pennsylvania Gas Co. v. Public Service Commission, 252 U. S. 23), are left in the hands of the States. Hence, it is

unnecessary to consider the power of Congress to extend Federal regulation over rates charged to domestic consumers.

It is plain that precisely like the rate sections, the other provisions governing interstate transmission and control of the facilities for such transmission are regulations of interstate commerce in the constitutional sense. They are regulatory devices which have been applied by Congress to other important interstate utilities, railroads, telephones, telegraphs, express companies, and pipe lines. The imposition of a duty to serve has been upheld by the Supreme Court in the case of railroads (United States v. Louisiana & P. R. Co., 234 U. S. 1), pipe lines (United States v. Ohio Oil Co., 234 U. S. 548), and, in a certain sense, commodity exchanges (Chicago Board of Trade v. Olsen, 262 U. S. 1). The cases upholding the power of the Interstate Commerce Commission to establish through routes and joint rates furnish convincing authority for the requirements of title II regarding compulsory interconnection and interchange of power (United States v. Louisiana & P. R. Co., supra; St. Louis, S. W. R. Co. v. United States, 245 U. S. 136; Chicago I & L. R Co. v. United States, 270 U. S. 287). The complete control which the Interstate Commerce Act vests in the Commission over extensions and abandomnents has been fully upheld (Railroad Comm. of California v. Southern Pacific Co., 264 U. S. 331; Alabama & V. R. Co. v. Jackson & R. Co., 271 U. S. 244; Colorado v. United States, 271 U. S. 153). Control over security issues has been recognized by the Court as an appropriate and necessary means of safeguarding the ability of a tuility to perform its public duty and maintain its service. See Railroad Comm. of California v. Southern Pacific Co., 264 U. S. 331, 347. Control over accounts may validly be extended to cover all the business, both interstate and intrastate, of companies subject to the act (Interstate Commerce Commission v. Goodrich Transit Co., 224 U. S. 194).

The objection will probably be urged that the railroad cases do not govern because they deal only with interstate transportation itself, whereas the present bill is concerned with the supply of an article of commerce. To refute this contention, it is unnecessary to indulge in useless controversy as to whether electricity is a commodity or a service. No matter what view is taken of the character of the business the argument against the present bill on this ground rests on too narrow a conception of the commerce power. The Supreme Court has upheld the application of all regulatory devices which Congress deems necessary to stimulate and protect the free flow of articles in interstate commerce. Swift & Co. v. United States, 196 U. S. 375; Stafford v. Wallace, 258 U. S. 495; Chicago Board of Trade v. Olsen, 262 U. S. 1; Duplex Co. v. Deering, 254 U. S. 443; Tagg Bros. & Moorehead v. United States, 280 U. S. 420; Texas & N. O. R. Co. v. Brotherhood of Ry. Clerks, 281 U. S. 548. As stated by Mr. Justice Brandeis, in Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U. S. 146, 156: "That the United States lacks the police power, and that this was reserved to the States by the tenth amendment, is true. But it is none the less true that when the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by the same incidents which attend the exercise by a State of its police power or that it may tend to accomplish a similar purpose.'

A number of cases under the commerce clause are cited in support of this statement, among them Champion v. Ames, 188 U. S. 321; Hipolite Egg Co. v. United States, 220 U. S. 45; Hoke v. United States, 227 U. S. 308.- Long before those cases were decided, the Court had said that for the purpose of carrying out its powers under the commerce clause, "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." Gilman v. Philadelphia, 3 Wall. 713, 725. More recently, in Brooks v. United States, 267 U. S. 432, 436, the Court, by Chief Justice Taft, affirmed the right of Congress to regulate interstate commerce "to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty, or the spread of any evil or harm to the people of other States from the State of origin," and said that in doing this, Congress was "merely exercising the police power for the benefit of the public, within the field of interstate commerce." Under these decisions, there can be no question that the measures by which the States may regulate their local utilities may constitutionally be applied by Congress to those utilities that engage in interstate com

merce.

The most serious issue which is likely to be presented upon this question will probably result from reliance on the language in Utah Power & Light Co. v. Pfost, 286 U. S. 165, to reach the conclusion that Federal authority may not be extended to the generation of electricity. In that case the Supreme Court upheld the con

stitutionality of a State tax on the generation of electric energy as applied to a public utility which generated energy within the State for sale outside the State. The company argued that the tax was on the transfer of energy from its source to its place of use; since generation was not a process distinct from the interstate transmission, it contended that the generator was itself an instrumentality of such transmission and hence of interstate commerce. In rejecting the contention the court pointed to the oft-repeated distinction between manufacturing and commerce, and the rule that the former ends before the latter begins. This entire discussion, however, must be read with a qualification stated by the court itself, that, "from the strictly scientific point of view the subject is highly technical, but in considering the case, we must not lose sight of the fact that taxation is a practical matter and that what constitutes commerce, manufacture, or production is to be determined upon practical considerations" (286 U. S. at 179). In the Utah case the practical considerations plainly favored a decision upholding the State's power to tax. For that purpose generation may readily be distinguished from transmission. Where the entire product of a factory is to be sent outside the State there can be no question of the State's power to impose a tax, or to prohibit, the operation of that factory. Kidd v. Pearson, 128 U. S. 1; Oliver Iron Mining Co. v. Lord, 262 U. S. 172. As the question is whether the tax imposes a direct burden on interstate commerce (Nashville, C. & St. L. R. Co. v. Wallace, 288 U. S. 249, 267; Federal Compress & Warehouse Co. v. McLean, 291 U. S. 17, 22), the issue is plainly not affected by the length of time between production and transportation. However, the Supreme Court has repeatedly pointed out that decisions upholding State regulation and State taxes afford no authority for the conclusion that the power of Congress under the commerce clause does not extend to the same subject. Swift & Co. v. United States, 196 U. S. 375, 400; Stafford v. Wallace, 258 U. S. 495, 525; Chicago Board of Trade v. Olsen, 262 U. S. 1, 33; Minnesota v. Blasius, 290 U. S. 1, 8. As stated by Mr. Justice Sutherland in a case under the Sherman Antitrust Act, "The cases cited by defendants in error, upholding State taxation as not constituting an interference with interstate commerce, are of little value to the inquiry here. It does not follow that because a thing is subject to State taxation it is also immune from Federal regulation under the commerce clause." Binderup v. Pathe Exchange, 263 U. S. 291, 311. On that issue facts which the Court referred to in the Utah case and dismissed as irerlevant become highly material. The physical inseparability of generation and transmission, the fact that one cannot take place without the other, makes regulation of transmission impossible unless generation is also controlled.

The fact that manufacturing has been so sharply distinguished from commerce did not prevent the application of the antitrust laws to activities among producers alone, and producers wholly within a single State, where their direct effect was to restrain interstate commerce in the goods produced. Swift & Co. v. United States, 196 U. S. 375; Loewe v. Lawlor, 208 U. S. 274; Coronado Coal Co. v. United Mine Workers, 268 U. S. 295. Compare Duplex Co. v. Deering, 254 U. S. 443; Bedford Cut Stone Co. v. Journeyman Stone Cutters' Association, 274 U. S. 37. These cases show that the relationship to interstate commerce of the subject on which regulation is imposed is the criterion of the validity of congressional action under the commerce clause. The point is most strikingly illustrated by the decision in United States v. Ferger, 250 U. S. 199, where the Court rejected the contention that the United States could not punish the fraudulent issuance of a bill of lading on the ground that no interstate commerce was involved since there was only a fraudulent scheme. In answering this argument, the Court said: "This mistakenly assumes that the power of Congress is to be necessarily tested by the intrinsic existence of commerce in the particular subject dealt with, instead of the relation of that subject to commerce, and its effect upon it. We say mistakenly assumes, because we think it clear that if the proposition were sustained it would destroy the power of Congress to regulate, as obviously that power, if it is to exist, must include authority to deal with obstructions * and with a host of other acts which because of their relationship to and influence upon commerce, come within the power of Congress to regulate, although they are not interstate commerce in and of themselves."

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The contention has also been made that interstate transmission ends when current is "stepped down" by a transformer, that the "original package" is then broken. Here again, the authority is a decision upholding the validity of a State tax. South Carolina Power Co. v. South Carolina Tax Commission, 52 F. (2d) 515, affirmed without opinion on appeal from denial of a temporary injunction, 286 U. S. 525. That this principle has no application to a determination of the limits of Federal power is shown by the recent decision by the Surpreme Court in

Baldwin v. Seelig, Inc., decided March 4, 1935. The court there held unconstitutional the application of the New York Milk Control Act to milk brought in from outside the State and bottled within the State for sale there. In holding the "original package" test inapplicable, Mr. Justice Cardozo wrote: "In brief, the test of the original package is not an ultimate principle. It is an illustration of a principle. Penn Gas Co. v. Public Service Commission, 225 N. Y. 397, 403. It marks a convenient boundary and one sufficiently precise save in exceptional conditions. What is ultimate is the principle that one State in its dealings with another may not place itself in a position of economic isolation. Formulas and catchwords are subordinate to this overmastering requirement. Neither the power to tax nor the police power may be used by the State of destination with the aim and effect of establishing an economic barrier against competition with the products of another State or the labor of its residents." This decision shows that even as applied to State legislation, the "original package" rule may not be invoked to uphold a State in placing burdens upon interstate commerce. As applied to Federal legislation, there is no place whatever for the rule. Its use, as stated by Mr. Justice Cardozo, has always been to mark the limit of the power of the States. It has never been applied as a restriction upon Federal action.

THE DUE-PROCESS CLAUSE

When it is shown that the provisions of the bill fall within the power of Congress to regulate interstate commerce there remains the question whether any of its provisions deprive the utilities of their liberty or property without due process of law in violation of the fifth amendment to the Constitution. On this issue no distinction need be drawn between cases involving Federal statutes and those passing upon State legislation, for the due-process clause in the fourteenth amendment is identical with that of the fifth, and each clause imposes a like limitation upon the legislative action to which it applies. See Nebbia v. New York, 291 U. S. 502, 525.

The discussion may start from the premise that the industry here involved is one of a public-utility character, completely subject to public regulation. This premise need not be supported by a discussion of the various tests of what makes a business one "affected with a public interest." Certainly the distribution of electricity has been regarded as in that category since the inception of the business. The production of electricity for this ultimate distribution to the consumer and the intermediate processes of transmission and sale to distributing companies have an obvious, direct, and vital relation to distribution. Whenever the question has arisen in the interpretation of State statutes companies engaged in the sale of electricity and gas at wholesale for resale by public-utility companies have been held to be subje t to the duties of those engaged in a public-utility business. North Carolina P. S. Co. v. Southern Power Co., 282 Fed. 837; Salisbury & S. R. Co. v. Southern Power Co., 179 N. C. 18; Southern Oklahoma Power Co. v. Corporation Commission., 96 Okla. 53; Peoples Natural Gas Co. v. Public Service Commission, 79 Pa. Super Ct. 560. In half the States specific commission approval must be secured before any electric transmission lines may be built. Bonbright Utility Regulation Chart (revision of 1930). Furthermore, most if not all of the Companies affected by the present bill are undoubtedly organized as publicutility companies under the laws of the States which created them. Most, if not all of them, have made use of the power of eminent domain and could not have built their lines if they did not have that power. They have in the traditional sense dedicated their property to the performance of a public service.

To place a business in the public-utility category, however, it is not essential that an express dedication to puglic use be established. "Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large" (Munn. v. Illinois, 94 U. S. 113, 126. See also Van Dyke v. Goary, 244 U. S. 39; Chicago Board of Trade v. Olsen, 262 U. S. 1; Nebbia v. New York, 291 U. S. 502). Certainly, the small grocer in the Nebbia case, who unsuccessfully challenged the validity of a law fixing the price at which he might sell milk, would have been very much surprised to learn that he had made such dedication of his business as to constitute a voluntary submission to public regulation. The opinion of the majority in that case contains a lengthy discussion showing just what was held in the leading case of Munn v. Illinois. Mr. Justice Roberts points out that Munn and Scott held no franchise from the State. "They owned the property wpon which their elevator was situated and conducted their business as private citizens. No doubt they felt at liberty to deal with whom they pleased and on such terms as they might deem

just to themselves." Nevertheless, the decision in the Munn case upheld the validity of a statute which fixed the price at which they might serve. Van Dyke v. Geary also furnishes a typical illustration of a business undertaken as a purely private one under individual ownership without any thought of dedication to the use of all. Organized to furnish water supply in a small town, it became subject to the rate-making powers of a public-service commission under a subsequently enacted utility law.

In both State and Federal cases there is abundant authority that a requirement to furnish service of a particular kind may be imposed consistently with the rights of the utility under the due process clause. (Atlantic Coast Line R. Co. v. North Carolina Corp. Comm., 206 U. S. 1; Missouri Pacific R. Co. v. Kansas, 216 U. S. 262; New York & Queens Gas Co. v. McCall, 245 Ú. S. 345; Woodhaven Gas Light Co. v. Public Service Comm., 269 U. S. 244; United Fuel Gas Co. v. R. Comm., 278 U. S. 300.) Within certain limits (compare Northern Pacific R. Co. v. North Dakota, 236 U. S. 585, 595) a particular service may be required although it can only be conducted at a loss. (Atlantic Coast Line R. Co. v. North Carolina Corp. Comm., 206 U. S. 1, 25; Missouri Pacific R. Co. v. Kansas, 216 U. S. 262, 277; Puget Sound T. L. & R. Co. v. Reynolds, 244 U. S. 574.)

There are several decisions upholding Federal regulation of a public-utility character of businesses which were unregulated at their inception, but which became "affected by a public use of a national character and subject to national regulation." (Stafford v. Wallace, 258 U. S. 495, 516; Chicago Board of Trade v. Olson, 262 U. S. 1, 41.) In United States v. Ohio Oil Co. (234 U. S. 548), the Supreme Court upheld the constitutionality of an act declaring companies engaged in the transportation of oil by means of interstate pipe lines to be common carriers, and requiring them to transport oil for all requesting their services. The statute was passed in order to abolish the practice by which oil companies having a monopoly of pipe-line facilities required independent producers to sell them their oil in order to have it transported. While Mr. Justice Holmes declared that the companies were already common carriers in everything but form and that the "statute practically means no more than that they must give up requiring a sale to themselves before carrying the oil that they now receive", it is significant that legally the companies affected were not public utilities at all until the statute made them so. If anything, the present case is stronger than that of the pipe-line companies, for companies owning electric transmission lines are organized as public-utility companies and many do transmit energy for other companies at the present time. The oil companies, on the other hand, had persistently refused to carry any oil but their own. They intended to use their lines only to carry oil to which they had acquired title through purchase from the producer. The broad implication of the decision was pointed out in the dissenting opinion of Mr. Justice McKenna, who contended that the use of the pipe lines had not been extended voluntarily to others and that this was a case "where the use was compelled, and by the use so compelled, regulation was justified." This consideration was unavailing with the rest of the Court, for Mr. Justice McKenna was alone in his dissent.

A further example of the imposition of a duty to perform a service which has not been extended voluntarily is found in Chicago Board of Trade v. Olson (262 U. S. 1), upholding the constitutionality of the Grain Futures Act, Among other points, the grain exchange challenged specifically the provision in the act requiring it to admit to membership cooperative associations of producers. Far from undertaking to serve such organizations, the board of trade had a rule barring from membership any association which returned its profits to its members. It was claimed that the provision making this rule illegal would impair the value of membership on the board of trade and so take the property of its members without due process of law. The Supreme Court replied that, "the incidental effect which such reasonable rules may have, if any, in lowering the value of memberships, does not constitute a taking, but is only a reasonable regulation in the exercise of a police power of the national Government."

There is clear authority for the provisions of the present bill which require utilities to establish physical connections with the facilities of other companies and to exchange energy with other companies. Railroad companies have unsuc cessfully attacked orders requiring them to establish physical connections with other lines (Wisconsin, Minn., Pac. R. Co. v. Jacobsen, 179 U. S. 287; Michigan Cont. R. Co. v. Michigan Ry. Comm., 236 U. S. 615); to handle the loaded cars of other companies and interchange traffic (Grand Trunk R. Co. v. Michigan Ry. Comm., 231 U. S. 457; Chicago, Milwaukee & St. Paul R. Co. v. Iowa, 233 U. S. 334; Pennsylvania Co. v. United States, 236 U. S. 351), and to establish through