The following definitions have been pronounced by the Supreme Court:

"Due process of law within the meaning of the (fourteenth) amendment is secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government. Giozza v. Tiernan (148 U. S., 657, 662 [1893].) To the same effect see Yick Wo v. Hopkins (118 U. S., 356, 367 (1886]); Leeper v. Texas (139 U. S., 462 and 468 [1891]); Yesler v. Commissioners (146 U. S., 646, 655 [1892]); Duncan v. Missouri (152 U. S., 377, 382 [1894]).

The words "due process of law," "were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.' Bank v. Ŏkely (4 Wheat., 235. 244 [1819]); Twining v. N. J. (211 U. S., 78, 101 [1908].)

"The great purpose of the requirement is to exclude everything that is arbitrary and capricious in legislation affecting the rights of the citizen." Dent v. W. Va.

(129 U. S., 114, 124 [1889]).

The due process clause in the fifth amendment is identical with that in the fourteenth amendment. This pledge of individual rights and liberties is in the Constitution in a two-fold sense: in the fifth amendment it is a limitation upon the powers of the National Government; in the fourteenth amendment it is a limitation upon the powers of the States. Davidson v. New Orleans (96 U. S., 97, 101 [1878]); Ballinger v. Davis (146 U. S., 314, 319 [1892]). Indeed, the Supreme Court has said that these two clauses bear the same construction in regard to the meaning of the phrase "due process of law." Slaughter House Cases (16 Wallace, 26, 80 [1872]); Tonawanda v. Lion (181 U. S., 389, 391 [1901]); Twining v. N. J. (supra).

Therefore it may be argued, though it has never been directly decided, that an act of Congress which excludes an article from interstate commerce without apparent reason violates the requirements of the "due process" clause. Assuming that prohibition without any reason would be a violation of due process, the question becomes one of reasonableness of the prohibition or transportation of a particular article. This restriction on prohibition is implied by the Supreme Court's language in United States v. Marigold (9 Howard 560 [1850]), where it was said that any article of commerce "may be partially or wholly excluded when either measure shall be demanded by the safety or by the important interests of the entire nation."

It has always been an established constitutional principle that all rights of life, liberty, and property are held subject to regulation by the sovereign in the interests of the public welfare. The interests of the individual must yield to the higher interests of the community. So long as such regulations are reasonable they may interfere with private property without violating the due process clause. It is now well settled, so well that citation of cases is unnecessary, that a State statute containing reasonable police regulation, though it interferes with personal or property rights, does not constitute a deprivation thereof without due process and is therefore constitutional, despite the due process clause of the fourteenth amendment.

In Chicago Railroad Co. v. McGuire (219 U. S., 549, 567 [1911]), it is said: "Liberty implies the absence of arbitrary restraint, not immunity, from reasonable regulations and prohibitions imposed in the interests of the community."

The scope of this power to regulate in the interests of the public good, commonly called the police power, has never been definitely determined. For many years the decisions of the Supreme Court seemed to restrict it to laws passed for the protection of the health, morals, or safety of the public. But later decisions have given it a broader scope and, at the present time, it may properly be said to include all matters which are immediately necessary or advantageous to the welfare of the community. In the case of McLean v. Arkansas (211 U. S., 539 [1909]), the court held constitutional a State statute requiring coal to be weightd before screening, as a basis for determining miners' wages. In the opinion in this case, the principles which underlie the validity of legislation passed presumably in the exercise of the police power were stated as follows (p. 547):

"It is then the established doctrine of this court that the liberty of contract is not universal, and is subject to restrictions passed by the legislative branch of the Government in the exercise of its power to protect the safety, health, and welfare of the people.

"It is also true that the police power of the State is not unlimited and is subject to judicial review and, when exerted in an arbitrary or oppressive manner, such laws may be annulled as violative of rights protected by the Constitution. While the courts can set aside legislative enactments upon this ground, the principles upon which such interference is warranted are as well settled as is the right of judicial interference itself. The levislature being familiar with local conditions is primarily the judge of the necessity of such enactments. The mere fact that a court may differ with the legislature in its views of public policy, or that judges may hold views incon

sistent with the propriety of the legislation in question affords no grounds for judicial interference unless the act in question is unmistakably and palpably in excess of legisative power.

In Jacobson v. Massachusetts (197 U. S., 11 [1905]), in which a State compulsory vaccination law was held const tutional, the court said (p. 31):

"If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects or is beyond all question a plain palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge and thereby give effect to the constitution."

In Chicago Railroad Co. v. McGuire (supra), in which it was decided that a State may define the liability of a railroad company to its employee for negligence and may constitutionally prohibit contracts limiting liability for injuries made in advance of the injury, the court said (p. 569):

"The scope of judicial inquiry in deciding the question of power is not to be confused with the scope of legislative considerations in dealing with the matter of policy. Whether the enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best means to ac. ieve the desired result, whether, in short, the legislative discretion within its prescribed limits should be exercised in a particular manner are matters for the judgment of the legislature and the earnest conflict of serious opinion does not suffice to bring them within the range of judicial cognizance." In the recent case of Noble State Bank v. Haskell (219 U. S., 104 [1911]), in which the bank depositors' guaranty fund act of Oklahoma was held constitutional as an exercise of the State's police power, Mr. Justice Holmes defines the scope of the police power as follows (p. 111):

"It may be said in a general way that the police power extends to all the great public needs. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare.'

A reasonable police regulation is, therefore, not a violation of the due process clause in the fourteenth amendment. A police regulation will not be held to be unreasonaple and therefore unconstitutional unless it is an arbitrary and oppressive interference with personal or property rights without that justification which arises from existing conditions detrimental to the public health, safety, morals, or welfare to the betterment of which it bears some substantial relation. If this be the test which determines the constitutionality of an exercise of the State's police power to legislate for the common good, notwithstanding the guaranty of due process contained in the fourteenth amendment, we may confidently assert that a test not less favorable to its constitutionality will be applied to a congressional exercise of the commerce power in the interest of the common good not withstanding the due process clause of the fifth amendment. In other words, the test to be applied to determine what is due process under the fifth amendment is no more strict than that applied to the determination of the same question when it arises under the fourteenth amendment. The police power of the State is either a general inherent power of the sovereign government without expression in the State constitution or it is an exception to the limitation contained in the due process clause engrafted on that limitation by judicial decision. The power of Congress to regulate interstate commerce in the interest of the public welfare, if a police power at all, is part of the express power delegated by the Constitution to Congress. In the determination of the effect of the due process clause on the exercise of this power to legislate for the public good, it is not to be expected that the courts will confine the power of Congress, which is express within more narrow limits than the power of the States, which is general, inherent, or the result of an exception engrafted by judicial decision upon a constitutional limitation.

Further, Congress in the exercise of the power to regulate interstate commerce may either regulate or prohibit that commerce not arbitrarily or unreasonably, but nevertheless freely and effectively when conditions detrimental to the public welfare reasonably call for some regulation. The congressional action in such case will be set aside as unconstitutional only when clearly unreasonable and arbitrary. As the Supreme Court has said with reference to the exercise of the State's police power:

The mere fact that court may differ from the legislature in its views of public policy or that judges may hold views inconsistent with the propriety of the legislation in question affords no ground for judicial interferen e unless the act in question is unmistakably and palpably in excess of legislative power.'

The effect, therefore, of the fifth amendment on the congressional commerce power is simply to authorize the individual to assert his constitutional guarantee of due

process, to restrain the enforcement of regulations of interstate commerce which are wholly arbitrary and unreasonable. It does not affect the validity of reasonable regulations substantially related to the betterment of evil conditions existing in the nation. It is impossible to lay down in advance any fixed rules which will enable us in all future cases to separate the reasonable from the unreasonable regulation. Every regulation must stand or fall on its relation to the common welfare under all the circumstances existing at the time of its enactment. To him who asks for the application of this general argument to suppositious cases, as, for example, whether Congress could prohibit the passage of sound wheat from Minnesota to Wisconsin, we can only reply in the words of Mr. Justice Harlan in the Lottery Case:

"It will be time enough to consider the constitutionality of such legislation when we must do so."

Its constitutionality will depend upon its reasonableness and its reasonableness will depend on the existence or nonexistence of conditions which justify this interference by Congress with the individual's right to find for his product a market in interstate

commerce.

It remains to apply this general principle to the proposed prohibition of interstate commerce in the products of child labor. Does such a prohibition bear such substantial relation to the public health, the public safety, the public morals, or the public welfare as to make it a reasonable regulation of interstate commerce in the interest of the common good, or is it an unreasonable, arbitrary interference with the right to find and use an interstate market, without that justification which arises from existing evil conditions toward the betterment of which it may reasonably be expected to contribute?

VI. THE PROHIBITION OF SHIPMENT IN INTERSTATE COMMERCE OF THE PRODUCTS OF CHILD LABOR IS A REASONABLE EXERCISE OF THE CONGRESSIONAL COMMERCE POWER IN THE INTEREST OF THE PUBLIC WELFARE.

The preceding sections of this memorandum establish the proposition that the commerce clause of the Constitution authorizes Congress to prohibit the transportation in interstate commerce of specified persons or things; that Congress possesses power similar to the State's police power to regulate or prohibit commerce in the interest of public health, safety, welfare, or morals; that in the exercise of this police power under the commerce clause Congress is limited only by the provision of the fifth amendment to the Federal Constitution, which prohibits the taking of property or liberty without due process of law; and that despite the fifth amendment Congress may enact valid police regulations if they be reasonably necessary to remedy existing conditions detrimental to the public good. The Keating-Owen bill, as introduced by Congressman Keating on January 7, 1916, provides that no producer, manufacturer, or dealer shall ship or deliver for shipment in interstate commerce the product of any mine or quarry situated in the United States which has been produced, in whole or in part, by the labor of children under the age of 16 years; or the product of any mill, cannery, workshop, factory, or manufacturing establishment situated in the United States which has been produced, in whole or in part, by the labor of children under the age of 14 years or by the labor of children between the age of 14 years and 16 years who work more than eight hours in any one day or more than six days in any week or before the hour of 7 a. m. or after the hour of 7 p. m.

Congress, by enacting this ill would prohil it the shipment in interstate commerce of certain products of child lak or. That Congress, under its power to regulate interstate commerce, may prohil it shipment in that commerce, has been proved. In order to sustain the constitutionality of the Keating-Owen ill it is, therefore, only necessary to show that the prohi ition of shipment of these child labor products lears such a relation to the public health, safety, welfare, or morals as to bring it within that class of police legislation which Congress may pass under the commerce clause despite the fifth amendment.

The Supreme Court has held that a regulation of interstate commerce by Congress may have the quality of a police regulation; that the powers "conferred on the Nation are adapted to be exercised * * * to promote the general welfare, material and moral." As we have seen Congress will not be held to a stricter test under the fifth amendment as to the validity of police regulations of commerce than that applied under the fourteenth amendment to police legislation of the States. State legislation directly prohil iting the employment of chilaren in the occupations and under the circumstances stated in the pending bill has been held valid police legislation under the fourteenth amendment. The employment of children of tender years in dangerous or confining occupations has long leen recognized as a serious evil and a menace to the future of the race. As early as 1879, 21 States had laws regulating or prohibiting

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it and this number has constantly increased. (See Progress and Uniformity in Child Labor Legislation, by William F. Ogburn, Columbia University Studies in Eistory, Economics, and Pullic Law, vol. 48, No. 2, 1912.) The courts of last resort in a majority of the States have held that State legislatures may, under the police power, fix an age limit lelow whi h children may not be employed, the minimum age limit upheld by these de isions ranging from 12 years upward. (See note in U. S. Supreme Court ep., 53 L. ed., 245, 246.) The preponderant moral sentiment of the community is against child labor. It is inconceival le that any court would hold that such legislation has no real or sul stantial relation to the protection of the health and morals of the people. As a matter of fact, the Supreme Court has recently held that State child labor legislation is a valid exercise of the State poli e power. (Sturges Mfg. Co. v. Beauchamp (1913), 231 U. S. 320, 325.) In the opinion in that case Mr. Justice Hughes said:

"As it was competent for the State in securing the safety of the young to prohibit such employment altogether, it could select the means appropriate to make its prohibition effective and could compel employers at their peril to ascertain whether those they employed were in fact under the age specified. The imposition of absolute requirements of this sort is a familiar exercise of the protective power of govern

ment."

The Supreme Court will take notice of the fact that in the greater part of this country child-labor legislation has already been ena ted and upheld as a reasonable exercise of the police power. In the Coppage v. Kansas case the Supreme Court, in holding unconstitutional legislation forbidding discharge of union men, referred to the fact that such laws had been generally condemned as unconstitutional in the several States. These State child-labor statutes are ineffective to prevent interstate commerce in products of child labor, but their universal approval as valid police regulations is persuasive evidence that they are reasonable regulations of rights of property and of liberty of contract.

A State in the exercise of its police power may prohibit the employment of child labor in the manufacture of goods within the State, but it has not the power to complete its policy by prohibiting the importation from other States of the products of child labor. It is well established that a State is powerless to exclude the introduction and sale within its borders, in original packages, of recognized articles of interstate commerce (Brown v. Marylar d (1827), 12 Wheat., 419; Leisy v. Hardin (1890), 135 U. S., 100). Such a regulation interferes with interstate commerce and, consequently, is unconstitutional. It is true that in the exercise of the police power in protecting citizens against fraud a State has been permitted to make certain regulations which place no burden upoɔ commerce among the States (Plumley v. Massachusetts (1894), 155 U. S., 461 (prohibition of the sale of oleomargarine which is in imitation of yellow butter); Crossman v. Furman (1904), 192 U. S., 129 (artificially colored coffee beans); Compagnie Francaise v. Louisiana Board of Health (1902), 186 U. S., 380 (persons coming from districts infected with contagious or infectious diseases); but as child-labor products are not in herently dangerous to the citizens of the State, a direct prohibition by a State of the right to sell them within its borders would be an interference with interstate commerce, and consequently void. (People v. Hawkins (1898), 157 N. Y., 1; People v. Haynes (1910), 198 N. Y., 622; Opinion of the Justices (1912), 211 Mass., 605.) In each one of these cases the State statute provided that goods manufactured by convict labor should be stamped so as to indicate the same. These laws applied alike to goods manufactured within and without the State. The courts in each case held the statute unconstitutional as an unlawful interference with interstate commerce. In People v. Hawkins the court said (p. 17): "A citizen of this State who happens to buy goods made in a prison in Ohio has the right to put them upon the market here on their own merits, and if this right is restricted by a penal law, while the same goods made in factories are untouched, such a law is a restriction upon the freedom of commerce, and the objection to it is not removed by the fact that it may have been enacted in the guise of a police regulation. The validity of such a law is to be tested by its purpose and practical operation without regard to the name or classification that may have been given to it." In Opinion of the Justices (supra) the court declares (p. 606):

*

"The present bill, in our opinion, gocs beyond a lawful exercise of the police power in its direct effects upon interstate commerce. Protection of domestic laborers, manufacturers or merchants against the lawful competition from other States by means of discriminating regulations upon goods manufactured in other Stats. is an immediate interference with interstate commerce. * * One who purchases prison made goods in other States has a right as complete and extensive to sell them upon their own merits as he has to s ll private-made goods of like nature. The same objections would be success.ully urged against a statute prohibiting the sale within the State of child labor products imported from another State. The pro

hibition of the sale of such products of child labor would not further the interests of the citizens of the State except as regards competition and such legislation has been held, in a long line of decisions, to amount to an unlawful interf rence with interstate commerce. (Welden v. Missouri (1875), 91 U. S., 275: Walling v. Michigan (1886), 116 U. S., 446: Minnesota v. Barber (1890) 136 U. S. 313: Brimmer v. Rebman (1891) 138 U. S. 78: Voight v. Wright (1891). 141 U. S., 62; Collins v. New Hampshire (1897), 171 U. S., 30: Dosier v. Alabama (1910), 218 U. S., 124.)

In Railroad v. Husen (1878), 95 U. S., 465, 472) it is said:

"While we unhesitatingly admit that a State may pass sanitary laws, and laws for the protection of life, liberty, health, or property within its borders; while it may prevent persons and animals suffering under contagious or infectious diseases, or convicts, etc., entering the State; while for the purpose of self-protection it may establish quarantine and reasonable inspection laws, it may not interfere with transportation into or through the State beyond what is absolutely necessary for its self-protection."

It may be contended that a State might prohibit the sale of all products of child labor by a lawful exercise of the taxing power. While it is true that the original package rule does not apply where there is a general tax laid upon property which has reached its destination (Brown v. Houston (1885), 114 U. S., 622), or a tax upon the sale of articles within the State which were not brought from a foreign country (Woodruff v. Parham (1869), 8 Wall., 123), nevertheless such a tax must be for a public purpose (Loan Association v. Topeka (1875), 20 Wall., 655; Lowell v. Boston (1873), 111 Mass., 454). Thus in the exercise of its taxing power the State is limited by the due process clause in so far as the tax must be for the benefit of the community. A prohibitory tax on the products of child labor would not be valid, therefore, unless a direct prohibition of the sale of such products could be sustained, and it has been shown that such a prohibition as applied to goods imported from other States would constitute an interference with interstate commerce because not being for a public purpose it is not within the police powers of the State (People v. Hawkins and cases cited above).

Even though it be conceded that the State, by the exercise of its police power, could prohibit the sale of child-labor products after such products are no longer part of interstate commerce, or could, under the power to levy a general property tax, place a prohibitory tax upon them, such measures would be absolutely unenforceable. The State has no method of determining what imports from other States are manufactured by child labor, because the goods themselves show no traces or marks of it. In order to effectively enforce such a law it would be necessary for each State to place an inspector in every mine, quarry, and manufacturing establishment in the United States. This method is both impracticable and illegal. No State could afford to employ the necessary number of inspectors, and even if this were done the act authorizing the inspection in other States would be of doubtful constitutionality, as it is settled that State laws have no extraterritorial effect, each State being supreme within its sphere (Buckner v. Finley (1829), 2 Pet., 586; Bank of Augusta v. Earle (1839), 13 Pet., 519; O. & M. Ry. v. Wheeler (1862), 1 Black., 286). Therefore it is obviously impossible for one State to prohibit the importation from other States of the products of child labor. Every means of effectively stamping out this national evil has been taken from the States, and the only possible method of effecting the complete prohibition of child labor is by national control. In prohibiting the interstate shipment of such products Congress is exercising its power over interstate commerce to advanee the public welfare by supplementing and making effective the police legislation of the States.

As has been pointed out in an earlier part of this brief, the Constitutional Convention took from the individual States the power to prohibit importations and must have intended to lodge that important power in the only agency to which power over interstate commerce was given, viz, Congress. It is not unfair to say that the Convention intended that Congress should protect by uniform regulation the States which were thus rendered impotent to protect themselves. As a matter of fact, considerable opposition to effective child labor legislation in the various States has been founded on this very fact that the State can not exclude the products of child labor manufactured in another State. The manufacturers of a State which has enacted advanced child labor legislation are at a disadvantage in competition with manufacturers of adjoining States having no such legislation because of the latter's unrestricted privilege of shipping their products in interstate commerce. Hence, there can be no effective prohibition of child labor and the necessity of congressional regulation becomes apparaent.

Fortunately the reasonableness of a prohibition of shipment of child labor products does not depend solely on general argument. Similar prohibitions have been upheld by the Supreme Court as reasonable exercises of the commerce power in the interest of