Argument for Defendants in Error and Appellees. 213 U.S.

Pennsylvania, approved April 26, 1855 (P. L. 329); Commonwealth v. Monongahela Company, 216 Pa. St. 114; Shepard's Estate, 170 Pa. St. 323; Conley v. Mathieson Alkali Works, 190 U. S. 406; Commonwealth &c. v. N. Y., L. E. & W. R. R. Co., 132 Pa. St. 591; Buffalo Loan, Trust & Safe Depi Co. v. Medina Gas & Electric Co., 162 Ni Y. 67, 76; Saranac & Lake Placid R. R. Co. v. Arnold, 167 N. Y. 368, 374; Peterson v. C., R. 1. & P. Ry. Co., 205 U. S. 364; Pullman Car Co. v. Mo. Pac. Co., 115 U, S. 587, và tin hoa don ha ruin on "hoa

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The commodities clause is unconstitutional because its penalties are so prescribed as practically to amount to a denial of an opportunity by railroad companies to obtain a judicial de termination of the questions involved. See Ex parte Young, 209 U. S. 147; Pollock v. Farmers' Loan & Trust Co., 157 U. S. 595; Chicago Railway Co. v. Minnesota, 134 U. S. 418, 456.b >The commodities clause is unconstitutional because, making illegal discriminations, it is not due process of law. If the act is improperly discriminating in any vital part, it is invalid as to the whole. All the vital portions of an act constituting a whole, have mutual relation, and any failure in any one vital part destroys the entire enactment. Non-uniformity cannot be sustained because sought to be effected under the guise of a classification of that which cannot be classifiedi A statute of the United States, establishing a public policy, in the matter of uniformity must stand upon the same basis as a statute of as a st a State. Connolly v. Union Sewer Pi Pipe Co., 184 U. S. 560. The commodities clause discriminates in three important particulars: between different owners of coal, without justification; between carriers of timber and its manufactured products; between different classes of common carriersas nenol.-M

The commodities clause is unconstitutional because itriforbids a railroad company, obeying every rule of transportation prescribed by Congress, to transport an article of commerce which not only is harmless, but is one of the necessaries of lifes The act is not a regulation but a prohibition Insdiscussing this proposition, there is no difference between the rights of

213 U.S. Argument for Defendants in Error and Appellees.

an individual and the rights of a corporation. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 204. The Lottery Case, 188 U. S. 321, is not an authority sustaining the right of Congress to pass the commodities clause. In the present case, the article carried is harmful neither to morals nor to health. It is a necessity of life. The Lottery Case (supra), quoted from and discussed. As to what is included in the word "commerce," see Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 203...

Whilst prohibition of the transportation of articles injurious to health or morals is included within the idea of a regulation of commerce, a prohibition of such transportation, where the articles are necessaries of life, is not within such idea. A re+ quirement that transportation shall be conducted without favoritism, or discrimination, and not at excessive rates, is included within a regulation. Congress may forbid contracts in restraint of trade, because such contracts interfere with commerce and indirectly regulate the same. The Addyston Case, 175 U. S. 211, 226. podvoung 7.21 you left aft na wef m sid Where articles are forbidden to be transported because the owner is engaged in the carriage of like commodities for itself as well as for others, such forbidding goes beyond the province of regulation and introduces something not within the grant of a power to regulate, i. e., a condemnation of a duality of ownership and transportation which had resulted from legislation by the States, in a matter over which they had control. It practically takes away property, or at least destroys the value of property, vested in its owner by the law of the only country which can control it, i. e., the State in which it is located.3)

Commerce does not result from any grant in the Constitution, to Congress, of power to permit or disallow the same, nor from any permission by Congress. It is an inherent right, possessed by every citizen. A prohibition, therefore, which, does not regulate the right, but denies and destroys it, must rest upon a power different from that granted by a permission to regulate, as son ei,108 & J 002,,noissamme amame 0

Argument for Defendants in Error and Appellees. 213 U.S.

The very grant of power to regulate commerce, recognizes the existence of a right to carry it on, derived from some other, and independent, source.

The right of property is one secured to every citizen of the United States, under and against the Government, by the Constitution of the United States. This right, which, as will be probably conceded, includes that of commerce, is taken away by the commodities clause. Countless hundreds of millions of dollars of property values are destroyed at a stroke of the Congressional pen, without evidence of the existence of any necessity for such destruction.

The interstate commerce which is forbidden by the commodities clause is (1) transportation of its own products by a railroad company; and (2) sales by the citizens of one State, of their property, to citizens of another State, under certain circum

stances.

Conceding the right to regulate the transportation in such way and manner as to compel it to conform to all such reasonable rules as the legislature may prescribe, the right does not exist to prohibit it where such rules are complied with. Included in this denial, is a denial of the conclusion that duality of ownership and of transportation, ex necessitate, amounts to violation of such rules of transportation.

Neither intercourse between the States, involving a carriage of persons or of property, nor transactions of sale and purchase, involving a delivery, can be forbidden, unless the person against whom the prohibition goes, violates some law enacted properly in exercise of the power to regulate. See Northern Securities Co. v. United States, 193 U. S. 197, 199; Gibbons v. Ogden, 9 Wheat. 1, 196; Adair v. United States, 208 U. S. 161; Dobbins v. Los Angeles, 195 U. S. 223, 236; Interstate Commerce Commission v. Brimson, 154 U. S. 447; Ex parte Jackson, 96 U. S. 727; Chicago Ry. Co. v. Minnesota, 134 U. S. 418, 455. Case of Union Bridge Co. v. United States, 204 U. S. 364, discussed and distinguished. The case of New Haven Ry. Co. v. Interstate Commerce Commission, 200 U. S. 361, is not an authority in

213 U. S. Argument for Defendants in Error and Appellees.

support of the contentions of the United States herein. The se is clearly distinguishable from the case at bar.

Foreign commerce is the intercourse between two countries, which, often, may be hostile. In determining the extent of, and limitations upon, foreign commerce, we have recourse to the law of nations. We find that one nation, for the protection of its citizens and its property, may put an embargo upon trade and fetter the intercourse. Were it otherwise, the nation itself might be destroyed, because of its inability to protect itself against the danger of unlimited intercourse. When, therefore, Congress regulates foreign commerce, it regulates something which has inherent limitations. The nation's protection may be involved in the exercise of a power, under certain circumstances, to bar all communication. There is no need, and no right, to forbid the citizens of one State from transferring their possessions and their persons to another.

The theory of the Government is, that Congress may destroy the existence of several branches of commerce, and regulate what remains.

Domestic commerce is very different in its nature, scope and extent. It is the intercourse between the citizens of the different States in the transportation of persons and property from one to the other. This intercourse between citizens of the different States is an intercourse of persons, all of whom are citizens of a Union, which was largely created in order to bring about unlimited intercourse, saving only to such extent as it should be found necessary to regulate the same.

It is a fundamental right of every owner of property in one State, to sell it to citizens of another State, and to have the same, when thus sold, transported. This right cannot be forbidden by Congress. However the intercourse may be regulated; such regulation must proceed upon the concession of the inability to deprive, altogether, of the right.

If Congress may forbid commerce between the States in the sense of transactions in trade in harmless articles, it may forbid intercourse between persons. It may forbid the carrier to VOL. CCXIII-25

Argument for Defendants in Error and Appellees. 213 U. S.

transport its shareholders or its directors, because it may be tempted to give them greater privileges in their carriage. Buttfield v. Stranahan, 192 U. S. 492; Lawton v. Steele, 152 U. S. 133; Railroad Co. v. Richmond, 19 Wall. 584.

The commodities clause is unconstitutional because it was intended to violate, and does actually violate, a right reserved to the States.

Any Federal statute which has for its purpose the destruction of title to property or of the enjoyment of property, title to which is vested by the law of the State in a third person, trenches upon the reserved right under the Tenth Amendment: United States v. Fox, 94 U. S. 315.

The commodities clause is unconstitutional because, in violation of constitutional restrictions upon the exercise of the right to regulate commerce, it deprives of liberty and property.

The power possessed by Congress to regulate commerce must be so exercised as not to destroy the right to dispose of property, or to make legal contracts concerning the use, or transportation, thereof.

To forbid a coal company to sell its coal to the citizens of another State, or to cause the same to be transported into such State, is to deprive it of its "liberty," because of the deprivation of the power to use its property, in accordance with its legal right. McCray v. United States, 195 U. S. 27; Carroll v. Greenwich Ins. Co., 199 U. S. 401; Butchers' Union Co. v. Crescent City Co., 111 U. S. 746; Powell v. Pennsylvania, 127 U. S. 678; Monongahela Nav. Co. v. United States, 148 U. S. 336; Allgeyer v. Louisiana, 165 U. S. 589.

The commodities clause is unconstitutional because it is in effect a taking of private property for public use without compensation.

An ownership of coal shares, involves the right to receive whatever benefit may result from the exercise of powers conferred by the law of the State which incorporated. Practically, to destroy the exercise of its franchises by the company, is to take its property as completely as though it was physically