The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1908-09-11

ernment to enforce the commodities
clause of the Hepburn railroad act
against the anthracite coal carrying
railroads Of this state. Judges George
Gray and George NJ. Dallas filed opin-
ions dismissing the suits and Judge
Joseph Burlington ,dissented but did
not file an opinion. The commodities
clause prohibits railroad companies
to transport in interstate commerce
any article or commodity manufac-
tured, mined or produced by them or
under their authority. The case was
argued in June, United States Attor-
ney General Bonaparte delivering the
principal argument for the govern
ment. The effect OF the commodities
clause, II constitutional would be to
confine the mining of anthracite coal
by the railroads for use in Pennsyl-
vania only, or compel the railroads to
sell all the mining properties they are
interested In, either directly or in
directly.
The principal opinion as written by
Judge Gray, who as president. of the
anthracite strike commission, has an
intimate knowledge of the mining of
hard coal, and of the many ramifica-
ttons In the ownership of the coal
mines. Judge Dallas said in his opin-
ion that 1t cannot be denied that the
commodities clause was enacted mot
actually for the regulation of inter-
state commerce but really to coerce
the conformity of intrastate business
with policy approved by congress. :"
Judge Gray in his opinion discussed
at great length the limitations put on
congress by the constitution and con-
cluded as follows, -. j
From every point of view which
we have been able to approach the
question, the unreasonableness and
consequent invalidity of this. so-called
commodities clause is apparent. 1t
invades the rights Of the state, by
striking down the liberty hitherto in
nocently enjoyed by It's citizens under
the laws and usages of the common
wealth, to engage in interstate com
merce to the fullest extent, as to all
harmless articles, whether owned or
not owned; by the carrier and deprives
Of their property these defendants,
contrary to the letter and spirit Of the
fifth amendment to the constitution.
1t the enactment In question be war
ranted by the commerce clause OF the
constitution 1t. is hard to see what
bounds may be. set to the exercise of
that power. 1t will indeed be an omen
door, through which the forces Of a
Capitalization hitherto unknown may
enter at will, to thefoverthrow of that
just alance between federal and state
power, for which the mfkers of the
constitution so wisely provided, as
an essential to the preservation of
our dual form of government.
eve come ourselves to the con-
Great facts presented by the pleadings
In these cases.. and intimate no opin-
ion either way as to cases where the
property. has been acquired by the
carriers subsequent to the passage
OF the act For the reason stated
therefore; these bills in equity are dis
missed an dthe petition for wrfts of
mandamus on the court are denied"
Judge Dallas in his opinion says
that he fully concurs in the fore
going opinion and the little now to
be added is intended merely to accen-
tuate my acceptance Of It," Continu-
ing, he says:
"The propitory intent of the piece
Of legislation under consideration is
too plain for disavowal, and the sug-
gestion that what it prohibits is not
interstate commerce. but interstate
transportation by railroad company
OF commodities which it has pro-
duced, etc., is delusive. The question
Is not whether the carriage from state
to state of coal produced by the car
rier is interstate commerce for of
course 1t is; but whether being a kind
of commerce which is not inimical
to safety. health or morals, and
which, therefore. anyone is entitled
to pursue as of right congress may
restrict a railroad company's inter-
state transportation of coal to coal
not mined or owned by it, and in
which It has no interest. Any such
restriction whatever it may be called,
In it's nature and effect is discrimina-
tive prohibition; and that the restric-
tive provision now in question was
enacted. not actually for the regula-
tion of interstate commerce, but real
!ly to coerce the conformity of in
trastate business with policy ap-
proved by congress, seems practically
to be admitted and could not, with
candor, be denied.
mo court has authority under the
guise Of Interpretation, to change the
constitution for the purpose of meet
ing a supposed requirement of pres
ent conditions, and the covert tend
ency Of any usurpation of such au-
thority would inevitably be to trans
form the government of enumerated
powers which the constitution estab-
lished into government with all
power vested in its legislative and
executive branches.
1.-The inclination sometimes mani
tested to centralize power in the gen.
eral government results in great
measure, no doubt, from the appar-
ent expediency Of committing to It
the correction of ills which it is sup
posed that the states cannot 80 read
lily redress; but the achievement of
no presently desired end, however,
salutary. can justify the infraction of
our fundamental law, or warrant its
perversion by. insidious construction.
The constitution 6f the United States,
&.