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the majority of the commissioners certified to the Great Seal that the bankrupt had conformed with the law.

With the introduction of the discharge, English law had all the elements of modern bankruptcy. The subsequent history of English bankruptcy has to do principally with the management and administration of the bankrupt's estate, the question uppermost in the minds of the legislators being whether the State or the creditors should have the dominant authority over the proceedings.

Louis Edward Levinthal. University of Pennsylvania

Law School.

THE COMMERCE POWER AND HAMMER v. DAGEN

HART.

In view of the mass of literature which has accumulated around the Commerce Clause of the Federal Constitution an excuse seems the natural preface to any further discussion of the subject. The excuse which is offered in the present instance is the recent decision of the Supreme Court of the United States in Hammer v. Dagenhart, holding unconstitutional the Federal Child-Labor Law,” a decision which, instead of clarifying the scope of the commerce power seems to perpetuate old doubts, if not indeed to create new ones, as to the law on this subject.

It is to be expected that questions as to the distribution of the commerce power under the Constitution should continue to arise with the changing commercial conditions in the country; but that these questions should involve doubt as to the fundamental scope and character of the Federal power is surprising, particularly, when it is remembered that the Commerce Clause

*247 U. S. 251, decided June 3. 1918. Upon the announcement of the decision in this case, the Solicitor General asked that the issuance of the mandate be stayed thirty days in order to enable the Department of Justice to file a petition for rehearing, should it be so advised. This motion was granted, but previous to the expiration of the thirty days the Solicitor General notified the clerk of the Supreme Court that the Department had determined not to file an application for rehearing.

* Chap. 432, 39 Stat. 675. The pertinent section of this Act, the first, reads as follows:

“That no producer, manufacturer, or dealer shall ship or deliver for shipment in interstate or foreign commerce any article or commodity the product of any mine or quarry, situated in the United States, in which within thirty days prior to the time of the removal of such produce therefrom children under the age of sixteen years have been employed or permitted to work, or any article or commodity the product of any mill, cannery, workshop, factory, or manufacturing establishment, situated in the United States, in which within thirty days prior to the removal of such product therefrom children under the age of fourteen years have been employed or permitted to work, or children between the age of fourteen years and sixteen years have been employed or permitted to work more than eight hours in any day, or more than six days in any week, or after the hour of seven o'clock post meridian, or before the hour of six o'clock ante meridian: Provided, that a prosecution and conviction of a defendant for the shipment or delivery for shipment of any article or commodity under the conditions herein prohibited shall be a bar to any further prosecution against the same defendant for shipments or deliveries for shipment of any such article or commodity before the beginning of said prosecution."

has been the subject of critical consideration by the Court for almost a hundred years. And yet there are real doubts (a) as to what, essentially, constitutes a regulation of commerce, and (b) as to the extent to which the power to regulate commerce may be exerted to prohibit the transportation in interstate commerce of specific commodities-doubts which, to say the least, are not resolved by this decision.

Of these questions the first goes back to the beginning, although in the early stages of judicial interpretation of the Commerce Clause the Court was invariably concerned with the proper classification of state legislation.

At that time the overshadowing question was whether the Federal power over interstate commerce was exclusive and whether the States were competent to the passage of certain legislation, so that the Court came to consider whether this legislation actually constituted, in the specific instances, regulations of commerce. In the solution of this problem the earliest decisions disclose a tendency to apply the principle stated by Chief Justice Marshall in Gibbons v. Ogden:3

“All experience shows that the same measures or measures scarcely distinguishable from each other, may flow from distinct powers; but this does not prove that the powers themselves are identical.”

This pregnant sentence indicates clearly that the Chief Justice, in determining the essential character of the legislation under consideration looked beyond the legislation itself to ascertain what he regarded as the specific power exerted by the State in the passage of the law; and it seems to have been his view that the power to regulate commerce among the States was vested exclusively in Congress in the sense that no State could share in the exercise of this power, but this view of Federal authority did not prevent his sustaining State legislation directly affecting interstate commerce when such legislation might be

'9 Wheaton 1 (1824).
* At page 204.
• See pages 205 and 209.

attributed to some other power than the power to regulate commerce, as for instance, to the police power.o

Manifestly this is to hold that the essential nature of the power exerted is not determined with reference to the field of its operation, but with reference to some other standard. And the case discloses no other standard to determine this essential nature unless it be found in the purpose or motive of the legislation.

Thus in Gibbons v. Ogden he justifies State inspection laws as follows:

"But the inspection laws are said to be regulations of commerce, and are certainly recognized in the Constitution as being passed in the exercise of a power remaining with the States.

"That inspection laws may have a remote and considerable influence on commerce will not be denied: but that a power to regulate commerce is the source from which the right to pass them is derived, cannot be admitted. The object of inspection laws is to improve the quality of articles produced by the labor of the country, to fit them for exportation, or it may be for domestic use.”

And so also with respect to State quarantine laws; these he attributes to "the acknowledged power of a State to provide for the health of its citizens." Yet Congress may pass quarantine laws, and when so passed they will undoubtedly be regulations of commerce. The underlying thought of the entire discussion seems to be found in the statement that

“If a State in passing laws on subjects acknowledged to be within its control, and with a view to those subjects, 8 shall adopt a measure of the same character with one which Congress may

Willson v. Blackbird Creek Marsh Co., 2 Pet. 245 (1829). It is significant that in the case of Brown v. Maryland, 12 Wheat. 419 (1827), the validity of a law of the State of Maryland levying a tax on importers, was held invalid so far as it involved the constitutional power of Congress to regulate commerce with foreign nations, etc., only as it came in conflict with the Act of Congress authorizing importations. The discussion does not extend to the power of the State to levy such a tax in the absence of any Act of Congress conflicting therewith.

'Page 203.

• Italics ours. This language seems meaningless unless it refers to the purpose or motive of the legislators.

adopt, it does not derive its authority from the particular power which has been granted [i. e., in this instance the commerce power], but from some other which remains with the State and may be executed by the same means.

In the case before the Court it seemed impossible to attribute the legislation of the State—the grant to Livingston and Fulton of the exclusive privilege to navigate the waters of the State of New York with vessels propelled by fire or steamto any power other than the power to regulate commerce, and in consequence there follows the elaborate discussion of the exclusiveness of this power. On the other hand, in Willson v. Blackbird Creek Marsh Company,1the same judge sustains in a comparatively short opinion State legislation authorizing the maintenance of a dam constituting a barrier to navigation and commerce_a physical barrier here, while in Gibbons v. Ogden the barrier was intangible arising out of the attempted exclusive franchise. 11

Applying this theory the Supreme Court in Mayor v. Milne,12 sustained State legislation requiring a report of facts relative to passengers brought into the country, the fundamental basis for the decision being found in the paragraph of the opinion on page 131 of the report. And the determination that the

Page 204. The same idea appears in Mr. Justice Johnson's concurring opinion at page 235. He there says:

"It is no objection to the existence of distinct, substantive powers, that, in their application, they bear upon the same subject.

Their different purposes mark the distinction between the powers brought into action; and while frankly exercised, they can produce no serious collision."

And again, on page 239, the following passage is illustrative of the same point:

"Wherever the powers of the respective governments are frankly exercised, with a distinct view to the ends of such powers, they may act upon the same object, or use the same means, and yet the powers be kept perfectly distinct. A resort to the same means, therefore, is no argument to prove the identity of their respective powers."

Apparently this theory was one of those advanced by Mr. Webster in this argument: v. pp. 18 and 19.

* 2 Pet. 245 (1829).

"The Court does not in terms deny to the legislation the characteristic of a regulation of commerce; but the whole opinion is in accord with the view that this was the basis of the decision.

"11 Pet. 102 (1837).

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