UNEMPLOYMENT IN THE UNITED STATES 57 
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enforcement of the act alleging it to be unconstitutional. The Supreme Court, 
on appeal, held the act violated the fourteenth amendment. The sole ground 
upon which the court based its conclusion was that the State did not have the 
power to prohibit private employment agencies from charging an employee a fee. 
. This question is not involved in the proposed legislation, and the case does not 
In any way suggest that such legislation as is now under consideration would be 
unconstitutional. 
.. In the last mentioned case Mr. Justice Brandeis delivered a very strong and 
illuminating dissenting opinion in which Mr. Justice Holmes and Mr. Justice 
Clarke concurred. Mr. Justice McKenna also dissented. 
Mr. Justice Brandeis reviewed the evils of private employment bureaus, the 
hecessity of aid in solving the employment question by the Federal Government 
and reviewed the Federal legislation having for its purpose the solution of the 
larger problems of unemployment. He referred to the immigration act of 
February 20, 1907 (34 Stat. 898) which created within the Bureau of Immigration 
and Naturalization a division of information charged with the duty of promoting 
“a beneficial distribution of aliens”. The services rendered. by this division 
included, among others, some commonly performed by employment agencies; 
it undertook to place aliens in positions of employment but its operations were 
national in scope. He also referred to the act of March 4, 1913, creating the 
Department of Labor, which act resulted in the transfer of the Bureau of Immi- 
gration, including the division of information, to that department (37 Stat. 736). 
_ Mr. Justice Brandeis stated, page 607: “By this transfer the scope of the divi- 
sion’s work was enlarged to correspond with the broad powers of the Labor 
Department. These were declared by Congress to be ‘to foster, promote and 
develop the welfare of the wage earners of the United States, to improve their 
arking conditions and to advance their opportunities for profitable employ- 
ment.’ ”’ 
The underlying principle of the sections of the above mentioned acts is the 
same as the underlying principle of the proposed legislation, the only difference 
being that the proposed legislation affords a greater opportunity for service by 
the Federal Government in cooperation with the States. . 
The question of the constitutionality of legislation along the lines of the pending 
bill was not involved in the case; but the dissenting opinion of Mr. Justice 
Brandeis apparently anticipated further progress in legislation of this type 
and clearly and emphatically shows that such legislation is constitutional. 
In the case of Chicago & A. R. R. Co. v. Tranbarger (238 U. 8. 77), cited in the 
brief of the association, the Supreme Court had under consideration a statute of 
Missouri requiring railroads to open drains across and through its right of way 
and road bed so as to form proper drainage. The property owner sued the rail- 
road company for damages growing out of its failure to comply with this statute. 
The railroad defended upon the ground that the law was ex post facto and also 
a violation of the provisions of the fourteenth amendment. The Supreme 
Court of the United States affirmed the Supreme Court of Missouri, holding the 
act to be valid and constitutional, stating the answer to the claim that the law 
was ex post facto to be that the law is not retroactive but only becomes effective 
within three months after its passage. As to the constitutional question, the 
Supreme Court held that the State had the right under its police power to enact 
such legislation. 
The question before the court in that case is totally different from any of the 
Questions presented in the proposed legislation and certainly is not an authority 
to support the unconstitutionality of the pending bill. . 
Not a single case cited in the brief supports its contention, several of the 
cases, as above pointed out, and especially the Frothingham case, infra, show that 
the proposed legislation is constitutional. . 
Commonwealth of Massachusetts v. Mellon and Frothingham ». Mellon (262 
U. s. 447), is also cited in the brief to whos the contention that the proposed 
act is unconstitutional. The Supreme Court in this case had under considera- 
tion the maternity act (42 Stat. 224). The provisions of the materinty act, in 
50 far as concerns the appropriation of money hy Congress to be allocated to the 
States upon the acceptance of the benefits and compliance with the requirements 
by the States, are analagous with the provisions of the pending bill. It was 
contended, in that case, that the act was unconstitutional. The Supreme Court 
dismissed the appeal because of lack of jurisdiction and not upon the merits of 
the case. There are certain statements of the court which clearly indicate that 
the court, however, was of the opinion that the act was constitutional and which 
also clearly answer some of the contentions made in the brief of the association 
as to the proposed legislation. The court stated, page 480