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We contracted the prisoners out to the highest bidder for certain purposes. We found that the contractors were not always humane toward the prisoners. We found that there were abuses of every kind and complaints such as we have recently heard about some of the States in the Union.
We therefore tried another plan. The State purchased farms and on those farms these convicts are worked, worked under overseers out In the open air, in the most healthful condition in which they could be placed. We have very thorough discipline. There is no mutiny or unbecoming conduct in the mass amongst our prisoners. We have gone along with that system.
Mr. KINDRED. Mr. Chairman, will the gentleman yield?
Mr. BUSBY. Yes.
Mr. KINDRED. Did the gentleman say that it is humane to farm out prisoners at the present time?
Mr. BUSBY. I did not. say that we farmed out our prisoners. I said that we worked them on State farms.
Mr. KINDRED. Did they not work under contract in the gentleman's State at one time?
Mr. BUSBY. Yes, they did; until we learned a better way, that is what I am telling you. You gentlemen who are complaining ought not to let your States continue to contract their prisoners out Correct that and you will have all of this trouble which you are trying so correct through Congress taken care of at home.
Mr. CARSS. If we pass this law, that will be a move in that direction, will it not?
Mr. BUSBY. It will not.
Mr. CARSS. If we prohibit contract goods coming into a State and being sold, naturally the contractor will be put out of business.
Mr. BUSBY. You are going at it in a far-fetched way. Why not go the State legislatures and tell them that they have adopted the wrong system and work it out in that way?
Mr. KINDRED. There are two major things that are desirable to accomplish by the bill which we are now discussing. One is to give wholesome and humane employment to the great body of prisoners in the respective States, and the other is to mett the objections of the American Federation of Labor to the situation that now exists. How are you going to do It?
Mr. BUSBY. I do not know that I am going to do it either way; I do not know that I am going to be scared to death by not doing it. I think one reason we are lined up in the way we are is because the manufacturers and the organizations are outside of the prisons and can vote, and the fellows that you are talking about and discriminating against are behind the prison bars and can not vote.
Mr. CASEY. Mr. Chairman, will the gentleman yield?
Mr. BUSBY. Yes.
Mr. CASEY. As a fundamental question, does the gentleman believe we should be legislating for the men behind the bars in preference to the free labor?
Mr. BUSBY. No; I did not say that; but I do not think that we ought to try to crucify the fellows behind the bars here on the floor of the House of Representatives, and I do not think we ought to be discriminating against them because they can not be heard simply because we get a call from back home.
Mr. CASEY. Do you think we should be here discriminating against the free labor that has to pay the taies to feed those people?
Mr. BUSBY. We tried in Mississippi the contract system for a long time, but it did not work well. We tried another plan. We bought three State farms. One of the easiest crops we could raise was cotton, so we placed our convicts out in the open on these farms, in competition, you will say, with farmers. They produced hundreds of thousands of bales of cotton, and instead of being a burden on the State treasury every year we found they could produce these products to advantage and add considerably to the State treasury. I have a letter here from Dr. L. T. Fox, superintendent of the State penitentiary. Under date of April 9, 1928, he says:
Mississippi Stati Pbnitentury,
Parchman, Mls»., April 9, 19K. Hod. Jbff Bcsbt,
Home of Representatives, "Washington, D. O.
My Deak Mr. Bdsby: There has been Introduced In Congress what Ie known as tbe Hawes-Coopcr bill, restricting the sale of prison-made goods to State Institutions.
I do not know all Hie provisions of the bill and do not know that It would apply to our cotton raised on the penitentiary farms, but the principle of the bill is wrong because such a policy would ultimately lea;l to enforced Idleness of all prisoners, which everyone knowing anything about penal administration knows, is bad for the prisoners and unsound economically.
I am writing to urge that you bend every effort to defeat this bill. If It did apply to our cotton production, it would wreck our peni
tentiary system which is, without question, the greatest system In existence, that of working the prisoners In the open air. Furthermore, It would mean a great economic loss to tfie taxpayers of the State. We have during the last four years put $729,000 more Into the treasury than we have taken out.
Expressing the hope that yon will use your Influence against this bill and with personal regards, I am, Sincerely yours,
L. T. Fox, Superintendent.
That is the best system, and that is the system on which, if the welfare workers would fight for to get the penitentaries on a sound basis, we could back them and they would receive our support.
Mr. CROWTHER. Mr. Chairman, will the gentleman yield?
Mr. BUSBY. Yes.
Mr. CROWTHER. The gentleman has expressed the hope that something might be clone to do something for the people who are dependents on these convicts. Did the State do anything for them as the result of this work? Did they return any portion of that income?
Mr. BUSBY. I can not say they did; but I have never been a member of the State legislature, and can not be held responsible for that.
Mr. BRIGHAM. Mr. Chairman, will the gentleman yield?
Mr. BUSBY. Yes.
Mr. BRIGHAM. Is it not a fact that some of the States do give a portion of the money derived to the prisoners?
Mr. BUSBY. Yes. Now, I have no criticism for the people who are backing a bill like this, or for the organizations that are backing the bill; but I can not understand how we can sweep aside all economic principles and the Constitution and do the other things for which there is no reason or Justification. [Applause.]
The CHAIRMAN. The time of the gentleman from Mississippi has expired.
Mr. KOPP. Mr. Chairman, I yield myself 15 minutes.
The CHAIRMAN. The gentleman from Iowa is recognized for 15 minutes.
Mr. KOPP. Mr. Chairman, the Committee on Labor had full and complete hearings on this bill. Many manufacturers and representatives of labor appeared before the committee in favor of the bill. The Federation of Women's Clubs, through their reprasentatives, also appeared before the committee on behalf of the bill. Special opportunity was given to the opponents of the bill to be heard. The committee was particularly anxious to hear every objection that could be urged. Most of those who appeared against the bill were connected in some manner with the management of prisons.
In the consideration of this bill we are confronted by two major questions. First, is the policy of the bill sound? Second, is the bill constitutional? On account of my limited time I shall confine myself to the second question.
It is no doubt true that this bill, if enacted into law, will be assailed in the courts on the ground that it is unconstitutional. It was urged before the committee that the bill was unconstitutional, and I presume a similar claim will be made here on the floor. In my judgment, however, this bill is constitutional, and I fully believe that if it ever comes before the Supreme Court of the United States it will be sustained by that high tribunal.
Before proceeding further, however, permit me to suggest that simply because some one questions the constitutionality of a bill is not a sufficient reason for voting against it. True, no Member should vote for a bill which he himself regards as unconstitutional, but if a bill embodies your convictions and you believe it is constitutional, you should not hesitate to vote for it whatever others may do. Nothing is conjured up more often or more readily by those opposed to a bill than a doubt as to its constitutionality. Practically every progressive piece of legislation has been attacked upon that ground. Bear in mind also that if a bill is defeated here there is no way in which it can be brought before the Supreme Court of the United States to have its constitutionality determined.
You are all familiar with what is known as the commerce clause of the Constitution of the United States. This clause provides that Congress shall have power—
To regulate commerce with foreign nations and among the several States.
Many learned dissertations have been written on this clause. Numerous decisions have construed it, but it is still open to discussion and probably will be debated as long as our Government survives. I do not claim that I can throw any new light on this important and much-discussed subject. All I can hope to do is to call your attention to a few important decisions and indicate to you the bearing that these decisions, as it
to mo. have upon the bill now under consideration. First, permit me to call particular attention to the terms of this hill. It defines no crimes and provides no penalties. No appropriation is required to carry it into effect. It simply divests prison-made goods of their interstate character and makes them subject to the lawn of the different States to (he same extent mid in the same manner as though such goods hud be;'n manufactured in such States.
Mr. GAKBEK. Mr. Chairman, will the gentleman yield?
Mr. KOl'P. Yes.
Mr. GAKHKR. Does the gentleman make any provision to di.-'close the identity of the goods? Is there any machinery set up in the bill to reveal the character of the goods?
Mr. KOl'P. No. That all depends on State legislation. This is simply an enabling act.
As you are well aware, by the tenth amendment all powers not delegated to the United States nor prohibited to the States are reserved to the States, respectively, or to the people. This amendment has often been invoked in attacking the constitutionality of an act of Congress. Again and again it hns been claimed that Congress has trespassed upon the reserved powers of the States. No such claim, however, can be made here. Under this bill Congress instead of taking away the reserved powers of the States protects them must fully. While the bill does not delegate any powers to the States, it does, in fact, give certain State laws a broader application. This bill, if passed, will be an enabling act for the States.
Quite a number of States have passed laws regulating the sale of convict-made goods. The most common requirement has been the marking or branding of convict-made goods before offering them for sale. All of these laws have l»een held unconstitutional as to convict-made goods shipped in from other States. Thus the only effect of these laws has been to restrict the sale of those convict-made goods manufactured in the State where sold. The States have been, and are to-day, helpless against the convict-made goods shipped in from other States. This bill will enable the States to regulate the sale of prisonmade goods shipped in from other States as well as tho.se manufactured or produced within their own borders.
The history of the enabling act upon which this bill is based is an interesting one. The quc'stiou as to its constitutionality came before the Supreme Court of the United States In passing upon the Wilson law, which went into effect on August 8,! 1890. Iowa had adopted prohibition by statute, but the Federal courts held that as long as intoxicating liquors were in the original packages they could nevertheless be sold within the State. Senator Wilson, of Iowa, introduced a bill to remedy the situation and this bill after being vigorously attacked as unconstitutional was passed and became a law.
Mr. J..AGUARDIA. Mr. Chairman, will the gentleman yield?
Mr. KOPP. Yes.
Mr. Laguardla. And two months later a decision was laid down in the original-package case?
Mr. KOPP. I thank the gentleman for his interruption. The terms of this bill were as follows:
Be ft cnncttt, etc., Tliat nil fermented, distilled, or other intoxicating liquors or liquids, transported Into tiny State or Territory, or remaining: therein for lisp, consumption, snip, or storage therein, shall upon arrival j in such State or TVrrltory he subject to the operation and effect of the j laws of sueh State or Territory enacted In the exercise of its police powers, to the same extent and In the same manner as though sueh liquids or liquors had been produced in such State or Territory, and shall not he exempt therefrom by reason of being introduced therein in original packages or otherwise.
The Wilson law was quickly attacked in the courts. Kansas at the time also had a prohibitory law. A citizen of that State made a sale of intoxicating liquors in original packages shipped i from Kansas City. Mo. He was arrested under the State law and immediately applied to the United States circuit court for a writ of habeas corpus. The case went to the Supreme Court of the United States and there the law was fully sustained. (In re Rabrer, 140 U. S. 545.) Said the court:
It does not admit of argument that Congress can neither delegate its own powers nor enlarge those of a State. This being Ho, it is urged that the act of Congress can not be sustained as a regulation of commerce. • » •
Congress has not attempted to delegate the power to regulate commerce, or to exercise any power reserved to the States, or to grant a power not possessed by the States, or to adopt State laws. It has taken its own course and made its own regulation, applying to these subjects of interslate commerce one common rule, whose uniformity is not affected by variations In State laws in dealing with such property.
The principle upon which local option laws, so called, have been sustained la that while, the legislature can not delegate its power to make a law, it can make a law which leaves It to municipalities or tlie
people to determine some fact or state of things, upon which the action of the law may depend; but we do not rest the validity of the act of Congress on this analogy. The power over interstate commerce is too vital to the integrity of the Nation to be qualified by any refinement of reasoning. The power to regulate Is solely in tile General Government, and It is an essential part of that regulation to prescribe the regular means for accomplishing the introduction and incorporation of articles into and with the mass of property in the country dr State. (12 Wheat. 44S.)
No reason la perceived why. if Congress chooses to provide that certain designated subject? of interstate commerce shall he governed by a rule which divests them of that character at an earlier period of time than would otherwise be the case, it is not within Its competency to do so.
The bill we are now considering was patterned after the Wilson law. All it seeks to do is to divest convict-made goods of their interstate character earlier than would otherwise be the case. If the Wilson law was constitutional, why is not this bill constitutional?
Mr. MONTAGUE. Mr. Chairman, will the gentleman yield there?
Mr. KOPP. Yes.
Mr. MONTAGUE. Does the gentleman draw this distinction, that in the Wilson law they were dealing with a class of goods that was considered immoral? That involves the police power of the State. In this case the goods are apparently innocent.
Mr. KOPP. That was not the point made by the Supreme Court of the United States.
Mr. MONTAGUE. They were dealing with that fact, and the facts of the two cases are different.
Mr. KOPP. I will answer that a little more fully later.
Mr. MICHENER. Mr. Chairman, will the gentleman yield there?
Mr. KOPP. Yes.
Mr. MICHENER. Right on that point, does the gentleman think Congress could pass a law providing that goods made by Chinamen could be dealt with as here provided, or goods made by Methodists or by Baptists or by white people, as distinguished from others?
Mr. KOPP. No.
Mr. HUDSON. Why not? This bill involves a class of goods made by a particular class of people.
Mr. KOPP. I am not giving you my opinion, but the opinion of the Supreme Court of the United States.
Mr. HUDSON. But the Supreme Court was rendering a decision in regard to an act involving an article which is considered injurious. That was the case before the court.
Mr. KOPP. It did not say so. The language in that is exceedingly broad.
Mr. VINSON of Kentucky. Mr. Chairman, will the gentleman yield?
Mr. KOPP. Yes.
Mr. VINSON of Kentucky. Were you referring to the language in the Knhrer case?
Mr. KOPP. Yes.
Mr. VINSON of Kentucky. The gentleman is familiar with the fact that the statute in the Rahrer case is materially different from the statute under consideration at this tiu'ie. in that it provided that the commodities entering interstate commerce came under the jurisdiction of laws involving the police power.
Mr. KOPP. I think that would be the same thing here; I do not think it would be any different.
Mr. VINSON of Kentucky. Why did not the gentleman's committee incorporate that language?
Mr. KOPP. I did not draw the bill. I will say to the gentleman, but I think the effect is Just the same, as far as the result is concerned.
Mr. VINSON of Kentucky. In other words, the gentleman does not think the police power had anything to do with the decision of the Supreme Court in the liahrer case?
Mr. KOPP. I think it had. If the State had had no police power, it could not constitutionally have passed such a law;' and if Iowa could not constitutionally have passed a prohibitory law, then the Wilson law would not Inive had any effect.
Mr. VINSON of Kentucky. Does the gentleman understand that any law that would be enacted after this bill heroines a law would have to be bottomed upon the police power of the State?
Mr. KOPP. Yes: and it must he constitutional.
Mr. VIX.SON of Kentucky. But would it have to be bottomed on the police power?
Mr. KOPP. Generally speaking: yes.
Mr. WHITTINGTON. Will the gentleman yield?
Mr. KOPP. Yes.
Mr. WHITTINGTON. What Is the ground for sustaining the constitutionality of these statutes in the States, where they hnve been upheld as a regulation of police power?
Mr. KOPP. I will eoine to that a little later.
After the Wilson law had been enacted ami had been held to be constitutional the prohibition States found that one important difficulty in enforcing the prohibitory laws still remained. By reason of the Wilson law it was no longer legal to sell liquor in the original package in prohibition States, but it Whs still legal to ship liquor in the original package to resiuent.s of prohibition States.
In order to make that impossible the Webb-Kenyon bill was passed during the closing days of the third session of (he Sixtysecond Congress. This law entirely prohibited the shipment of liquor into prohibition States.
At the time the bill was passed, William II. Taft, now Chief Justice of the United States Supreme Court, was President, and George W. Wickershnm was Attorney General. When the bill reached President Tuft. Attorney General Wickersham submitted to the President a strong opinion against the constitutionality of the bill and President Taft, after very full consideration, vetoed the bill upon that ground. The bill was passed over the veto of the President and became a law. In due time it was brought to the attention of the Supreme Court of the United States. By that body, through Chief Justice White, it was held to be constitutional.
I shall refer to the opinion itself, but before taking that up, let me refer to the veto of President Tuft. In his veto he anticipated what the law would be in case the Webb-Kenyon law was sustained. You will find this language in his veto message:
If Congress, however, may iu addition entirely suspend the operation of the interstate-commerce clause upon a lawful subject of interstate commerce and turn the regulation of Interstate commerce over to the States In respect to It, it is difficult to see how it mny not suspend Interstate commerce In respect to every subject of commerce wherever the police power of the State can be exercised to hinder or obstruct that commerce.
Attorney General Wickersham also recognized that if the Wel>l>-Keuyon law was sustained it would broaden the powers of Congress beyond his previous conception. The closing paragraph of his opinion was as follows:
The proposition bess the whole question under consideration and cnn only be conceded If It be held that Congress can abdicate entirely its power over interstate commerce in an article which It does not itself declare to be "an outlaw of commerce," but which it leaves to the varying legislation of the respective States to more or less endow with qualities of outlawry.
Tlie decision sustaining the Webb-Kenyon law was rendered in Clark Distilling Co. v. Western Maryland Railway Co. (2-42 I'. S. 311). I have not the time to quote at length from the opinion of the court but I do want to call your attention to one statement. Said the court:
Reading the Webb-Kenyon law in the light thus thrown upon it by the Wilson Act and the decisions of this court which sustained and applied it. there Is no room for doubt that it was enacted simply to extend that which was done by the Wilson Act. that Is to say, Its purpose was to prevent the Immunity characteristic of Interstate commerce from being used to permit the receipt of liquor through such commerce In States contrary to their laws.
The CHAIRMAN. The time of the gentleman from Iowa has expire*!.
Mr. KOPP. Mr. Chairman, I yield myself five additional minutes.
President Taft became Chief Justice Taft. and in Brooks v. United States (267 U. S. 432). decided in 1925. as Chief Justice he referred to the decision in Clark Distilling Co. against Western Maryland Railway Co. and thus interpreted that decision:
In Clark Distilling Co. v. Western Maryland Railway Co. (242 U. 8. 311) It was held that Congress had power to forbid the Introduction of intoxicating liquors Into any State In which their use was prohibited in order to prevent the use of interstate commerce to promote that which was illegal In the State.
Mr. LO/IER. Will the gentleman yield?
Mr. KOPP. Yes.
Mr. LOZIER. Is it not true that on January 8, 1!)17. when the Webb-Kenyon Act was sustained, the Supreme Court sustoined the act of the West Virginia Legislature prohibiting the iiiiimrtiitiou of intoxicating liquors into tlie State for personal uwe by citizens of the State?
Mr. KOPP. That is true.
Mr. BUSBY. Will the gentleman yield right at that point?
Mr. KOPP. Yes.
Mr. BUSBY. Do I understand that the gentleman has any cases dealing with a subject other than intoxicating liquors?
Mr. KOPP. I will come to that.
Mr. BUSBY. I would like to hear the gentleman on that.
Mr. KOPP. The purpose of this bill is "to prevent the use of interstate commerce to promote that which is Illegal" in many States. Legislature after legislature has passed laws regulating the sale of convict-made goods, but interstate commerce hns been used to circumvent and defeat all such legislation. The States are helpless. The States do not auk that the Federal Government assume any burden, but they do ask that convict-made goods be divested of their interstate character In order that interstate commerce may no longer be used to promote that which is illegal in the States.
Mr. BURTNESS. Will the gentleman yield?
Mr. KOPP. Yes.
Mr. BURTNESS. Does the gentleman take the position that the decision of the Supreme Court in the Webb-Kenyon Act case is a precedent for this case?
Mr. KOPP. No; I do not claim that, but I do claim that the Wilson law is a precedent
Mr. BURTNESS. From what little study I have been able to make of the matter I have assumed that the decision In the Wilson case can well be cited as a precedent for this kind of legislation, but surely not under the decision in the WebbKenyon Act case, because the decision in that case was based on an entirely different proposition.
Mr. VINSON of Kentucky. Will the gentleman yield on that point?
Mr. KOPP. I must ask to l>e excused until I have made my statement.
To my mind, the real question to be determined, if this bill is enacted into law, will not be whether it is constitutional but whether the State laws in reference to convict-made goods are constitutional. We have 48 States. Many different laws may be passed in the regulation of convict-made goods. At this time there are quite a number of such laws on the statute books of the States. Some States require a license to sell convict-made goods, others that a merchant selling convict-made goods must put np a sign in large letters advising the public of such fact. One State, I believe, provides that the goods made by convicts must be sold for not less than the wholesale price of similar goods. The most general provision is the one that requires convict-made goods to he marked or branded before being offered for sale. The Wilson law, though sustained, did not give life to an unconstitutional State law. It only made State laws, that were valid a.s to intrastate liquors, valid and effective as to interstate liquors. This bill, if enacted into law, can never make valid and effective as to interstate shipments of convictmade goods any laws which are not valid and effective as to intrastate convict-made goods. No one need fear that by this bill we can breathe life into an unconstitutional State law. No such result can possibly follow, for if a State law is invalid as to intrastate goods It will also be invalid as to interstate shipments of goods. The very language of this bill says that interstale shipments of convict-made goods shall be subject to the laws of any State " to the same extent and in the same manner as if such goods, wares, and merchandise had been manufactured, produced, or mined in such State or Territory." If this bill is passed, the real battle will not be over it.s constitutionality but over the constitutionality of the different State statutes (hut may be passed on the subject of convict-made goods. If this bill is passed, it will be held applicable to every constitutional State law and inapplicable to every unconstitutional State law.
It may be claimed that States can not pass any constitutional nnd valid statutes regulating the sale of convict-made goods and that, therefore, to pass this bill will prove to be useless and futile. I doubt whether anyone will take such an extreme position, but lest some one may do so I shall say a few words on this point.
That convict-made goods are a real problem has been recognized by Congress for many years. The importation of foreign convict-made goods is absolutely prohibited. Our statute on that subject provides that—
all goods, wares, articles, nnd merchandise manufactured, wholly or in part, in any foreign country by convict labor shall not be entitled to entry at any of the ports of the United Stages, and the importation thereof Is prohibited.
Though protected by a high tariff, we y«'t provide that under no circumstances shall foreign convict-made goods be permitted to enter our markets. Why'/ Because we recognize that they are a menace to our people.
In State v. Hawkins (157 N. Y. 1) the Court of Appeals of New York passed upon a statute requiring that all convictmade goods, including those shipped in from other States, be branded before being exposed for sale. The defendant was convicted under this statute and his case finally reached the Court of Appeals. The particular goods which this defendant had exposed for sale had been made by convicts in Ohio and had been shipped into New York from that State. The New York court held that the statute was in conflict with and repugnant to the commerce clause of the Federal Constitution, and for that reason Invalid.
Judge O'Brien, who wrote the majority opinion, personnlly went further and also held the statute to be unconstitutional on the further ground that it was an unauthorized limitation of the freedom of the individual to buy and sell articles of merchandise. No other judge, however, concurred in the latter view. One of the dissenting judges was Alton B. Parker, who was chief justice at the time, and who afterwards, us you all know, became a candidate for President. Judge Parker, in referring to the statute requiring the branding of prison-made goods before being exposed for sale, said in his dissenting opinion:
It simply requires that prison-made merchandise shall be so branded that our citizens shall know whore the goods they are baying were made. This they have n right to know.
Judge Bartlctt also rendered a dissenting opinion, and, among other things, said:
The precise question, theu. is whether it Is competent for tills State, In the exercise of the police power, in order to promote the public welfare tind prosperity, to impose the restriction, already pointed out, upon the sale of convict-made goods.
I am of the opinion that It is for two reasons: (1) It Is self-evident that the protection of free labor from competition with convict-made goods in our domestic markets will promote the public welfare and prosperity; and (2) It is competent for the State to protect Its citizen from fraud or deception when niiy such goods arc offered for sale, by advising him of the fact that they are convict made, so that he may act with full knowledge In the premises.
Only one of the seven judges then serving upon the Court of Appeals of the State of New York regarded this statute as unconstitutional because it restricted the freedom to buy and sell.
Mr. HERSEY. Will the gentleman yield?
Mr. KOPP. I can not yield now on account of my limited time.
Mr. HERSEY. The gentleman is citing a dissenting opinion.
Mr. KOPP. Yes. I stated that Judge O'Brien went further in his opinion, and declared that it was an unauthorized limitation of the freedom of the individual to buy and sell articles of merchandise; or, in other words, it interfered with the freedom of contract; hut on this question six of the judges refused to follow him, among them being Judge Parker and Judge Bartlett, from whose opinions I have just read.
Mr. HERSEY. The gentleman does not wish to cite to this House dissenting opinions as authority for the position he is taking?
Mr. KOPP. The gentleman certainly would not say that a single judge, who put such a statement in his majority opinion, was authority on that point. The other judges dissented on that point, and certainly, when six judges do not concur, you would not say that that was the law, even though the other man, who wrote the majority opinion, so stated.
There seems to be an impression that the decisions in the child-labor wises in some way have a bearing upon this bill, and make it probable that this bill, if enacted into law, will not be held constitutional. An examination of the child-labor cases will clearly show to anyone that they have no application whatever in this case.
The first child-labor decision is found in Hammer i~. Dagenhart (247 IT. S. 251). An act had been passed by Congress prohibiting transportation in interstate commerce of goods made at a factory in which, within 30 days prior to their removal therefrom, children under 14 years of age had been employed or permitted to work, or children between the ages of 14 and 16 had been employed or permitted to work more than eight hours in any day or more than six days in any week, or after the hour of 7 p. m.. or before the hour of 6 a. in. A bill was filed by a father upon his own behalf and as next friend for his two minor sons, who were within the age limit fixed in the law, to enjoin the enforcement of the act on the ground that it was invalid. The act was held unconstitutional l>ec!tuse it invaded the powers reserved to the States. That decision can have no application to this bill, for this bill certainly does not invade the powers reseiTed to the States. The decision in Hammer against Dagenhiirt teems with defenses of the reserved
powers of the States. I quote briefly from the opinion written by Justice Day:
In Interpreting the Constitution, it must never be forgotten that the Nation is made up of States to which are intrusted the powers of local government and to them nnd to the people the powers not expressly delegated to . the National Government are reserved * • •. The power of the States to regulate their purely Internal affairs by such laws as seem wise to the local authority Is Inherent and has never been surrendered to the general movement * * *. To sustain this statute • » » would sanction invasion by the Federal power of the control of a matter purely local In its character.
The court was divided. The majority held that the articles manufactured by child labor were not at the time a part of interstate commerce, but were simply intended for interstate commerce and for that reason subject only to local regulation. The majority, however, clearly recognized the complete control of Congress over Interstate transportation.
Let me quote further from Justice Day:
Over Interstate transportation, or Its incidents, the regulatory power of Congress is ample, but the protection of articles intended for Interstate commerce is a matter of local regulation.
The dissenting opinion, written by the venerable Justice Holmes and joined in by three other justices, also clearly recognized the power of Congress over interstate commerce. Said Justice Holmes:
Congress Is given power to regulate such commerce in unqualified terms. It would not be argued to-day that the power to regulate does not include the power to prohibit. Regulation means the prohibition of something, and when interstate commerce is the matter to be regulated I can not doubt that the regulation may prohibit any pnrt of such commerce that Congress sees fit to forbid.
'What could be stronger than this language used by Justice Holmes V—
When interstate commerce is the matter to be regulated I cnn not doubt that the regulation may prohibit any part of such commerce that Congress sees (It to forbid.
The opinion in the second child-labor case, known as the Child Labor Tax case (259 U. S. 20), was rendered in 1922, and was written by Chief Justice Taft. In order to avoid the constitutional question raised in the first child-labor case, a new law was enacted in 1919 imposing a tax on the employment of child labor.
Chief Justice Taft said that In this case, as in the previous child-labor case, Congress undertook to pass a law on a matter purely within the authority of the States, and therefore declared the law invalid. There was no suggestion in either of these child-labor cases that Congress could not make State laws applicable to Interstate commerce; but both of the" decisions were based upon an entirely different proposition, namely, that Congress cdtUd not take away powers from the States that were reserved to them by the Constitution.
In conclusion, I again ask you to bear in mind that the only effect of this bill will be to divest convict-made goods of their interstate character at an earlier period than would otherwise be the case. I again call your attention to the opinion of the f'upreme Court of the United States in the Rahrer case, in which that court, speaking through Chief Justice Fuller, said, unequivocally and without limitation:
No reason is perceived why, if Congress chooses to provide that certain designated subjects of interstate commerce shall be governed by a rule which divests them of that character at an earlier period of time than would otherwise be the case, it is not within its competency to do so.
Congress can not reverse the Supreme Court; that body is the final authority on constitutional questions. It has sjxiken definitely and conclusively on the very matter now in issue here. Therefore 1 submit that this bill is constitutional and that it will be sustained if enacted into law. [Applause.]
Mr. WHITTINGTON. Will the gentleman yield for just one question?
Mr. KOPP. I yield to the gentleman.
Mr. WHITTINGTON. 1 should like to nsk the chairman of the committee in charge of the bill if cotton, corn, wheat, and other agricultural products are included in this bill?
Mr. KOPP. My opinion is thnt at the present time they are included.
Mr. WHITTINGTON. They are included?
Mr. KOPP. I think they are included.
Mr. WHITTINGTON. They are Included, in the gentleman's opinion?
Mr. KOPP. That is my judgment.
Mr. MICHKNER. Will the gentleman yield?
Mr. KOPP. Yes.
Mr. MICIIENER. Docs the gentleman mean that anything manufactured or produced by prison labor is included?
Mr. KOPP. I think it is a general law. That is my opinion about it.
Mr. MICHENER. It would make no difference whether it was cotton or binder twine?
Mr. KOPP. I think everything is included. That is my understanding of the law. [Applause.]
The CHAIRMAN. The time of the gentleman from Iowa hiis expired.
Mr. BUSBY. Jlr. Chairman, I yield 10 minutes to the gentleman from Virginia [Mr. Tuckeb]. [Applause.]
Mr. TUCKER. Mr. Chairman and gentlemen of the committee, I want, if possible, to bring the minds of the Members of the House back to a few elementary principles as to this bill, and I want to say at the outset that I am in hearty sympathy with the professed objects of this bill. I am in hearty sympathy with any principle that denies the right of the Federal Government through the commerce clause to ram down the throats of the people of any State a moral or economic principle wliich they disapprove.
I am perhaps the only man on this floor who voted for the Wilson bill in 1890, a perfectly just bill, in my judgment. It recognized the right principle. When a State had determined it did not want liquor in it, why should the commerce power of the Constitution compel them to take It?
Now, what is this bill? As I understand it, it says that any prison-made goods—I must give you the exact language— transported Into any State or Territory of the United States and remaining therein—
Mark the words—
remaining therein for use, consumption, sale, or storage shall upon arrival and delivery in such State or Territory be subject to the operation and effect of the laws of such State or Territory.
What power has Congress to dictate to the States how property within the States shall be controlled and governed? Is not this power reserved to the States under the tenth amendment? Shall? That is, Congress proposes to compel the Slates. When and where did Congress acquire the power to compel a State?
Who made Congress the judge over the States, with power to dictate their internal policy ns to all property within their boundaries? When an article is in commerce, from the moment It starts on its interstate journey until it is delivered to the consignee, Congress has all power over it; the State can not touch it; but the moment it drops into the hip of the consignee It becomes a part of the great mass of the property of the State which the State alone can control.
The principle has been well stated, as follows:
The prime distinction recognized in the leading case of Gibbons v. Ogden and the .subsequent case of Brown r. Maryland shows that Congress has no power over things or persons except as subjects of foreign or interstate traffic or Intercourse. When the thing or person is not In such commerce Congress has no power over it. Therefore, until the thing or person has this commercial quality the congressional power does not attach, and the State power is complete.
Aa long an the person or thing Is In commercial tiansitu the State can not touch it, because it is under the regulations of Congress, and the State must so exercise its power in respect to these as not to interfere with the essential right of Congress to regulate commerce. But before transitut has once begun, or having begun has ceased, congressional power does not attach and the State power Is exclusive. (Tucker on the Constitution, pp. 535-536.)
For example, if I ordered a carload of goods shipped to me at Lexington, Va., and the State levied a tax on them while on the track before delivery to me, the tax would lie void, for the commerce power still attached to them: but if taxed by the State after their delivery to me it would bo valid.
Therefore I say that this bill is one of two things—it is either merely declaratory of the law as it now exists, or it is nn attempt by Congress to give a power to the States which they already possess. In either case the law would be useless. Reiul what Judge Marshall said in lirowu against Maryland; the question there is so plain that the wayfaring man, though a fool, can understand it. He said that as long as Congress has control of an article fn interstate commerce, of course, the State can not interfere with it; but the moment the journey Is ended and it drops into Ihe lap of the State, then Congress cnn not touch it. The State power then alone controls it.
The gentleman from Iowa [Mr. Kopp] has said that some of the acts passed by the State legislatures to control convict
made goods have been declared unconstitutional. Certainly they have. Why? Evidently because such laws attempted to regulate commerce, which Congress alone can do. Look at the Child Labor case, which my friend from Iowa said a moment ago he did not think applicable to this case.
What was the Child Labor case? Congress enacted a Inw levying a tax of 10 cents a yard on cloth made In a mill where child labor under 14 was employed. What did our great Chief Justice say when he came to consider it? He said in effect that the custom of the courts is, and it has beon for 100 years, not to look into the intention of the legislature In passing such an act.
When Congress passes a law putting a 10-cent tax a yard on cloth we must accept it that Congress did it as a revenue measure. But Chief Justice Taft said, in effect, with that common sense of his: "Everybody in the United States knows that this bill was passed to regulate child labor in the mills—everybody except this court—and we are presumed to accept the fact that Congress did it to raise revenue. Away with it! If everybody else in the country can see it, why can not we?" He saw it and kicked it out.
So It is here. Now. mark you, gentlemen, there was the power of taxation, which is an exclusive power of the Federal Government, but when that power is used, not for revenue but for the indirect purpose of reaching another end, that Is a fraud on the Constitution. The argument of the court, in effect, was: "You are presenting a law on its face for taxation, and you know it is not for taxation, but to control child labor which is denied to Congress; and we will not recognize it. You know what it is for: you are trying to hide behind a worn-out presumption, which we refuse to follow any further, for we know what it is for, and we kick it out."
Mr. LAGUARDIA. Will the gentleman yield?
Mr. TLTKER. Yes.
Mr. LAGUARniA. Did not we do the same thing with the Harrison Narcotic Act?
Mr. TUCKER. Yes. Now, follow me: Here we have Inspection laws, we have quarantine laws, commerce laws, and so forth.
A vessel comes up the harbor and a State officer goes out on a tug and stops that great vessel. What for? Is not that vessel engaged in interstate commerce? Yes. Is not that an exclusive power of the Federal Government? Yes. Why, then, does this little State officer come in here and stop the commercial power of the Federal Government? What do you mean by coming in here, the captain says; you are interfering with commerce. The State officer says, "I am not interfering with commerce; I am simply out here to see that you shall bring rightful commerce and not disease Into our port." The power to carry on commerce is not a power to bring disease to a port, and the quarantine power which belongs to the State is a help to commerce and not a hindrance. It helps rightful commerce and protects the port from disease.
Chief Justice Marshall says in Gibbons against Ogden:
It Is no objection to the existence of distinct, substantive powers that In tlielr application they bear upon the same subject. The same bale of goods • • • that may be the subject of commercial regulation may also be the vehicle of disease. And the health laws that require them to be stopped and ventilated are no more intended as regulations on commerce than the laws which permit their Importation are Intended to inoculate the community with disease.
The two powers are made to consist by restraluing the State, under color of quarantine, from regulating rightful commerce, and restraining Congress, under color of commerce, from regulating the unlawful importation of disease. (Tucker on the Constitution, p. 51J8.)
Now, the gentleman who just preceded me said that some State laws preventing the sale of convict-made goods had been declared unconstitutional. Why? I will tell you why. .lust as the Federal Government can not attempt to regulate child lahor, a State function under the taxing power of the Government, so the States, to carry out Iheir own laws and their own desires, can not attempt to regulate interstate commerce in passing a State law. If the State passes a law interfering with interstate commerce, of course the courts, as they ought to do, will declare it unconstitutional.
So, gentlemen, just In a word—for I never saw the bill until this morning, and I started out with the idea that I was going to vote for it until I saw what it was—in my judgment, this bill is nothing more thnn the law of the land to-day. If it is not that, then it is a spurious attempt upon the part of Congress to compel the States to do what they now alone have the power to do, or an attempt by Congress to give power to the States, from whom all i»ower originally came to Congress.