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tion of the wealth of the country, the withdrawal of which from the taxing power of the States would be most mischievous, crippling the power of the States and imposing new burdens of taxation on the individual citizen.
The disposition to extend the power of Congress beyond its constitutional limits and unduly to dimish the proper legislative authority of the States is further exemplified in the passage by Congress in 1906 of the Employer's Liability Act. Congress assumed that, under its power to regulate commerce, it could pass the act and apply it to all employés of common carriers engaged in interstate commerce, even though such employés rendered no service in the transportation of interstate commerce, such as engineers of local trains, section hands, mechanics in car and machine shops and clerks in offices. The Supreme Court in the Employer's Liability cases declared the law unconstitutional and denied the contention of the Attorney-general that where one engages in interstate commerce one thereby comes under the power of Congress as to all his business and may not complain of any regulation which Congress may choose to adopt.
The extremes to which advocates of the New Federalism go is shown in the proposal to enact the Beveridge child-labor law and make it applicable throughout the United States. The Supreme Court has decided that the power to regulate commerce does not confer power to regulate manufactures, as commerce and manufactures are not synonymous. But the advocates of the bill asserted that the Government has the power to shut out from interstate business any article manufactured in violation of the Act. To assume that Congress can do this is to assume that it can regulate the hours of labor, the wages paid and the prices charged by any factory in the United States for goods which are to find their way into interstate commerce. To assume that the Congress has any such power is to assume that American statesmen and American lawyers for a hundred and twenty years have not understood the Constitution of this country aright.
The excuse made for bringing a bill of this kind before
Congress was that the States had not discharged their full duty in the matter. But if half the States have not enacted a child-labor law, they are no more delinquent than Congress. No one questions that Congress has a Constitutional right to make such a law applicable to the District of Columbia and for the Territories. It has, however, never done so, and the same condemnation which its advocates pronounce upon the States which have failed to enact such laws is applicable to the Congress for a similar neglect within the limits of its unquestioned jurisdiction. Undoubtedly there should be such a law in each State, and one already exists in a majority of the States.
Until recently, it had always been supposed that the Federal Government had no possessive title to the water flowing in navigable streams, nor to the land composing their beds and shores. It had not been thought that Congress could grant any absolute authority to anyone to use and occupy such water and land for manufacturing and industrial purposes. The theory has been that the Federal Government controlled navigable streams for the single purpose of preventing obstruction to navigation. The States have granted the use of these streams for power or irrigation purposes, and their action has always been understood to be subject to be reviewed by Congress, but only to the extent of determining whether that which the States had authorized would constitute an interference with commerce. Now, apparently unmindful of an impressive line of decisions of the courts which assert the doctrine that the waters of a river and the waters of the arms of the sea belong to the States and not to the Federal Government, the President recently sent a message to Congress asserting a right in the General Government to exact tolls for the use of the waters in navigable streams, and of his intention to veto all bills granting water-power rights which do not authorize the President or the Secretary concerned to collect such tolls as he may find to be just and reasonable. A Republican Senator properly characterized the doctrine as "the most far-reaching and over-reaching
claim of power that was ever made in a government. And, he added: "The Kings and Emperors claim no such rights in their lands."
17. STATE VS. FEDERAL CONTROL.
The reasons impelling the Federal Government to enter into and assume control of what Professor Rogers holds to be the proper sphere of State legislation are thus set forth by Judge Charles F. Amidon: .
There never was a time when the interpretation of the constitution required a more careful consideration of living conditions than to-day. Within the last fifty years economic forces have been introduced into our life that are as revolutionary of pre-existing conditions as the introduction of gunpowder was of the state of feudalism. Seward's statement in the debate of 1850 that "Commerce is the god of boundaries and no man now living can tell its ultimate decree" is far more true at present than when it was uttered. When the constitution was adopted the unit of our social and business life was the commonwealth. With the exception of the foreign and coasting trade, the commerce and industry of each state was confined to its own borders. The union was political instead of industrial or commercial. To-day our industry and our commerce are national. They are made aware of state lines only by conflicting and often narrowly selfish enactments. The units of commercial and industrial organization extend to many states, often to the entire nation. Instead of being required to obey one master, business is compelled to obey many. Coincident with this enlargement of business enterprise to embrace different states, has occurred a revolution in state activity. During the first half of the Nineteenth Century the doctrine of laissez-faire was the fundamental principle of government. The state left commerce and industry to private control. To-day that is all changed. Government is now present in all lines of business. When the state regulated but little, business was not much con
cerned who did the regulating. But now that all governments are competing in their zeal for regulation, whether one government or many, the nation or the states, shall do the regulating, becomes a matter of paramount importance. These changed conditions in our actual life compel a reconsideration of our divided governmental authority to see what now belongs to the nation, and what to the states. The problem is not the same as it was; it cannot be answered by reading history or studying precedents.
The new condition has manifested itself most conspicuously in two fields, the railroad and the interstate industrial corporation. At the beginning the railroads were local. There was a time when in making a shipment of freight from New York to Buffalo, at least three different bills of lading were required. Now five great systems embody more than three-fourths of the total mileage of the country, and the work of consolidation is still in progress. There are no longer state roads, but all are instruments of interstate commerce. Actual statistics are wanting but persons in a position to know are of the opinion that the local business of the railroads does not exceed fifteen per cent. of their entire traffic. In a case tried in one of our western states a few years ago, it was judicially found that the local business there involved amounted to less than three per cent. In the face of these conditions, it is impossible to maintain over common carriers the manifold control of the different states and the federal government.
There is no way in which local business can be separated from through business. The same road-bed serves both; both are carried in the same train and by the same crew. Back of every schedule of rates prescribed by government is the question, are those rates reasonably compensatory? Under our present system that question as to state rates must be decided solely upon local business, and as to interstate rates solely upon interstate business. The court cannot look to the entire traffic in judging of the reasonableness of either. While it is possible to ascertain what revenue is derived from
each class, it is absolutely impossible thus to distribute the cost of operation and maintenance. The evidence upon that subject is wholly speculative and conjectural, consisting entirely of opinion testimony given by parties having a vital interest in the result of the litigation. In actual operation the railroads do not, and cannot keep the two kinds of commerce separate. Why then should the law attempt to divide that which in actual life is a unit and indivisible?
It is vain to appeal to states, as did Secretary Root in his New York address, to subordinate local advantage to the general welfare. Our whole history is a confirmation of the statement of Mr. Pinckney in the constitutional convention that "States pursue their interests with less scruple than individuals. They exhibit all that lack of conscience characteristic of those who exercise delegated power. As Justice Miller points out in his lectures on the constitution, had it not been for the dominant authority of the central government, the general welfare would have been as completely sacrificed to local selfishness under the constitution as it was under the articles of confederation. What states require is not exhortation but authority.
The situation in the field of industry presents the same general features. To abolish local control over matters extending outside of the state was the origin not only of the article conferring power on the national government to regulate commerce among the states, but also of those provisions which forbid states to lay imposts or duties on exports or imports, and which secure to the citizens of each state the privileges and immunities of citizens of the several states. These restrictions were placed in the constitution not so much that men might be free, as that national commerce and industry might be free. They have been largely nullified in actual life by the fact that business is now carried on by corporations instead of persons. When the constitution was adopted only twenty-one corporations had been formed in the United States. These were mainly for the construction