The Montgomery advertiser., 1908-09-11
Flaw in Hepburn Rail-
 road Act. 0 DECLARES UNITED
 STATES CIRCUIT COURT An Important Victory for the Big
 Railroads, The Railroads' Contention That the Clause Was Connscatory, Dis crfminating and Not a Regu- Iation Is Upheld by Court.

&HAaduOtpHld, GoCPes 4Ns-A(SSAeA- ing 1t to be drastic, harsh and un- reasonable and an invasion of the rights of the States. and therefore re- pugnant to the constitution the United States Circuit Court for the Eastern District of Pennsylvania to-day dis missed the suits of the Federal gov ernmeut to enforce the commodities clause of the Hepburn railroad act against the anthracite coal carrying railroads of this State.
 Judges George Gray and George M. Dallas filed opinions dismissing the suits and Judge Joseph Burlington dis scented, but did not file an opinion
 The commodities clause prohibits railroad companies to transport in in ter-State commerce any article or com modity manufactured, mined or pro- duced by them or under their author ity.
 The case was argued in June, United States Attorney General Bonaparte delivering the principal argument for the government. The effect of the commodities clause, if constitutional,
 would be to confine the mining of an- thracite coal by the railroads for use in Pennsylvania only, or compel the railroads to sell all the mining prop erty they are interestd in, either di- rectly or indirectly.
 The decision of the court did rot come as a great surprise. It Is almost certain that the case will be appealed directly to the United States Supreme Court
 The principal opinion was 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 =au,if.c a.
 tions in the ownership of the coal
 mines. Judge Dallas said in his opin-
 ion that 1t cannot be denied thar IT e commodities clause was enactei l. mot actually for the. regulation Of inter- | State commerce, but really lo-cesrc' 1 the conformity of interstate sus.pess l with a policy approved by Congress. Views of Judge Gray. Judge Gray in his opinion discnsse, at great length the limitations "A upon Congress by the constitution a concluded as follows:
 Prom every point of view "
 we have been able to approach
 question. the unreasonablenesE and
 consequent invalldity of thAws6 s6-called
 commodities clause Is Epparent. It
 invades the rights of ,khe State by
 striking down the liberty hitherto in-
 nocently enjoyed by its citizens under
 the laws and usagas f the common
 wealth, to engage in interstate com,
 mtrre to he fullest extep' as to ?ll
 harmless articles, whether owned or
 not owned by the carrier and depriwes
 of their property these defendants. contrary to the letter and spirit of the fifth amendment to the constitu- | ton. If the enactment in question be
 warranted by the commerce clause oi | the constitution, It is hard to see what bounds may be set to the exe-- clse of that power. It will indeed be an open door through which tte | forces of a centralization. hitherto un. known, may enter at will to the oyer. | throw of that just balance bstwesr | Federal and State power for w,iieh the makers of the constitution Sd
 wisely provided as an essential to the l preservation of our dIal form of gov | ernment.
 We confine ourselves to the concrete facts prsented by tn plea Iinss in the SC | cases and intimate no opinion either
 way as to cases where the property 1 has been acquired by the carriers suD-
 sequent to the passage of the act. Fer
 the reasons stated. therefore, these | bills in equity are dismissed and the petition for writs of mandamus on the laws of this court are denied" The commodities clause consti. | tutes the fifth paragraph of the first section of the interstate commercs act. 1t being one of the amendments
 made by the Hepburn railroad act on
 June 29. 1906. The clause provides that after May 1, 1908. 1t shall be uu- lawful for any railroad company 10 transport from one State to another or | any foreign country any article or commodity manufactured mined or produced by 1t or under its authority.
 directly or indirectly, except articles as may be necessary for its use In the conduct of it's business, as a commor, carrier. The railroad N--4panies in{
 volved were the Jersey Central. thu Lehigh Valley. the Erie. the Dela- Delaware and Hudson. the Pennsylva- mia and the Philadelphia and Reading. RaIlrOads Own Mines.
 Ninety per cent of all the unminad coal in Pennsylvania belongs to these corporations or to coal companies
 whose shares are held by them. Prior | to the clause going into effect, the an- thracite coal carrying railroads went before the Interstate Commerce Com | mission and declared that they could | not comply with the clause without
 making great sacrifices. It was point
 ed out that because of the then ex- isting financial stringency. the compa-
 nies could not dispose of their coal | properties except at a tremendous loss
 and they further declared their con Viction that the clause was dnconsti- 1 tutional. Thereupon the government | agreed not to enforce the clause until
 a decision was had on law points 'in-
 voIving its constitutionallty The Dc partment of Justice then filed a bill ia | equity. upholding the government
 contention that the clause was consti, | tutional
 The railroads in their answars tc l the governments complaint, gave sov- | en chief reasons why tho clause was
 repugnant to the constitution. among them being that it waS conhscatory | discriminating and not a regulation | that 1t deprived the railroads of IIb- l erty and property" and violated @