The daily morning journal and courier., 1907-06-25
COURIER JUNE a5 1907

CT from the expense and delay incident to a private sult.
 All these laws have been declared constitutional, except the railroad rate act, and as to that act, not yet passed upon by the courts, 1t is believed by the great weight of legal opinion to b. constitutional in respect to the pow CT to fix reasonable rates and practices.
 The public satisfaction resulting frcm the enactment and the enforce Inent of these statutes regulating com merce has induced some persons to contend that the congressional power U regulate commerce is d panacea for many other public evils, and 1t IS pro- posed to utilize that power to accom- plish ends not within the national jur- isdictlon, and having no relation to the subject of the power
 The power to regulate is the power to prescribe the rule by which com merce is to be governed" These are the words of Chief Justice Marshall in Gibbons vs. Ogden.
 This power of prescribing the rule by which commerce is to be conducted ex- tends to commerce itself and to the in- strumentalities of commerce.
 By commerce itself, mean the ac- tivities and intercourse which consti- tute tho comercial relation. By the in- strumentahties of commerce. mean the animate and inanimate means used t0 maintain and carry on commercial intercourse
 As to these activities and intercourse ' which constitute commerce, congress haj from time to time prescribed cer- tain rules: such for instance as the rule that commerce shall be free from monopoly and restraint effected by combinations, and that the general rule O. competition shall have free-play.
 As to the animate and inanlmate means, or instrumentallties by which commerce is conducted congress has likewise prescribed various rules such as contained in the railroad safety ap- pliance act, and the act prescribing the hours of labor of employees upon rail- roads engaged in interstate commerce.
 Over this subject of commerce among the States and with foreign nations, and it's instrumentalities, the power of congress is plenary It may be exer- cised in the most general or minute way. For this purpose, congress pos- sesses all powers which existed in the | States before the adoption of the na- ticral constitution, and It's power when l the subject is national Is or may be made exclusive. The constitutions laws, | pnrr1profinpc or,6 attfvny1u aP A1,n knkn arc subject to this paramount authori- l ty. Congress can regulate anything, ev- erything, any and every person, nat ural or artificial, in the sense that 1t can prohibit or prevent any use or act that will interfere with congressional control over interstate commerce, or that will interfere with congressional control over interstate commerce, or | that win injuriously affect such com merce. Congress may likewise prevent the arteries of interstate commerce from being employed as conduits for articles hurtful to the public health, safety or morals, and may remove ob- structions from the highways of com nerce whether they be physical or economic, whether they may be sand l bars, mobs or monopolies.
 The power of congress may be exer- cised by prohibition and by prescrip- | tion
 Congress has prohibited combinations in restraint of interstate and foreign | trade and has prohibited the carriage of diseased cattle, explosive and lottery tickets, and congress has prescribed that certain safety appliances shall be used upon railroads doing an interstate | business The one class of laws is de- signed to keep the channels of com merce free and unpoluted; the other is 1 designed to secure the safety of the em- l plcys and patrons of the carriers. I cite these acts because their con- stitutionality has been sustained be- cause they obviously bear directly upon commerce and for that reason will serve to make clear the distlnctions between the well established rule to be deduced | from the decided cases and the exten- sion of the rule involved in certain pending legislative propositions of fed- eral control, to which shall now di- rect your attention.
 First, shall restate the existing rule, as it has been judicially determined, in these words; Congress has the power to regulate interstate commerce, which includes the power to regulate the means of lnstrumentalties by which commerce ia conducted.
 The new proposition Is this: Con- gross has the power to regulate com merce including It's instrumentalities, and likewise power to regulate the per- sons by whom articles of commerce are produced in respect to matters discon- nected with commerce.
 This addition to the rule finds express sion in the suggestion to prohibit the interstate transportation of inocuous articles lawfully made or produced in a State for reasons not affecting inter- state commerce.
 Let us now consider whether the reg ulation of the business of producing articles which may in whole or in part go into interstate commerce by denv- ing to the owner the privileges of in- terstate commerce for reasons not af- fecting such commerce, Is a regulation of commerce In other words, is the mere production of goods commerce? If 1t is not, then can congress regulate such production within state under the constitutional power to regulate interstate commerce?
 It would be difficult to oyerstate the importance and seriousness of the question thus presented, as upon It's u1tin1ate allthoritattye detert,fno tIa,,