Evening star., 1932-03-26
PRECEDENT IN ICE
CASE VERDICT SEEN
Supreme Court Decision Con-
tains Policy on Govern
mental Regulation.
BY DEAN DINwOODEY.

A strong position against tne growing
tendency toward governmental regula-
ton of private business was taken by
the majority of the Supreme Court OF
the United States in its decision mold
ing invalid the Oklahoma statute regu-
lating the manufacture, oStrlputlon
and sale of ice.
A minority opinion, written by Justice
Louis D. Brandeis advances bold
doctrine favoring control OF competition
by the State and pictures the present
economic crisis as worse than war
Justice Brandeis believes the Govern
ment should exercise experimental regu-
lation to remold economic practices and
institutions to meet changing economic
needs.
Courts Policy Indicated.
It is acknowledged that private busi-
ness may expect increasingly frequent
attempts by Congress ana the SCate Leg
islatures to regulate and control its af-
fairs and activities. On the other hand
it is becoming more apparent from
recent decisions. including that just an
nounced by the Supreme Court, that
private business may expect the pro-
lection of the courts against unWar-
ranted governmental interference.
In its opinion in the Oklahoma ice
case the Supreme Court made plain
that. at least as now constituted, it will
strike down and declare void attempts
under the guise of protecting the pub
lie. arbitrarily to interfere with pri-
vate business or prohibit lawful occu-
pations or impose unreasonable and un-
necessary restrictions upon them"
The Oklahoma statute, enacted in
1925, which the high tribunal held
unconstitutional because in conflict
with guarantees of the Federal ConSti-
tuition, declared the manufacture, dis
tribution and sale of ice to constitute a
"public busineSS"-in other words, a
public utility. Regulation of the busi-
ness was placed in the hands of State
commission which was forbidden to is
sue a license to any applicant except
upon proof of the necessity for a supply
of ice at the place where it was sought
to establish the business. A denial of
the application was authorized where
the existing licensed facilities "are
sufficient to meet the public needs
therein"
Such control of an industry is said
in the courts majority opinion, written
by Justice Sutherland, to foster rather
than protect against monopoly. THE
aim is not to encourage competition,
but to prevent it; net to regulate
business. but to preclude persons from
engaging in it." The ice business is
declared to be as essentially private in
its nature "as the business of the
grocer, the dairyman, the butcher, the
baker, the shoemaker, or the tailor,
each of whom performs a service
which, to a greater or less extent, the
community is dependent upon and is
interested in having maintained; but
which bears no such relation to the
public as to warrant its inclusion in the
category of businesses charged with a
public use
Minority Opinion.
Agreeing that the Oklahoma statute
fosters monopoly the minority opinion,
concurred in by Justice Stone, asserts
that the public welfare may at times
demand that monopolies be created and
points out that the modern practice of
public utility regulation is based upon
this principle. "Unbridled competition
is considered by many economists, it
is noted, to have been one of the major
causes Of the present depression. A
state should not be thwarted by the
interference of the Federal courts, it
10 HlduItdultO, III IduIiCillIlB eApSIl-
ments to correct the evils of excess
productive capacity
Pointing to plans for proration and
proposals for stabilization, and refer
ring also to numerous recent sugges-
tionS for economic planning, Justices
Brandeis and Stone declare that many
men of wide business experience insist
that all such projects must prove futile
unless the State asserts its control and
issue Certificates CT public convenience
and necessity" as prerequisite to en-
barking new capital in any industry in
which the capacity already exceeds
the production schedules.
Economic experimentation is advo-
Gated by the minority "To stay expert
mentation within the law in things
social and economic" they declare, "is
a grave responsibility. Denial of the
right to such experimentation may be
fraught with serious consequences to
the Nation"
But the court, by its ma ajority, rules
that this theory of experimentation
may not be substituted for the right
of private business to be free from un-
reasonable governmental interference
and restrictions.
Copyright, 1932)