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<br />/0011 58
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<br />(Reprint from OREGON LAW REVIEW, vol. XXXVI, April 1957)
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<br />JUN 18 1957
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<br />THE PELTON DECISION: A NEW RIPARIANISM? CONSERVAfl0N 130ARO
<br />JAMES MUNRO*
<br />
<br />It was enough for them to realize or to hope that they had created an
<br />organism; it has taken a century and has cost their successors much sweat
<br />and blood to prove that they had created a nation.
<br />JUSTICE OLIVER WENDELL HOLMES
<br />
<br />AMONG the more baffiing aspects of the American system of ju-
<br />dicial review by the Supreme Court of the United States is that
<br />court's role in the interpretation of statutes. To hold that Congress has
<br />attempted to act beyond constitutional restrictions is one thing, That
<br />the court will hesitate to do, But to interpret the solemn acts of the Con-
<br />gress in accordance with some unexpressed suppositions as to national
<br />power vis-a-vis the states-that the court will do, and frequently,
<br />This urge to polarize along lines of national interest, to insist on the
<br />whole hog when apparently only half the animal was intended, can be
<br />documented. Take the Fair Labor Standards Act of 1936, passed with
<br />the salutary purpose of providing, among other things, fair minimum
<br />wages for those engaged in interstate commerce. More commonly
<br />known as the Wages and Hours Act, it "rested," according to Harold
<br />Fleming, "on an assumed body of practices an~ customs in the rela-
<br />tions between millions of workmen and hundreds of thousands of em-
<br />ployers, . ."1 One of the assumptions on which the act rested was that
<br />it applied to interstate commerce as then defined, Would maintenance
<br />employees in two loft buildings, one in New York and one in Philadel-
<br />phia, come within the purview of the act? Noone supposed they did,
<br />but the court upset the predictions by finding that these employees were
<br />indeed engaged in commerce between the states because "without light
<br />and heat and power the tenants could not engage, as they do, in the
<br />production of goods for interstate commerce. . ."2
<br />That insurance companies are subject to state, not Federal, control
<br />had been recognized at least since Paul v, Virginia,3 decided in 1868.
<br />True, some scandals came to light, but in the main the system worked
<br />well. Congress was well content to forego the exercise of any power to
<br />set up regulatory bodies for this important business, So it was until
<br />1944, when, with bolt-from-the-blue suddenness, the court reversed the
<br />Paul case, and held that insurance companies were subject to the anti-
<br />
<br />.,.........
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<br />* Associate Professor of Law, University of Oregon, Member, Illinois and
<br />Wyoming bars. The writer wishes to express his appreciation to the following
<br />for furnishing material used herein: Hon, Frank A, Barrett, United States Sena-
<br />tor (Wyoming); Hugh A. Shamberger, State Engineer of Nevada; Lewis A.
<br />Stanley, State Engineer of Oregon; Arthur G, Higgs, Assistant Attorney General
<br />of Oregon,
<br />I FLEMING, TEN THOUSAND COMMANDMENTS 3 (1951),
<br />2 Kirschbaum v, Walling, 316 U.S. 517, 524 (1942),
<br />375 U,S, (8 Wall,) 168 (1868),
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