Brief for the Petitioners — Ky. Whip & Collar Co. v. ICR CO.

Supreme Court brief1937

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FILE COPY

FILED

NOV 7 1936 ,

“CHARLES ELMORE CR

CLE

Supreme Court of the United States

OCTOBER TERM, 1936.

No. 138.

KENTUCKY WHIP & COLLAR COMPANY, .- Petitioner,

ILLINOIS CENTRAL RAILROAD COMPANY.

ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT

COURT OF APPEALS FOR THE SIXTH CIRCUIT.

2

j BRIEF FOR PETITIONER.

-

FOR PETITIONER: CHAS. L. DAWSON,

Kentucky Hom Life Bldg.

Louisville, Kentucky.

WOODWARD, DAWSON & HOBSON,

Kentucky Home Life Bldg.,

Louisville, Kentucky,

A. SHELBY WINSTEAD,

Kentucky Home Life Bldg.,

Louisville, Kentucky,

Of Counsel.

:

Guus

WESTERFIELD-BONTE Co., INCORPORATED, LOUISVILLE, KY.

OPE A 5 PUR ATE ROLY Br BT

“ :

POTTS Pr A a so POT IAD 6°

~

SUBJECT INDEX.

PAGES

Opinions OF Courts BELOW...........cccccccccccee 1

JURISDICTION . . ccc ccecececeecee. Serie wee eee 1- 2

Tue AsHurgt-SuMNERS ACT. ............ecceccces. 2- 4

PPP ASUONO YS OF Te CMM 3s ks so boo ce check. 4 9

. Peat... ........ Ee ARAN Pg ne ~ &7

2. Rulings of the Lower Courts.......... re ytttelake ay

SPECIFICATION OF AssiGNep ERRORS INTENDED TO BE

RTM Sg how eae eae Re Be a yee a 9-10

PI ao ee ela ie ch ey as 11-56

Pornt 1. Congress aise Prohibit the Picea

in Interstate Commerce of Useful and »

Harmless. Articles of Commerce Made by

Convict Labor...... ee eee ee re 12-37

Point 2. Congress Has No Power to Exclude from

Interstate Commerce Convict-made Goods

U ‘nless Labeled We IN so bo cake cs 38-50

Point 3. Redtion 1 of the Act is Invalid Even if

Congress Possesses Power to Require La-

beling Se ee Te Ce eee POCO Te .. .00-53

Point 4. Section 2 Must Fall, First; Because Con-

gress is Without Power to Require Con-

tainers to be Labeled; and, Second, Be-

cause It is Not Separable from the Other

Provisions of the Act................. 04-56

ConcLusion ay PERUSE CCL VEC TT Tee CTT ET ET eee eS

PRT I TG Re TORE EE

ALPHABETICAL LIST OF AUTHORITIES CITED.

PAGES

Ashton, et al., v. Cameron County Water Improve-

ment District No. One, U.S. , decided

Te 5 Ly Che Ud uaa awe aes aseh aces 12

ewe W. Premee, Bao 0). Cie .5.. nce ccaeacens 33

Brolan v. United States, 236 U. S. — ROP Ore 35

Brooks v. United States, 267 U.S. 482..........00... 14

Brown v. Maryland, 12 Wheat. 419................ -3

Buttfield v. Stranahan, 192 U.S. 470..:............. 35

Butts v. Merchants Transportation Co., 230 U. S..

Be ae eo cae Cae U ONES Ce eee an cokes O83

Carey v. South Dakota, 250 U. S. 118.............. 36

Carter v. Carter Coal Co., 298 U.S. 238.......... 19, 55, 56

Commageen ¥. Ameen 166 0. B. 32. es OOM

Champlin Refining Co. v. Corporation Commission,

ae | herrea Tnceekowes se NaS eS 19

Chureh of Holy Trinity v. United States, 143 U.S

Clark Distilling Co. v. W estern Maryland Co., 242

Me EE Wa RCN RES Ved OR Ob ary eR eR lake bee 14, 15, 33

Coolidge v. eae. ee aio Ie ae eae Crete 17

Crescent Cotton Oil Co. v. Missienipei, 257 U.S.129.. 19

Delaware, Lackawanna & Western R. Co. v. Yur-

monies, Zoo U. &. 490. .......: For ate aha eur ore eh 19

Detweiler v. Welch, 46 Fed. (2d) 75................ 46

Employers Liability Cases, 207 U.S. 463........... 52

Ex Parte Hayden, 147 Calif. 649, 82 Pac. 315..,..... 44

Griswold v. President of the United States, 82 Fed.

2. Sep rrr Ve ee ee ESVET YT ROT Ee 36

Hammer v. Dagenhart, 247 U.S. 251...... 12, 14, 19, 21, 22,

33, 07

Heiner v. Dennen, 266 U.S. SiC. 2. ccs ce ieee 17

Heisler v. Thomas Colliery te 260 = haere 19

ili

, PAGES

Hill v, Watinee, 200 U. &. 44... 2. ..6...2500... eaten D5

Hinson v. Lott, 8 Wall. 148 ..... Ye eree yy Pes a anual 32

Hipolite Ege Co. v. United States, 220 U. 8. 45...... 14

Hoke v. United States, 227.U. 8. 308...:............ 14

Illinois Central R. Co. v. McKendree, 203 U.S. 514.. 53

James v. Bowman, 190 U. S. 127..... ERLE AP ry fo ye 53

Kidd v. Pearson, 128 U.S.1 ............0.000600-. 19

Lacoste v. Department of Conservation, 263 U. 8.545. 36

Louisville Joint Stock Land Bank v. Radford, 295.

sa SE So nsea werent cuter ee ae 17

Matei v. Hecke, 99 Calif. App. 747, 279 Pac. 470...... 45

Matter of Foley, 72 Calif. 744, 158 Pac. a ee 45

Oliver Iron Co. v. Lord, 262 U. 8S. 172.............. 19

Opinion of Justices, 211 Mass. 605, 98 N. E. 334...... 42

Pacifie Box & Basket Co. v. White, 296 U. 8. 176.... . 46

People v. ‘eran 107 N. Y. 1,51 N. E. 257, 42 L. R.

ee er nr ON PNG) * 39

People v. Ray: nes, 120 N. Y. Supp. 1053, affirmed 198

i ent ent ae: 44.

Railroad Retirement Board v. Alton R. Co., 295 U.

Se AA LOM eta tiee cae or re ea. ys)

Re Rohrer, RO Sin Wi Ss soos ee eae doc cuetiat 28, 30, 33

- Rhodes vy. tows: oe Sr eerrer 25, 28, 23, 30, 33

Scharrenberg v. Dollar Steamship Co., 295 U.S. 129. 34, 35

Schecter Poultry Corporation v. United States, 295

Wi Me Ns ons eUGUha tos teasl the

The Abby Dodge, 223 U. 8. 166... is DE eae re

Trade-Mark Cases, 100 U. 8. 82.................... ‘

United Mine Workers of America Vv. Coronado Coal

_Co 0., 259 U. S. 344 | OO Pt Pataca Oasys grr der

{

*) RATE AMER Ont

EE i nt nN ne tweets ak Mla las <

iv ;

PAGES

United States v. Fisher, 2 Cranch, 358. ..-......... 56

United States v. E. C. Knight Co., 156 U.S. 1........ 19

United States v. Ju Toy, 198 U.S. 253.............. 53

United States v. Reese, 92 U.S. 214. .............. 53

Utah Power & Light Co. v. Pfost, 286 U.S. 165...... 19

Weber v. Freed, 290 U. ©. Bae. cn cc sawcccucnneses 34

White v. United States, 191 U. S. 545......... oe

Whitfield v. State of Ohio, 297 U.S. 431............ 23

Williams v. Standard Oil Co., 278 U.S. 235....... ae

Woodruff v. Parham, 8 Wall. 123......... Seta ee 32

Statutes CItTep.

Ashurst-Sumners Act, ‘9 17. S. C. A., Sees. 61-64..... 2

Connally Act, 15 UTS. C. A., Sees. 715-715]. ......... 37

Hawes-Cooper Act, 49 U. 8. C. A., Sec. 60........... 24,27

Judicial Code, Sec. 240, 28 U.S. C. A., See. 347...... 2

Lacey Act, 18.U. 8S. C. A., Sees. 392-395. .5........... 30

Webb-Kenyon Act 2.66 ictacccnk ks LPO re er 14, 15, 33

Wises Act, 27 UG. Cuchi BOR. Bak io dake ces 25, 27

‘Supreme Court of the United’ States _

3 OCTOBER TERM, 1936. :

— No. 138. - y

KENTUCKY Wuip & CoLLAR COMPANY, - Petitioner,

nets

‘

one Lay LE DE WaRITe are

% .

g

Vv.

ILLINOIS CENTRAL RatLroap CoMPANY. )

_ BRIEF FOR PETITIONER,

L

OPINIONS OF THE COURTS BELOW.

The opinion of the United States District: Court for

the Western District of Kentucky (R. 29-40) is re-

ported in 12 Fed. Supp. 37, and the opinion of the

<United States Circuit Court of Appeals for the Sixth F

Cireuit (R. 48-52), which is here under review, is re- :

ported in 84 Fed. (2d) 168.

IT.

JURISDICTION.

1. The suit is one in equity of a civil nature be- :

tween citizens of different States, and involves the :

constitutionality of an Act of ‘Congress approved July |

2

24, 1935 (49 Stat. 494; 49 U. S.-C. A., Sections 61-64),

commonly known as the Ashurst-Sumners Act, and

hence involves a controversy arising under the Con-

stitution and laws of the United States. The matter _

in controversy, exclusive of interest and costs, was

alleged in the bill (R. 2) to exceed the sum of Three

Thousand Dollars, and was so found by the District

Court (R. 41).

2. The United States Circuit Court of Appeals for

the Sixth Circuit, on June 1, 1936, held the Act con-

- stitutiondl in its entirety, and the cause is before this

court on certiorari granted October 12, 1936.

3. The statutory provision which is relied upon

to sustain the jurisdiction of this court is Section 240

of the Judicial Code, as amended by the Act of Feb-

ruary 13, 1925 (Section 347, Title 28, U. 8S. C. A.).

1.

THE ASHURST-SUMNERS ACT.

‘‘An Act to prohibit the interstate transporta-

tion of prison-made products in certain cases.

“Be it enacted by the Senate and House of

Representatives of the United States of A merica

in Congress assembled, That it shall be unlawful

for any person knowingly to transport or cause to

be transported, in any manner or by any meals

whatsoever, or aid or assist in obtaining transpor-

tation for or in transporting any goods, wares, and

merchandise manufactured, produced, or mined —

wholly or in part by convicts or prisoners (except *

convicts or prisoners on parole or probation), oT

¢

in any penal or reformatory. institution, from one

State, Territory, Puerto Rico, Virgin Islands, or

District of the United States, or place noncontig-

uous but subject to the jurisdiction thereof, or

from any foreign country, into any State, Terri-

tory, Puerto Rico, Virgin Islands, or District of

the United States, or place noncontiguous but sub-

ject to the jurisdiction thereof, where said goods,

wares, and merchandise are intended by any per-

son interested therein to be received, possessed,

sold, or in any manner used, either in the original

package or otherwise in violation of any law of ©

such State, Territory, Puerto Rico, Virgin Islands,

or District of the United States, or place noncon-

tiguous but subject to the jurisdiction thereof. ©

Nothing herein shall apply to commodities manu-

factured in Federal. penal and correctional institu-

tions for use by the Federal Government.

“See. 2. All packages containing any goods,

wares, and merchandise manufactured, produced,

or mined wholly or in part by convicts or prison-’

ers, except convicts or prisoners on parole or pro-

bation, or in any penal or reformatory institution,

when shipped or transported in interstate or for-

eign commerce shall be plainly and clearly marked,

so that the name and address of the shipper, the ©

name and address of the consignee, the nature

of the contents, and the name and location of the

penal or reformatory institution where produced

wholly or in part may be readily ascertained on

an inspection of the outside of such package.

‘“See. 3. Any person violating any provision

of this Act shall for each offense, upon conviction

thereof, be punished by a fine of not more than

-$1,000, and such goods, wares, and merchandise

ees

Bh dl oie aac ee

a? es .

g, |

fi

é

7

io

oo casio “wwitceal tins

'

4

sliall be forfeited to the United States, and may

be seized and condemned by like proceedings -as

_ those provided by law for the seizure and forfeit-

ure of property imported into the United States

contrary to law.

‘Sec. 4. Any violation of this Act shall be

prosecuted in any court having jurisdiction of

crime within the district in which said violation

was committed, or from, or into which any such

goods, wares, or merchandise may have been car-

ried or transported, or in any Territory, Puerto

Rico, Virgin Islands, or the District of Columbia,

contrary to the provisions of this Act.’’

IV.

STATEMENT OF THE CASE. .

Pleadings.

In this brief petitioner will be hereafter referred

to as plaintiff and the respondent as defendant, and,

unless otherwise indicated, all italics are ours.

The case was heard in the District Court upon

plaintiff’s verified bill and petition for a declaration

of rights (hereinafter called bill) (R. 1-24), and upon

_ defendant’s motion to dismiss the bill (R. 24-25). The

bill alleged the following facts:

The plaintiff, Kentucky Whip & Collar Company,

is a Kentucky corporation engaged in the business of

manufacturing with convict labor at Eddyville, Ken-

. tucky, horse collars, harness and strap goods, and in

marketing same in the different States of the Union.

4.

The defendant, Illinois Central Railroad Company, is

an Illinois corporation, engaged in the business of

a common carrier by. rail, with a line of railroad serv-

ing Eddyville, Kentucky, and is the principal carrier

of the plaintiff’s products to its customers. Prior to

filing the bill plaintiff had tendered to the defendant at

its freight station at Eddyville, Kentucky, twenty-five

separate shipments of collars and harness manufac-

tured by the plaintiff with prison labor at its plant in

Eddyville, Kentucky, for the purpose of having these

shipments transported by the defendant to the con-

signees thereof, each of -whom was located in a State

_ other than Kentucky. Ten of these shipments -were

consigned to customers in ten different States, each

- of whose laws prohibit the sale within the borders

thereof of any.goods or merchandise manufactured or

produced wholly or in part by eonvict labor. Five of

the shipments were consigned to States whose laws

do not prohibit the sale therein of convict-made goods,

but do- require that any such goods exposed for sale

or sold shall be plainly marked so as to indicate that

they are convict-made.. Ten of the shipments were

consigned to States whose laws imposed no restriction

upon ti@ sale or possession of econvict-made goods

within those States. All of the tendered shipments

were for the purpose of filling bona fide orders thereto-

fore received by the plaintiff. None of the packages

or articles therein contained bore any mark, label or

brand thereon to indicate that the goods contained

therein were manufactured or produced with prison

ae a

labor. The defendant refused to accept the shipments

and to transport same, and upon each bill of lading en- .

dorsed the following words: ‘‘Shipment refused be-

cause prohibited by Act of Congress approved July

24, 1935.’ Plaintiff’s products are useful articles of

commerce, and are not in themselves in any particular

harmful to the health, peace or good order of the com-

munities into which they are shipped or in which they

are used. It will be the policy of the defendant to re-

. fuse any shipments from the plaintiff of its prison-

made articles where to accept and transport such ship-

ments will violate the terms of the Act of Congress ap-

proved July 24, 1935, and the continued refusal of the

defendant to accept the shipments tendered and similar

shipments will operate to practically destroy plain-

tiff’s business, which is largely of an interstate char-

acter.

The bill charged that the Act is violative of the

Constitution of the United States in the following par-

ticulars:

(a) It is not a valid exercise of the. power con-

ferred upon Congress by the commerce Clause of the

Constitution.

(b) It is an unconstitutional attempt on the part

of Congress to deal with matters reserved to the States

and to the people by the Tenth Amendment.

(ec) It is violative of the Fifth Amendment, in that

it deprives the plaintiff of its property, including its

right to do business in interstate, commerce, without

dug process of law.

(d) It is an unconstitutional attempt on the part

of Congress to so exercise its power to regulate inter- .

state commerce as to permit the respective States,

under the protection of said Act, to prohibit and regu-

late -interstate transactions between their inhabitants .

and the inhabitants of other States with reference to

useful and harmless articles of commerce. ,

The relief asked was that the defendant be manda-

torily enjoined and required to accept and transport

each of the enumerated twenty-five shipments, and all

future shipinents of a similar character which may be

tendered to it by the plaintiff, and further for a bind-

ing declaration of rights, adjudging that the Act is:

violative of the Constitution of the United States for

the reasons above stated.

" e Rulings of the Lower Courts.

The District Judge found the facts as alleged in

the bill (R. 40-42). His eonelusions of law (R. 42-43),

pertinent to this appeal, were:

l. That the Act of July 24, 1935, in so far as it ,

operates to prohibit the shipment in interstate com-

merce of convict-made goods into those States which

prohibit the sale or possession of convict-made goods,

is beyond the constitutional power of Congress; but in

so far as the Act prohibits the shipment of convict-

made goods into those States which require that such

goods shall be so labeled before being sold or offered

for sale as to indieate that they are convict-made, un-

less such goods are so labeled before interstate ship-

-

Jetta his iii teasl hei oes

8

ment, is a valid exercise of the power of Congress un-

der the interstate commerce clause of the Constitu- .

tion. ents

2. That Congress has the power to require that

the containers of all convict-made goods shipped in

interstate commerce shall, before shipment, be so la-

beled as to indicate that they are convict-made, and

the name and location of the prison where made, as

is required by Seetion 2 of the Act.

3. That Section 2 of the Act is separable and is

valid and enforceable, notwithstanding the indicated

invalidity of some of the provisions of the Act, and

that that portion of Section 1 of the Act which operates

to prohibit shipment in interstate comimerce of un-

| labeled ‘convict-made goods into those States prohibit-

« ing the exposure for sale or sale of convict-made goods

unless so labeled is also separable from the invalid

part of Section 1 of the Act, and is valid and enforee-

able. . | . |

4. That as the plaintiff did not label the articles

shown by the bill to have been tendered to the defend-

ant for shipment into those States requiring convict-

made articles to be so labeled before sale or exposure

for sale, so as to conform to such State requirements,

the defendant was not required to accept such ship-

ments and to transport same to their destination, ir-

, respective of. the provisions of Section 2 of the Act.

5. That as the plaintiff did not label any of the’

containers of any of the shipments set out in the bill, |

as required by Section 2 of the Act, defendant was not

GLa ATES PAG:

>.

_ required to accept any of said shipments and to trans-

_ port the same. S

The -decree denied plaintiff the relief sought, and

dismissed the bill (R. 43).:

On appeal, the decree of the District Court was

affirmed by the Wnited States Circuit Court of Ap-

peals for the Sixth Circuit (R. 48), that court holding

the Act constitutional and valid in its entir ety (R. 48-

D2).

V.

SPECIFICATION OF ASSIGNED ERRORS INTENDED

TO BE URGED.

As disclosed by the petition for a writ of certiorari _

herein, the plaintiff will urge and rely upon the error

of the Circuit Court of Appeals in holding the. entire

Act constitutional and valid,-and upon the following

errors set: out in its assignment of errors in the Dis-

trict Court (R. 45-46) : |

‘1. The court erred in ‘holding that the Act of

July 24, 1935, in so far as it operates to prohibit the

shipment in interstate commerce of convict-made goods

into those States which require that convict-made

goods shall be so labeled as to indicate that fact before

being. sold or offered for sale, unless such goods are so

labeled before interstate shipment, is a valid exercise

of the power of Congress under the Constitution.

“2 The court erred in holding that Congress has

the power to require that the containers of all convict- .

made goods shipped in interstate commerce shall, be-

4

tas

Lees «.

— eres

10

fore shipment, be so labeled as to indicate that they:

are convict-made, and the’ name and location of the

prison where made, as required by section two of the

Act of July 24, 1935.

‘**3. The court erred in holding that section Two

of the Act is separable, and is valid and enforceable,

notwithstanding the invalidity of that part of section

One of the Act which operates to prohibit the ship-

ment in interstate commerce of convict-made goods

into those States where the sale of convict-made goods

is prohibited by the law of such States.

‘4. The court erred in holding that that part of

section One of the Act which operates to prohibit the

shipment in interstate commerce of unlabeled convict-

made goods into States requiring such goods, before

sale or exposure for sale, to be so labeled as to indi-

cate that they are convict-made, is separable, and is

valid and enforceable, notw ithstanding the invalid por-

tious of section One of the Act. ‘

5. The eourt erred in holding that the defendant

Was not required to accept the shipments alleged in

the bill to have been tendered to defendant for trans-

portation to and delivery in those States whose laws

require convict-made goods to be labeled as convict-

made before sale or exposure for sale.”’

2 2a

Rete ky

a

11

VI.

ARGUMENT.

“eS

It is quite evident that Congress sought to justify

the legislation here involved under the commerce

clause of the Constitution. Under its terms ship-

ments to States which prohibit the sale of convict-made

goods therein aré absolutely prohibited if intended for

sale in such States. Shipments into those States which

require that goods made with convict labor shall be so

labeled as to indicate that fact before exposure for

sale are prohibited if the articles contained in such

shipments are intended by those interested therein to

be sold or exposed for sale without being so labeled.

Thus, Congress has’ undertaken to make the right of

a citizen of one State to sell and ship useful and harm-

less convict-made goods to a citizen of another State

dependent upon the laws of the latter State. - The

validity of this legislation, in so far as it operates as

an absolute prohibition of the shipment of useful and

harmléss articles, of commerce from one State to an-

other, depends upon whether or not Congress, under

the commerce clause, possesses the power to prohibit.

such movement independently of any dhibitory State

law; and its validity, in so far as it operates to require .

useful and*harmless convict-made articles to be la-

beled to conform to the laws of the State of destination,

likewise depends upon whether or not Congress, under

the commerce clause, has the power to require such

12

labeling independently of any State law. State law, of

course, adds nothing to the power of Congress.

‘**Neither consent nor submission by the States

can enlarge the powers of Congress; none can exist

except those which are granted.”’ C. L. Ashton,

et al., v. Cameron County Water Improvement

District No. One, U.S. —, decided May 25,

1936.

We therefore come to a consideration of. the power

of Congress, first, to absolutely prohibit the movement

in interstate commerce of useful and‘harmless convict-

made articles of commerce; second, to the power of

Congress to #equire as a condition precedent to the

movement of such articles in interstate commerce that

they be labeled so as to indicate that they are convict-

made; and, third, to the power of Congress to require

as a condition precedent to the movement of such ar-

ticles in interstate commerce that their containers be

so labeled.

POINT 1.

Congress Cannot Prohibit the Movement in Interstate

Commerce of Useful and Harmless Articles of Com-

merce Made by Convict Labor. |

We have no disposition to question the plenary

power of Congress to regulate. interstate commerce;

but this court more than once has emphatically declared

that the power is one of regulation—not of prohibition.

a

In the case of Hammer vy. Dagenhart, 247 U.S. 251,

13 Ks

this court, in defining the nature and extent of the

commerce power of Congress, said (p. 269) :

“In Gibbons v. Ogden, 9 Wheat. 1, Chief Jus-

tice Marshall, speaking for this court, and defining

the extent and nature of the commerce power, said:

‘It is the power to regulate; that is to prescribe

the rule by which commerce is to be governed.” In

other words, the power is one to control the means

by which commerce is carried on, Which is directly

the contrary of the assumed right to forbid com-

meree from moving and thus destroy it as to par-

ticular commodities. But it is insisted that ad-

Judged cases in this court establish the doctrine

that the power to regulate given to Congress inci-

dentally includes the authority to prohibit the

‘movement of ordinary conmodities and therefore

that the subject is not open for discussion. The

vases demonstrate the contrary. They rest upon

the character of the particular subjects dealt with

and the fact that the scope o f governmental author-

ity, state or national, possessed over then» is such

that the authority to prohibit is, as to them but the

erertton of the power to regulate.”’

Notwithstanding the well-established rule that the

« power of Congress under the commerce clause is that

of regulation not of prohibition, this court in a long

line of cases has recognized that.the regulation of in-

terstate commierce in certain articles and as to certain

practices, which are inimical to the health, safety,

morals or general welfare of the public can only be’

accomplished by prohibiting the use of the instrumen-

talities of interstate commerce in the transportation

14

of such articles, or in facilitating and making effective .

‘such practices. In.the case of Tammer v. Dagenhart,

supra, the principle underlying these cases is thus

explained (p. 271):

‘Tn each of these instances the use of interstate

transportation was necessary to the aeconplish-

ment of harmful results. In other words, although

the power over interstate transportation was to

regulate, that could only be accomplished by pro-

hibiting the use of the facilities om | inte rstate com-

- merece to effect the evil intended.”

4 .

* * Cases illustrating the application of this principle

™ are: Champion v. Ames, 188 U.S. 321, sustaining a

federal law prohibiting the transportation in interstate

commerce of lottery tickets; Hipolite Egg Co. v. United

States, 220 U.S. 45, upholdnig a statute prohibiting

the transportation in interstate commerce of impure

or eagegniey foods or drugs; Hoke v. United States,

227 U.S. 308, sustaining a federal statute prohibiting

the sh Cenestoine in interstate commerce of women

for immoral purposes; Clark Distilling Co. v. Western

Maryland Railway Co., 242 U.S. 311, sustaining the

Webb-Kenyon Act, which prohibits the transportation

in interstate commerce of intoxicants ‘intended to be

used, possessed or sold in violation of the laws of the

State of destination; and Brooks v. United States, 267

U.S. 432, sustaining the Dyer Act, making it a crime

to knowingly transport in interstate commerce a stolen

automobile. . In every one of those casés the prohibi-

tion was justified by the court, not beeause of any power

. ‘

wet

15

Congress to prohibit the movement in interstate

commerce of ordinary articles of commeree, but as an

cvereise of the power to regulate, prohibition in those

paurticular cases being necessary in order to accomplish

regulation; and. cach of those cases dealt with statutes

closing the channels of interstate commerce to articles

which, because of their inherent nature or their in-

fended use, were inimical to the health, safety, morals

or general welfare of the public, or with statutes closing

the channels of interstate commerce to practices or. ote

criminal in nature or trimictl to the health, safety.

morals or gencral welfare of the public. It is well set- -

tled, however, that no such power to regulate through

prohibition can be exercised with reference to useful.

and harmless articles of commeree. As to such articles

no regulation will be sustained, where the regulation

has no reasonable relation to facilitating or protecting

luterstate commerce. The cases just referred to, and

others of similar import, afford no support for the

claim of power to prohibit the movement in interstate

conimercy of harmless arti les. On the contrary, the

reasoning used in those cases is direct authority against

the existence of any such power.

In the case of Clark Distilling Co. v. Western Wiss.

land Railway Co., supra, as above stated, there was

involved the ¢ onstitutionality of the Webb-Kenyon Act,

and it was strenuously urged upon the court that to

sustain that Act would amount to a construction of

the commerce clause of the Constitution enabling Con-

sress to close the door to the interstate transportation

of an) y article of commerce which any State, under

6 ORL FEA RTS eee |

16

the attempted exercise of its police power, might out- J

law or burdensomely regulate, however harmless such ;

article might be. The court answered that contention“

in this language (p. 332): |

“The want of force in the suggested inconven-:

ience becomes patent by considering the principle

which after all dominates and controls the question

here presented, that is, the subject regulated and

the ertreme ‘power to which that subject. may be

subjected. The fact that regulations of liquor

have been upheld in numberless instances which

would have been repugnant 40 the great guaran-

tees of the Constitution but for the enlarged right

possessed by government to regulate liquor, has

never that we are aware of been taken as afford-

ing the basis for the thought that government — ,

might exert an enlarged power as to subjects to

which, under the constitutional guarantees such

‘enlarged power could not be applied. In other

words, the erceptional nature of the subject here

regulated is the basis upon which the exceptional

power exerted must rest and affords no ground for

any fear that such power may be constitutionally

extended to things which it may not, consistently

with the guarantees of the Constitution, embrace.”

«Thus it is clear that Congress, under the commerce

clause, cannot as an exercise of its independent will’

in the regulation of commerce or in order to accom-

modate its regulations to State laws, prohibit inter-

state commerce in useful and harmless articles. In’

the exercise of its power: to regulate commerce, just

as in the exercise of all its other great substantive pow- |

17 '

ers, Congress is subject to the Fifth Amendment. This

was expressly held by this court in the ease of Louis-

ville Joint Stock Land Bank v. Radford, 295 U.S. 299,

589.. In Note 19 to that case Mr. Justice Brandeis

cites a‘number of cases supporting the statement in

the opinion that all the great substantive powers of

Congress must be exercised with due regard to the

Fifth Amendment, and among others he cites cases

showing that such restriction applies to the exercise

_ of the power to regulate interstate commerce. There-

fore, no legislation of Congress under the commerce

clause is valid if it operates to deprive a citizen of his

eee without due process of law. The term ** prop-

erty,’ as used in the due process clause of the Fifth

Amendment, has the same meaning as attae ches to it

in the due process clause of the Fourteenth Amend-

ment; Coolidge v. Loug,: 282 U.S. 082; Heiner v. Don-

nan, 280 U.S. 312; and is not restricted to tangible

articles alone. The’ right. to do business is property.

The r ight to do business without unconstitutional regu-

lations is property. The right to own property, to use

it and sell it free of restrictions which would impair

its sale value or its enjoynient is protected by the Fifth

Amendntent against national action, just as it is pro-

tected by the Fourteenth ‘Amendment against State

_ action, if the property is not of that inherently evil

or harmful character, or capable of lending itself to

evil or harmful uses justifying the exercise of the police

power in relation thereto. |

So, in its final analysis, this case comes down te the

question of whether convict-made goods are in and

“J

18

of themselves€letrimental to the health, safety, morals

or general welfare of the public, or are adapted to uses

which will injuriously affect the health, safety, morals

or general welfare, and therefore fit subjects for the

exercjse of the police power. Of course, within the

States Congress does not possess police power as an

independent substantive power. We recognize, how-_

_ever, that in the good faith exercise of its granted

powers, Congress may incidentally accomplish the same

purposes the States may accomplish in the exercise

of their police power. Tlfit is to say, in the Jegiti-

mate exercise of its power to regulate commerce, Con- -

gress may. restrict or prohibit the movement in

interstate conmerce of those articles 6f © con-

meree which because of their inherent character, or

hecause of the use for which they are designed, are

‘aleulated to injuriously -affect the health, morals,

safety ov general welfare. Howevtr, as applied to the

power of Congress in this respect, Congress has no

power to look beyond the article itself. It can consider

only the inherently evil or harmful qualities of the

article itself, or the ev i} or harmful uses for which it

is designed. It has no power, in framing its legislation

under the commerce clause, to consider the evils, if

any there be, in the manufacture and production of the

article, because these activities are beyond the reach

of congressional power. Neither manufacture nor pro-

duction is commerce of any character. The power of

Congress under the comuerce “clause does not attach

to the article until it-has started on its interstate jour-

ney or been delivered to a carrier for interstate trans-

: \

portation. If any power resides anywhere to regulate

. the manufacture or production of these: articles, that

power is in the State, not in the national government.

It has been so held by this court in an unbroken line

of opinions almost from the beginning of the Republic

down to and including the very recent opinions of this

court dealing with so-called New Deal legislation, pur-.

porting to have been enacted under the mmerce

clause. Kidd vy. Pearson, 128 U. S. 1; United States

Vv. £.C. Knight Co., 156 U.S.1: : dead. Lackawanna

d Western R. Co. v. Yurkoule, 238 U.S. 439; Heisler

v. Thomas ¢ ‘ollicry Co., 260 U.S. 245; Oliver Iron Co.

v. Lord, 262 U.S. 172; Hammer v. Dagenhart, 247 U.

S. 251; Crescent Cotton Oil Co. V. Mississippi, 257 U.

S.129; Utah Power & Light Co. v. Pfost, 286 U.S. 165;

United Mine Workers of America vy. Coronado Coal .

Co., 259 U.S. 344; Champlin Refining Co. vy. Cor pora-

tion Commission, 286 U.S. 210; Schecter Poultry Cor-

poration v. United States, 295 U.S. 495; United States

Vv. William M. Bytler, 297 U.S.1; Carter v. Carter Coal

Co., 298 U.S. 238. - be

Congress, in exercising its power to regulate inter-

state commerce, must confine itself to interstate com- |

merece, or such local activities as dir ectly affect inter-

state commerce, It cannot, through a pretended exer-

cise of its power, deal wi fh w hat it may consider evils

in the manufacture or preduction of articles of com-

merce, Sug h was the question decided by this court

in the case of Hammer vy. Dagenhart, 247 U. S. 251,

heretofore referred to, and such was one of the evils

in the National Industrial Recovery Act, the oe

DADs Hi Bard re

_ 2 Ms . Bodie * noth »

DE ee ee ee ee a A eae

20 ,

tural Adjusfment Act and the Guffey Coal Bill, which

brought about their condemnation by this court.

Therefore, if this Act can be upheld as to the plain-

tiff, it must be upon the theory that the horse collars

and harness made by it with convict labor are iutrin-

sically harmful either to the public health, morals,

safety or general welfare, or that they are adapted

to uses harmful to the public health, morals, safety or

general welfare. We cannot conceive that even the de-

fenders of this law will have the temerity to contend

that the articles manufactured by the plaintiff are in- .

trinsically harmful either to the public health, morals

or safety. It is inconceivable that horse collars and

harness made by convict labor, by. reason of any in-

trinsic qualities, can any more affect the public

health, morals or safety than can goods made in fae-

tories every employee of which is a member of the

American Federation of Labor. Neither can it be

successfully argued that there is anything -intrinsic

in convict-made horse collars and harness tending to

make them detrimental to the general welfare. With-

in themselves they are no. more detrimental to the gel-

eral welfare than they are to the morals, health and

safety of the public. If they can be considered detri-

.mental to the general welfare in any way whatever,

it is not because of anything inherent in the articles

themselves, but because of their manufacture by con-

vict labor in competition with free labor; and this

brings us back again to the proposition that regulation

on the part of Congress, for the purpose of hampering,

prohibiting or in any manner embarrassing or burden-

ing the manufacture of these articles is an invasion

of a field denied to Congress by the Constitution. The

principle involved in this case cannot be distinguished

from that involved in Hammer vy. Dagenhart. The

court in that case distinctly held that articles made by

child labor are in themselves harmless, and that the.

real purpose of the Act involved in that case was to

regulate the manufacture of goods by child labor, and

inasmuch as the: power of Congress over the article

itself does not attach uutil it is actually delivered to

the common carrier for transportation in interstate

commerce, or until the actual commencement of its

journey to another State, Congress is without power to

reach back to its method of manufacture as a basis for

prohibiting its movement in interstate commerce. As

observed by the court in that case (pp. 272, 273):

“If it were otherwise, all’ manufacture in-

tended for interstate shipment would be brought

under federal control to the practical exclusion of

the authority of the States, a result certainly not

contemplated by the framers of the Constitution

when they vested in Congress the authority to reg-

ulate commerce among the States.’

On the oral argument of this case in the Circuit

Court of Appeals, counsel for the defendant argued

that the Child Labor Act involved in-Hammer v. Da-

genhart was essentially different from the Act here in-

volved, in that the Child Labor Act was an absolute

prohibition against movement in interstate commerce

of the interdécted articles, while under the law here in-

22

volved the prohibition is against movement in inter-

state commerce only when such movement has for its

purpose a ‘violation of the laws of the ‘State of destina- .

tion. We are unable to see how such a distinction

- helps defendant’s case. In view of the language of

this court in Hammer v. Dagenhart, it cannot: be

doubted that the same conclusion would have been

reached. by the court had the law there involved pro-

hibited the shipment only when the article was con-

signed to States that’ prohibited the employment of

child labor. In such a case the real matter controlled

and reached by the Act of Congress wotld have been

the method of production—the very. thing whieh Mam-

mer V¥. Dagenhart holds is no legitimate concern of

Congress. Congress was seeking the same end in the

enactment of the Child Labor Act as was sought to be

accomplished in the enactment of the Act here under

consideration, and that end was the protection of pre-

|. sumably adequately compensated labor from compe-

' tition with cheaper labor. In the Child Labor Case

Y Congress proceeded upon the generally accepted the-

ory that child labor is paid less than adult labor. Here

Congress has proceeded upon the justified assumption

that convict labor is paid less than free labor.. If

Congress does not possess the power under the com-

; merce clause to close the channels of interstate com-

4 merce entirely or temporarily to merchandise manu-

factured by child labor, how can it be said it possesses

any such power with reference to merchandise .manu-

‘ factured by convict labor? ? The result flowing from

the merchandising of the product of either of these

—

23

two kinds of labor is to bring cheap labor in competi-

tion with better paid labor. .In the Dagenhart case,

however, this court said that the commerce power of

Congress cannot be used to protect against this char-

acter of competition. | |.

No doubt those seeking to sustain the law here in-

volved will lean heavily upon the ease of TW hit field ¥.

State of Ohio, 297 U. 8. 431. That case reached this

court on certiorari to the Supreme Court of the State

of Ohio, to review a judgment of that court affirming

a judgment of the Court of Appeals of the Eighth Dis-

trict, Cuyahoga County, affirming a conviction ef Whit-

field in thé Municipai Court of Cleveland for violating

astatute of the State of Ohio, which, in part, provides:

“After January 19, 1934, no goods, wares or

merchandise, manufactured or mined wholly or’

in part in any other State by convicts or prisoners,

exeept convicts or prisoners on parole or proba-

tion, shall be sold on the open market in this

State.’

The State statute also a penalties for a viola-

tion of its terms.

The information under which Whitfield was pro-

“eeeded against contained two counts, the, first one

‘charging that Whitfield on a day named had, in the

City of Cleveland, Ohio, sold on the open market a

dozen Chambray men’s work shirts, which had been

manufactured in whole or in part by convicts in the

State prison of Alabama. The second count char ged

Whitfield with unlawfully selling for shipment to R.

-C. Kissack, via railway express from Wetumpka

Prison in the State of Alabama to said Kissack in

Lakewood, Ohio, six dozen Chambray men’s wofk.

shirts manufactured by prisoners confined in the We-

tumpka Prison. The case was tried on a stipulation

of facts, which, as stated by this court, were ‘‘substan-

tially the same as those set out in the information, with |

the addition, in respect of the first count, that the

goods were sold in the original package as shipped by

interstate commerce into the State of Ohio, and that

there is nothing harmful, injurious or deleterious about

the goods sold; that the six dozen shirts mentioned

in the second count were not delivered to Kissack at

the time of-sale, but were to ke shipped to his residence

in Lakewood, Ohio, by railway express from the prison

in Alabama.’’ Whitfield was convicted on both counts;

that conviction was affirmed by the Court of Appeals

of Ohio for the Eighth District, and a petition im error

to the Supreme Court of Ohio was dismissed by that

court on the ground that no debatable constitutional

question was involved.

The Ohio law involved in that case was undoubtedly

passed and its effective date timed to coincide with the

effective date of the Hawes-Cooper Act, which was ap-

proved January 19, 1929 (45 Stat. 1084; 49 U.S.C. A,

Section 60). Section 2 of the Hawes-Cooper Act pro-

vides that it shall become effeetive five years after the

date of its approval, which made it effective on Jan-

uary 19, 1934. That Act provides that when goods or

merchandise, manufactured or produced in whole or

in part by prison labor, are transported into any State

—— ann tintieeeemen —

25

“or Territory for use, consumption, gale or storage

therein, such articles shall, upon arival and delivery

in such State or Territory, be subject to the operation

and effect of the laws of such State or Territory to the

same extent and in the same manner ‘as though such

merchandise had been manufactured or produced in

‘such State or Territory, and shall not be exempt there-

from by reason of being introduced in the original «

package or otherwise. It will be observed that that

Act closely féllows the Wilson Act. It subjects inter-

state shipments of prison-made goods to State control

at the same point as interstate shipments of liquor are

subjected to State control under. the Wilson Act, as

construed in the case of Rhodes v. I owa, 170 U.S. 412,

namely, upon receipt by the consignee.

We are not advised as to all of the constitutional

questions attempted to be raised by Whitfield in the

State courts of Ohio, but we are advised as to just what

constitutional questions this court found were pre-

sented to it by the record. The court had this to Say °

on that subject:

‘*Petitioner assails the constitutional validity

of the Ohio statute and also of the Hawes-Cooper

Act.« The record fails to show that the points made

by petitioner in this court were properly raised in

the trial court. But it sufficiently appears ae

the opinion of the appellate court that that

considered and passed upon the following con-

tentions: that the Ohio statute abridged the privi-

leges and immunities of petitioner as a citizen of

the United States in violation of the Fourteenth

wee

“ vam\ Bd a en Tat as ame ld RA IR et ben ee «Ae heal agi

~ 5

tg &

.

.

‘

26

Amendment, by depriving him of the privilege of -

selling goods, manufactured in Alabama. by prison

labor, in competition with citizens of Ohio engaged

in selling like goods; that the Ohio statute con-

stituted an unauthorized regulation of and a bur- -

den upon interstate commerce; and that the

Hawes-Cooper Act constituted an unlawful dele-,

gation of the power of Congress to the States.

These questions, therefore, are properly here for

consideration.” |

In view of the foregoing language,. we ‘have the

right to conclude that this court considered no other

questions, because, according to the opinion, no other

questions were .open for consideration on the record

presented. The court rather summarily disposed of

the first and last of the constitutional questions pre--

sented by the record. The court further held that a

_-very serious eoustitutional question would be presented

, ’ if the Ohio statute should be construed ta prohibit

such transactions as that covered by the second count

of the indictment. For the reasons stated in the opin-

ion, however, it was found not necessary to pass’ upon

the constitutional power of the. State to convict Whit-

| field on that count.. After thus disposing of the second ;

count, the court took up the question of whether the i

£ State statute, in so far as it attempts to prohibit the

~- eonsignee of an interstate shipment of convict-made

goods from selling same in the original package, con-

stitutes a burden upon interstate cqmmerce. A solu-

tion of that question, of gourse, involved a determina-’

tion of the power of Congress to divest such shipments

27

of their interstate character after receipt by the con-

. signee. The court pointed out that the Hawes-Cooper

Act is, in substance, the same as the Wilson Act, and

in this connection used this language :

‘*That act is in substance the same as the Wil-

son Act with respect’to intoxicating liquors, passed —

August 8, 1890, chap. 728, 26 Stat. at L. 313, U. 8.

C. A. title 27, section 121, as construed and upheld

by this court. Rhodes v. lowa, 170 U. S. 412, 421-

423, 426, 42 L. Ed. 1088, 1094-1096, 18 S. Ct. 664;

Re Baheer, 140 U.S. 545, 559, 560, 562, 564, 35

_ Lu. Ed. 572, 575, 576-578. In effect, both acts pro-

vide (theggne as construed and the other in terms)

that i matter of the interstate shipment

shall, upon arrival and delivery in any state or

territory, become subject to the operation of the

local laws as though produced in such state or

territory; and shall not be exempt therefrom be-

cause introduced in original packages. Each stat-

ute simply permits the jurisdiction of the state to

attach immediately upon delivery, whether thre

importation remain in the original package or

not. In other words,-the importation is relieved

from the operation of any rule which recognizes

a right of sale in the unbroken package without

state interference—a right the exercise of which

never has been regarded as a fundamental part of

- the interstate transaction, but only as an incident

resulting therefrom. Rhodes ¥. lowa, supra (170

U.S. 420, 423, 424, 42 L. Ed. 1094, 1095, 18 S. Ct.

664). The interstate transaction in its fundamen-

tal aspect ends upon delivery to the consignee.’’

7

We respectfully submit that this language, when .

considered in connection with the two cases of Re

Rahrer and Rhodes vy. lowa, was adequate to com-

pletely dispose of the question then under considera-

tion, and did completely dispose of it.. } !

Re Rahrer, 140 U. 8S. 545, cited by. the court, di-

rectly involved the constitutionality of the Wilson ‘Act.

-In that case the court held that in the absence of per-

missive congressional legislation; an interstate ship-

ment of an article is protected against State action up

‘until its receipt by the consignee, and, if sold by him in

the original package, until such sale has been com-

pleted. and delivery thereof made. This principle, as

indicated by the court, is bottomed upon the- proposi-

tion that articles moving in interstate commerce are

beyond the reach of State authority (with the excep-:

tion of regulatigns in the nature of inspection and

health measures) until they have become incorporated

into the general mass of property in the State of

_ destination. On this point the court said (p. 562):

‘“Thé power to regulate is solely in the general

government, and it is an essential part of that reg-

ulation to prescribe the regular means for accom-

plishing the introduction and incorporation of

articles into and with the mass of property in the

country or State. 12 Wheat. 448.

‘‘No reason is perceived why, if Congress

chooses to provide that certain designated sub-

jects of interstate commerce shall be governed by

a rule which divests them of that character at an

- earlier period of time than would otherwise be

the case, it is not within its competency to do so.”’

It is apparent from the foregoing language that

the court was of the opinion,that it is within the eom-

veteucy of Congress to divest articles shipped .in inter-

state commerce of their interstate character upon the

receipt thereof by the consignee and before he sells

same, even though when sold the article is in the orig-

inal package. It is equally clear that this power of

Congress was not considered by the court to he confined

to those articles of commerce which are fit subjects

for the exercise of the police power. The Rakrer case

contains no language indicating that the exertion of

this power of Congress is confined to such articles.

That case is ample authority for the proposition that

the right of the consignee of an interstate shipment to

sell same in the original package, free from the inter-

ference of State law, is such a mere incident of inter-

state commerce that it can be safely surrendered to

the control of the respective States without impairing

_ the fundamental essentials of interstate commerce so

necessary to be kept under the exclusive authority of

the national government; and that this was the basis -

for the decision ji in that case is clearly shown by a fur-

tlie¥ distission iof the principle in the case of Rhodes

v. Jowa, 170 U. S. 412. In that ease the court, in dis-

cussing the rule that in the absence of permissive con-

gressiongl legislation the consignee of an interstate

shipment is entitled to sell same in the original package

free from State control, but that Congress can confer

upon the States the right to regulate such sales, had

this to say (pp. 423, 424):

30

“The words ‘original packages’. had, at the

time of the passage of the act by the decisions of

this court, acquired with reference to the con-

_ struction of the Constitution a technical meaning,

signifying that the merchandise in such packages —

was entitled to be sold within a State. by the re-

ceiver thereof, although State laws might forbid ©

the sale of merchandise of like character not in

such packages. )

‘Whilst it is true that the right to sell free

. from State interference interstate commerce mer-

chandise was held in Leisy v. Hardin to be an es-

-* sential incident to interstate commerce, tf was yel

but an incident, as the contract. of sale within a

State in its nature was usually subject to the con-

trol of the legislative authority of the State. On

the other hand, the right to contract for the trans-

portation of merchandise from one State into or

across: another involved interstate commerce in

its fundamental aspect, and imported in its very

essence a relation which necessarily must be

governed by laws apart from the ldws of the sev-

eral ‘States, since it embraced a contract which

must come ander the laws of more than one State.”

We submit, therefore, that the two: cases of Re

Rahrer, supra, and Rhodes v. Iowa, supra, clearly

establish: First, that Congress, without being guilty

of delegating any of its power under the commerce

clause, may alivest at artiele shipped in interstate

commerce of its interstate character after its delivery

sto the consiggee and before sale in the original pack- |

| age; and, second, while the two opinions referred to

dealt with a law thus divesting intoxicating liquors of

° ‘

” ii

f

their interstate character, they clearly show that the

character of the article has nothing to do with the exer-

cise of the power, and that therefore the power may be

exercised with reference to useful ard harmless articles

. of commerce, as well as with reference to articles which

are eommonly considered as fit subjects for the exer-

cise of the palice power. Indeed, it is very doubtful

[_ - —— *

if there is #e'really sound basis for the proposition that

interstate commerce was intended by the framers of

the Constitution to protect the consignee of an inter-

state article in the sale thereof in the original package.

Logically, it would appear that an interstate transac-

tion involving the sale of merchandise is concluded

when the article had been delivered to-the consignee.

State regulation of the sale or the use of the article

after its receipt by the consignee can, at most, only

indirectly and incidentally affect interstate commerce

. hits fundamental essentials. The idea that interstate

commerce protects the consignee in original package

sales apparently grew out of the opinion of this court |

in the case of Brown v. Maryland, 12 Wheat. 419, 446,

447. Fn that case, however, the court was not dealing

with commerce among the States. It was dealing with

immunity from State taxation of imports from for-

cign countries under Paragraph 2 of Section 10 of

Article 1 of the Constitution. After holding that such

imports are free from State taxation, except to the

extent and in the manner provided by the Federal Con-

stitution; Chief Justice Marshall in his opinion used .

this language ¢p. 449):

PRL RATE PLOT LEILA LIEN OG LN OTE NOP AEN ONE LE IE ENE EE AREAS NY Ea

' + 4 : ‘ .

RPS ere

~y

Cee ge ee

.

SERRE ON sy Bann

‘

‘*It may be proper to add that we suppose the

principles laid down in this ease to apply equally

to importations from a sister State.”’

This language of the great Chief Justice is subject

to two criticigns: First, articles shipped from one

State to another are not imports within the mean-

ing of the Constitution; and, second, the quoted

language is dicta;. and both of these criticisms

of the quoted language were made by this court in

Woodruff v. Parham, 8 Wall. 123.. This latter case

fully sustains our view that the commerce clause of

the Constitution does not confer upon the consignee of

an interstate shipment the right to sell same in the

unbroken package free of non-discriminatory State

regulations or burdens. Such was also the. conclusion

of this court in the case of Hinson v. Lott, 8 Wall. 148.

The opinion in the more recent case of Sonneborn

Bros. y. Cureton, 262 U. S. 506, contains a very

thorough discussion of the power of the States to im-

pose a non-discriminatory tax upon goods brought in

from other States while still in the original package.

In that case the court reaffirmed the rule laid down in

Woodruff v. Parham, supra, and the cases following it,

that such merchandise, or the sale of same, may he the

subject of a non-discriminatory tax; and it seems to

us that opinion lends very strong support to our view

that interstate commerce in articles shipped from one . —

State to another ends with the delivery of the article

to the consignee. At any rate, whether such is the cor-

rect ruie or not, it seems quite clear from the cases

.

33

of Re Rahrer, supra, and Rhodes v. Iowa, supra, that

Congress has the power to divest such articles of the

protection of interstate commerce upon receipt by the

consignee. If we are correct in our analysis of those

two cases, then the power of Congress to enact the

Hawes-Cooper Act is clear, and we respectfully sub--

mit it was unnecessary for the court in the Whitfield

case to enter into any consideration of the nature of

convict-made goods or the effect they may have upon

free labor when sold in competition with the products

of free labor, and we respectfully submit that the dis-

cussion of these questions in the Whitfield case should

not be permitted to weigh against our contentions in

this case. This is especially true, in view of the fact

that if what we consider to be dicta in the Whitfield

case is accepted as binding in this case, then this court

must wholly disregard two other of its well-considered

opinions. We refer to the cases of Clark Distilling

Co. v. Western Maryland R. Co., 242 U. S. 311, and

Hammer v. Dagenhart; 247 U.S. 251. Neither of those

cases was expressly overruled by, the Whitfield case,

nor is there any language in that opinion indicating

that the court intended to impair the force of those.

cases as authority on the questions of law therein

dealt with. :

The opinion in the Clark Distilling Company ease

Shows beyond any sort of question that the Webb-

Kenyon Act was sustained solely because of the nature

of the article ( intoxicating liquor) therein dealt with.

It was justified by the court on that ground and

on that ground alone, and the opinion contains an

*

a

LAELIA LESIONS SONI LNT BERG RE RI

4 eile 2 cabpiettas

«84

emphatic warning to Congress, and an equally em-

phatic assurance to the citizens of this country, that

the power of Congress under the Constitution to regu-

late interstate commerce does not extend to prohibit-

ing or limiting the interstate movement of useful and

harmless articles of commerce. Such was also the rul-

ing in the case of Hammer v. Dagenhart, supra, and in

that case the court held by the clearest kind of impli-

cation, if not in actual language, that the power of

Congress to prohibit or limit the movement in inter-

state commerce of articles of commerce is restricted,

to those articles which, because of their inherent na-

ture or the use for which they are intended and

adapted, are inimical-to the public health, morals or

safety, or to the geheral welfare; that when Congress

undertakes to-deal with an article moving in tnterstate

commerce, or offered for movement in interstate com-

merce, it is restricted to dealing with the article itself.

It cannot enlarge its power by considering the origin

or method of production of the article. These are mat-

ters beyond the reach of the national government.

In the Circuit Court of Appeals counsel for the

defendant relied upon the cases of Weber Vv. Freed, 239 .

U. S. 325; Seharrenberg v. Dollar Steamship Co., 249

U.S. 122, and Church of Holy Trinity v. United States,

143 U. S. 457, in support of their claim that Congress

has the power to prohibit the ‘shipment of convict-

made goods in interstate commerce in order to protect

the. free labor of the country against unfair and ruin-

ous competition. Those cases, however, have no’‘bear-

-

35

‘ing whatever on the question here presented. They

involved the power of Congress to regulate commerce -

with. foreign countries—a much broader power than

the power of Congress to regulate commerce among the

States. Congress has the power to absolutely prohibit

commerce with foreign countries. In dealing with

such commerce Congress is not restrained by the due

process clause of the Fifth Amendment, or by any

other provision of the Constitution. It is thoroughly

settled that no person has a vested right to engage in

foreign commerce. See: Butfield v. Stranahan, 192

U.S. 470; Brolan v. United States, 236 U.S. 216; The

Abby Dodge, 223 U. 8S. 166; and also Scharrenberg v.

Dollar, supra. .

Here, as in the lower court, counsel for the defend-

ant will deubtless refer to certain federal statutes,

regulating and prohibiting the interstate shipment of

the dead bodies of gaine animals and game birds killed

or possessed in violation of State law. Those statutes

are all parts of the Act of May 25, 1900, ‘commonly

known as the Lacey. Act, typical examples being See-

tions 392, 393, 394 and 395, Title 18, U. S. C. A. Those

statutes oe with situations not at all analogous to the

one here involved. Section 392 prohibits the transpor-

tation in interstate commerce of wild animals or birds

killed or shipped in violation of the laws of the State,

territory or district where killed or from which they

are shipped. Section 393 requires all packages con-

taining dead bodies or plymage, or any part thereof,

of game animals or game or other wild birds to be

plainly marked so as‘to indicate the contents and the

Bain she nae mule etal Detwebe ly ae ee eee Er See

.

name and address of the shipper, when shipped in in- ©

terstate commerce. Section 394 provides penalties,

and Section 395 provides that the dead bodies of such

game animals, or game or wild birds, shall be subject

_ to the laws of the State upon arrival therein, to the

same extent and in the same manner as though such

animals or hirds had been produced in such State or

territory, regardless of whether such shipments are

in the original packages or otherwise. It is the theory

of the law, repeatedly announced by this court, that

wild life is the property of the State in which it is

'.found, and that therefore the State can place such re-

strictions upon the taking or the killing thereof as the

Legislature may determine. Carey v. South Dakota,

2950 U. S. 118; Lacoste v. Department of Conservation,

263 U. S. 545. Wild life taken, killed, possessed or

shipped in violation of State law is, of course, contra-

band, and Cohgress may close the channels of inter-

state commerde to same, just as it may close the chan-

nels of interstate commerce to the movement or stolen

or. other illegally possessed goods. Furthermore, in

so far as the statutes: referred to deal with the trans-

porte’ on of migratory birds, they can be justified un-

dér the treaty making power of the United States and .

the Migratory Bird Treaty between the United States

and Great Britain concluded on August 16, 1916.

In the Circuit Court of Appeals counsel for the

defendant also relied upon the case of Grisvrold V.

President of the United States, 82 Fed..(2d) 922

That ease, however is no aid to the solution of the

problem we have here. In that case was involved the

comstitutionality of the Act of Corigress known as | .

the Connally Act, approved February 22, 1935 (15 |

U.S. C. A. Segfions 715-7151). That Act simply pro-

hibits the shipment in interstate commerce from a |

State of oil which has been produced in violation of the

laws of that State. It does not attempt to close the

channels of interstate commerce to oil produced in

a State when such production does not violate the laws

of the State of production. Assuming the Jaws of a

State controlling the production of oil are valid, it

may be admitted that the Federal government, under

the commerce clause, may co-operate with the State.

government in the enforcement of its conservation

satute to the extent of prohibiting the channels of

interstate commerce from being used by the oil pro-

ducers of that State to violate the production statutes

thereof. That is to say, if Texas has a valid statute

regulating the production of oil and making it illegal

to produce oil in excess of the limits fixed by the stat-

ute, we can perceive of no sound reason why Congress

may not provide that the excess over that allowed un-*

der the laws of Texas shall not be shipped out of Texas °

in the channels of interstate commerce. Such an Act

does not operate to give to the laws.of Texas extra-

territorial effect. A very different situation is pre-

sented, however, if the Act of Congress should go fur-

ther and provide that no oil produced in Kentucky,

or any other State having no limitation upon produc-

tion, shall be shipped into Texas.

38 -

POINT 2.

Congress Has No Power to Exclude From Interstate Com-

merce Convict-made Goods Unless Labeled as Such.

Of course, if Congress has the power to prohibit the

shipment of convict-made goods, it would also have

the power to require such goods, when offered fo¥

shipment, to be so labeled as to indicate that they are

convict-made. -Such a provision would aid in the en-

forcement of the prohibitory provision. On the other

hand, if Congress does not possess the power to pro-

hibit the shipment of Gonvict-made goods, then the

labeling provision cannot be sustained as one in aid of

the prohibitory provision. It was suggested in the °

lower court, however, and we presume wvill he argued

here, that Congress has the power to require convict-

made goods to be labeled as such, in erder to protect

the public against deceit, fraud and imposition. If

_ the labeling of plaintiff ’s convict-made goods, or any

other convict-made goods, could be said to have any

real relation to the quality of the material or work-

manship in the article, then there might be some justi-

fication for requiring convict-made goods to be la

beled as such. But how ean the label “eonvict-made” —

possibly disclose to the public any information as to

whether the article is of inferior aie or workman-

ship? Such a label does not show the quality of the

material out of which the article is made, nor does it

show the character of workmanship. There is no qus-

tification whatever for any assumption of: inferiority

in a convict-made article as compared to a similar ar-

39

ticle manufactured with free labor. There is just as

much justification, for assuming that goods made in

one factory by free labor are inferior to goods made in

some other factory by free labor; or that goods made

in'some factories by free labor are inferior to goods

made in other factories by prison labor. If there is

any ground for assuming that the workmanship or

material of prison-made goods is of an inferior qual-

ity, that inferiority would be just as apparent without

branding as would be such inferiority in competing

goods made by free labor; and to require the branding

of prison-made goods in ‘lia to notify the public of

their inferiority, without requiring a corresponding

branding of inferior goods made by free labor, would

be the rankest kind of. arbitrary discrimination.

Moreover, to reach the conclusion that any part of the

‘Act here involved was enacted to protect the buy ying

public against fraud or deceit, ts to convict Congress

of a willingness to protect ae people of some States

against fraud and deceit in the sale of convict-made

goods, and to leave others unprotected. The statute

makes no provision for the labeling of any conviet-

made goods shipped into those States where there are

‘no restrictions upon the sale of such goods. All it re-

quires as to shipments to such States is that the con-

tainer shall be labeled, thus leaving the merchant free,

after he has received the goods, to take them out of the

container and sell. them, without any notice to ‘the

public that they are convict-made.

The ie the argument that such a label tends

to protect against fraud and imposition is thoroughly

exposed in the case of People v. Hawkins, 157 N. Y.

1,51 N. E. 257, 42 L. R. A. 490. In that ease there was

———————— ee el tC rr

40

é

involved the power of the Legislature of New York

to require convict-made goods to be so labeled as to

indicate that fact. The court pointed out that convict-

made goods are not of themselves detrimental to the

health, morals, safety or general welfare of the pub-

lic, and that the only purpose to be served by the legis-

lation was to place convict-made goods at a disadvan-

tage in competition with goods made by free labor, and

that the State cannot use its police power for any

such purpose. The court said (p. 6):

‘We may assume, therefore, that the purpose

_ of the law was to promote the welfare of the labor-

ing classes by suppressing, in some measure, the

sale of prison-made goods. Waiving for the pres-

ent the question whether the means employed can

ever in the nature of things accomplish the end

in view, it is quite clear that unless this statute in

some degrée affects the value of certain articles

of merchandise by restricting the demand or im-

posing conditions upon the right to deal in them

as properiy, in order to exclude them from the

market, it is a mere brutum fulmen. The scrub-

bing brush in question was beyond all doubt an

article of property in which the defendant could

lawfully deal. He is forbidden, however, by this

statute, under all the penalties of the criminal law,

from buying or selling or:having it in his posses-

sion, except upon the condition that he shall at- ~

tach to it a badge of inferiority, which diminishes

the value and impairs its selling qualities. It is

not claimed that there is any difference in the

* quality of this serubbing brush when compared

with one of the same grade or character made out-

41

side the prisons. There is no pretense that the Act

was passed to suppress any fraudulent practice or

-that any such practice existed with respect to such

goods. The validity of the law must depend en-

tirely upon the exercise of the police power to.en-

hance the price of labor by suppressing through

the instrumentality of the criminal law, the sale

of the products of prison labor. —

“The citizen can not be deprived of his prop-

erty without due process of law. * * * Any law

which annihilates its value, restricts its use, or

takes away any of its essential attributes, comes

within the purview of this limitation upon legisla-

tive power. The validity ofall such laws is to be

tested by the purpose of their enactment and the

practical effect and operation that they may have

upon property. <A law which, interferes with prop-

erty by depriving the owner of the profitable and

free use of it, or hampers him in the application

of it for the purposes of trade or.commerce, or im-

poses conditions upon the right to hold or sell it,

may seriously impair its value, against which the -

Constitution is a protection. * *) *: F

“It is entirely safe to assert that no court has

yet invoked the police power to justify a statute,

the purpose of which was to enhance the wages of

labor in certain factories, by suppressing, through

the agencies of the criminal law, the sale of com-

peting products made in prisons. If the wages

of labor ina few factories producing goods such

as are also made in prisons may be regulated by

the police power, there is no reason why that

power may noi be used te regulate the rewards of

labor in any other field of human exertion. That

all legislation of this character, with this end in

ized by the laws of that State, for an opinion as to the

REAL etleen i IG TN, SO eee ee re ” as sos :

. ~~ kh aegis

: a

-

42

view, which’ subjects the individual to criminal

prosecution unless he will comply with regulations

in the sale of such goods that are intended to de-

press their value or demand in the market, is in

violation of the Constitution, can not be doubted.

‘‘It would be trifling with the Constitution to

attempt to uphold this law on the ground that all

_ producers or vendors of goods may be required

to tell the truth concerning them, both as to their

quality and the means.by which or the place where

they were manufactured. A knowledge of the

truth concerning the origin of every article of

‘property which is the subject of sale, trade or com-

merce can not be essential to the public yelfare,

and even if it was the law could be effective only

when ‘applied to all property alike and not limited

to articles made in certain places and by a certain

elass-of workmen. Any attempt to carry the

police power to such an extent as to require the

owner of an article of property kept for sale, such

as a scrubbing brush, to label it with a history of

its origin and to indicate the place where it was

made and the class of workmen that produced it,

and to enforce such regulations by the aid of the

criminal law, must be regarded as an inexcusable

and intolerable invasion of the rights and liberty

of the citizen.”’ .

In 211 Mass. 605, 98 N. E. 334, 27 Am. & Eng. Ann.

Cas. 815, there is an opinion of the Justices of the

Supreme Judicial Court of Massachusetts, delivered

in response to a request of the Legislature, as author-

constitutionality of a proposed law of Massachusetts

2, aie Si

Pe ke lee

:

,

43

requiring all convict-made goods, whether made in

Massachusetts or elsewhere, to be so labeled as

to indicate that they were convict-made, before being

exposed for sale. The court held that such a law could

‘not be upheld. While the specific ground upon which

the court based its opinion was that as to goods made

in other States the proposed legislation would. be a

burden on interstate commer dy yet the opinion clearly

discloses that it was the view of that court that such

a regulation,.even as to goods manufactured in “Mas-

sachusetts, was ant improper exercise of the police

power. The court said (p. 607) :

‘Plainly the purport of the bill is to affect the

availability and attractivéness in the market of

the branded or labeled goods. There is nothing

Wrong in the nature of things in prison...

goods. The employment of those convicted of

crime in healthful labor is recognized as a neces-

sity of confinement, whether its end be punitive

or reformatory. . The learning of useful trades

has been established by statute as a part of the

policy of this Commonwealth in the discipline and

improvement of those paying the penalty pre-

scribed for the commision of crime. It is a-part

of intelligent humanitarianism in the treatment

of those under sentence. Such goods are not un-

Sanitary or so inferior in quality that their sale

would constitute a fraud on the public. This is

manifest from the bill, which in section 5 excepts

from its terms goods, wares and merchandise used

by the Commonwealth, or by any county or munic-

ipality therein, or by any public institution. It

can not be presumed that the general public needs

%

2

———Ee - i

ee eee Saw

a protection in these respects which is denied to

instrumentalities of government and to benevo-

lent, educational, and other charitable and public

institutions. Differences in grade of workman-

ship, if there are any, would be as apparent with-

out branding as in like products made in private

shops.”’

The next to the last sentence in this quotation is

peculiarly applicable to the Act here under consider-

atiou, in view of the provision of Section 1 exempting

from the provisions of the Act goods manufactured in

Federal prisons for the use of the Federal Government.

‘State statutes requiring dealers in convict-made

goods to take out a license and to give a bond, pay

an annual license fee, and to make annual statements

disclosing their transactions in such goods, have been

‘ held unconstitutional on the ground that such legis-

lation is arbitrary and unreasonable. See: People V.

Raynes, 120 N. Y. Supp. 1053, affirmed in 198 N. Y.. 539.

The ease of Ex Parte Charles E. Hayden, 147 Calif.

649, 82 Pac. 315, 1 L. R. A. (N. S.) 184, did not involve

the right of the State to require the labeling of convict-

made goods, but did involve the same principle. The

law involved in that case required all boxes, barrels |

or packages containing fruit exposed for sale in Cali-

_ fornia to be sc stamped as to correctly show the county

and immediate locality in which such fruit was grown.

The court held that this was unconstitutional legisla-

tion and beyond the police power of the State. It

was pointed out that the only effect of the Act was to

give the-growers of fruits in those sections of the State

45

which hed established a reputation for fine fruit an

advantage over those growers of fruit located in other

sections, and that the police power of the State could

not be exercised for any such purpose. .

In Matter of Foley,.172 Calif. 744, 158 Pace. 1034,

there was involved the, validity of an Act of California

requiring every dealer selling imported eggs to stamp

‘on each egg the word ‘‘Imported,’’ and to display on

his place of husiness a sign reading ‘Imported Eggs.

Sold Here.’’ The court held that this was not a valid

. exercise of the police power of the State; that the law

did not require such dealers to disclose the age of the

eggs; and that the mere fact-that the eggs were im-

ported did not justify the conclusion that they were

any older or any less fit for use than domestically pro-

duced eggs sold in competition with them. The.neces-

sary effect of the Act was thus described by the court:

“Its only result would be not to protect the

public from the sale of stale eggs, but to aid the

domestic producer by appealing to the prejudices

of people against eggs produced in foreign lands.”’

Sunilarly, the labeling of convict-made goods or the

containers thereof cannot have the effect of protecting

the public against fraud or imposition. Such labeling

can only serve to enable those competitors whose prod-

ucts are made by free labor to appeal more effectively

to the prejudices which may exist with some classes of

our people against convict-made goods.

In the case of Matei v. Hecke, 99 Calif. App. 747,

279 Pac. 470, there was involved an Act of the State

a ;

é

'

£

:

ereghameier i AY eon TIP RPI CS”

46

of California requiring that grapes in containers other

than those packed in sawdust, cork, ete., and in certain

standard containers established by the Act, could be

sold only when the container was — in conspicu-

ous letters ‘‘ Irregular Container.’’ The court held

that such a requirement would not have the effect of

assuring the purchaser that he was getting a certain

quantity or quality of grapes, and that therefore the

requirement of the Act could not be regarded as a valid |

exercise ofthe police power of the State to protect

the public from short weights, dishonest packing, in-

ferior goods, and the like.

Doubtless, the case . Pacific States Box & Basket

. White, 296 U. 176, will be relied upon by

eee for the een That case involved the

validity of a statute of the State of Oregon under

which the proper State authority had preser ibed stand-

ard containers for raspberries and strawberries. The

court simply held that the regulations could not be

considered arbitrary or capricious, since the regula-

tions bore a reasonable relation, to the protection of

buyers of strawberries and raspberries, and to the pres-

ervation of such fruits.

The case of Detweiler v. Welch, 46 Fed. (2d) 79,

which will probably be cited by counsel for the de-

fendant is easily distinguishable from the case we

have here. That case involved the validity of an Idaho

law requiring the grading of potatoes and the marking

of the containers to show the grade when the potatoes

are shipped to another State. It was claimed that the

law was not a valid exercise of the police power, and

47 -

also constituted an unconstitutional burden on inter-

state commerce. The Act required that when the pota-

toes did not conform to the quality, grade and size

of some.of the other grades fixed by the statute, the

container should be marked with the words ‘‘Cull

Potatoes.”’ It was urged that as potatoes are useful

and harmless articles of commerce, to require a certain B

grade of sound potatoes to be branded as culls would

indicate to the consuming publie in distant States

that they were unfit for human consumption. The

court held that no such deduction could be fairly drawn

from such marking; that the real theory and purpose

of the Act was to promote the marketability of the |

product, and that the grading of the product according ;

tq its size and to the further rules laid down in the .

Act was to enable the seller to demand and obtain for

his product the prices which its particular quality and

grade entitled him to receive. .

This court, of course, judicially knows that not

only are potatoes sold by grade, but that fruit, to-

bacco, wheat, corn, cotton, wool and many other prod-

ucts are also sold according to the respective grades

into which they fall according to market practices, or,

~ in some cases, according to statutory provisions. The

grading in all these cases is based upon the inherent

difference in value and quality of the articles falling

in the. respective grades. Thus, No. 1 wheat brings

a better price than No. 2, and No. t corn a better price :

than No. 2 corn. Leaf tobacco brings a better price t

than lugs, and lugs usually a better price than trash.

The Idaho Potato Grading Act simply recognizes this

re

. 48

inherent difference in the yrade of potatoes and re-

quires them to be labeled accordingly. This invades

no property right of the owner of those potatoes. The

law, as does their own inherent quality, simply re-

quires them to be labeled for what they are.

Horse collars and harness, manufactured by con-

vict labor, however, by no trade practice and by no in-

herent inferiority fall into a class or a grade differ-

ent from similar goods manufactured by free labor.

Although there was no proof in the record to sup--

port same, the District Judge in his opinion made this

statement (R. 35, 36): .

“Tt has been the practice in some instances of

_persons dealing in eonvict-made goods to rep-

resent that the manufacturing was done in free

institutions and by skilled labor. The Federal

Trade Commission has found this to be an unfair

trade practice. See the proceedings of that body

In the Matter of Commonwealth Manufacturing

Company and Harry Dushoff, doing business: un-

der the trade names and styles of Harry Dushofi

& Company and Chicago Manufacturing Com-

pany, Docket No. 1367.”

We apprehend that the Federal Trade Commission

ease referred to by the District Judge will be relied

upon here. That ease is reported in Volume 11, Fed-

eral Trade Commission Decisions, at page 133. We

have been unable to find in that decision the slightest

intimation that the parties complained of in that pro-

ceeding were representing that the goods sold by them

were manufactured “in free institutions and by skilled

49

labor.”’ That.proceeding arose from a complaint be-

fore the Federal Trade Commission that the Common-

wealth Manufacturing Company, largely owned by

-Harry Dushoff, and Harry Dushoff, doing business

, under the trade names of Harry Dushoff & Company

and Chicago Manufacturing Company, were engaging

in unfair trade practices. The complaint was that

these concerns were engaged in the sale of binder

twine, work shirts and shoes, and that in advertising

them they represented that they were the manufactur-

ers of these articles, and that by buying from them the

public would save the middlenian’s profit. It was: also

charged that the shoes sold by these conéerns were

branded on the soles with the letters ““U. S."" in large

type, and‘in smaller type with the words ‘“Munson

Army Last,’’ it being claimed that the concerns com-

plained of were thus representing to the buying pub- -

lic that those shoes were made for the ‘United States

Army. While it is true the record shows that the re-

, spondents in that case purchased the articles sold by.

them from the State Penitentiary factory at Michigan

City, yet the case contains not the slightest intimation .

that any complaint was made that the concerns were

representing that the articles sold by them were manu-

factured in free institutions and by skilled labor. The.

Commission held that the advertisement of the con-

cerns that they were the manufacturers of the goods

‘sold, and that purchasers buying from them. would

be buying direct from the factory had the capacity and

_ the tendency to mislead the purchasers of those articles

into the erroneous belief that the concerns were the

ETT ONLINE NEEDS

ea ae

SER olan. Tis lee de a eh hae ces ae ie eg

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50

manufacturers thereof, and that in purchasing from

them the purchasers would be saved the cost and

profits of middlemen; and that the misbranding of the

shoes. had the capacity and the tendency to mislead

and deceive the purchasers thereof into the belief that

they were buying regular army shoes made for the

use of the United States Army. -

We therefore submit that neither the record in this

case nor the record in the Federal Trade Commission

case justifies any inference that there is any practice

prevalent among the manufacturers or sellers of con- -

vict-made goods of palming off their goods as haviyg

been made in free institutions and by skilled ‘labor;

and there is no proof in this record that the convicts

employed by plaintiff are not skilled workmen, nor

is there any legal presumption to that effect.

Of course, cases upholding statutes requiring the

labeling of products which readily lend themselves to

deception, or which are easily eapable of adulteration,

are not in point here.

POINT 3.

Section 1 of the Act Is Invalid Even if Congress Possesses

Power to Require Labeling.

—

If it be conceded that Congress has the power

to require convict-made goods to be so labeled as to

conform to the laws of the State of destination, we

think this Act must be declared invalid nevertheless.

The Act not only operates to require labeling where

the laws of the State to which the goods are shipped

51

require labeling, but it also operates to absolutely pro-

hibit shipment in interstate commerce to those States

which prohibit the sale of convict-made goods, if in-

tended to be used in violation of the laws of such

States. Section J of the Act is prohibitory in character

ter and in express language. It unconditionally: pro-

hibit8 shipment in interstate commerce for sale if the

State of destination prohibits the sale. It prohibits

shipment in interstate commerce for sale without label-

ing if the law of the State of destination requires such

labeling. We think we have demonstrated that Con-

ress is without power to prohibit shipment in’ inter-

state commerce of useful and harmless articles of

commerce manufactured by prison labor, and the de-

- livery thereof to the consignee, even though the law

of the State of residence of the consignee prohibits

the sale of such articles. Certainly, however, it was

the intention of Congress by Section 1 of this Act to-

prohibit sueh shipment, just as much as it was to

prohibit shipment without labeling into those States

requiring labeling; and it would seem that Section 1

cannot be so dissected as to sustain the provision pro-

biting shipment without labeling, and to invalidate

the provision prohibiting shipment altogether.

We are informed that at east twenty-two States of

.the Union have enacted legislation either prohibiting

- or regulating the sale of convict-made goods, and of

those twenty-two States fifteen either prohibit the

Sale of all or most kinds of convict-made goods. «The

purpose of the Act-here involved was to make those

laws effective as against shipments from other States,

>

. ll rt el oi Del

a a pa i el at al a AR al ht he el al naa

—

52

and the purpose was to make the laws of each of those

States effective, not merely the laws of those States

‘whose regulations stop short of prohibition of the sale

of convict-made goods. To so construe Section 1 of the

Act as to make it apply to shipments to the seven

States regulating the sale of convict-made goods there-

in by labeling or similar requirements, and not apply

to the fifteen States whose laws are prohibitory in

character, would not only disregard the plain intent

of Congress, but would amount to legislation by the

courts, in violation of a thoroughly settled principle of

statutory construction. The courts are powerless to

so construe the statute as to give it a less scope than

was intended by the legislative department. There

is no escape from the proposition that by Section 1 of

_the Act, Congress intended to close the channels of in-

terstate commerce to convict-made goods intended to

be used in violation of the laws of any State, whether

those laws merely require labeling before sale, or en-

tirely prohibit sale. We think, under numerous opin-

ions of this court, Section 1 in its entirety must be

stricken down, even though some of its provisions may

be within the scope of congressicnal power.

In the Employers’ Liability Cases, 207 U. 8. 463,

the court had under consideration the first Railroad

Employers’ Liability Act. The court held that that

Act upon its face made any common carrier engaged

in interstate commerce liable to its employees for in-

juries or death resulting from the negligence of the

company or its employees, irrespective of whether the

employee was engaged in interstate. commerce at the

53

time of the injury or not. It was held that Congress

does not have the power to legislate on the liability of

an interstate carrier for damages not inflicted in inter-

state activities, or in activities directly affecting inter-_

state commerce ; that where the damages are sustained

_ in a purely intrastate activity, the matter is beyond

the reach of Congress, and, as the law under considera-

tion made no distinetion but was universal in its appli-

cation, the entire Act must fail.

In the so-called frade-Mark Cases, 100 U. 8. 82,

_ there was involved an Act of Congress providing for

the registration of trade-marks used in connection with

a business and for the protection of the owner of such

trade-mark against infringement. The Act by its.

terms was universal in its application, whether the

business in connection with which the trade-mark was

used was interstate or intrastate in character. The

court held that Congress has no power to provide for

the registration and protection of trade-marks used

exclusively in intrastate business, and, as the Act

covered such trade-marks as well] as those used in inter-

state business, it must fail in its entirety. See also:

Butts v. M erchants Transportation Co., 230 U. 8."126;

James vy. Bowman, 190 U. 8. 127; Illinois Central Rail-

road Co. v.. McKendree, 203 U. 8. 514; United States

VY. Ju Toy, 198 U.S. 253; United States vy. Reese, 92

U.S. 214; Baldwin v. Franks, 120 U. 8. 678. Some of

these cases deal with criminal statutes, but the prin-

ciple is the same, whether applied to a criminal statute

or one dealing with property rights.

.

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POINT 4.

Section 2 Must Fall: First, Because Congress ‘Is Without

Power tc Require Containers to be Labeled; and Sec-

ond, Because It Is Not Separable From the Other Pro-

visions of the Act. ,

We now come to a pousideration of Section 2 of the

Act, which requires that. all containers of convict-

made goods shipped in interstate commerce shall be

plainly marked on the outside thereof so as to show,

among other thitigs, the nature of the contents and the

name and location of the prison institution where the

‘ goods were produced or manufactured.

It seems quite clear that if Congress does hot have

the power to require the articles themselves to be

marked ‘‘convict-made,’’ it is without power to re-

quire the containers to be so marked as to indicate that

their contents were manufactured by convict labor.-—

Certainly the marking of the containers so as to stamp

the’contents as convict-made can in no way aid or

‘facilitate movement in interstate commerce. Just as

is true of the labeling of the goods themselves, the only

purpose served is to publish the fact that the contents

are convict-made, afd thereby probably affect their >

salability to, certain classes of people. |

Putting all this aside, however, it seems to us that

Section 2 must be declared invalid under well settled

principles of law if Section 1 is held invalid. The Act

has only four sections, and contains no separability

clause. The general rule is that courts, in construing

Hts)

legislative enactments, must proceed upon the assump-

tion that the legislature intended the Act to be effective

in its entirety. The Act will not be so construed as to

eliminate an unconstitutional or otherwise invalid

part, and leave in effect the unobjectionable parts, un-

less it appears to the court from an examination of the

act that legal effect can be given to the unobjectionable

part standing alone, and that the legislature jptesded

the unobjectionable part to stand, even though other

parts of the Act should be held invalid; and the pre-

sumption is against any such intention on the part of

the legislature. Williams v. Standard Oil Co., 278

ULS. 235, at pages 241, 242; Carter v. Carter Coal Ce,

et. dl., 298 U. S. 238; Hill v. Wallace, .259 U. 8. 44;

Railroad Retirement Board v. Alton R. Co., 295 U.S.

330. Guided by this rule, it seems to us that Section

2 must.fall if Section 1 is invalid. How ean it be said

that it was the intention of Congress that Section 2

shall stand if Section lis eliminated? The whole Act

proclaims’ that it was the purpose of Congress not

merely to require labeling of the containers of convict-

made goods, but to absolutely prohibit shipment of

such goods if intended to be used in violation of the

laws of the State to which they are consigned. Not

only does the context of the Act show this to have been

the’ purpose of Congress, but the title as well. The

title reads as follows: ‘‘An Act to prohibit the inter-

state transportation of prison-made products in cer-:

tain cases.” With this declaration of the purpose of

' Congress in the title, reinforced by the language of

56

the Act itself, there is simply no escape from the propo-

sition that: what Congress had in mind in this legis-

Jation was prohibition of shipments, not labeling of

' containers. Undoubtedly, the title of the Act may, and

should be, taken into consideration in determining the

intent of Congress.

This court stated i in the case of United States V.

Fisher, 2 Cranch, 358, 386:

‘‘Where the mind labors to discover the design

of the legislature, it seizes everything from whic h

aid can be derived; and in such case the title .

claims a degree of notice, and will have its due

share of consideration.’

In the case of Church of Holy Trinity v. United

States, 143 U. S. 457, 462, this court said that while the

title of an Act may not be used to add to or take from

the body of the statute, yet ‘it ‘‘may be considered in

determining the intent of the Legislature.”’ See also:

White v. United. States, 191 U. 8S. 545; Carter v. Carter

Coal Co., 298 U. S. 238... |

CONCLUSION.

In conclusion, we respectfully”ask the court to

contemplate the results which may be expected to flow

from sustaining the principle underlying this statute.

If Congress ean close the channels of interstate col-

merce to prison-made goods for the purpose of pro-

tecting free labor from competition with cheap prison

_ labor, there is no reason‘ why similar legislation, not-

SO Ea

57

withstanding the case of Hammer-y. Dagenhart, ean-

not be sustained with reference to the products of -

child labor. It is generally believed that organized

labor receives higher wages than unorganized labor.

It is already the policy of the. Federal Government

to give preference in government contracts for labor

or materials to those concerns which recognize the

unions and bargain collectively with their men. If

this law is upheld, it is only a step further for Congress

- to prohibit the movement in interstate commerce of

articles manufactured by open shop concerns. Every

one knows that negro labor and the unorganized white

labor of the South, generally speaking, are not as well

paid as is organized labor in the East and North.

Therefore, on the claim that the products of this

cheaper labor unfairly compete with products. pro-

duced*by the higher paid labor of the North arid East,

the channels of interstate ecommerce could be closed

to the movement of the more cheaply produced articles

into unionized territory. Again, should Congress con-

clude that the closed shop principle is harmful to- the

publie welfare and imposes too great a burden upon

the consumer, then, under the principle contended for

here, it would seem permissible for Congress to close

the channels of interstate commerce to articles manu-

factured by concerns operated on the closed Shop

principle. If the principle contended for here is sus-

tained, what is to prevent Congress from closing the

channels of interstate commerce to merchandise mantu-

factured in sweat shops and from requiring goods

so manufactured to be labeled as having been made in

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sweat shops? The eight-hour day has come to be

recognized by many States as desirable in many occu-

pations. Under the principle here contended for, Con-

eress could prevent the shipment of articles of com-

merce from States not observing the eight-hour day

into those States which do observe it, on the gr ound

that such legislation would tend to protect labor in

those States observing the eight- hour day.

The foregoing are but a few examples of the re-

sults-which ean be expected to logically follow the es-

tablishment of the principle here: contended for by the

supporters of the Act, and it seems to us that they are

sufficient to compel its rejection.

Resvectfully submitted,

Cuas. I. Dawson,

Counsel for Petitioner.

Woopwarp, Dawson & Hopson,

A. SHELBY WINSTEAD,

Of Counsel.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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