The sun. [volume] (New York [N.Y.]) 1833-1916, 1909-05-04

" exclude from among the States any
article, commodity or thing OF whatever Kind OF
nature or how useful or valuable which Il
may choose. no matter with what motive, 10 de
clare shall not be carried from one State To
another
While this refusal to affirm the ex-
treme position Of the Government tenn
porarily halted the political programme
of the Administration, yet many Of Mr..
RoosEvELT's political vagaries, such as
the Beveridge child labor bill and the
proposal to license corporations to en-
gage in interstate commerce and thus
subject them to bureaucratic supervi-
sion as to all their contracts, were based
in principle upon the asserted power Of
the Government to use its commerce
power, as it had in the a Of State
banks used its taxing power, to meet
evils which were otherwise exclusively
within the power Of the States.
Upon this new contention, that the
Federal Government could "by indireo-
tions find directions out" the propo-
nents Of the commodities clause sought
to establish its constitutionality. For
many years the conviction had not un-
reasonably deepened in the public mind
that it was %prejudicial to the interests
Of the American people that u railroad
carrier should engage in the production
and sale Of the commodities which it
transports in competition with lis indie
pendent shippers. 1t was felt that such
competition would result only in the
railroad giving to itself, in the capac-
ity Of seller, undue advantages to the
prejudice Of independent shippers, but
the power Of each State to determine
whether a corporation which it had
chartered could engage both in the
production Of commodities and their
transportation as g common carrier was
too clear to be gainsaid.
The agitation against the double
function of the carrier was not without
justification, but the difficulty was that
it came fifty years too late. The rail-
roads had for many years, without
challenge or protest, been engaged in
the production Of commodities and
especially in the mining Of coal. In
deed, in many instances the mineral
wealth of uninhabited regions would
never have been developed unless the
mining companies had furnished their
own transportation facilities. Even to-
day valuable mines OF all kinds would
remain undeveloped in the wilderness
if those who sought to open them could
not follow the course Of conduct which
had been followed in this country with
out challenge for more than halt a en-
fury. The Delaware and Hudson Com
pany, for example, had been a mining
company before it acquired any powers
from the State of its incorporation to
become a common carrier, and indeed
before there existed a single mile OF
railway in this country, and the con-
dition which confronted Congress wes
that for more than half a century many
leading railroads had by the tacit or
express a~cquiescence Of both State and
nation directly or indirectly owned coal
mines and transported their wi coal
to tidewater in competition with indie
pendent shippers. Not only their capi-
tai stock but their funded debt. which
far exceeded a billion dollars, was held
by investors on the faith that the rail-
roads could continue to eIerciee both
powers, without which their securities
might be materially prejudiced. The
situation was still further complicated
by the fact that large mortgages. rep
resented by bonds held by the investing
public. covered both the mines and the
railroads, and that il the common own
ership OF both were in any manner di-,
vided the security of the bonds and the
sanctity of contracts would be substan-
TALLY impaired and possibly destroyed.
These difficulties. however, did not
deter the Congress which framed the
Hepburn law. That body. under the
snap Of the Roosevelt whip, blindly
rushed in where wisdom inspired angels
might with reason have feared to tread.
With an extraordinary indifference to
consequences, with a debate in the Sem
ate which lasted only four days and with
practically no debate whatever in the
House, both bodies passed with few dis
senting votes this revolutionary piece
of legislation and prohibited under con-
fscatory penalties which might ~conceiv-
ably have amounted TO billions of dollars,
any railroad company from transporting
in the channels of interstate trade after
May /, 1908,
" any article o. commodity other than timber
and the manufactures products thereof. mGnu.
featured. mined or produced by II or under Its
authority or which II may own In whole or In part
or Ia which II may have any Interest, direct or
Indirect, except such articles or commodities a.
may be necessary or intended for Its use In the
conduct OF its business as . common carrier"
While the law aimed at every COM
modify with the exception Of timber,
it is a matter Of common knowledge
that its chief purpose was to compel
the Eastern railroads to sell their coal
lands, and Al only one-quarter OF
the vast production Of anthracite coal
in Pennsylvania is sold within that
State, it was obvious that If the railroad
carriers could not transport the great
bulk of their product TO tidewater they