Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1908-09-11
CLAUSE Srs ASIDE
Federal Court HOlO odities
Section Of Hepburn z
JUDGE GRAY WRITES <% Y
Declares 1t Invasion of Rights q
States.
REPUGNAET TO CONSTITUTION
Court Calls It Drastic, Harsh and
Unreasonable.
JUDGE BURLINGTON DIssENTs
Attorney General Bonaparte VIII Mt
once Arrange TO Take Case
Before the Supreme
Court.
JUDGE BURLINGTON DISSENT

ana an lNNb6lun VI TIC tlBHAH VI tilD
states. and therefore repugnant to the
constitution. the United States circuit
court for the eastern district of Penn
sylvania today dismissed the suits OF
the federal government to enforce the
commodities clause of the Hepburn rail-
road act againat the anthracite coal carry
ing railroads Of this state
Judges George Gray and George H.
Dallas filed opinions dismissing the suits
and, Judge Joseph II. Burlington dissent
ing, but did not file an opinion. The
commodities clause prohibits railroad
companies from transporting in interstate
commerce any article or commodity man
ufactured, mined or produced by them or
under their authority. The case was
argued in June, United States Attorney
General Bonaparte delivering the princi-
pal argument for the government. The
effect Of the commodities clause. If con-
stitutional, would be TO confine the min
ing OF anthracite coal by the railroads
for use in Pennsylvania only, or compel
the railroads to sell all the mining prop
erty they are interested in. either directly
or indirectly.
1t Is almost ceftain that the case will
be appealed directly to the United States
supreme court
ODinOn of Judge Gray.
The principal opinion was written by
Judge Gray, who was president of the an
thraclte strike commission. has an inti-
mate knowledge Of the mining Of hard coal.
Judge Dallas said, In his opinion that It
could not be denied that the commodite es
clause was enacted mot actually for the
regulation OF Interstate commerce. but
really to coerce the conformity of inter
state business with a policy approved by
congress-"
Judge Gray IN his opinion discussed at
great length the limitations put upon con-
gress by the constitution and concluded:
From every point OF view which we
have been aide to approach the question,
the unreasohableness and consequent in
validity Of this so-oalIed commodities
clause Is appArent, It 1hvades the rights
OF the state, by striking down the liberty
hitherto innoeently enjoyed by It's citizens
under the laws and usages of the common
wealth to engage in interstate CONNER &C
to the fullest evtent, 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. II the enactment In question
be warranted by the commerce clause OF
the constitution it is hard to see what
bounds may be set to the exercise of that
power. II will indeed be an open door
through which the forces Of GENERALIZATION
hitherto unknown may enter at WILL 70 the
over throw OF that Just balance between
federal and state power, for which the
makers OF the constitution wisely pro-
vided. as an essential TO the preservation
OF our dual form OF government.
we cohfine ourselves to the concrete
facts presented by the pleadings in these
as 10 cases where property has been &C
quired by the carriers subsequent to the
passage OF the act. For the reasons stated
therefore. these bills in equity are dis
missed and ths petition for writs of man
damus ON the law side of this court arc
denied"
Ample as is the scope Of Legislative
power granted by the language OF the com
merce clause, and far as the supreme cour
has undoubtedly gone in sustaining thu
validity of legislation under 1t, we think /
may be safely said that no assertion of thi
power hitherto. by congress. has been $,
far-reaching or affected In so serious de
gree the Individual liberty and property
rights enjoyed under the constitution anC
laws OF state the enactment we ar,
here considering. 1t is not to be denie,
that the right 10 carry in interstate com
merce coal which they own in whole or II
part, or which is mined or produced b.
them or under their authority. or by Goa
companies in which they are stockholder
was, until the passage OF the act in ques
ton. . lawful right of these defendants
that Il was common right OF propert
was neither denied nor disputed by tn
common or statute law OF Pennsylvania
that Il was a most important propert
right. the enjoyment and exercise of whic
was neither criminal nor immoral and sub
ject only to any restraints imposed upo
it's possessions by the common. or statut
law OF the state or by the then existin
statutes OF the United States. so far a
they were engaged in interstate eommercs
''If In any manner and to any exten
whatever they have actually violated tn
latter. surely they could be restrained. o
otherwise made amenable to the legal pen
alties in such behalf without Gripping O
destroying business in which they at
profitab'y and usefully engaged.
InfPinEement of Vested Right.
ITO these defendants. thus innocent
and lawfully engaged in transporting Goa
which they own. or are interested in, TO tn
extent and under the circumstances here
inbefore set forth. comes this act Of con
EFess ana declares that this whole busi
ness is unlawful. and that future exercls
Of a vested right OF ownership whic
Tney have heretofore and for long period
OF years enjoyed under the belief that
was an ordinary right OF property enjoye
innocently by all citizens OF the state alike
and inviolable as such a crime and punish
able as such. That this Legislation
drastic and harsh does not. of course. dis
pose OF the question Of power on the part q
congress to enact H. The first inquiry {
be made, therefore, is as 70 whether thi
legislation is regulation of eommerc
within the true meaning OF the eommerc
clause Of the constitution"
The opinion discusses this point. quote
many authorities and says:
we may assume, therefore. that IN
commerce clause Of the constitution Is n