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upon what had been held to be an incident of commerce

-a sale in the original package. While the opinion contains the extracts cited in the majority report, the court in that case strongly emphasizes the national control over commerce in the several States and also the want of power in Congress to delegate that control, saying, at

page 560:

Nor can Congress transfer legislative powers to a State, nor sanction a State law in violation of the Constitution, and if it can adopt a State law as its own, it must be one that would be competent for it to enact itself and not a law passed in the exercise of the police power.

The court carefully restricts the opinion to the case then before it, saying:

The framers of the Constitution never intended that the legislative power of the nation should find itself incapable of disposing of the subject-matter submitted to its charge. The manner of that disposition brought into determination upon this record involves no ground for adjudging the act of Congress inoperative and void.

And the opinion concludes with this statement: Jurisdiction attached not by virtue of the law of Congrses, but because the effect of the latter was to place the property where jurisdiction could attach.

Of course the question whether the proposed bill would be constitutional has not been passed upon by the Supreme Court, but in the later case of Rhodes v. Iowa (170 U. S., 412) the court says:

The sole question presented for consideration is whether the statute of the State of Iowa could be held to apply to the box in question whilst it was in transit from the point of shipment, Dallas, Ill., to its delivery to the consignee at the point to which it was consigned—that is to say, whether the law of the State of Iowa can be made to apply to a shipment from the State of Illinois before the arrival and delivery of the merchandise, without causing the Iowa law to be repugnant to the Constitution of the United States.

The court then proceeds to hold that the law of Iowa is invalid, although it may be said that it expressly withholds its judgment upon the question whether the Congress has the constitutional power to subject interstate commerce before delivery to such legislation. But in construing the Wilson law, on page 424, the court says:

Whilst it is true that the right to sell free from State interference interstate-commerce merchandise was held in the Leise v. Hardin case to be an essential incident to interstate commerce, it was yet but an incident, as the contract of sale within the State in its nature was usually subject to the control of the legislative authorities of the State. On the other hand, the right to contract for the transportation of the 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 laws of the several States, since it embraced a contract which must come under the laws of more than one State. The purpose of Congress to submit the incidental power to sell to the dominion of the State authority should not without the clearest implication be held to imply the purpose of subjecting to the State laws a contract which in its very object and nature was not susceptible to such regulation, even if the constitutional right to do so existed, as to which no opinion is expressed.

In Vance v. Vandercook Company (170 U. S., 438), decided on the same day as the Rhodes case, the court said, at page

451: The interstate-commerce clause of the Constitution guarantees the right to ship merchandise from one State into another and protects it until the termination of the shipment by delivery at the place of consignment, and this right is wholly unaffected by the act of Congress which allows State authority to attach to the original package before sale, but only after delivery.

In Heyman v. Southern Railway, decided December 3, 1906, the court says:

As the general principle is that goods moving in interstate commerce ceases to be such commerce only after delivery and sale in the original package, and as the settled rule is that the Wilson law was not an abdication of the power of Congress to regulate interstate commerce, since that law simply affects an incident of such commerce by allowing the State power to attach after delivery and before sale, we are not concerned with whether, under the law of any particular State, the liability of a railroad company as carrier ceases and becomes that of a warehouseman on the goods reaching their ultimate destination, before notice and before the expiration of a reasonable time for the consignee to receive the goods from the carrier.

For, whatever may be the divergent legal rules in the several States concerning the precise time when the liability of a carrier as such in respect to the carriage of goods ends, they can not affect the general principle as to when an interstate shipment ceases to be under the protection of the commerce clause of the Constitution, and thereby comes under the control of the State authority.

If the question whether the power of Congress to regulate commerce is exclusive or concurrent with a like power in the State is to be determined not from the nature of the power itself, but from the nature of the subjects over which the power is to be exercised, and whatever subjects of the power are in their nature national and admit only of one uniform system or plan of regulation are subject to the exclusive jurisdiction of Congress and those which are local in their nature subject to the concurrent power of the State and the nation, this would furnish ground for the distinction between the incidental power of sale in original packages which ordinarily is local in its nature from the subject of interstate commerce before delivery essentially national in character.

It is conceded that Congress can not delegate its own power nor enlarge those of a State, nor give State laws extraterritorial jurisdiction, and that the jurisdiction of Congress over interstate commerce is exclusive and supreme. The Constitution gives to Congress the power to regulate commerce between States. It requires the judgment of Congress upon the propriety of any regulation of such commerce. Legislation which subjects fundamental interstate commerce to the police power of the State is not a regulation. It is an attempted surrender of jurisdiction by Congress and an invalid delegation of power to the States. The first paragraph of the pending bill does not declare any rule to govern interstate commerce. The judgment of Congress as to what rule shall obtain is not given. The only rule provided is to determine when the jurisdiction of the States shall attach. It is the jurisdiction of the State which is determined upon and that only, and that jurisdiction is given them of a subject committed to the exclusive power of Congress.

In these days of the greatest demand for enlarged national jurisdiction it is of great practical importance that national jurisdiction should not be wrongfully surrendered. The Constitution has committed to the Congress the regulation of commerce between the several States. The responsibility of the proper regulation thereof is upon Congress. It can not substitute for its judgment as to what regulation should obtain the legislation of the several States in the exercise of their police power. It is the power and the duty of Congress to determine what regulation is necessary and proper, and it is within its jurisdiction to enact any regulation which may be deemed proper and desirable.

I believe that over interstate commerce there should be but one regulating power, and that the power of the nation. I believe that any form of legislation which transfers the power of regulating fundamentally the commerce between the States from the nation to the States is an enlargement of the power of the State by the delegation of the national power to it and would result in giving to the States extraterritorial jurisdiction and therefore to be clearly unconstitutional

JOHN H. FOSTER,

Of Indiana. O

CONGRESS

BURIAL OF WIVES OF DECEASED ENLISTED MEN.

JANUARY 25, 1907.-Referred to the House Calendar and ordered to be printed.

Mr. CAPRON, from the Committee on Military Affairs, submitted

the following

REPORT.

[To accompany H. R. 34.]

The Committee on Military Affairs, to whom was referred the bill (H. R. 34) to empower the Secretary of War to allow burial of wives of deceased enlisted men in national cemeteries in the same graves as deceased soldiers, submit the following report:

This bill provides for the burial of wives of deceased enlisted men in the same graves with their husbands in national cemeteries and is favorably recommended by your committee.

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