The Birmingham age-herald., 1911-01-02
BRIEF IS FILED
 IN TOBACCO CASE Government Presents a Re-
 vised Argument CONGRESS IS SUPREME Has Power to Make and Enforce It's Will as Long as Such Is Not
 Contrary to the Federal
 ConstitutiOn
CONGRESS IS SUPREME

Washington, January 1.-The brief of made public tonight It has been pre- pared by Attorney General Wickersham and his special assistant, J. c. McRey- holds. MT. Wickersham is supervising also the preparation of the forthcoming arguments of the government in the Standard Oil dissolution suit. Hence, it is generally believed that the theories advanced in the tobacco brief will be followed in the Standard Oil case, and If approved by the supreme court would be the law of the land for years to come.
 In contrast with the subordination of the point a year ago, when the tobacco case was argued before the court for the first time, the government now empha- sizes its position that the Sherman anti trust law should not be interpreted so as to put the stamp of illegality upon every sort of restraint of interstate or foreign commerce. Such a theory has been ad- vanced before in the interest of the good trusts" as distinguished from the bad ones. At the same time the government " regulate interstate and foreign commerce be preserved untrammeled. To this end it would allow Congress the power to strike at things possibly outside of in terstate commerce, such as monopoly of manufacture if the direct and neces- sary consequence thereof be to nullify rules for the regulation of interstate and foreign commerce. The latter argu- ment is set forth more positively than xx,nn mentioned incidentally in the brief submitted to the court.
 The revised argument of the govern ment starts with the promise that the Will of Congress in respect to the power 10 regulate interstate and foreign commerce is the supreme law, unless shown to conflict with some provision of the con- stitution.
 The government asserts that Con- gress has ths power not only to indicate it's will, but also the power to enforce observance of it. So the conclusion is reached that if reasonable neces- sity" arises, Congress may strike down by statute a thing outside of inter state or foreign commerce that lnter- feres with this supreme will.
 In order for reasonable neces- sity'' to arise, 1t Is said. in the brief that a certain nearness of relationship must exist between what the statute directly strikes down and interstate or foreign commerce. That relationship, 1t is acknowledged, probably Is not
 susceptible of rigorous definition. More indirect incidental or remote eff feet on commerce is not sufficient" the government says, but whatever as a natural and probable consequence will occasion material hindrance to the efficacious operation of the lawful will of Congress in reference thereto Is near enough"
 This reasoning is defended as not ir- volving the assertion of federal power generally to regulate or control produc- ton or manufacture within the states :.
 The government says that it leaves tn ose subjects lust where they always have been and must remain with sta te governments. "It only asserts" fx- plained the government, power to de- bar those engaged in production or manufacture from acts or transactions. direct and necessary consequence of which would be to nulify rules for the | conduct of interstate commerce ad- mittedly withinu the power of Con- gress to prescribe. And this is but to say that the power is real, supreme" From this point of view the govern ment contends that the majority of the court came to an erroneous conclusion | in the famous Knight case, which for mer President Roosevelt criticized last l summer in a speech. It Is claimed by | the government that it's argument dis poses of the defense by the American Tobacco company that 1t Is engaged merely in manufacture of tobacco, over
 which Congress has no control.