Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1908-09-11
Commodities Clause Held
to Be Unconstitutional
Law Drastic, Harsh and Unrea-
sonab|e, Court Says.
Federal Authorities Will Probably
Appeal to Supreme Court.

Philadelphia, Sept. 10.-Declaring it
to be drastic, harsh and unreasonable
and an evasion of the rights OF the
states, and therefore repugnant to the
Constitution, the United States cir
cult court for the Eastern district Of
Pennsylvania today dismissed the
suits of the federal government to en-
force the commodities clause of the
Hepburn railroad act against the
anthracite coal carrying railroads OF
this state, Judges George Gray and
George NJ Dallas filed opinions dis
missing the suits and Judge Joseph
Burlington dissented but did not file
an opinion.
The commodities clause prohibits
railroad companies from transporting
in interstate commerce any article or
commodity manufactured, mined or
produced by them or under their au-
thority. The case was argued in June.
United States Attorney General Bona
parte delivering the principal argu-
ment for the government,
The effect of the commodities clause
if constitutional. would be to confine
the mining of anthracite coal by rail-
roads for use in Pennsylvania only or
to compel the railroads to sell all the
mining property in which they are in
terested either directly or indirectly.
The decision of the court did not
come as a great surprise 1t 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 ramihca-
lions in the ownership of the coal
mines Judge Dallas said in his opin-
ion that the commodities clause was
enacted Not actually for the regula-
ton of interstate commerce. but really
TO coerce the conformity of interstate
business with a policy approved by
Congress"
Judge Gray in his opinion discussed
at great length the limitations put up
on Congress by the Constitution ana
concluded as follows:
..F'rom every point of view which we
have been able to approach the question
tbe unrea soma blencss and consequent in
validity of this so-called commodities
clause is apparent. 1t invades the riShts
of the state by striking down the nper-
tv hitherto innocently enjoyed by It's cltl-
zeus under the laws and usaSes OF tne
commonwealth to engage in interstate
commerce to the fullest extent. as to all
harmless articles, whether owned or not
owned by the carrier. and deprives OF
their propertv these defendants contrary
to the letter and spirit of the Fifth
h.. frtftn
enactment in question be warranted by
the commerce clause of the Constitution
it is hard to know what bounds may be
set 10 the expenditure of that power. It
will indeed be an open door through which
the forces of a Capitalization hitherto
unknown may enter at will to the over
throw of that just balance OF federal
and state power for which the makers or
the Constitution SO wisely provided and
essential 20 the preservation OF our dual
form of government.
1--WE confine ourselves to the concrete
facts presented by the pleadings in these
cases, and intimate no opinion either way
as to cases where property has been ac-
cuired by the carriers subsequent to the
passage of the act. For the reasons stat
a,
dismissed and the petition for writs of
mandamus on the law side of this court
are denied"
Judge Dallas in his opinion says that he
fully concurs in the foregoing opinion
and the little now to be added is In
tended merely to accentuate my accept
ance of it." Further he says:
"The prohibitory intent of the piece of
legislation under consideration is too
plain for dsavowal. and the suggestion
that what it prohibits is not interstate
commerce. but interstate transportation
by railroad company of commodities
which it has produced. etc. is delusive
The question is not whether the carriage
from state to state of coal produced by
the carrier is interstate commerce. for Of
course it is: but whether, being a kind
of commerce which is not inirical to
Continued on Page Twelve.)