New-York tribune., 1907-06-25

free and unpolluted; the othersis designed TO Sc
cure the safety Of the employees and patrons OF the
| carriers 80
| ] cite these acts because their constitutonaty
has been sustained. because they obviously bear
! directly upon commerce, and for that reason Will
| serve TO make clear the distinction between the
| well established rule TO be deduced from the de-
| cided cases and the extension of the rule involved
/ in certain pending legislative propositions of fed
! eral control 20 which shall now direct your at
/ tention.
First ! shall restate the existing rule as IT has
been judicialy determined, in these words: con con
! gress has the power regulate interstate com
merce, which includes the power 10 reguIate ''ie 10
! means or instrumentalities by which commerce lS
/ conducted.
The new proposition Is this: Congress has the
power 10 regulate commerce. including its instru-
! mentalities and likewise power 10 regulate the
persons by whom articles Of commerce are Tt pro
| duced in respect to matters disconnected win
This addition to the rule finds expression in the
suggestion TO prohibit the interstate rahsPor,
4 of innocuous articles lawfully mace OF PIouuceu
in state for reasons not anecung Interstate eoi''
merce ,, "a
| Let us now consider whether the regulation Of
the business of producing articles which may IN
whole or in part go into interstate commerce. ny
denying TO the owner the privileges OF interstate
commerce for not affecting such commerce.
! is regulation Of commerce. In other words, is
the production of goods commerce? II II Is
! not then can Congress regulate such production
within a state under the constitutional power 10
regulate interstate commerce?
1t would be difficult 10 overstate the Importance
upon its ultimate authoritative determination de-
/ pends, 1t may be, the autonomy of the states IN
| substantially all matters of internal police:
It is scarcely worth while to discuss the PROPOSE
| tion that production is not commerce.
RULING BY JUSTICE LAMAR.
Mr. Justice Lamar remarked in Kidd agt Pear
| son 02S L. So;
No distinction IS more popular to the common non
political literature, than that between nanuts Gture
the fashloning of raw materials into a change OF
differenf The buying and selling and the trans
portation incidental thereto constitute commerce
tonai sense embraces the regulation at least OF
such trsnsporta ti9n be ned c tnaa ne
| intended TO be the subject of commercial
than It Would G also ncIHde include all proddotve industries
Won Sa Rs s Son fnE b to the
exclusion Of the states With the power 70 regulate ai
eure GE Ty sioSk raisne domestic sheTies mining
@ II short @ o Ee Sa Of does n dgsX F9r
Does not the wheat grower of the Northwest
the cotton planter Of the South. plant, cultivate
and harvest his crop, with an eye on the prices at
being vested in Congress and denied 10 the states
INV Woud d doew eo as an an ~ ragat ali Of
these delicate, nultiform and vital interests inter
all the details of their successful management.
In Veazie agt. Moore Ga How, 80 the court said:
The phrase Ito regulate commerce never be
applied TO transactions wholly internal between
! citizens of the same community to polity and
laws whose ends and purposes and operations are
! of such community. Nor can it he properly con-
/ terprise in agriculture or manufactures. in the
arts, may ultimately become the subjects of for
eign commerce the control of the means or the
tered and prntected IS IegtimafeIy Within the i'm
mort ~ ' Tba obrase ."fore7qn comT,erce or fairly
implied in any investiture Of the power to regulate
this would extend contracts between citizen and
citizen Of the same state, would control the pur-
suits OF the planter the grazer me manufacturer %
the mechanic; the immense operations OF the col
there is not Of these ayocatl9ns the results Of
commerce and be borne either by turnpikes canals
or railroads from point n. point within the sev-
the above mentioned.
CANNOT REGULATE PRODUCTION.
But it is claimed that the power 10 regulate
elusive in Congress. the right 10 forbid the ship
ment in interstate trade of any kind of goods for
any reason. within that power. That is 10
say, under the guise Of a commercial regulation.
not necessary for the promotion or protection of
! commerce. a producing regulation which Congress
could not have enacted, may be enforced; or, IN
! other words, Congress can deny person the right
10 engage in interstate commerce for doing that
which Congress cannot prohibit him from doing
| But, as have seen, Congress cannot regulate
| production. and Chief Justice Marshall said in
McCulloch aSt Maryland:
Should Congress under the p-etext Of executing
, its powers pass laws for the accomplishment Of
objects not intrusted to the government, II would
case requiring such a decision before it. 10
say that such act was not the law OF the land.
In my Judgment. the power TO regulate commerce
between the does carry with it the power
! to prohibit commerce, unless the prohibition has
for its purpose the faciItation. safety protec
tion OF commercial intercourse the accomplish
I ment of some other national purpose.
The power to regulate interstate commerce does
not extend TO the Iaving of an arbitrary embargo
upon the lawfully produced harmless products of
a state, TO the right defeat the policy Of a
state as to its internal affairs.
/ concede that the national power 10 regulate
interstate commerce carries with It the right to
| prohibit commerce in order to secure equality OF
/ commercial right to prevent restraint Of or in
! reference with commerce. but not to prohibit the
shipment of the innocuOus products of producers
within a state who are pursuing a
toned by the laws of the state and in wise In
itself interfering with interstate commerce. If
| prohibition OF interstate trade is within tho
arbitrary power Of Congress. II might be exercised
so $ exclude the products of particular states
| OF sections of the country. Congress then might
/ prohibit the shipment Of cotton wheat to pro-
! mote the interests of wool
| POWER OF PROHIBITION UNSUsTAINED.
There is no authority for such proposition.
The power Of prohibition has never been sustained
| except against articles noxious dangerous in
I themselves II Is not possible 10 find even sug
sestion that in respect TO natural products which
are prime necessities Congress can prohibit COM
Inerce in them between the states in order to en-
force its conception Of what would be wise police
regulation OF state.
In the case OF Champion agt. Ames QSs L. S. 321).
II was held that lottery tickets subjects Of
traffic and their carriage by independent carriers
from state to another is interstate commerce.
which Congress may prohibit under its power 10
! regulate commerce among the several states, but
the business. The court said. through Mr., Justice
Harlan: 1T is kind of traffic which one can
| be entitled TO pursue as of right"
| The court also said:
The power Of Congress 10 regulate com
merce among the states. although plenaTy, cannot
he deemed arbitrary, since II Is subject to such