The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1908-09-11
COMMODITIES
CLAUSE COMES
UNDER THE BAN
Portion of Hepburn Act De-
clared Unconstitutional by
the Circuit Court.
OPINION WRITTEN BY
JUDGE GEORGE GRAY
PENNSYLVANIA COAL ROADS DE-
PENDANTS IN CASE BROUGHT
BY FEDERAL GOVERNMENT.

| Philadelphia. Sept. 10.-The commodi-
ties clause of the Hepburn railroad act
was today declared to be unconstitu-
tional by the United States circuit
court for the eastern district of Penn
sylvania.
Judges Gray and Dallas agreed in an
opinion covering seventy-five typewrit-
ten pages that the clause is unconstitu-
tionai. Judge Burlington dissented. but
did not file an, opinion.
The Commodities Clause,
The commodities clause constitutes
the fifth paragraph of the first section
VI the interstate commerce act, il being
one Oh the amendments made by the
Ileppurn railroad act of June %. 1906
me clause provides that after Nav
1898. II shall be unlawful for auy rail
ROAD company to transport from one
state 10 another or to any foreign coun-
.iy any article or commodity manufac-
.uTed' mined or produced by il, under
It's authority, directly or indirectly. ex-
Sept sucn article or commodity as NAV
De necessary for its use in the conduct
OF lts business as a common carrier.
Inc clause exempts timber and It's
manufactured products and is aimed
particularly at railroads owning coal
mines.
Railroads Involved.
The case was argued on June l6 and
H. The railroad companies involved
were the Jersey Central. the Lehigh
valley. Erie. Delaware. Lackawanna &
western. Delaware & Hudson. Penn
syiVania and Philadelphia & Reading.
Ninety per cent of all the unmined an
tracite coal in Pennsylvania belongs to
these corporations or TO coal companies
whose shares are held by them The
Philadelphia & Reading case was not
argued along with the others because
of certain questions of law involved in
It's ownership
The commodities clause case was
considered so important that ATTORNEY
General Bonaparte came to this city
and personally made the principal ar
gument in behalf of the government.
Clause Never Enforced.
Prior to the clause going into effect
the anthracite coal carrying railroads
went before the interstate commerce
commission and said that they could
Not comply with the clause without
making great sacrifices. Thereupon the
government agreed not to enforce the
clause until a decision was had upon
law points involving its constitution
atty
The department of justice then filed
a bill in equity upholding the govern
ments contention that the clause was
constitutional. The railroads. in their
answers. declared the clause 70 be con-
fiscatory, discriminating and a prohi-
bition and not regulation: that it de-
prived the railroads of liberty and
property and violated a right reserved
TO the states.
The interstate commerce act provides
penalty not to exceed s.. 900 for each
violation of the clause. During the ar
gument it was contended by the de-
PENDANTS that each car of coal shipped
In violation of the clause could be con-
strued under the act as an offense. and
as the Lehigh Valley railroad shipped
daily 1900 cars of anthracite coal in in
terstate commerce that railroad. under
such an Interpretation. would be liable
to a fine of s6.000O00 each day.
Opinion of Judge Gray.
Judge Gray. in his opinion. in taking
up the commodities clause, says:
Ample as is the scope of legislative
power granted by The language of the
commerce clause, and as far as the SUI
preme court has undoubtedly gone in
under It, we think 1t may be safely
said that no assertion of this power
hitherto by congress has been so far
reaching. or affected in so serious a de-
gree, individual liberty and proper
ty rights enjoyed under the constitu-
tioh and laws of a state as the enact
ment we are here considering. 1t is not
to be denied that the RIGHT TO carry in
interstate commerce coal which they
own in whole or in part or which is
mined or produced by them or under
their authority or by coal companies
in which they are stockholders was.
until the passage of the act In question
n lawful right of these defendants: that
II was a common right of property. was
neither denied or disputed by the COM
mon or statute law of Pennsylvania:
that 1t was most important property
right. the enjoyment and exercise of
which was neither criminal nor I'M
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