Evening star. [volume] (Washington, D.C.) 1854-1972, 1931-09-04
TRADE REGULATION
LAW IS HELD VOID
Oklahoma Statute Affecting
Ice Business Fails on
Legal Test.
BY DEAN DINWOODEY.

The fate which might befall measures
recently proposed for State regulation
and control of certain industries, par
ticularly in the agricultural and mining
fields. is indicated by a ruling just hand
ed down by an appellate court holding
unconstitutional an Oklahoma statute
declaring the manufacture, sale and dis
tribution of ice to be "a public business,
and providing for its regulation.
Overproduction of cotton, wheat, coal,
oil and other commodities has called
forth many plans and suggestions for
State action and State laws to regulate
and control the output of these products
and to fix prices for them. The eXecu-
tive authority has been exercised in the
oil fields of Oklahoma and Texas. Sug-
gestionS have been offered that the in
dustry be declared a public utility.
Louisiana has enacted a statute pro-
hibiting the raising of cotton for one
year, provided other cotton raising
States take similar action. Proposals
have been seriously entertained that the
governors of coal States exercise the
police power to curtail production. Pleas
and plans that State governments take
steps to STEM overproauction are ram
rcnt.
Legality Questioned.
The legality of suggested measures
for State interference with private
business, even under the exceptional
circumstances now existing, is ques-
toned in many quarters. Doubt exists
that the action already taken in shut
ting down oil wells is valid. Though
the legal situation as to State re2dla-
ton of each of the mentioned indus
tries is not the same-some OF The
measures being supported under the
general welfare clauses OF conStltu-
tions-the decision just announced in
the ice case is indicative of the atti-
tude of the courts relative to govern
mental control of private businesses.
TIE ruling in the ice case was
handed down by the United States Cir
cult Court of Appeals at Denver. Its
opinion declares that the Oklahoma
Legislature had no power to enact the
law. which requires a certificate OF pub
lie convenience and necessity to engage
in TIE ice business and provides that
the corporation commission OF that
State might fix the price of ice, Just
as it prescribes the rates charged by
public utilities.
Despite the fact that ice is an essen
tial commodity. we seriously doubt,
the opinion Of the court concludes,
that the manufacture of ice Is so
affected with a public interest as to
Justify the fixing of prices at which the
commodity shall be Sold and We hold
that it is not so affected to the extent
required to warrant the more serious
invasion of the rights of the citizens
by limiting the number of persons who
NAV engage in such business in given
territory
Courts Must Decide.
A declaration by a State legislature
thrt = certain business is affected with
a public interest is held not to be
sufficient to warrant its regulation by
tho State. With the courts. and not
the legislatures. is left the determine
ton as to what businesses are or are
rot affected with public interest -
the nebulous test employed by the
judiciary.
Citing several decisions of the Su-
prene Court of the United States, the
To1e~al Appellate Court declares that
"a State may not. under the gulse oil
protecting the public, arbitrarily pro-
hibit a person from engaging in a law
full. private business, or impose unrea-
sonahle and unnecessary restrictions
upon such a business.
1T has never been supposed, since
the adoption of the Constitution the
late Chief Justice Taft is quoted as
stating. that the business of the
butcher. or the baker. the tailor. the
woodchopper, the mining operator, or
the miner was clothed with such
public interest that the price OF MS
product or his wages could be fixed by
State regulation"
tCopyright, 1879