The Hawaiian gazette., 1908-10-09

election at which a Delegate to Con.
gress is to be elected, promises to be-
come cause celebre. A new point has
now been raised The very constitu.
Of the act is attacked.
The question of the constitutionality !!
is raised in supplemental brief for the
defendant which has just been fled,
with the consent of the court, and
for the complainant.
1t is expected that the case will be
decided within few days now, and
whatever the decision, il will be
matter of national interest, not alone
because of the questions involved but
because the Department of Justice di-
rected the test case to be brought.
The supplemental brief fled, raising
the constitutional question, contains
the following argument.
"We contend against the constitu.
tionality Of the act on the following
ground:
"The act prohibits contributions by
corporations in connection with "a
any election at which Rep.
resentative in Congress is to be voted
legislature of a United States Sena.
tor 1t would seem as if Congress is
attempting to legislate on matters not
within its constitutional right. 1t is
an attempt to legislate for the states.
For example: AT the coming election
in state, the Governor, Lieutenant
Governor, Secretary of State, State
Treasurer, State Comptroller, Members
of State Legislature and County Of
ficers are all voted for at the same
election as the Representatives in Con-
gress or congressman. The act pro.
hibits any contribution in connection
with state officers because elected at
the same election with the congress.
man, that lis, it is an election at which
n congressman is voted for. The act
does not seek to prohibit contributions
for the election of congressman, but
prohibits contribution at any election
at which a congressman is voted for;
therefore, if state officers are voted for
at the same election as congressman,
contributions for election of state and
county officers within the state are
prohibited.
els this legislation not beyond the
power of Congress for the same reason
as laid down by the Supreme Court
of the United States in the Employers
Liability casesi In the latter case
Congress attempted to legislate not only
for the conduct of common carriers
while engaged in interstate commerce,
but also the conduct of carriers while
engaged in interstate commerce. No
qualifications or restriction was named
by Congress. The act was made to
apply to the injury of any of the en-
ployes of these carriers, no matter
whether the injury had occurred in
state business on a branch line in the
state, or otherwise in intrastate busl
ness, as distinguished from interstate
business or commerce, and the Supreme
Court held that as by the act the two
were so interblended and could not be
separated, the act was unconstitution-
al. Likewise with the present act, Con
gress has so legislated as far as state
elections are concerned that 1t could
not be separated from elections of rep.
resentatives, and if the act is void as
to the states, and that being the main
object of the act, the act would not be
enforced as to the Territories, that is,
should the court find that it otherwise
was applicable to tho Territories -
The following citations from the Elm.
ployers Liability cases illustrate this
point.
"Thus the liability of common car
rier is declared to be in favor of any
of its employees. As the word amy
is unqualified, it follows that liability
to the servant is coextensive with the
business done by the employers whom
the statute embraces; that is, it is in
favor of any of the employees of all
carriers who engage in interstate bust
ness.
"The act then being addressed to all
common carriers engaged in interstate
commerce, and imposing liability up.
on them in favor of any of their en-
ployes, without qualification or restric.
ton as to the business in which the
carriers or their employees may be en-.
gagged at the time of the injury, of
necessity includes subjects wholly out
side of the power of Congress to regu
late commerce
Concluding as we do, that the
statute, whilst it embraces subjects
within the authority of Congress to
regulate commerce, also includes sub
jects not within its constitutional pow
err, and that the two are so interblended
in the statute that they are incapable
of separation, we are of opinion that
the courts below rightly held the stat
ute to be repugnant to the constitu-
tion and uncomfortable"
The force and effect of this statute
is to prohibit contributions to election
of state officers. This is true because
it would be a contribution at an cleo
ton where congressman is voted for.
The contribution would not be for a
congressman g election and would not
be for anything over which Congress
controlled. yet the wording of the act
would prohibit it.
Again, can congress regulate the cor
| porations formed under state laws from
contributing to eleetionsi Does it
come within the constitutional powers
set forth in section 4, Art. II We do
not believe it comes within the pro-
visions, Chimes, places and manner Of
holding elections"
The constitutionality of this law