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Now, I want to point out to the committee that every article excluded from commerce by Congress has been inherently bad, dangerous, unmerchantable, or not a subject of commerce. The origin and nature of the commerce power and the decisions of the courts thereon are to the effect that the power of Congress as to legitimate commerce is to regulate and not to prohibit or exclude it.

The evil and abuse of child labor lies in its employment in production. It precedes and is unrelated to the transportation in interstate commerce, and the arbitrary declaration of a relationship in production between a person and the article produced and transported can not change the nature of the article or single it out for exclusion from commerce by that fact.

Mr. Parkinson pointed out to you the other day, in the course of his very interesting argument, various articles which Congress had excluded, laying stress, first of all, on wild game. Congress has provided for its transportation in the Lacey Act, and we have also a migratory-bird law, which has not been judicially reviewed as yet and of which nothing can be said.

Senator POINDEXTER. A case is now pending in court, I believe, involving that.

Mr. EMERY. Yes, sir. Let me point out the distinction between all these cases and the pending proposal. It is a very clear one. It was laid down very decisively in the case of Geer v. Connecticut (161 U. S., 519). The decision was written by Mr. Justice White. The facts were these: A statute of Connecticut prohibited the transportation of wild game killed in that State to any other State—that is, game lawfully killed—and the Supreme Court held that by its nature wild game was the property in common of the people of each community. That nobody could have any property right in it, except under such conditions as the State permitted, so that it could utterly forbid the killing of game or reducing it to ownership, or could permit anyone to have it in their possession during the open season and make its possession unlawful when the season was closed. The State could, therefore, forbid its transportation to any other State, as a condition that the State could attach to its ownership.

The Lacey Act makes it unlawful for any carrier to receive for transportation any game which has been unlawfully killed in any State, and, of course, that statute rests upon the same principle as the case of Geer v. Connecticut. Here Congress excluded from commerce an article which in itself and which by its nature was not the subject matter of commerce. This act was sustained in the case of Rupert v. United States (181 Federal).

Now, the right to engage in commerce between the States is the right to do rightful things in that commerce, not to endanger or restrain it, nor the right to use its facilities for immorality or fraud or swindling or to introduce disease or pestilence or contagion, or articles that in their nature are not objects of commerce. In all the long line of decisions in which these subjects have been adjudicated, there have been urged here but perhaps two cases that seem to me to require careful consideration and distinction-one is the case of Champion v. Ames (188 U. S., 372), the “ Lottery case," upon which very much stress has been laid, and Hoke v. United States (227 U. S., 308), known as the “ White Slave" case. In all these cases, from the very beginning, the court has always taken the position

that nobody has a right, natural or legal, and that no constitution ever created by man or God guaranteed to any man the right to do a wrongful, an immoral, or an obscene thing, or to introduce disease, contagion, or fraud, or impure or rotten food into anybody's house, much less into another State.

In all the cases interpreting the pure-food law, from the first to the last expression of the Supreme Court of the United States on that subject in the case of the Seven Cases of Eckmans Alterative, decided by Mr. Justice Hughes on the 10th of January, 1916, the court held that articles and commodities under question were not “ articles of commerce"; by the common judgment and sense of mankind they were not and are not "merchantable” commodities. They are in themselves inherently bad, rotten, diseased, fraudulent, or illicit, and this court and Congress itself merely recognizes and identifies them for what they are, as everybody else does. It takes judicial notice of the fact of their inherent badness. But they are all bad in themselves and not because they are produced by a Chinaman, or a black man, or a white man, or a man with red hair, or a bald-headed man. They are bad because of their very nature.

The CHAIRMAN. It is now the hour of 12 o'clock and the committee will have to adjourn. Do you care to finish this afternoon? · Mr. EMERY. I shall not take, I think, longer than 15 or 20 minutes.

Senator SMITH of South Carolina. Mr. Emery's argument is very interesting to me, and I would like to be present when he resumes.

(Thereupon the committee took a recess until 4 o'clock p. m.)

"Mr. EMERYTHI of South Calike to be present 4 o'clock p.

AFTER RECESS.

The committee resumed its session, pursuant to the taking of the recess, at 4 o'clock p. m., Senator Francis G. Newlands (chairman) presiding.

The CHAIRMAN. You may go on with your argument now, Mr. Emery.

STATEMENT OF MR. JAMES A. EMERY-Resumed.

Mr. EMERY. If I may be permitted to summarize my discussion of this morning, I predicated our opposition to this measure upon the form in which it was cast, which I thought wider than its express purpose; the rule of evidence which it created, making prima facie evidence of a violation of the act facts not only entirely consistent with the innocence of a shipper but essential to the innocent exercise of his right to manufacture under the laws of the State in which he operated. I further suggested that these provisions gave no protection to but rather encouraged arbitrary arrest and prosecution, as though a citizen were not to be protected from this as a part of due process of law as well as from arbitrary conviction and imprisonment. I called attention to the fact that the penalties incurred by the shipper under the bill were dependent on the volume of his shipments and not upon the number of children employed; that a large manufacturing establishment employing one child incurred infinitely greater penalties than a small establishment operated exclusively by children and with a proportionately smaller number of shipments. I then undertook to assert that the legislative policy proposed would

secure a legal uniformity at the expense of a principle essential to the preservation of national integrity, the operation of a dual form of government in which the national authority operated directly upon the people and not merely upon the States, yet reserved to each of the States complete self-government in its internal and domestic affairs, a unique and essential characteristic of our system.

I objected to the validity of the measure on the ground that it was, by its avowed purpose, nature, and terms, a regulation of production under the guise of a regulation of commerce.

That the commerce power operated upon persons, firms, and corportations, not while engaged in production nor because they engaged in commerce, but applied only to the transaction of the interstatecommerce business of such persons, and that the power of Congress did not attach either to a commodity because it was intended for commerce or to completed articles which were to be shipped in commerce until they were actually delivered to a shipper in the State of origin for transmission to the State of destination. That, further, the power to exclude articles from commerce between the States rested upon an inherent defect in the article itself, its danger to such commerce while in it, or to articles that were not “ subjects” of commerce or were immoral or illicit in their nature to persons being transported for an immoral purpose and to the contracts of all persons when made for the purpose of obstructing or regulating that which Congress alone may regulate.

At adjournment I was engaged in discussing the principle of the cases referred to by Mr. Parkinson, such as the Lottery case, the White Slave case, the Pure Food cases, and others predicated upon the same fundamentals, and I had asserted that every article excluded from commerce was unmerchantable, illicit, or not a “subject” of commerce. It seemed, therefore, that the origin and nature of the commerce power and the character of its sustained exercise demonstrate that the power of Congress as to legitimate commerce is to regulate but not to prohibit or exclude. The evil and abuse of child labor lies in its employment in production which precedes and is unrelated to transportation in interstate commerce. The declaration of an arbitrary relationship between production by selected persons and succeeding transportation can not justify singling out such article for exclusion from commerce.

The class of articles upon which the commerce power has been most. widely exercised has been misbranded, impure, diseased, poisonous, obscene, or injurious articles. I use “injurious” in the sense of imperiling other articles of commerce in transit, like explosives or loose hay, which expose other freight to destruction by fire. In all these cases the decision of the court supporting the power is predicated upon the inherent nature of the article itself. I can not illustrate this better than by citing two cases. One that of Plumley v. Massachusetts (155 U. S., 401), the other that of Schollenberger v. Pennsylvania (171 U. S., 1).

In the Plumley case the State of Massachusetts had forbidden by law the sale of misbranded butter and oleomargarine. This case involved a shipment of oleomargarine from another State by the defendant. He was arrested and prosecuted, because the oleomargarine was labeled as butter. The defendant retired behind the commerce clause, claiming it protected him from interference by the

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State, and that Massachusetts by her statute was writing a regulation of commerce. But the Supreme Court said, through Mr. Justice Harlan, “No man has a constitutional right to use the facilities of commerce to work a fraud upon a person or a community.” Oleomargarine branded as butter was a fraud upon its face.

On the contrary, in the case of Schollenberger v. Pennsylvania, oleomargarine labeled as such was shipped into the State of Pennsylvania, and that State, under a statute which forbade the sale of that product, undertook to prevent its delivery in the original package and to punish the person who received it. The United States Supreme Court again pointed out the distinction from the Massachusetts case, saying that oleomargarine is a legitimate and taxed article of commerce, and when labeled as such is not subject to exclusion.

Every case of misbranding is subject to the same principle, because when the article is declared to be that which it is not, it is an endeavor to work a fraud upon the community, which no man has a constitutional right to do. That same principle has been applied from the first case in which it was laid down to the last case in which it has been announced that of the seven cases Eckman's Alterative v. United States, decided by Mr. Justice Hughes in January of this year. In this case Eckman's Alterative was represented by a circular in each package shipped to be a “preventive ” of pneumonia, and it was stated that it " would cure” and had been known to tuberculosis. So it was held liable to seizure under the pure food and drugs act on the ground that Congress could prevent the circulation through commerce of an article which in itself was a swindle and a fraud upon the public.

In the Hipolyte Egg case (220 U. S., 45) we have a most striking definition of the power of Congress to prevent the interstate shipment of misbranded, poisonous, fraudulent, defective, and injurious products. In that case the Government undertook by libel to seize a great number of packages of eggs adulterated with boric acid. This was resisted not only on the ground that they were shipped by the manufacturer to himself for use and not sale, but that they had become mingled with the commerce of the State into which they were imported and were beyond the reach of the Federal power.

Mr. Justice McKenna, in writing the decision in that case, exemplified the principle I have endeavored to express. He said:

We are dealing, it must be remembered, with illicit articles/articles which the law seeks to keep out of commerce because they are debased by adulteration, and which punishes them (if we may so express ourselves) and the shipper of them. There is no denial that such is the purpose of the law, and the limitation of the power directed to such purpose which is urged is that the articles must be apprehended in transit, or before they have become a part of the general mass of property of the State. In other words, the contention attempts to apply to articles of illegitimate commerce the rule which marks, the line between the exercise of Federal power and State powers over articles of legitimate commerce. The contention misses the question in the case, Thre is no conflict of national and State jurisdictions over property legally articles of trade. The question here is whether articles which are outlaws of commerce may be seized wherever found; and it certainly will not be contended that they are outside of the jurisdiction of the National Government when they are within the borders of a State.

The question in the case is, therefore, What power has the Congress over such articles? Can they escape the consequences of their illegal transportation by being mingled at the place of destination with other property? To give

them such immunity would defeat, in many cases, the provision for their confiscation, and their confiscation or destruction is the especial concern of the law. The power to do so is certainly appropriate to the right to bar them from interstate commerce, and complete this purpose, which is not to prevent merely the physical movement of adulterated articles, but the use of them, or rather to prevent trade in them between the States by denying to them the facilities of interstate commerce. And appropriate means to that end, which we have seen is legitimate, are the seizure and condemnation of the articles at their point of destination in the original, unbroken packages.

Senator CUMMINS. May I interrupt?
Mr. EMERY. Certainly.

Senator CUMMINS. Have you ever examined the power or authority of Congress to regulate the capitalization, we will say, of a State corporation engaged in interstate commerce by prohibiting it from so engaging unless it conformed to certain requirements about capi. talization?

Mr. EMERY. In other words, to make its engagement in interstate commerce dependent upon or conform to such license?

Senator CUMMINS. Not necessarily license. It is a privilege, or a right you may call it, of engaging in interstate commerce dependent upon a certain form of organization or certain conditions in organizations. Assuming that case—we have had that question before us a great many times—

Mr. EMERY (interposing). Yes, sir.

Senator CUMMINS (continuing). I wondered whether you would see any parallel between that and the question under consideration.

Mr. EMERY. It seems to me that the answer to that is fully contained in what are known as the Employers' Liability cases (207 U. S., 463), in which the court quite answers your question, if I understand what you mean.

Senator Cummins. I might put it another way, so that you may not understand it.

Mr. EMERY. Yes.

Senator CUMMINS. Have we authority to say that a corporation shall not engage in interstate commerce organized under the laws of the State, of course, unless its capital stock was fully paid up?

Mr. EMERY. I should think not, Senator, but if there could be established there a relation essential to the protection of commerce the answer might be yes. But if you undertake to predicate it upon the proposal that because the corporation was engaged in commerce it was therefore subject to regulation as a matter of course, or that the power of Congress over the corporation was greater or different in quality from that which it possessed over a person or a firm or a partnership, I should say no. I should think that the decision in the Employers' Liability cases, to which I have referred—I do not seem to have the quotation with me—completely meets that inquiry, because in that case it was contended that because an interstate carrier was engaged almost exclusively in interstate commerce, therefore that portion of its business which did not relate to interstate commerce was likewise subject to the power of Congress. The court stated it in this way (Employers' Liability cases, 207 U. S., 463):

It remains only to consider the contention which we have previously quotedthat the act is constitutional--although it embraces subjects not within the power of Congress to regulate commerce, because one who engages in interstate commerce thereby submits all its business concerns to the regulating power

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