Evening star. [volume] (Washington, D.C.) 1854-1972, 1908-09-10
Commodity Clause of Hepburn
Act Knocked Out.
DECISION FAR-REACHING
Gray and Dallas Agree; Burlington
DissentS.
ACT HASN'T BEEN ENFORCED
Roads Contended That, if Legal,
$6,OOO,ooO Day Could Be Col
lected in Fines.

PHILADELPHIA, September 10.-The
commodities clause Of the Hepburn rail-
road act was today declared to be uncon-
stitutional by the United States circuit
court for the eastern district of Pennsyl-
vania.
Judges Gray and Dallas agreed i'm an
opinion covering IS typewriter pages that
the clause was unconstitutional. Judge
Burlington dissented, but did not file an
opinion.
The commodities clause constitutes the
fifth paragraph OF the first section of the
interstate commerce act, it being one of
the amendments made by the Hepburn
railroad act of June %, 1906. The clause
provides that after May 1, 1908, 1t shall
be unlawful for any railroad company to
transport from one state to another or to
any foreign country any article or COM
modify, manufactured, mined or produced
by it or under its authority, directly or in
directly, except such articles or commodi-
ties as may be necessary for its use In the
conduct of it's business common car
rier. The clause exempts timber and its
manufactured products and is aimed par
ticularly at railroads owning coal mines.
Seven Roads Involved.
The case was argued June 16 and II be-
fore Judges George NJ. Dallas, George
Gray and Joseph Burlington. The rail-
road companies involved were the Jer-
sey Central, the Lehigh Valley. the Erie.
the Delaware, Lackawanna and Western,
| the Delaware and Hudson. the Pennsyl-
vania and the Philadelphia and Reading.
| Ninety per cent of all the unmlned an
| thracite coal in Pennsylvania belongs to
these corporations or to coal companies
whose shares are held by them The
| Philadelphia and Readings case was not
| argued along with the others because or
/ certain questions of law involved in its
| ownership.
The commodities clause case was con-
sidered so important that Attorney Cen
| eral Bonaparte came to this city and per-
sonally made the principal argument In
behalf of the government. other addresses
| for the government being made by l.. AL
| lison Wilmer and T. c. Spelling, spe-
| cial assistants to the Attorney General.
The general counsel for the railroads Were
John G. Johnson of this city and r. w.
De Forrest of New York, who were as
sisted by the legal staffs Of the railroads
| interested.
Waited for Decision.
| Prior to the clause going into effect the
anthracite coal-carryng railroads went be-
fore the interstate commerce commission
and declared that they could not comply
with the clause without making great
sacrifices. 1t was pointed out that be-
cause of the then existing financial strin-
gency the companies could not dispose of
their coal properties except at tremen-
dous loss, and they further declared their
conviction that the clause was uncOnsti-
| tutional. Thereupon the government
agreed not to enforce the clause until
| decision was had upon law points involv-
| ing its constitutiOnality.
| The Department of Justice then filed
| bill In equity upholding the govern
| ment's contention that the clause was
| constitutional. The railroads in their
| answers to the governments complaint
| gave seven chief reasons why the clause
was repugnant to the Constitution, among
them being that it was confiscatory, dis
eliminating and a prohibition and not a
| regulation: that it deprived the railroads
| of liberty and property and violated a
right reserved to the states.
Six Million a Day.
The interstate commerce act provides
a penalty not to exceed 5000 for each
| violation of the clause. During the ar
gument it was contended by the defend
ants that each car of coal shipped in
| violation of the clause could be con-
strued under the act as an offense, and
as the Lehigh Valley railroad ships daily
| LOO cars of anthracite in interstate COM
| merce that railroad under such an inter
probation would be liable to a fine of
| 81 100000 each day.
What Judge Gray Says.
| Judge Gray in his opinion says the
fundamental and underlying question is
whether the so-called commodities clause
SO far as it's scope applies by the uni
versatility of its language to the cases
here presented, is in excess of the legis-
1 -,
| the Constitution. This question:. the
opinion says, must be considered with
| reference to the Constitution as a whole.
and in relation to the concrete facts of
| the several cases. 1t is therefore neces-
| sary to keep in mind the situation as
| presented by these defendants. the facts
| set forth in their individual answers, and
! the relevent industrial conditions, which,
| being matters of common knowledge, may
| be judicially noticed"
Congress Went Too Far.
| Taking up the commodities clause, the
opinion says:
Ample as is the scope of legislative
power granted by the language of the
commerce clause. and far as the Supreme
Court has undoubtedly gone in substan-
tiating the validity of legislation under it,
we think it may be safely said that no as
Sertion of this power hitherto, by Con-
gress has been so far-reaching, or af-
fected in SO serious a degree the individ-
ual liberty and property rights enjoyed
under the Constitution and laws of a
state. as the enactment we are here con-
sidering.
Needn't Cripple Business.
"If in manner or to any extent what
ever they have actually violated the lat
ter. surely they could be restrained or
otherwise made amenable to the legal
penalties in such behalf without Gripping
or destroying business in which they are
profitably and usefully engaged
In the opinion of this court, the en-
actment in question is not a regulation of
commerce within the proper meaning of
these words, as used in the commerce
clause of the constitution. and, therefore,
not within the power granted by that
clause"
Launch Of the Laurentic.
BELFAST, September 10.-The steamer
Laurentic, the new White Star Dominion
ho pri{