Omaha daily bee., 1908-09-11

CONTINUED from First PaEe.)
exception to the general doctrine, that un-
limited power has no place in American
governmental institutions and that there
are rights Of liberty and property that are
secure against hostile legislative action.
I'm the opinion Of this court the enact
ment in question is not q regulation Of
commerce, within the proper meaning Of
these words, as used in the
clause Of the constitution, therefore not
within the power granted by that clause"
JudEe Dallas
Judge Dallas In his opinion says that he
fully concurs in the foregoing opinion
and the little now to be added is intended
merely to accetuate acceptance of It,"
Continuing he says;
N court has authority under the guise
Of Interpretation to change the constitu-
ton for the purpose Of meeting a sup
posed requirement of present conditions,
and the covert tendency Of any u~surpation
Of such authority would Inevitably be to
transform the government OF enumerated
powers which the constitution established
into a government with all power vested
In It's legislative and executive branches.
The inclination sometimes manifested to
centraIize power in the general government
results in great measure, no doubt, from
the apparent expectancy Of committing to
it the conviction of ills which it Is sup
posed that the states cannot so readily
redress; but the achievement Of no pres
emily desired end. however Statutory, can
justify the infraction Of our fundamental
law. or warrant its perversion or insidious
construction. The constitution of the
United States is a written instrument, not
a progressive development. and the often
quoted epigram that constitutions are nof
made but. grow should not apply to it,.
History of the Case.
NEW YORK, Sept. IO.-The coal stocks
we're favorably affected by the announce
ment that the Pennsylvania courts had de-
clared the Hepburn commodities clause un-
constitutional. ghe Reading and Baltimore
q Ohio stocks advanced 2 points from the
lowest of the morning, Delaware g. Hudson
~, Jersey Central III and Pennsylvania
and Erie l each. Dealings in Reading and
Baltimore & Ohio we're on an extensive
scale. ... %,
The case was argued on June 16 and II.
The railroad companies involved were the
Jersey Central, the Lehigh Valley, the Del
aware, Lackawanna & Western, the Erie,
49, - AAANnOaf NV W 0hHAoy hiiA
and the Philadelphia q Reading. Ninety
per cert of all the unmined anthracite coal
In Pennsylvania belongs to these corpora
lions or to coal companies whose shares
are held by them. THE Philadelphia 8
Readings case was not argued along with
the others because Of certain questions OF
law involved in its ownership.
The commodities clause case was consid.
cred so important that Attorney Genera.
Bonaparte came to this city and person
ally made the principal argument in behalf
OF the government.
Prior to the clause going into effect the
anthracite coal carrying railroads went be-
fore the Interstate Commerce commission
and declared that they could not comply
with the clause without making great sac.
rifioe. Thereupon the government agreed
not to enforce the clause until a decision
was had upon law points involving its con:
st~itutiohality.
The Department of Justice then filed q
bill in equity upholding the government
contention that the clause was constitu,
tlonal. The railroads In their answers de.
clared the clause to be confiscatory, dis
eliminating and a prohibition and not {
regulation; that 1t deprived the railroads o.
liberty and property" and violated a right
reserved to the states.
The interstate act provides {
penalty not to exceed s. 5000 for each viola.
ton OF the clause.