Berkson, Pincus M.

English

St. John's University School of Law

St. John's Law Review Volume 11 Number 2 Volume 11, April 1937, Number 2 Article 38 May 2014 Cases on the Law of Public Utilities (2nd Ed.)(Book Review) Pincus M. Berkson Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation Berkson, Pincus M. (1937) "Cases on the Law of Public Utilities (2nd Ed.)(Book Review)," St. John's Law Review: Vol. 11 : No. 2 , Article 38. Available at: https://scholarship.law.stjohns.edu/lawreview/vol11/iss2/38 This Book Review is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. ST. JOHNS LAW REVIEWCASES Ox THE LAW oF PUBLIc UTI.IraS. Second edition. By Young B.Smith, Noel T. Dowling, and Robert L. Hale. St. Paul: West PublishingCo., 1936, pp. x, 1107.A casebook is but a tool of instruction and as such suffers in time frominadequacy and obsolescence. These factors of depreciation may arise from arestatement of applicable principles in the light of recent statutory enactmentor from a new approach and emphasis in the manner of teaching the subject.These factors are especially operative during periods of growth and develop-ment. Such has been the experience through which public utility law has gonesince the publication in 1926 of the first edition. Not only has it been enrichedby a large number of more recent cases, but there has also developed a radicalchange of approach in the presentation of the subject.The new edition reflects the influence of these factors. It brings case lawup to date. The student of the first edition will find the second edition unex-plored territory. Old landmarks have entirely disappeared and new landmarkshave risen to overtower and dwarf some of those still remaining.But the present edition is more than a mere refitment of the original work.The whole edifice has been so completely altered that it is really a new struc-ture. In the former edition, the bulk of the material was devoted to a consid-eration of the shipper-carrier relationship, while the constitutional and statutoryaspects of federal and state control of business in the public interest wasbrought in as a side show. In the new edition, the side show becomes the mainattraction. The subject of public utility regulation in its broad constitutionaland statutory aspects dominates and integrates most of the selected cases andgives unity and coherence to the whole book.Chapter one is a good illustration of the new approach and emphasis.Thus, the first 73 pages of the first edition, which dealt with the common-lawconcepts of public utilities, are condensed in an introductory note of six pagesso that, at the very outset, the student finds himself in the heart ofpresent-day public utility law, namely, the problem of "public interest". Underthe subtitle of "On the Ground of No Public Interest" there are presented inchronological order the leading decisions of the United States Supreme Courton this subject from the date of the Munn case' to the Nebbia case.? Thesedecisions trace the ever receding dividing line between utilities and businessenterprises in respect to which the right of governmental regulation on theground of public interest was rejected by the courts.That these authoritative pronouncements do not offer the student a sure andsafe guide as to whether a business enterprise, not heretofore regulated as a pub-lic utility, will fall within or outside the dividing line, is no fault of the authors.Until the Supreme Court, by its time-honored process of inclusion and exclusion,has passed upon each particular case as it arises, one can only venture a rea-soned guess as to whether an unadjudicated statutory enactment is valid or not,unless, of course, a changed membership of the Supreme Court adopts theunorthodox views of the late Justice Holmes to the effect that the much discussedphrase, "clothed with a public interest", is a "fiction intended to beautify whatIMunn v. Illinois, 94 U. S. 113 (1877).2 Nebbia v. New York, 291 U. S. 502, 54 Sup. Ct. 505 (1934).[ VOL. 11BOOK REVIEWSis disagreeable to the sufferers" and that "subject to compensation, when com-pensation is due, the legislature may forbid or restrict any business when it hassufficient force of public opinion behind it." 'Another feature of the new edition which has especially impressed thisreviewer is the amplified editorial annotation. This is particularly prominentand significant in Chapter 4, where the authors have compiled the leading casesdealing with the methods used by the courts for determining judiciadlyv whetherrates already prescribed yield a fair return upon the fair value of the company'sproperty devoted in the public service, a task which Mr. Justice Stone, thoughnot speaking for the Court, has characterized as "the most speculative under-taking imposed upon them in the entire history of English jurisprudence."'Here, more so than through the remainder of the casebook, the editorialnotations furnish shrewd and incisive comment. The footnotes are also repletewith references to comments in recent law reviews and other periodicals which,together with the pointed questions and criticisms, should give direction to classdiscussion and to the research of the student not oriented in this field of law.Skilful ordering and grouping of materials are well illustrated by Chapter2, which, under the heading of Competition and Monopoly, deals with the twofacets of this subject; first, the fostering of competition by the aid of thecommon-law and statutory prohibitions against restraint of trade, and second,the prevention of ruinous competition in the public utility field through thestatutory requirements of certificates of convenience and necessity. The twoare wisely linked together, for upon analysis, the student will find that under-lying all the cases is the implied or expressed public policy to safeguard thegeneral public interest.Chapter 3 should, in the opinion of this reviewer, follow Chapter 5. Theyboth involve the work-a-day problems arising out of serving the individualconsumer and formulating individual rate schedules. Cases dealing with gas,electric and telephone services are a welcome addition to the text of bothchapters, for problems in connection with these services are fast replacing thoserelating to the common-carrier services, as the focal point of the developmentof law in this field.The treatment of the important subject of Discrimination in Service andRates has also been enhanced in value by the addition to the text of cases dealingwith gas, electric and telephone companies. Though the problems of discrimi-nation in these fields are similar to the more familiar problems of commoncarriers, they arise under different circumstances and thereby help to clarifythe applicable principles.The subject of liability to which the first edition devoted about 350 pagesis somewhat condensed in the present edition. Since this subject is oftencovered in other law courses, the material of this chapter may be furthercondensed. In any event, it might be well to cover the common-law aspect ofpublic utility liability in an introductory note and limit the selected cases tothe phase involving the extent, character and validity of statutory liability."Tyson v. Banton, 273 U. S. 418, 47 Sup. Ct. 426 (1927).' West v. Chesapeake & Potomac Tel. Co., 295 U. S. 662, 689, 55 Sup. Ct.894 (1934).1937]ST. JOHN'S LAW REVIEWThe cases grouped in the concluding chapter deal with questions of admin-istrative procedure, of methods of review and of notice and hearing, topics oftenexcluded from academic consideration. The subject of notice and hearing,however, deserves more prominent treatment than is accorded it. Significantly,the Johnson Act of 1934, which limits the original jurisdiction of the FederalDistrict Courts in respect to administrative rate orders, has no applicationunless the challenged rate order "has been made after reasonable notice andhearing." But what constitutes an adequate administrative hearing within themeaning of the Johnson Act, or of other statutory enactments, or under thedue process clause of State and Federal Constitutions, where the validity ofadministrative action is in question?The Courts have yet to give an authoritative answer with respect to thisprovision of the Johnson Act. But they have given some indication of theirviews with respect to other statutory provisions and the judicial requirementsunder the due process clause. These important cases are missing from theotherwise comprehensive list of cases and may well be grouped together underthe heading of Notice ana Hearing, with special emphasis on the requirementsof the statute and of due process to render the hearing adequate and the result-ing administrative action valid.Considering the high scholarly attainments and previous contributions ofthe authors, a first-class piece of work was naturally to be expected from theirjoint authorship. The new edition fulfils this expectation.PINcus M. BERxsoN.CASES AND MATERIALS ON NEW YoRI PLEADING AND PRACTICE. Second edition.By Louis Prashker1 Brooklyn: St. John's University School of Law,1937, pp. lviii, 1431.The law of pleading and practice is ever in flux. Therefore, one wholabors on a case book on this subject, ventures upon a task made doubly difficultby the uncertainty of his materials. Not only is he uncertain as to the perma-nency of his contribution, but he must have considerable doubt of his decisionsas to what materials should be included, which should be emphasized, and howrecent developments should be illustrated.Thus, proper orientation, in a field governed by expediency, but expressedin terms of logic, is no mean attainment; and an author of a work on pleadingand practice is, therefore, peculiarly in a position to appreciate the horrors ofI Morgan v. United States, 298 U. S. 468, 56 Sup. Ct. 906 (1935) (reportedafter publication of new edition) ; West Ohio Gas Co. v. Public Utilities Com-mission of Ohio, 294 U. S. 63, 55 Sup. Ct. 316 (1934); Panama RefiningCompany v. Ryan, 293. U. S. 388, 55 Sup. Ct. 241 (1935) ; Atchison Ry. Co. v.United States, 284 U. S. 248, 52 Sup. Ct. 146 (1931) ; Northern Pacific Ry.Co. v. Dept. of Public Works, 268 U. S. 39, 45 Sup. Ct. 412 (1925); PacificGas & Electric Co. v. Railroad Commission, 13 F. Supp. 931 (N. D. Cal. 1936).'Professor of Law, St. John's University School of Law.[ VOL. 11

Cases on the Law of Public Utilities (2nd Ed.)(Book Review)

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Cases on the Law of Public Utilities (2nd Ed.)(Book Review)

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