The Montgomery advertiser., 1906-11-07

nations means commerce between citizens of the United States and citizens and sub jects of foreign nations, and commerce the individual citizens of different states eommsres comm @ p.thaps the largest whieS. cSn' be- or ing trade or traffic between citizens of the same state. h beyond the control of Con when. therefore. Congress undertakes to enact . law, which can only be valid as
 sapecs to find on sss face of the sw os tion of commerce with foreign nations or dian tribes. If not % limited. 1t is in ex- cess of the power of Congress. If its main purpose be to establish a resulation appli, points. especially if it be apparent that 1t Is designed to govern the commerce wholly obviously the exercise of a power not con. z fided to Congress. We find no recognition of this principle in the chapter on trade marks in the Revised Statutes"
 Now it cannot be overlooked that the legislation. the constitutionality of which indictment in this case undertakes to pun ish any discrimination against union labor by any railroad company which is actually such discrimination be in respect to tho hiring or retention of telegraph operators fae or e the Rasy or Gss aoa among the states. Properly construed tho
 
 rators named. therein. were eml loved upon one or the other description of commerce. but whether this Is 50 or net the character: seem manfestly to bring the objections to 1t within the reach of those sustained by the Supreme Court in It's condemnation of the Trade-Mark legislation.
 Again ' may be said that Section 10 reg ulates in certain respect the outside con- duct of those railroad companies which, as part of their business engage in interstate commerce. but 1t does not regulate the con- as much and probably more relation to | state commerce than to what Is interstate. Section 10 of the Act. in short. does not l orator Is employed in merely local and state traffic from cases where the work who work upon local and state traffic and and | those who work upon interstate commerce are embraced by the lesisation indiscrim | inately. Tn other words, all are equally l embraced in the provisions of section 10. l whether the operator works upon local or
 m mes oonon or of Sn ia reasonably be doubted that this brings seo- tion 10 within the rule laid down in the
 While Section 10. as . whole. is easily separabie from rom other provisions of the Act ts nd oser in the Trade Mark Cases uoo U. s. ss-ss5 this connection. It was there said:
 "It was urged. however, that the general description of the offense included the more | limited one. and that the section was valid where such was in fact, the cause of denial But the Court said. through the Chief Jus tice: We not able to reject part which is unconstitutional and retain the re- mainder. because 1t Is not possible to sep arate that which is constitutional if there proposed effect Is not to be attained by striking out or disregarding words that are are not there now. Each of the sections must stand as a whole. or fall altogether The language is plain: |, There is no room on feet of the constitution. The question. l then to be determined is. whether we can
 introduce words of limitation into penal statute. so a to make it specific. when. as expressed. 1t Is general only To limit this statute in the manner now asked for would be to make new law. not to enforce an old one. This is no part of our duty If we should. in the case before us. under which Congress did not make. it is quite probable that should do what. if the matter were now before that body 1t would be unwilling to do: namely, make trade mark law which is only partial in its op- eration. and which would complicate the rights which parties would hold. in such in- stances under the Act of Congress. and in others under State law"
 The able arguments of counsel have included a discussion of many collateral questions supposed to have more or less bearing upon 1 the main points involved. such as the ques- | thereto; the question of the right of pri- vate contract and the danger of interfering 1 herewith, and the question Of the alleged public and overwhelming necessity that the carriers of the country shall be left in full | control of the matter of the employ ment of their own servants and in the exclusive i exercise of tH right to selct them and dis | cipiine them. But while all these consid- ! erations might have weight in other con nections still the. court prefers to put it's Judgment in this case upon two propos- tions. viz: 1st. that Section 10 of the Act of June 1. 1898. is not. in the constitutional sense. a regulation of commerce or of com mercial intercourse among the states and cannot Justify fairly be construed or treated, inasmuch It's essential oh- ject manifestly Is only to regulate certain phases of the right of an employer to choose his own servants. whether the duties of those servants when employed shall relate to interstate commerce not: and. 2nd. upon the ground that Section 10 is so broad as to be condemned by the rule laid down in the Trade Mark cases.
 These considerations have brought the court to the very clear and deliberate con- clusion that section 10 of the Act of June 1 1898 is not sustained by constitutional warrant and Is therefore insufficient to sup port the indictment. The demurrer must be sustained. " WALTER EVANS. GEORGE DURELLE. Judge. MORTON K. YONTS.
 For United States. JAMES P. HELM. BENJAMIN D. WAKEFIELD
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