APPEAL PROM THE DISTRICT COURT OP THE UNITED STATES FOR THE WESTERN DISTRICT OP NORTH CAROLINA.'
The case is stated in the opinion.
[The Government supported its argument upon the history and physical and economic effects of.child labor by voluminous references to reports and debates in Congress and other public documents, including those bearing direct relation to the act in question.]
Unquestionably the power conferred by the commerce clause embraced all which the States , had previously enjoyed over the subject, and “the power of a sovereign State over commerce, therefore, arnounts to nothing more than a power to limit and restrain it at pleasure.” Gibbons v. Ogden, 9 Wheat, 1, 227. While doubt has existed as to how far back Congress may reach prior to the actual start of the interstate journey (Coe v. Errol, 116 U. S. 517; United States v. E. C. Knight Co., 156 U. S. 1; Loewe v. Lawlor, 208 U. S. 274), and how far iorward after the journey has ceased (Brown v. Maryland, 12 Wheat. 419; McDermott v. Wisconsin, 228 U. S. 115), it has never been doubted that when the actual transportation begins the jurisdiction of Congress at once attaches.
The act is upon its face a regulation. To regulate is “to prescribe the rule by which commerce is to be governed” (Gibbons v. Ogden, 9 Wheat. 1, 196); “to foster, protect, control and restrain” (Second Employers’ Liability Cases, 223 U. S. 1, 47). One form of such regulation is prohibition. In re Rahrer, 140 U. S. 545; Lottery Case, 188 U. S. 321; Hipolite Egg Co. v. United States, 220 U. S. 45; United States v. Lexington Mill & Elevator Co., 232 U. S. 399; Hoke v. United States, 227 U. S. 308; Clark Distilling Co. v. Western Maryland Ry. Co., 242 U. S. 311; Seven Cases of Eckman’s Alterative v. United States, 239 U. S. 510. Indeed, the denial of the facilities of interstate transportation to specified articles in terms precisely like those now in question has become a familiar and a customary method of regulation. [Citing numerous acts of Congress.]
The substantial connection between the regulation and the actual interstate movement (Adair v. United States, 208 U. S. 161) is not questioned in this case. The statute carefully avoids the difficulties in the first Employers’ Liability Cases, 207 U. S. 463, by not applying to that commerce which is wholly within one State.
It sharply distinguishes between the manufacture, which lies wholly within one State, and the interstate movement. No prohibitions are extended to manufacturers of goods as such, although they may intend subsequently to ship in interstate ommerce. United States v. E. C. Knight Co., 156 U. S. 1. A manufacturer may, notwithstanding the act, employ such children as he pleases. The law springs into activity only when actual transportation to another State begins.
It cannot be denied that a change in public opinion regarding child labor has occurred like that in relation to lottery tickets. Neither the ticket nor the labor is inherently bad, but the facts of life have disclosed undeniable evils in the use of both. With the growth of industrial activity in the latter part of the nineteenth century the far-reaching effects of the employment of children in factories became manifest. The dangers to persons of tender years in working about machinery are apparent to everyone. But the evil effects on the child’s physical well-being were shown by medical science to be not confined to the so-called dangerous occupations. Night work and excessive hours of labor indoors in factories at a critical stage in the development of the child’s body stunt the physique and decrease the resistance to disease. The child worker becomes dwarfed in body and mind, and the State is deprived of that vigorous citizenship upon which the success of democracy must depend.
The legislation of the States on the subject wasriot uniform, and many States were without* tM provisions which came to be regarded as the standard, necessary for the public protection. Interstate'commerce is not a technical legal conception btit.a practical one, drawn from the course of business. Swift v. United States, 196 U. S. 375, 398. In the day of steam and electricity the play of the forces of competition makes the cause operating in one State immediately felt in another. The slightest difference in the cost of production,, or what amounts to the same thing, a belief on the part of manufacturers in the existence of such difference, alters the. development of an industry. As the conviction grew that the employment of child labor was morally repugnant and socially unwise, it came to be regarded also in the light of unfair competition in trade among the States. The State authorizing the use of such labor in products shipped into other States was thought unfairly to discriminate against the citizens of the latter. Citizens in the States in which child labor products were introduced through interstate commerce were made unwilling parties to practices deemed immoral.* The health of children in competing States was injuriously affected by the interstate transportation of child-made goods. Thus, if one State desired to limit the employment of children, it was met with the objection that its manufacturers could not compete with manufacturers of a neighboring State which imposed no such limitation. The shipment of goods in interstate commerce by the latter, therefore, operates to deter the former from enacting laws it would otherwise enact* for the protection of its own children.
The manufacturers’ argument is based upon the belief that child labor is cheaper. There is much reason for thinking this belief mistaken; but the facts of their common belief in it, of their insistent arguments before state legislatures, and of the resultant effect in postponing or relaxing state legislation with reference to child labor, can not be denied.
• The effect on one community of the importación from another of the products of cheap labor has been recognized by Congress in dealing with foreign commerce. It has prohibited the importation from foreign countries of convict-made goods. This exclusion was not designed to prohibit convict labor in foreign countries, but to prevent the lowering of standards in this country. The theory of much of our tariff legislation and of the Alien Contract Labor Law is the same.
The effect of low child labor standards in one State upon health in competing States is due entirely to the interstate character of the commerce in question. Because this is so a State can not protect itself. ' A state law forbidding entrance into the State of goods made by children of an age lower than that at which the State itself permits young persons to work would perhaps be valid in the absence of congressional legislation. Asbell v. Kansas, 209 U. S. 251; Reid v. Colorado, 187 U. S. 137; but see Leisy v. Hardin, 135 U. S. 100; Schollenberger v. Pennsylvania, 171 U. S. 1. But such a law would not be adequate, for the effects of the competition would be felt when goods from the competing States met in other States or at the ports for foreign exportation (the present law as enacted, therefore, includes a prohibition against shipment in foreign as well as domestic commerce). The conviction became gradually settled that the situation called for the exercise bjr Congress of its power to prescribe a uniform rule for the conduct of interstate commerce. Congress had thoroughly investigated • the subject.
The act does not contravene the Fifth Amendment. The due process clause in that Amendment limits Congress precisely as the same clause in the Fourteenth Amendment limits the State. Lottery Case, 188 U. S. 321, 356, 357; Clark Distilling Co. v. Western Maryland Ry. Co., 242 U. S. 311, 320, 332; Twining v. New Jersey, 211 U. S. 78, 100, 101. If therefore a State, notwithstanding the Fourteenth Amendment, may bar the facilities of intrastate commerce to goods made by children in factories, Congress may do likewise, so far as the Fifth Amendment is concerned, for interstate commerce. Prohibition of all intrastate commerce in child labor by a State clearly does not contravene the due process clause of the Fourteenth Amendment. Sturges & Burn Mfg. Co. v. Beauchamp, 231 U. S. 320; People v. Ewer, 141 N. Y. 129; State v. Shorey, 48 Oregon, 396; Starnes v. Albion Mfg. Co., 147 N. Car. 556; In re Weber, 149 California, 392; In re Spencer, 149 California, 396; Inland Steel Co. v. Yedinak, 172 Indiana, 423; State v. Rose, 125 Louisiana, 462. Note also the cases in this court upholding statutes limiting the hours of labor for men and women.
There is no right to use the channels of interstate commerce to affect injuriously the health of the people in competing States ;\\ nor to consummate the injury to the producing child; nor in unfair competition.
The act is a legitimate exercise of legislative power for the protection of the public health. It is now settled that regulations of interstate commerce may have the quality of police measures. Seven Cases of Eckman’s Alterative v. United States, 239 U. S. 510, 515; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 215. See also Hoke v. United States, 227 U. S. 308, 323; Wilson v. United States, 232 U. S. 563, 567; Caminetti v. United States, 242 U. S. 470, 492.
The act is reasonably calculated to protect the health of children in States competing with the point of origin. The shipment of child-made goods outside of one State directly induces similar employment of children in competing States. It is not enough to answer that each State theoretically may regulate conditions of manufacturing within its own borders. As Congress saw the situation, the States were not entirely free agents. For salutary statutes had been repealed, legislative action on their part had been defeated and postponed time and again, solely by reason of the argument (valid or not) that interstate competition could not be withstood.
The act also protects the health of children in the producing State. The Fifth Amendment imposes no obstacle to the denial by Congress of facilities of interstate transit for the prevention of injury to children in the shipping Staté. Congress can outlaw such goods to prevent pollution of the interstate stream.
That the articles excluded are themselves innocuous is immaterial. United States v. American Tobacco Co., 221 U. S. 106, 132.. Discussion of the inherent badness of things is largely futile. How do we judge of goodness or badness except by their effect? Those things which work ill effects when transported across state lines are for that reason evil. The transportation of products of child labor, therefore, can not be classed as innocuous in fact.
As a matter of law, the regulating power is not' limited to goods harmful per se. United States v. Delaware & Hudson Co., 213 U. S. 366; Weeks v. United States, 245 U. S. 618; Wilson v. United States, 232 U. S. 563; Athanasaw v. United States, 227 U. S. 326; Compagnie Francaise v. Louisiana Board of Health, 186 U. S. 380; Rast v. Van Deman & Lewis Co., 240 U. S. 342; Seven Cases of Eckman’s Alterative v. United States, 239 U. S. 510. Liquor, lottery tickets, and misbranded food were legitimate objects until the legislature made them outlaws.
Congress acted reasonably in putting child-made g|ods in the same class.
A seller’s liberty is not unduly restrained by protecting a purchaser from becoming an unwilling party to an immoral sale. Plumley v. Massachusetts, 155 U. S. 461; United States v. Coca Cola Co., 241 U. S. 265, 285.
There, is no right to use the channels of interstate commerce for unfair competition. Large authority was exercised in removing unfair discrimination as a means of competition in the Act to Regulate Commerce, and the Clayton Anti-Trust and Federal Trade Commission Acts. Industry and business are the controlling considerations. Sales detrimental to a- state industry may be prohibited by a State. Sligh v. Kirkwood, 237 U. S. 52. In interstate commerce discretion is intrusted to Congress to determine which of the various business elements of the Nation , is entitled to protection. An example of a prohibition of interstate trade for industrial, reasons is in the quarantine of cattle fit enough for food in themselves but likely to damage the cattle industry in the receiving State. Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U. S. 613, 623.
Congress belieyed that it was exercising in this case its power to forbid competition deemed unfair. Senate Report No. 358, 64th Cong., 1st sess.; House Report No. 46, 64th Cong., 1st sess. It was not fanciful to class shipment of child-made goods as unfair compétition. Fraud and deceit are recognized acts of unfairness. An advantage derived by drawing on the blood of children is also immoral, according to the consensus of modern thought. Nor is immorality alone the test of unfair competition. An act unreasonably interfering with another’s right to pursue trade, such as local price cutting, or hiring away of workmen, constitutes unfairness. Congress may well have thought that child labor deserved a like reprobation.
The extension of the. prohibition to all products of the factory in which the child labors is a reasonable provision for the due enforcement of the act.
Assuming that the act does not contravene the Fifth Amendment, there is no other clause of the Constitution to which it is obnoxious. The Lottery Case, 188 U. S. 321, 357.
To urge the reserved powers of the States is to beg the question. The reserved powers of the States do not begin until the power of Congress leaves off. [Instancing numerous cases in which exercises of the commerce power have been upheld though necessarily affecting state policy and control as to local matters; and numerous acts of Congress having such effect.]
There is no encroachment upon the reserved powers of the States. As said by Mr. Justice McKenna in Hoke v. United States, 227 U. S. 308, 320, “The power of Congress under the commerce clause of the Constitution is the ultimate determining question. If the statute be a valid exercise of that power, how it may affect persons or States is not material to be considered.”
The Constitution grants to Congress no. more power over the public in the receiving than in the shipping State. Neither is mentioned. It is the public, wherever situated, that is entitled to protection.
The argument that the evil is complete prior to the interstate movement is fallacious, for Congress enacted the statute to protect citizens outside of the shipping State.
Congress was attempting to regulate commerce 4n good faith and not to do indirectly what it could not do directly. It sought only to prevent the evil resulting from the interstate transportation of child-made goods. The court is confined to the purpose as expressed in the act. McCray v. United States, 195 U. S. 27. Nor is it concerned with questions of the wisdom, expediency, or oppressive character of legislation. Id.
If the transaction or conduct is not within the grant of power to Congress, Jit lies within the controlling power of the State in the exercise of the police power. 10th Amendment; Martin v. Hunter, 1 Wheat. 304, 326; House v. Mayes, 219. U. S. 270, 281-282; New York v. Miln, 11 Pet. 102.
The only suggested source of authority to. legislate on the subject of the act is the Commerce Clause, which Madison said (3 Farrand, Records of Federal Constitution) “was intended as a negative and preventive provision against injustice in the states 'themselves, rather than as a power to be used for the positive purposes of the general government.”
Is the act a regulation of commerce in the constitutional sense? Or is it a regulation of some one of the many internal affairs of the States which Congress is not empowered to deal with? United States v. De Witt, 9 Wall. 41; United States v. E. C. Knight Co., 156 U. S. 1; Employers’ Liability Cases, 207 U. S. 463, 502. A regulation of “all of these delicate, multiform and vital interests — interests which in their nature are, and must be, local in all the details of their successful management”’ Kidd v. Pearson, 121 U. S. 1, 21. The right of intercourse between the States has its source in the municipal law. The Constitution found it “an existing right and gave to Congress the right to regulate it,” which is the right to prescribe the rule by which commerce is to be governed. Gibbons v. Ogden, 9 Wheat. 1, 211. With respect to his lawful goods, the citizen exercises a right. With respect to his unlawful goods, he enjoys a privilege, which Congress may withhold largely as it pleases.
While the power to regulate .commerce among the several States is in the same grant and in the same terms with the power over foreign commerce, yét there is a difference with respect to the extent of that power growing out of the difference in the relation of the United States to .the two kinds of commerce, and the difference in the right of the citizen of the United States and the foreigner to engage therein. As to foreign commerce, the United States possesses and exercises all the attributes of sovereignty. As to interstate commerce, it exercises only that portion of sovereignty delegated to it. Prentice & Eagan, Commerce Clause of the Federal Constitution, 37-42; Judson on Interstate Commerce, Par. 2; 2 Tucker on the Constitution, Pars. 255, 256. This is illustrated in the plenary power of Congress over territory belonging to the United States and outside the boundaries of a State of the Union. The foreigner enjoys a privilege. The citizen exercises a right, subject only to that measure of interference to which he has consented.
It appears from the act itself: (1) That the articles made by children are in no way different from articles made by others. (2) That the purpose and effect of the act is to prevent the employment of children, and not to safeguard or promote commerce or the interests of persons or communities in the States into which child-made goods might be sent. That such is the purpose and expected effect, was avowed in the debates upon the floor of Congress, and before the committees to which the bill was referred.
The act itself shows the harmless, quality of the goods. Articles heretofore barred and dealt with by this court have been such as could fairly be said to be “outlaws of commerce”; consequently all persons have been forbidden to ship them; the article itself is barred from commerce.
Does the power to regulate commerce extend to and include the power to prohibit harmless and useful commodities because of pre-commerce conditions of labor?'
However much the Knight Case, 156 U. S. 1, may be weakened by later decisions, its distinction^ between production and commerce is still effective to prevent direct congressional regulation of production as distinguished. from sale and transportation.
It is not necessary to resort to the Fifth Amendment. But, if so, the grant of power in the Commerce Clause can not, in the guise of regulation, by a mere pretense of exercising this power, extend to the destruction of property interests only remotely related to commerce.
In regulating commerce, Congress regulates traffic in things, vehicles of transport and things in transitu, but not the things themselves. Before and after the transitus, they are beyond this power of regulation. The production and use of things in the terminus a quo and the terminus ad quern are not subjects of the commercial power, but of the State from which and to which they . are transported. 2 Tucker, Const. 526.
The conditions reached and controlled by this act are subject only to that attribute of sovereignty called the “police power.” With relation to matters of National import, has Congress all the attributes of sovereignty, or merely those surrendered to it by the people and not reserved to the States? Save in the instances provided therein the Fourteenth Amendment does not entrench upon the state police .power. Barbier v. Connolly, 113 U. S. 21, 31. Is the only protection and security for the sovereignty and freedom of conduct sought to be reserved by the Tenth Amendment the limitation imposed upon Congress by the Fifth Amendment with respect to arbitrary action? Are not the rights so many and so vital and essential to the prosperity of the citizen and consequently of the Nation, as to indicate that their protection is entitled to and has a more fundamental basis, that is, that they have not been given over to the chance of arbitrary action?
The Keller Case, 213 U. S. 114, holds .an act of Congress void, punishing harboring within a State an alien prostitute, as a regulation of a matter within the police power reserved to the State. The power of Congress to regulate commerce among the States is not then the equivalent of the reserved police power of the States.
Congress has no general police power; it may exercise a police power only over a subject-matter already under its jurisdiction, by virtue of some authority delegated to it by the Constitution. In other words, a police purpose may be the reason for exercising a power possessed, but it is not a source of power. Jacobson v. Massachusetts, 187 U. S. 11; Sherlock v. Alling, 93 U. S. 99; 12 Corpus Juris, 910.
To uphold the act upon the theory of police power it must be clear that interstate commerce is menaced and not something else outside that domain.
Whatever menace there is in child labor has a locality. It cannot reasonably and fairly be said that the product of the factory where children are employed is so tainted by its origin that during or after transportation it constitutes a menace to health or morals or to any other subject within the domain of Congress. The menace, if it exists, is confined to where the child is employed. In invoking the police power, Congress is operating outside the domain of interstate commerce. A process of manufacture cannot obstruct or injuriously affect commerce when the product of that process is indistinguishable from the products of other processes. The statement that the power of Congress over commerce is full and complete does not aid the matter because that statement by Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1, is preceded by and predicated upon the proposition that the subject of regulation is within the power asserted.
That the possession -of full and complete power does not warrant the exercise of that power to bring about a result or condition outside that power, is strikingly exemplified in cases decided by this court, of which Western Union Telegraph Co. v. Kansas, 216 U. S. 1, may be mentioned, where the power of a State to fix the terms and conditions upon which foreign corporations may do business in the State was considered. So a general power of prohibition must exist to sustain the act. There is no such power. It is not a case of the possession of power restrained by, certain limitations, but a case of the entire absence of power.
The authority of Congress to regulate commerce comprehends the power, within the-limitations imposed by the nature and object of the grant, and those expressly set forth in the Constitution, to define what shall be commerce among the States, and, with a view to the effective exercise of its power to distinguish between things deleterious and things beneficial or innocuous, and to deny absolutely or conditionally entrance into such commerce to those things and persons which are deleterious, and, short of prohibition, to prescribe the rule by which the entrance to and movement in commerce of lawful and. innocuous things and persons is to be governed. The Obscene Literature Case, the Bad Egg Case, the White Slave Case and the Webb-Kenyon Case,, yield the principle that Congress may- prevent the facility of interstate commerce from being made an instrument of evil, but in each of these cases, the subject of regulation retains, while moving in commerce, and at its journey’s end, the inherent capacity to further the evil. The regulation did not reach back to the place of the creation of the subject as in the case at bar.
So far the adjudicated cases have gone and no further. A product' of a condition ;which exists only within the confines of a State, before it may be said to affect commerce in such a way as to justify Congress in regulating it, must be one which retards or injures commerce,' or in some manner burdens that commerce itself or one which retains its capacity to further an evil while actually moving in commerce.
Upon the assumption — which as a matter of fact is not correct — that th$ act prohibits only the product of child labor, it is said:—
; -íhe object of the act is not to regulate conditions of labor within the States individually, for these are primarily of concern only to the State, but to establish a certain plane of competition with respect to the utilization of such labor for the benefit of the country at large.
From this standpoint, the question raised by the act boils down simply to this: May Congress exercise its power to regfilate commerce among the States for what it conceives the good of the country at large, even to the extent of prohibiting altogether harmless and useful articles of commerce produced under conditions of labor which from this point of view it deems detrimental?
Investigation of- whether Congress has done by indirection that which it can not do directly, is not foreclosed by the statement that courts do not pass on the motives of Congress. They do not pass upon them to see whether they are 'good or bad, but when power is called into play, not for the purpose for which it was given, but for a covert purpose, it becomes not an abuse of a power, but the exercise of an unconferred powert and the duty is incumbent upon the court to determine this matter, and legislation may properly be characterized as covert, though its purpose and effect is to cure what is admitted to be an evil. McCray v. United States, 195 U. S. 27; McCulloch v. Maryland, 4 Wheat. 316 Covert legislation is legislation whose constitutional support bears no sincere relation to the legislative and popular purpose sought to be attained.
The act fixes a standard of child labor and debars from interstate and foreign commerce, for a period'of thirty days from its production, all product of the mine, quarry, mill, factory or workshop in which the standard fixed by the a,ct does not prevail, without regard to whether child labor has entered in whole or in part into its production.
A congressional enactment can not be said to be a regulation of commerce among the several States within the meaning of the Constitution, unless it:
(1) Regulates some subject that is connected with interstate commerce directly or proximately and not merely remotely.
(2) Regulates commerce in some particular bearing a direct relation to interstate commerce.
(3) Can fairly be said, upon construing the whole scope of the law, that it is a regulation of interstate commerce and not a regulation of some other subject which Congress is not empowered to regulate. Atlantic Coast Line R. R. Co. v. Riverside Mills, 219 U. S. 186.
In the case at bar, there is no sincere and legitimate relation between the thing prohibited and the object to be attained. Congress is doing indirectly what it can not do directly. ■ Certainly the grant was not intended to give Congress any greater power over interstate commerce than the States have over domestic commerce.. The State can not close the door of commerce to lawful goods, though it may, by virtue of the police power, control the conditions out of which the commerce comes.
; The act reaches beyond the body of commerce itself, and legislates in the form of a regulation of commerce to promote what is deemed to be the welfare of the people. It does more than prohibit the transportation of articles of commerce. In effect it is a prohibition of their creation, unless the local conditions of manufacture conform to the congressional standard.
The nature and ends of legislative power limit the extent of it, and the nature and extent of the grant must be determined in view of the object for which those powers are given. Calder v. Bull, 3 Wall. 388; Legal Tender Cases, 12 Wall. 531. The intention of the framers of the Constitution in conferring the power to regulate commerce was (Veazie v. Moore, 14 How. 574):
“To establish perfect equality amongst the several states as to commercial rights,” and (Lehigh Valley R. R. Co. v. Pennsylvania, 145 U. S. 200):
“The chief mischief intended to be obviated was the conflict between the commercial regulations of the several states, which was destructive of their harmony, and,fatal to their commercial interest abroad.”
The very essence of regulation is the existence of something to be regulated, and consequently the suggestion of a general power to prohibit is contrary to the reason of the thing. Of necessity, there must be some limit on the power to regulate, even when, under some • circumstances, it may include prohibition. . Otherwise, commerce may be destroyed. What fixes that limit? Public opinion as reflected by Congress, subject to the limited review permitted by the Fifth Amendment, or the logical and visible line of demarcation now drawn between “outlaws of commerce” and wholesome and lawful articles of commerce? That there is a difference with relation to the power of government between lawful and unlawful articles of commerce, appears from the opinions in the Schollenberger Case, 171 U. S. 1, and McDermott v. Wisconsin, 228 U. S. 115. The prohibitory power is limited to “the kind of traffic which no one” is “entitled to pursue as of right.” The line of demarcation is found in the nature and quality of the goods, and the rights with respect thereto, rather than in the limited review permitted under the Fifth Amendment.
The ability to create, and free and unfettered action in transporting property, are essential to the citizen and to the welfare of the country. The right is so necessary and so paramount that it is difficult to say that the people would contemplate reposing in even an elective body like Congress an unlimited and unrestrained power over that right, depending for its safety upon Congress refraining’ from arbitrary action. The right needs and has a more certain and fundamental protection. While the majority opinion in the Lottery Case maintained that Congress was vested with a wide discretion in matters of interstate commerce, yet it based the power to prohibit upon the inherent quality of illegality in the lottery tickets themselves.
The fundamental and far reaching question here to be determined is: Is there a line between “the commercial power of the Union and the municipal power of the State?”. Has Congress absorbed the police power of the States? If Congress has the power here asserted, it is difficult to conceive what is left to the States.
