Omaha daily bee., 1908-09-22
INNOCENCE or CORPORATIONS
Analysis of the Decision on the Conn
moditics Clause"

Analysis Of the Decision on the Conn
moditics Clause"
The outlook, New York.
Judge Gray, in the primo. pal opinion NJ
the court, declares that the legislation by
which the people through congress at
tempted to divorce railroading from coal
mining Is drastic, harsh, dangerous in It's
tendency, and unconstitutional:
From every point Of view from which
we have been able to approach the ques.
ton, the unressonableness and consequent
invalidity OF this so-called commodities
clause" is apparent. 1t invades the rights
Of the state by striking down the liberty
hitherto innocently enjoyed by its citizens.
under the laws and usages of the common
wealth, to engage in interstate commerce
to the fullest extent, as to all armies
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. IL the enactment in question
be warranted by the clause of
the constitution, 1t is hard to see what
bounds may be set to the expenditure OF
that power. II will. indeed, be an open
door through which the forces of a cen
trallzation hitherto unknown may enter at
will, to the overthrow of that just balance
between federal and state power, for which
the makers of the constitution so wisely
provided, as an essential to the preserva-
ton of our dual form of government"
-
We cannot see the force of Judge Gray's
argument that the defendants were in
nocently and lawfully engaged in trans
porting coal which they own" and that
therefore it is drastic and unjust for con-
gress to declare such transportation un-
lawful. The same argument might be APP
piled, it appears to us, to any legislation
regulating or modifying the practices OF
civilized society. Children less than 10 years
old were formerly permitted by some states
to work twelve hours "A day In factories
and mines. So far as the government is
concerned this was a lawful and innocent
practice. Vested rights OF ownership" to
quote Judge Gray, were built up on the
practice. When some of these states pro-
hibited this practice, and thus to some ex-
tent destroyed the profits gained from
vested rights of ownership" was the leg
islatlon harsh and drastic? But even
further, it appears to be clear that this
vested right of ownership was exer-
cised in Pennsylvania directly contrary to
the state constitution. We fail to see how,
under these circumstances, the railways
can plead innocence.
OF course Judge Gray is entitled to his
opinion that the Hepburn act registers a
tendency toward q dangerous centraliza-
ton which endangers the preservation of
our government, but we do not understand
it to be the function of the courts to de-
termine whether legal enactments are ex-
pedient or desirable, but simply whether
they accord with the principles of consti-
tutional law. The social and commercial
evils which have grown out of the con-
solidation of the two distinct industries
of coal mining and railway transportation
have not been denied even by the railways
themselves. Up to the time Of the present
decision the opposition to the enforcement
of the commodities clause has been
chiefly, not that 1t is unjustifiable, or even
outside the function of the government,
but simply that 1t would be too difficult
to enforce on account of the complication
Of determining what proportion of the
stocks and bonds of the railways involved
rests upon purely railway property and
what rests upon the mining property.
The Outlook does not minimize the enor.
nous difficulty in the way of enforcing
the commodities clause but, in view of
the constitutional provision of the state of
Pennsylvania itself, we shall be greatly
interested to see II Judge Gray's opinion Is
sustained by the supreme court. Judge
Gray's reputation is so high that no fair
minded man will for a moment impute
political motives to the decision of a court
over which he presides, but it is not al
together improbable that Mr.. Bryan may
seize upon this decision as an indication
that the present administration is not in
earnest in its desire to regulate and con-
troll the great interstate corporations. Lest
Mr.. Bryan or his supporters may take this
ground, we venture to remind them hat
Judge Gray and Judge Dallas, who are
opposed to the attempt to regulate the coal
industry in behalf of the consumer, are
democrats, while Judge Burlington, who
dissents from their ~opinion. is a REPUBLICAN,.