CONSTITUTIONAL LAW IN 1917-1918. I

THE CONSTITUTIONAL DECISIONS OF THE SUPREME COURT OF THE UNITED STATES IN THE OCTOBER TERM, 19171

THOMAS REED POWELL

Columbia University

I. INTERSTATE COMMERCE

POWERS OF CONGRESS UNDER THE COMMERCE CLAUSE

The federal Child Labor Law was declared unconstitutional in Hammer v. Dagenhart2 by a vote of five to four. It forbade the transportation in interstate or foreign commerce of the product of any mine or quarry "in which within thirty days prior to

1 For preceding reviews of Supreme Court decisions on constitutional questions, see American Political Science Review, (1910) IV, 483-497; (1912) VI, 513– 523; (1915) IX, 36-49; (1918) XII, 17-49, 427-457, 640-666.

* (1918) 247 U. S. 251. See Thurlow M. Gordon, "The Child Labor Law Case," 32 Harvard Law Review 45; Frederick Green, "Social Justice and Interstate Commerce, 208 North American Review (September, 1918) 387; William Carey Jones, "The Child Labor Decision," 6 California Law Review 395; T. I. Parkinson, "The Federal Child Labor Decision," The Child Labor Bulletin, vol. 7, no. 2, p. 89 (August, 1918); and T. R. Powell, "The Child Labor Decision," The Nation, vol. 107, p. 730 (June 22, 1918), and "The Child Labor Law, the Tenth Amendment, and the Commerce Clause," 3 Southern Law Quarterly 175. See also editorial notes in 86 Central Law Journal 441, 17 Michigan Law Review 83, and 27 Yale Law Journal 1092. For articles on the subject written prior to the decision of the Supreme Court, see H. C. Gleick, "The Constitutionality of the Child Labor Law," 24 Case and Comment 801; Frederick Green, "The Child Labor Law and the Constitution," Illinois Law Bulletin, no. 2, p. 3; Henry Hull, "The Federal ChildLabor Law," 31 Political Science Quarterly 519; and T. I. Parkinson, "Brief for the Keating-Owen Bill," The Child Labor Bulletin, vol. 4, no. 4, pt. 2, p. 219 (February, 1916), "Constitutional Prohibitions of Interstate Commerce," 16 Columbia Law Review 367, and "The Federal Child Labor Law," 31 Political Science Quarterly 531.

The majority consisted of Chief Justice White and Justices Day, Van Devanter, Pitney and McReynolds; the minority, of Justices McKenna, Holmes, Brandeis and Clarke.

the time of the removal of such product therefrom children under the age of sixteen years have been employed or permitted to work," with similar prohibitions covering the products of mills and factories in which children under fourteen were employed or children under sixteen were employed more than eight hours a day. The majority opinion misinterpreted the statute and assumed that it permitted goods "to be freely shipped after thirty days from the time of their removal from the factory," whereas it permitted only the shipment of stock on hand thirty days after children had ceased to be employed. The law was so framed as to avoid the necessity of proof that children coöperated in the making of specific articles produced in a factory in which children were employed, and yet to remove any ban on shipment from an establishment which for thirty days had employed only adult labor.

No fault was found with the statute under the due-process clause of the Fifth Amendment, nor was there any consideration of the question whether the prohibition on foreign commerce might be sustained although that on interstate commerce was void. Not a few opinions of the Supreme Court, it will be recalled, have implied that the power over foreign commerce is absolute. Such declarations, however, probably have no bearing on a statute which a court holds not to be a regulation of commerce at all.

The Child Labor case came before the court in a bill brought by two children through their father as "next friend" against a federal district attorney to enjoin the enforcement of the act. The propriety of the procedure was not questioned in the Supreme Court. The injunction granted below was sustained on the ground that the act was unconstitutional in that it was not a regulation of interstate commerce and was an invasion of the reserved powers of the states prohibited by the Tenth Amendment. Mr. Justice Day, for the majority, said that "the act in its effect does not regulate transportation among the states, but aims to standardize the ages at which children may be employed in mining and manufacturing within the states." To this, the minority answered through Mr. Justice Holmes that it did

both: "The statute in question is within the power expressly given to Congress if considered only as to its immediate effects; if invalid it is so only upon some collateral ground." The majority concentrated their attention on the collateral ground which the minority thought was not within the competence of the court to consider, pointing out that previously the court had "excluded any inquiry into the purpose of an act which apart from that purpose was within the power of Congress."

In dealing with the precedents which had sanctioned congressional prohibitions of interstate transportation, Mr. Justice Day declared that "in each of these instances the use of interstate transportation was necessary to the accomplishment of harmful results," whereas the products of child labor "are in themselves harmless." To this, Mr. Justice Holmes answered: "It does not matter whether the supposed evil precedes or follows the transportation. It is enough that in the opinion of Congress the transportation encourages the evil."

As to the Tenth Amendment, the majority insisted that the act regulated manufacture and that the regulation of manufacture was one of the reserved powers of the states. The answer of the minority was as follows:

"The Act does not meddle with anything belonging to the States. They may regulate their internal affairs and their domestic commerce as they like. But when they seek to send their products across the State line they are no longer within their rights. If there were no Constitution and no Congress their power to cross the line would depend upon their neighbors. Under the Constitution such commerce belongs not to the States but to Congress to regulate. It may carry out its views of public policy whatever indirect effect they may have upon the activities of the States. Instead of being encountered by a prohibitive tariff at her boundaries, the State encounters the public policy of the United States which it is for Congress to express.'

In his dissent in the Child Labor case, Mr. Justice Holmes cites Weeks v. United States for the point that the federal Pure Food and Drug Act had been held to apply "not merely to arti♦ (1918) 245 U. S. 618.

cles that the changing opinions of the time condemn as intrinsically harmful but to others innocent in themselves simply on the ground that the order for them was procured by preliminary fraud." The Weeks case involved the shipment in interstate commerce of an article labeled "Special Lemon, Lemon Terpene and Citral." The circuit court of appeals had reversed the conviction of the defendant on the count which charged him with shipping goods bearing a false and misleading label, but sustained that on the second count charging the shipment of articles misbranded by reason of being "offered for sale under the distinctive name of another article." To sustain this count, evidence had been offered showing that the defendant's solicitor had secured the order by falsely representing that the article was pure lemon oil, though of second quality, and by exhibiting a sample bottle labeled merely "Special Lemon." These representations made in the intended state of destination were declared by the Supreme Court to be acts of interstate commerce and to make the shipment of articles that did not conform to the representations a violation of the act.

The constitutional questions involved in St. Louis Southwestern Ry. v. United States are somewhat difficult to disentangle from those of statutory construction. The interstate commerce commission had found that Paducah, Kentucky, was discriminated against in favor of Cairo, Illinois, by reason of the facts that shipments of lumber from the South, instead of being sent by the shortest route to Paducah, were routed by way of Cairo, and the local rate from Cairo to Paducah added to the rates from the South to Cairo. The commission ordered the roads to reduce the Paducah rate to the level of the Cairo rate, leaving them free, however, to ship by the longer or shorter. route. One road which participated in the traffic, but which did not reach the points of ultimate destination, contended that the order was not a regulation of interstate commerce and was wanting in due process because it compelled it to enter against its will into a partnership with other roads. But the court answered that the road was left free to pick any connecting carrier 5 (1917) 245 U. S. 136.

it chose and therefore could still choose its partners, that it was not compelled to undertake any interstate commerce other than that in which it was already engaged, that it was discriminating against Paducah as effectively as if its own rails reached that point, and that its acts were therefore within the commerce power of Congress.

Illinois Central Railroad Co. v. Public Utilities Commission," though concerned chiefly with matters of procedure and issues of fact, touches constitutional questions obliquely through the reasoning in the opinion. The decision reaffirmed federal power to prevent discrimination in interstate rates by ordering the raising of intrastate rates; but, on account of the vagueness of the order of the interstate commerce commission relied on, it applied the principle that it should never be held that a federal authority "intends to supersede or suspend the exercise of the reserved powers of a state, even where that may be done, unless, and except so far as, its purpose to do so is clearly manifested."

THE COMMERCE CLAUSE AND THE POWERS OF THE STATES

A. State Taxation and Interstate Commerce

The cases in which it is urged that state taxes are unwarranted regulations of interstate commerce fall into two main groups. In the first group the issue is whether the complaining taxpayer is entirely exempt because the tax is imposed directly on interstate commerce.

York Mfg. Co. v. Colley' held that the installation and testing of an ice-manufacturing plant in pursuance of a contract for the sale thereof was so essential to the sale as to be regarded as interstate commerce when the sale was interstate. No permit therefore could be required by a state of a company whose only business within the state was such necessary adjustment of a product shipped from without the state.

6 (1918) 245 U. S. 493. See 18 Columbia Law Review 270, 31 Harvard Law Review 1031, and 16 Michigan Law Review 379.

7 (1918) 247 U. S. 21. See 27 Yale Law Journal 1094.