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State. This statement does not, of course, refer to the coal deposits owned and within the exclusive jurisdiction and control of the Federal Government.
No less an authority than the Supreme Court of the United States has repeatedly declared that the production of coal is not interstate commerce. This court said in the case Delaware & Lackawanna, etc., Railroad Co., 238 U. S. 439, that:
The making of goods and the mining of coal are not commerce, nor does the fact that these things are afterwards to be shipped in interstate commerce make their production a part thereof.
And again in the same case:
Over interstate transportation, or its incidents, the regulatory power of Congress is ample, but the production of articles intended for interstate commerce. is a matter of local regulation. If it were otherwise, all manufacture intended 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 regulate commerce among the States. • Therefore, in view of the holdings of the Supreme Court of the United States, all attempts of Congress to legislate upon any matter relative to the ownership, production, cost of production, the quantity produced, or sales price of bituminous coal, would necessarily fail for want of authority on the part of Congress to legislate at all.
While it may be, and is, conceded, that Congress has exclusive power to regulate but not to destroy interstate commerce, and by virtue of this power laws may, in some national crisis, such as war, be enacted to regulate the flow of coal in interstate commerce, yet it is inconceivable to us, from a legal standpoint, how Congress could, in times of peace, exercise the right or power to interfere with the flow of coal in interstate commerce without violating certain fundamental rights guaranteed by the Constitution, such as the absolute right of those engaged in the coal industry to engage in interstate commerce in coal and to make contracts respecting the same in any State of the Union; and, further, without violating fundamental rights of other persons to contract for the purchase of coal upon any terms or conditions satisfactory to such persons and wherever they may reside within the limits of the United States or elsewhere.
The Supreme Court of the United States has said that the power to regulate commerce given by the Constitution is not the power to prohibit. (Hammer v. Dagenhart, 247 U. S. 251; Child Labor Tax Case, 259 U. S. 20; Hill v. Wallace, 259 U. S. 44; Linder v. U. S., 268 U. S. 5.)
In the Child Labor Tax case, Mr. Chief Justice Taft, speaking for the court, said:
The congressional power over interstate commerce is, within its proper scope, just as complete and unlimited as the congressional power to tax; and the legislative motive in its exercise is just as free from judicial suspicion and inquiry. Yet when Congress threatened to stop interstate commerce in ordinary and necessary commodities, unobjectionable as subjects of transportation, and to deny the same to the people of a State, in order to coerce them into compliance with Congress's regulation of State concerns, the court said this was not, in fact, regulation of interstate commerce, but rather that of State concerns, and was invalid. So here the so-called tax is a penalty to coerce people of a State to act as Congress wishes them to act in respect of a matter completely the business of the State government under the Federal Constitution. This case requires, as did the Dagenhart case, the application of the principle
announced by Chief Justice Marshall in M'Culloch v, Maryland (4 Wheat. 316. 423, 4 L. ed. 579, 605), in a much-quoted passage:
"Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.”
At this juncture it might be well to remember that the Federal Government can exercise only such powers as have been delegated to it by the States or those incidental to the powers delegated, and the States have not delegated to the Federal Government the power or authority to regulate or control property belonging to the States or to private citizens or persons, including corporations, of such States. If this were not true, in the last analysis we would have no such thing as State sovereignty or the sovereignty of States. Proponents of the proposed bill give as a reason for its enactment that there is an overproduction of bituminous coal in the United States and that by reason of such overproduction the bituminous-coal industry has become demoralized and that a fair price can not, by reason of this overproduction and demoralization, be obtained for the product. And I want to impress this upon this committee: Therefore, this proposed bill ostensibly seeks to remedy the alleged ills of the industry by restricting production and by increasing the price of coal. Take these two fundamental propositions out of the bill and the whole thing becomes futile as a means for curing the alleged ills of the industry. It has been shown in the hearings on this bill that 40 per cent of the capacity to produce bituminous coal could be eliminated and still there would be enough coal produced to meet the demands of the consuming public. Of course, there is no way known to the law to have those persons producing 40 per cent of the coal give up their properties or business without just compensation. There is no way known to the law to require the persons producing 60 per cent of the bituminous coal to purchase the properties of persons now producing the 40 per cent. There is no national emergency or crisis that would justify or authorize the Federal Government to take control of these properties. Were any department of Government, acting through a commission or otherwise, authorized to stop the business of those persons producing 40 per cent of the bituminous coal, it would mean nothing more or less than the confiscation of these properties.
It would not only deprive these persons of their properties without due process of law, but would constitute such an usurpation of power on the part of the Government as could have no sanction either in law or in morals. Not only this, but such procedure or such taking of private property of persons residing within sovereign States would be such an infringement upon the property rights of sovereign States as would violate not only the provisions of the Federal Constitution but would be antagonistic to every tradition of constitutional government such as we enjoy. But, assuming for the sake of argument, that the restriction of production of bituminous coal and an increased selling price for such coal are essential and requisite for the good of the industry, we naturally inquire whether Congress has the power, under and by virtue of its sole and exclusive power to regulate and control interstate and foreign com
merce, to restrict the production and sale of coal in interstate commerce or to fix the price of this commodity through a coal commission or any other agency of Congress or by Congress itself.
In dealing with this question it is well also to remember that the production of coal within the confines of a sovereign State and over which the State, as a separate and distinct sovereign from that of the Federal Government, has absolute control, subject only to the constitution of the State, is a legitimate business violative of no law, Federal or State, but has its basis in the private ownership of property.
However, it is contended that one engaged in this legitimate business may be required by Congress, before and as a condition precedent to shipping his coal in interstate commerce, to make it obligatory upon his part, or we may say imperatively necessary, in order to do business, to secure a license to so engage in interstate commerce in coal, which license limits and restricts him as to his entering into private contracts for the sale of his coal, as to the territory in which he may contract for the sale and shipment of coal; as to the price at which he may contract to sell his coal; as to the conditions within any given State under which his coal is or may be produced and the quantity produced, etc. We unhesitatingly say that Congress has no power to do any of the things above outlined or required by this proposed bill, for to do any of the things above outlined or required by this proposed bill, for to do so would violate not only one but more of the express provisions of the Federal Constitution. In saying this we are not unmindful of the powers of Congress over interstate commerce, because, as held in the case of Leisy V. Hardin, 135 U. S. 108, and this case to my mind is the best definition of the powers of Congress over interstate commerce:
The power vested in Congress to regulate commerce with foreign nations, and among the several States, and with the Indian tribes, is the power to prescribe the rule by which that commerce is to be governed, and is a power complete in itself, acknowledging no limitations other than those prescribed in the Constitution. It is coextensive with the subject on which it acts and can not be stopped at the external boundary of a State, but must enter its interior and must be capable of authorizing the disposition of those articles which it introduc so that they may become mingled with the common mass of property within the territory entered.
Conceding all of these powers to exist, yet the power to do the things required by this proposed bill is not vested in Congress by the Constitution. As stated in the brief of the proponents of this bill:
To carry on interstate commerce is not a franchise or privilege granted by a State; it is the right which every citizen of the United States is entitled to exercise under the Constitution and laws of the United States.
Citing Crutcher v. Kentucky, 141 U. S. 47. Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1, speaking for the court and defining the extent and nature of the commerce power of Congress, said:
It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed.
And as said by Mr. Justice Day in Hammer v. Dagenhart, 247, U. S. 269, in commenting upon the holding in Gibbons v. Ogden: I want to say to this committee, in addition to what I have here, that in my opinion the decision of the Supreme Court of the United
States in this case finally set at rest the proposition of the power of Congress to deal with this sort of thing. That is, it denies to Congress under the Constitution the power to do things set out in this proposed bill, because I believe that every essential element in this case has been determined to the extent that the power of Congress is utterly lacking to do what is proposed to be done by this bill.
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 commerce from moving and thus destroy it as to particular commodities. The control by Congress over interstate commerce can not authorize the exercise of authority not intrusted to it by the Constitution. The maintenance of the authority of the States over matters purely local is as essential to the preservation of our institutions as is the conservation of the supremacy of the Federal power in all matters intrusted to the Nation by the Federal Constitution. In our view, the necessary effect of this act is (child labor law) by means of a prohibition against the movement in interstate commerce of ordinary commercial commodities, to regulate the hours of children in factories and mines within the States, a purely State authority. Thus the act in a twofold sense is repungnant to the Constitution. It not only transcended the authority delegated to Congress over commerce but also exerts a power as to a purely local matter to which the Federal authority does not extend. The far-reaching result of upholding the act can not be more plainly indicated than by pointing out that if Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in intertsate, commerce, all freedom of commerce will be at an end and the power of the States over local matters may be eliminated, and thus our system of Government be practically destroyed.
And I am not yet ready to believe that Congress wants to do any such thing.
As hereinbefore stated, this proposed legislation, if effective for practical purposes, would prevent or forbid the movement in interstate commerce of surplus coal production amounting, as hereinbefore stated, to approximately 40 per cent, and we say that Congress has no power to forbid interstate commerce in bituminous coal, because it is not impressed with a public use. It is unnecessary to state that the real purpose of the enactment of the antitrust laws by Congress was to make commerce free and to prevent any restriction of commerce, but the power of Congress to make commerce free and unrestricted among the States of the Union is a materially different question from the right asserted by some, but without authority to support their assertions, of Congress tó forbid interstate commerce or to restrict it. In other words, the policy of the Congress has already been fixed by the enactment of the antitrust law, because you have declared that every combination or conspiracy to restrict commerce may be criminally prosecuted by the Attorney General of the United States. The sole purpose was to make commerce free and not to restrict it, and to prevent anyone else or any combination or group of persons, acting by virtue of corporate authority or otherwise, to restrict commerce. But this proposed bill would do exactly what the antitrust law says that no individual or no persons or group of persons in the United States can doa
The provisions of this proposed bill violate the fifth amendment to the Constitution. This amendment provides that no person shall be deprived of life, liberty, or property without due process of law, and the fourteenth amendment prevents any State of this Union from depriving any person of life, liberty, or property without due process of law. If the Constitution prevents a State from depriving
a person of life, liberty, or property without due process of law, certainly Congress would have no right to do it even if it were not for the fifth amendment.
As said in Tyson v. Banton, 273 U. S. 429:
The right of the owner to fix a price at which his property shall be sold or used is an inherent attribute of the property itself (State Freight Tax case, 15 Wall. 232, 278), and as such, within the protection of the due process of law, clauses of the fifth and fourteenth amendments.
A more complete deprivation of the right of freedom of contract than this proposed legislation entails, can hardly be conceived. One who produces coal can not sell at all until he has a permit setting out the conditions under which he may sell, the territory, in which he may sell and the price he may charge. He can get this permit or license only after making application and securing the approval of the Coal Commission.
Senator GLENN. Just a question there. That applies now to one who has transportation facilities to sell ?
Mr. BELCHER. I will answer that by saying this, Senator, that here is an entirely different question. Congress has been given the sole and exclusive power
Senator GLENN. I understand, but I say that does apply to people that have that property to sell ?
Mr. BELCHER. In some instances, on the ground of public health and otherwise; yes. Like Congress has the power to prevent the shipment of diseased meats in interstate commerce. Why? Because it has the right on the ground of public health-protecting the health of the people. But here is a legitimate business, violative of no law, which has nothing to do with the power of Congress to regulate the morals and
health of the people of the United States. Senator GLENN. I am talking about railroad transportation. Do not all these things apply to that?
One who produces coal can not sell at all until he has a permit setting out the conditions under which he may sell,
Mr. BELCHER. Yes.
Senator GLENN. That is true of a railroad, is it not, having transportation to sell ?
Mr. BELCHER. I think that is true; yes. But I say that is an entirely different thing.
Senator GLENN. “* the territory in which he may sell
That applies to railroads. He must have a permit. The railroads must have a permit for the territory in which they may engage in business or transportation. “*
and the price he may charge.” That is also true of transportation, is it not? Mr. BELCHER. No; I do not think so.
Senator GLENN. Are not the rates fixed by the Interstate Commerce Commission that can be charged !
Mr. BELCHER. The rates are fixed by the Interstate Commerce Commission as an agency of Congress.
Senator GLENN. Yes; certainly.
Senator GLENN. I am not arguing the question with you now as to the constitutionality. I am asking you if all these objections in this situation do not now apply to the commodity of transportation.