labels should go on retail packages, then the Federal law requiring net weight to be stated on the packages, and requiring the labels to contain a statement of the presence of certain harmful drugs, or defining misbranding or adulteration, would all have been swept away from retail trade and would have been confined solely to the labels of the outer or original packages in interstate commerce. But these original package labels never reached the customer's eye. Congress has therefore insisted that the labels which do come to the customer's attention on the retail packages shall be under Federal control. In the McDermott case the defendant who was prosecuted under a Wisconsin law, claimed that the Congressional power was supreme even over such retail labels, while the State maintained that after the original package of interstate commerce was broken, the State authority became supreme, since the package had then entered intrastate trade. The Supreme Court rejected the State's contention and upheld the supremacy of the Federal regulation The decision established in substance the following principles: that as the Federal Act requires articles in interstate commerce to be properly labelled, a State cannot require a label which has been properly affixed under the national statute to be removed and other labels authorized by its own statute to be attached to the package containing the article, so long as it remains unsold by the importer, whether it be in the original case or not. And that the early doctrine of original packages was not intended to limit the right of Congress, when it chose to assert it, to keep the channels of interstate commerce free from the carriage of injurious or fraudulently branded articles and to choose appropriate means to that end. New Problems in the Federal Police Power over Commerce.— Can Congress use its regulative power for any purpose that it pleases? This broad question has been brought up by the introduction of a national child labor bill, providing that the products of factories employing children under the age of fourteen should be debarred from interstate trade. The measure, originally introduced by Senator Beveridge, has been more recently urged with some insistence. It raises also the question as to how far the Federal regulative power may be employed in such a way as to interfere with businesses conducted within a State. Two sharply dissident views have emerged from the discussion. Senator P. C. Knox in congressional debates and public addresses has pointed out that the regulative power was given to Congress for the purpose of further aiding and promoting national trade but not to interfere with the internal affairs of a State. He contends that any attempt to carry out the latter purpose is beyond the authority of Congress. "But it is claimed that as the power to regulate commerce is absolute, complete and mainly exclusive in Congress, the right to forbid the shipment in interstate trade of any kind of goods, for any reason, 1 See Address to Graduating Class, Yale Law School, June 24, 1907. comes within that power. That is to say, under the guise of a commercial regulation, not necessary for the promotion or protection of commerce, a producing regulation, which Congress could not have enacted, may be enforced; or, in other words, Congress can deny a person the right to engage in interstate commerce for doing that which Congress cannot prohibit him from doing. . . . In my judgment, the power to regulate commerce between the States does not carry within it the power to prohibit commerce, unless the prohibition has for its purpose the facilitation, safety or protection of commercial intercourse, or the accomplishment of some other National purpose. The power to regulate interstate commerce does not extend to the laying of an arbitrary embargo upon the lawfully produced, harmless products of a State, nor to the right to defeat the policy of a State as to its own internal affairs. I concede that the National power to regulate interstate commerce carries with it the right to prohibit commerce in order to secure equality of commercial right, or to prevent restraint of or interference with commerce, but not to prohibit the shipment from the State of the innocuous products of producers who are pursuing a course sanctioned by the laws of the State and in no wise in itself interfering with interstate commerce." The opposite view is represented by Donald Richberg, of the New York bar, who sets forth a much broader interpretation of the Federal power. He holds that just as Congress has the undoubted authority to free interstate trade from such obstacles, hindrances and injurious or harmful elements as combinations in restraint of trade, unsanitary meats, harmful or fraudulent foods and persons or objects transported for immoral purposes, so it has the full power to bar out from national commerce the elements of unfair competition. One of these is the employment of child labor. In its efforts to protect the producer and the whole community from unfair competition, Congress has forbidden the formation of monopolies. Can it not, in pursuance of the same high purpose, forbid the participation in national trade of those who seek to undermine competition by equally reprehensible means; namely, the employment of children of tender age? Neither of these view-points has yet received the final stamp of approval of the Supreme Court but the more advanced point of view seems to offer opportunities for the advantageous extension of Federal power, and has been closely approached by the Court in its decisions on the Mann Act, already described.1 REFERENCES BARNES AND MILNER: Selected Cases. Report & Regulations Bureau of Animal Industry, Dept. of Agriculture. Report & Regulation under Food and Drugs Act, Bureau of Chemistry, Dept. of Agriculture. Annual Report: Commissioner of Immigration. 1 Hoke and Economides v. U. S., 227 U. S. 308; 1913. Address of Senator Philander C. Knox, Yale Law School, 1907. T. H. CALVERT: Regulation of Commerce under the Federal Constitution. QUESTIONS I. If the Federal Government has no authority over manufactures what power has it to pass a pure food law, or a meat inspection act? 2. Why were such acts passed, in 1906? 3. Outline the chief features of the food and drugs act. 4. Explain what is meant by misbranding under the act. 5. By adulteration. 6. The Pure Candy Company manufactures bon bons containing brandy. It labels the box simply "bon bons." Has the act been violated? Explain. 7. It colors other bon bons with chrome yellow. Is this legal? Reasons. 8. A manufacturer labels his product "preserved strawberries." It contains 60% of strawberries, the balance being squash and apple. Has he violated the act? Explain. 9. A manufacturer of breakfast foods located in Chicago prepares a mixture of Minnesota oats and labels it "Edinburgh Scotch Breakfast Oats"; he makes another mixture of dried corn flakes with sugar and labels it "Elijah's Manna"; a third he makes from a good quality of wheat flour and labels it “Buckwheat Brain Builder." He sells these to the trade in various parts of the country. Explain fully the legality of each label. IO. The government prosecutes a drug manufacturer for adulterating his camphor sold to the trade. What standard will be used to measure the purity of the drug? II. Wisconsin passes a law regulating the labels of packages offered for sale at retail within the State. This conflicts with the labels prescribed by the Federal Government for goods sold in interstate trade. Which law takes precedence on packages exposed for retail sale in Wisconsin? Reasons. 12. In 1911, Dr. Quack circulated in interstate trade his Magic Consumption Cure. The label and wrapper say nothing of the ingredients but both guarantee a sure cure for consumption if the remedy is taken persistently, a teaspoonful after each meal. Upon analysis, the cure is found to contain one part of salt and ten parts of water. Has the law been violated? Explain fully. 13. In 1914, Dr. Quack continues his sales of the remedy under the same conditions. Can he be prosecuted? Explain fully. 14. Explain the provisions of the Net-weight Act. 15. You are about to enter the business of slaughtering and packing of meat products for interstate trade. Explain fully the inspections to which your business would be subjected by the Federal Government. 16. Has Congress any authority to regulate morals in connection with interstate trade? 17. The U. S. law prohibits the circulation of lottery tickets in interstate commerce or through the mail. John Doe sends a package of such tickets by Parcels Post to another State. When prosecuted he pleads the Fifth Amendment. Decision of court, with reasons. 18. He urges in his defence that lottery tickets are not objects of "commerce" in the sense of Section 8 of Article I. Decide with reasons and cite a precedent. 19. Can Congress exclude from national commerce, articles which are not injurious nor intended for an improper purpose? Reasons. 20. A manufacturer prepares for interstate shipment, a lot of goods which may not circulate in interstate commerce under the law, and leaves them in his shipping room, sending meanwhile for the Express Company. Has he violated the act? 21. The goods are placed on the train for shipment to another State, but the train has not yet reached the State boundary. Has the act been violated? 22. He delivers them to the express company which takes them to its depot, but has not yet placed them on the train. Has any violation of the Act occurred? 23. Outline briefly the educational work among manufacturers and other producers carried on by the bureau of chemistry. QUESTIONS ON IMMIGRATION I. What constitutional authority has Congress over immigration? 2. Enrico Alfano migrates from Naples to New York. What tax is imposed upon him on entrance and from whom is it collected? 3. Which of the following persons are excluded from the United States under the Immigration Act-give the provisions of the act covering each case: (a) John McGinniss, an epileptic invalid. (b) Mary McGinniss, an idiot. (c) Wm. McGinniss, aged 30, who has had several attacks of insanity, but is now in possession of a physician's certificate stating that he is sane. (d) Philip McGinniss, who was insane three years ago but who has now a physician's certificate as to sanity. (e) Jacob McGinniss, who has no dangerous contagious disease, but is blind, friendless, and penniless. (f) Michael McGinniss, who has served out a term in prison for manslaughter. (g) Antonio Bonato, who has been convicted of a trifling misdemeanor in Naples, but has been allowed to go free and his passage paid to America by the city of Naples. (h) Paolo Lombardi, who has been engaged by the Columbus Coal Company to work in its mines and E. Caruso, who has been engaged by the Metropolitan Opera Company to sing in New York and Philadelphia. 4. The cost of supporting certain excluded persons is $920. Who pays it? Suppose it is not paid as required by law, what can the government do? 5. What does the act provide as to the way in which they shall be deported. 6. John Nomunno becomes a pauper and enters the alms house two years after his immigration to New York. What does the act provide as to his cost? 7. Could Congress forbid all immigration for five years? Reasons. 8. Could it prohibit all immigration permanently? 9. Explain the Federal Government's special protection to women in interstate travel by the Mann Act of 1910. 10. Explain fully the constitutional basis of the arguments made by the defense in Hoke and Economides v. U. S. II. Congress forbids the entrance to this country of certain undesirable aliens. Such an alien having lived here for six years goes back to his native land for a short time and then seeks to re-enter the United States. Can he be legally excluded? 12. Could Congress constitutionally attack a business which it considers immoral, such as stock gambling and speculation, by forbidding the passage through the mails or by interstate telegraph or telephone of messages and orders for the purchase of stock on exchanges which were not incorporated according to certain rules? 13. Senator X introduces a bill excluding from interstate trade the products of factories in which children under 14 are employed. Give the arguments for and against its constitutionality and your own views on the subject. CHAPTER X POWERS OF CONGRESS-Continued THEIR RELATION TO STATE POWERS OVER COMMERCE The Original Rule on State Powers.-Having examined the authority of Congress over national trade, and having seen that it is absolute and unquestioned, we shall now consider how far a State government can control commerce. Briefly, it may regulate that which is entirely within its own boundaries and may exercise a limited control even over interstate trade in certain cases, subject to the tacit consent of Congress. Its authority over national commerce has been a matter of gradual growth through a series of important Supreme Court decisions, of which a few may be briefly mentioned. The first rule established was that no State could interfere in national trade. The question at issue was the grant by a State of a monopoly of steam navigation which, the owner contended, barred out all other steam vessels from the use of the State ports. Fulton and Livingstone, as a reward for their services in inventing and perfecting the steamboat, had received from New York such a monopoly of steam-navigation in the waters of that commonwealth. They sold the right to another person who tried to enforce it by preventing all other steamboats from entering the ports of New York from other States. The owner of a steam vessel plying between New Jersey and New York resisted this action and in 1824, in the celebrated case of Gibbons v. Ogden, 9 Wheaton, 1, the United States Supreme Court decided that no State could grant a monopoly affecting interstate trade because the Constitution had given Congress the power to regulate that trade. The monopoly therefore could only apply to waters entirely within the State of New York and not to those which formed avenues of interstate traffic. A similar ruling was delivered in the case of Brown v. Maryland, 12 Wheaton, 419, in 1827. Here the State had levied a tax on importers in the form of a business license of fifty dollars. The Court held this license unconstitutional in that it interfered with importing or foreign commerce. If these decisions had stood without further change the States would have had no control whatever over national commerce. The Rise of State Power.-The entering wedge of State authority was driven in the case of Cooley v. The Port Wardens of Philadelphia, 12 Howard, 299, in 1851, and a new interpretation was given to the commerce clause. The Supreme Court declared that |