their legal knowledge, and not because of any familiarity with public utilities or methods of regulation, or of knowledge of the needs of the public. To impose a duty upon them which they are not fitted to perform, for which they were not chosen primarily, and which has no relation whatever to their legal duties, would be unwise. The universal experience in governmental administration is that the union of widely different functions in one person or body ordinarily results in inefficiency in some one direction or in every direction. In this case, either legal questions would be less wisely decided or public regulation would be inefficient. In Steenerson vs. Great Northern Railway Co., 69 Minn., 353, 377, Mr. Justice Canty said, after referring to the peculiar qualities which members of commissions should have: How is a judge, who is not supposed to have any of this special learning or experience, and could not take judicial notice of it if he had it, to review the decision of commissioners, who should have it and should act upon it? It seems to us that such a judge is not fit to act in such a matter. It is not a case of the blind leading the blind, but of one who has always been deaf and blind insisting that he can see and hear better than one who has always had his eyesight and hearing, and has always used them to the utmost advantage in ascertaining the truth in regard to the matter in question. In this connection it is to be noted that one of the principal reasons for the creation of special administrative bodies to supervise corporations, is that judicial methods and remedies have been neither effective nor satisfactory to the public. The long delays, the great expense, and the heavy burden upon the private citizen or organization, attending any attempt to force a corporation to do what is required by law, only in general terms, have made recourse to the courts quite impracticable. The private citizen is at a big disadvantage, and there have been few cases where he has tried his theoretical remedy. To give the courts the right to review the acts of administrative bodies exercising legislative functions would be a backward step and would increase the difficulties of securing proper relief. Corporations cannot be regulated by private lawsuits. Judicial bodies are not well organized to regulate public service corporations. They are governed by strict rules of evidence. Their procedure usually spells delay. They pass only upon evidence presented to them. They have no permanent technical staff to make investigations and to assist them to analyze and digest the voluminous testimony often presented. The questions that arise are often so technical that expert assistance is necessary to a wise decision. Even if the investigation were made in first instance by an administrative body, and an appeal were provided to a court upon the question of reasonableness, whether the evidence justified the order, etc., the special knowledge of the administrative body would, in large measure, become of little value. The establishment of such an appeal would probably change the administrative body into a judicial body. But what is the use of a commission with a competent staff of experts, if a court with no such staff is to make the final decision, not only as to the law, but as to the facts and their application to the conditions which surround an intricate case? The fundamental theory of public regulation by an administrative body is that it is a special function requiring special qualifications and knowledge upon the part of those who exercise it, a staff of technical experts, who are as familiar with the industries to be regulated as the corporations themselves, ample time and opportunity to investigate every subject, and sufficient authority to carry out the conclusions reached. A few illustrations will suffice to show the burden which a careful review of the evidence will place upon the courts. A case relating to transfers between the various street-car companies in the Borough of Manhattan was recently closed before the Public Service Commission for the First District, N.Y. The record covers nearly 4000 typewritten pages, including nearly 200 exhibits, many of which are elaborate statistical comparisons. In another case, relating to the reorganization of a company, about 2400 typewritten pages of testimony were taken, including about 130 exhibits. It is evident that if a court is to analyze such a voluminous record and decide whether the commission wisely reached the conclusion appealed from, either other cases must wait, clerical and expert assistance must be had, or a decision must be reached without the careful examination necessary. Broad court review will almost inevitably decrease efficiency. If a corporation may appeal to the courts because it believes an order is not justified by the record, and if it may secure a review of such evidence by a lower court and then by a higher court, a final decision may be put off and off, until the public is worn out and effective regulation greatly hampered. It is said that even under a system of judicial control limited to purely legal and constitutional questions, such a result may follow. True, but that is no reason for increasing the excuses for delay; and every time a new subject is added to the list upon which appeal may be taken, delay is facilitated. The advantages accruing to a corporation from litigation are often so considerable that suits may be started even where the prospect of success is small. In the first place, it may pay to litigate; and it is not always feasible to require a company to reimburse its patrons or consumers if it loses. In the case of service orders, if the court issues a stay but later sustains the order, the public has irretrievably lost the benefits from the better service it should have had while the litigation was proceeding. Information may be needed to decide a rate case; but if the company may contest the order for such data through the courts, and prevent a decision while that is being done, it is evident the receipts from the contested rates may more than offset the cost of litigation. Secondly, the threat of a long contest in the courts may be used to secure a compromise. Complainants and commissions are apt to reason that it is better to accept a result which is less than the facts warrant, if by so doing an immediate settlement is obtained. This virtually places a reward upon belligerency and often prevents the public from securing that to which it is fairly entitled. Every means that contributes to that end is certainly undesirable. Again, the complainant is at a decided disadvantage usually when the case goes into the courts. It is difficult and expensive for him to litigate. The interest of any one person is ordinarily small as compared with that of the corporation. But if there is to be an appeal to the courts, the complainants or the public ought to have an equal right to appeal from a decision that does not please them. Another objection to the theory of broad judicial control is that it will tend to lessen responsibility. When administrators know that their decisions are final, so far as "reasonableness" is concerned, they will naturally exercise care and diligence. The centralization of responsibility increases the realization of this responsibility. But if they know that even in any unimportant matter an appeal may be taken, the tendency will be to transfer the responsibility to the courts and to reach conclusions hastily in order that the appeal may be taken immediately. It will also enable inefficient bodies to shift the responsibility for inefficiency upon the courts. The rôle of the prophet is always hazardous and thankless, but one may safely predict that if a system of court review is generally adopted, whereby a corporation that is dissatisfied with any act or order may appeal to the courts and thereby delay for a long period a final decision, and perhaps upset the conclusion reached by the administrative body because the court has a different opinion of what is wise, expedient, or warranted by the facts, a return may be made to legislative regulation which is subject to no such review, whenever it seems likely that advantage is to be taken of litigation to secure delay. The corporations have ample protection without unlimited review, and their real interests, as well as those of the public, do not lie in this direction. Further, if public regulation does not prove to be satisfactory, another and more radical remedy will certainly be tried. VI LABOR LAWS AND THE LABOR CONTRACT PROGRESSIVE TENDENCIES IN LABOR LAW BY JOHN B. ANDREWS, SECRETARY AMERICAN ASSOCIATION FOR LABOR LEGISLATION (From American Labor Legislation Review, December, 1913) One of the most important phases of the newer relations the government is assuming toward industry is discovered in the rapidly multiplying laws affecting labor: they embrace not only factory regulations, but laws pertaining to the labor contract, hours, wages, employers' liability. The attitude of the courts towards labor laws and labor disputes, especially towards boycotts, is of growing importance. - EDITOR'S NOTE. Numerous as the obstacles usually are to securing the enactment of wise labor laws, to secure their efficient enforcement is even more difficult. Much of our labor law in the past has failed of its purpose on account of defective administration. During the first fifty years of labor legislation in America little attention was given to the problems of enforcement. No special machinery was created to inquire into the operation of these laws. No new authorities were given the responsibility of enforcing them. But beginning in Massachusetts in the year 1869, with the formation of the first state Labor Bureau in the world, a new chapter opened in which is recorded a long succession of attempts to organize state machinery for the systematic investigation of labor conditions and the publication of labor statistics. It was not until several years later, however, that state bureaus were created for the definite purpose of inspecting work places to discover and prosecute violations of the law. State after state has established bureaus of factory inspection and labor statistics until such bureaus exist to-day in forty-two states. Indeed, in several instances, within a single commonwealth the various recognized functions of a labor bureau are scattered through more than halfa-dozen different bureaus, boards or departments. This lack of unity of authority and responsibility has been one of the causes of lax administration. And in spite of much good work accomplished in certain limited portions of the field or in a few states, the results as a whole may not unfairly be described as thirty years of ineffective organization. The principal functions of these state bureaus have been (1) the investigation of labor conditions, (2) the publication of statistical reports, and (3) the enforcement of labor laws. An influential labor editor as early as 1887 criticized these bureaus in scathing terms. He characterized their reports as of little practical value, and, after deploring the inconvenient and unattractive arrangement of material, he declared in disgust that "the index should be written by the author even if the book is not!" The greatest cause for dissatisfaction, however, has been the failure of these bureaus to enforce the law. And the reasons for such failure are not hard to understand. The inherent technical difficulties are great; appropriations have been insufficient; the form of organization has been faulty; the work to be accomplished, concerning as it frequently does the most vital relations between employers and employees, is of a very delicate nature. The successful mediator in time of strikes, for example, should command the confidence of both parties to the dispute. He should be possessed of unusual tact. He should be impartial. Again, the intelligent collection and tabulation of statistics requires a certain amount of scientific training. The preparation and publication of a report presupposes the ability to put facts in a form that will instruct. Finally, any administrative authority that, on account of the nature and extent of the problem, must depend for its success upon the coöperation of the principal groups in the community, must itself inspire a spirit of coöperation. The old idea of labor law enforcement, of policing a state, no longer commands respect. The "detective method," valuable and necessary as it is at times in covering hidden violations of the law, is nevertheless to be condemned when it becomes the habitual form of inspection. An army of the most skilled factory inspectors would be totally unable to enforce every provision of the factory laws. In a state like Pennsylvania, for example, there are more than 28,000 manufacturing establishments alone, scattered over an area of 45,000 square miles. Moreover, few inspectors, even with previous technical training, would be able intelligently to pass upon proper provisions for safety, comfort, and health in a succession of establishments including processes and danger points so varied as those to be found in the manufacture of steel and silk, carpets and chemicals, shirt waists and shovels, or in the construction of sky-scrapers and subways. Unfortunately, the successful candidates for factory inspection positions have not in the majority of instances been selected on account of peculiar fitness for the work. Frequently they have been appointed |