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remedy sought to be applied, and when the intent of the whole is ascertained; no part is to be construed, so that the general purpose shall be thwarted, but the whole is to be made to conform to reason and good discretion.
Construction must be in favor of prospective operation unless it is already shown some provision must operate retrospectively.
To ascertain the meaning of a constitution, appreciating the existing evil which called forth its framing; the first resort in all cases is to the natural signification of the words used, in the order and grammatical arrangement in which the framers placed them. If thus regarded, and the words used convey a definite meaning which involves no absurdity and no contradiction between parts of the same writing, then the meaning, apparent on the face is the one we are at liberty to say was intended to be conveyed.
But we more clearly appreciate the significance of the Constitution through the lens and prism of an understanding of the evil which existed; calling forth its framing and adoption, which was the weakness of the articles of confederation which the Virginia resolution clarified.
Let us emulate the prudence of our fathers and harken back to the historic phrasing by old Virginia of the summons of the States to adopt a new constitution, in view of the evil which exists today as then, when Virginia called upon her sister States:
“To examine the relative situation and trade of said States, to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony."
To this end the Constitution was summoned and conceived. To this purpose the Clair plan is dedicated; responsive to that historic summons.
On the first Monday in September, 1786 the commissioners of only four States besides Virginia responded: Delaware, Pennsylvania, New Jersey and New York meeting at Annapolis. There a report drawn by Mr. Hamilton was concurred in, recommending the commissioners from all the States meet the second Monday in May following, and on May 14, 1787, a convention of delegates from all the Original Thirteen States except Rhode Island met in Philadelphia. On September 14, 1787, a form of constitution was unanimously agreed upon and the rest is history.
Of two constructions of the Constitution, either of which is warranted by its purpose and its terms, that is to be preferred, which best harmonizes with the correction of the manifest evils which called it forth; as reflected in the general tenor and spirit of the instrument. Questions of expendiency and sound public policy are not to be overlooked in such cases of construction. Since we find in other fields the expediency of price fixation or stabilization of life's indispensables for the common welfare, though in restraint of trade, as a matter of convenience and necessity we have evidence of a sustained sound public policy, which cannot ignore price stabilization of life's necessities and indispensables under the Constitution as called for by the Clair plan.
In launching the Clair plan we are meeting first that emergency which called into being the Constitution itself, urging the uniform system of protection and stabilization in the commercial regulation of all industries, agrarian and urban; necessary to their common interests and permanent harmony as urged by the Virginia Resolution.
An adherence to the letter and a violation of the spirit of the instrument ought not to be tolerated or supposed possible. (Landry v. Klotman, 13 La. 345.)
The nature and objects of the particular powers, duties, and rights may be considered with all the rights and aids of contemporary history and the words given just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed. (U.S.C.A. Const. pt. 1,
In any construction of the Constitution it is reasonable and proper to follow the line of cleavage which the Congress intended to establish, as gathered from the contemporaneous history of events attending the consideration and passage of the law. (Coke v. I. C., 255 F. 190.)
The Constitution is to be construed in the sense in which the words and terms used were understood by those who made and those who adopted it. (U.S.C.A. Const. pt. 1, p. 56, Ex Parte Bain, 121 U.S. 12.)
5. IMPLIED POWERS OF THE UNITED STATES
It is not necessary for the exercise of a power by the Federal Government that it should be expressly granted in the Federal Constitution, or that it should be “Clearly, and directly traceable to some one of the specific powers granted.”
Any number of the powers granted, or all of them, may be combined and considered together, and any power necessary to carry out the general purposes of any or all of the powers specified, will be considered granted by implication, and as an incidental means of executing the powers specifically granted.
Know v. Lee (12 Wall. (U.S.) 457, 20 L. Md. 287).
“That other powers than those expressly granted are conferred by implication is well settled. Under every constitution the doctrine of implication must be resorted to in order to carry out the general grant of power.
“A Constitution cannot from its very nature enter into a minute specification of all the minor powers naturally and obviously included in, and flowing from, the great and important ones which are expressly granted. It is therefore established as a general rule, that when a constitution gives a general power or enjoins a duty, it also gives by implication; every particular power necessary for the exercise of the one, or the performance of the other" (Field v. People, 3 Ill. 79, 83).
Therefore, where the means for the exercise of the granted power are not given, the means are implied.
The powers confided to the General Government are to be taken as broadly granted and as carrying with them, authority to exercise those powers and to pass those acts, which may be reasonably necessary to carry them into full execution; and are not to be nullified, by an astute, verbal criticism; without regard to the grant, aim, and object of the instrument (U.S.C.A. Const. pt. 1, p. 52).
6. RELEVANT SECTIONS OF ARTICLE 1, SECTION 8, OF THE CONSTITUTION Congress shall have the power to provide for the common defense and general welfare.
So for years the Government has been assuming to direct industry through tariffs now protecting 25,000 lines of business by its 25,000 tariff schedules, and other rate stabilization by law on a production cost plus basis.
To regulate commerce with foreign nations and among the several States and with the Indian tribes.
To coin moneys and fix the standard of weights and measures.
To make all laws necessary and proper for carrying into execution the foregoing powers and all other powers vested by this constitution in the Government of the United States or in any department or office thereof.
7. ARTICLE I, SECTION 10, OF THE CONSTITUTION, IMPAIRING CONTRACT OBLIGATIONS
"No State shall pass any law impairing the obligations of contracts." (No. 8 Cyc. 773.) By the weight of authority this does not apply to the United States. (George v. Concord, 45 N.H. 434; Fitzgerald Grand Trunk Railway, 63 Vt. 169, 22 Atl. 76, 13 L.R.A. 70. Sinking Fund Cases, 99 U.S. 700, 25 L. Ed. 496; Bloomer v. Stollery, 5 McLean U.S. 158; 3 Fed. Cases No. 1, 559, 1 Fish. Pat. Ben. 375; Evans v. Eaton, 1 Robb Pat. Cas. 68; Mich. Cent. R.R. v. Stack, 17 Ren. Cas. No. 9, 527 A. 22 Int. Rev. Rec. 337.)
It is only where Congress has palpably exceeded the limits of its authority that the Federal courts will intervene. (V.S. v. Curtis, 12 Fed. 824.)
8. LEGAL PRESUMPTIONS AND CONSTITUTIONALITY
Statutes are always presumed to be constitutional and this presumption will always be indulged in by the court until the contrary is clearly shown. This rule is one of universal application and the principle is equally well established, that statutes will be so construed wherever it is possible to do so, so that they shall harmonize with the Constitution, to the end they may be sustained (S.Cyc. 801, notes 74, 75). Two pages of cases cited.
A reasonable doubt as to the constitutionality of statutes will be resolved in favor of their validity (8 Cyc. 803).
When reasonably possible, a statute must be so construed as to uphold its validity (U.S.-Thorburn v. Gates, 225 Fed. 653 and cases cited, 12 C.J. note 96, pp. 787 and 788.)
“While the courts must exercise a judgment of their own, it by no means is true that every law is void, which may seem to the judges who pass upon it, excessive, unsuited to the ostensible end or based upon conceptions of morality with which they disagree. Considerable latitude must be allowed for differences of
view as well as for possible peculiar conditions which this court can know but imperfectly, if at all” (Otis v. Parker, 187 U.S. 606).
9. THE CLAIR PLAN IS LEGAL UNDER THE POLICE POWERS OF THE UNITED STATES
For the common defense and the general welfare or to regulate commerce among the several States and with foreign nations; to make all laws necessary for carrying into execution all powers vested by the Constitution in the U.S. Government; the Congress may, under its expressed or implied authority and in pursuance of the police power, exercise such restraint upon private rights as may be found necessary and appropriate; to promote the welfare and safety of society,
By a proper exercise of police power Congress may expressly prohibit and make criminal the doing of an act, which in the absence of such a law, would constitute a liberty or property right of a person within the meaning of the Constitution; even though such act is not immoral within itself.
It is trite to say that practices harmless of themselves may from circumstances become the source of evil, or may have evil tendencies. (Murphy v. Calif. 225 U.S. 623.)
The police power is the general power of the Government to protect and promote the public welfare even at the expense of private rights. (Bear Co. v. Mass. 97 U.S. 25 (see American and English Encyc. of Law, police powers).)
Police power extends to the right to minimize speculation, to restrain or prohibit, not only gambling or wagering contracts, but also those which may be used as disguised for gambling and have a tendency to injure public interests. Tiedeman on Police Power. (Schneider v. Turner, 130 Ill. 28; Booth v. People, 195 Ill. 43 af’d. U.S. Sup. Ct.; Tenney v. Foote, 4 Ill. App. 594, 95 Ill. 99; Minn. Lbr. Co. v. Coal Company, 160 Ill. 98; Pierce v. Foote, 113 Ill. 234.)
In 240 U.S. 369 the court said “of course, it is in the exercise of the police power of the State.” We will not here define it or its limitations as was said by Mr. Justice Brown in Camfield v. United States (167 U.S. 518). "The police power is not subject to any definite limitations, but is coextensive with the necessities of the case and the safeguard of the public interests."
10 EQUAL PROTECTION CANNOT BE SAID TO BE DENIED, WHEN THE LAW OPERATES
ALIKE UPON ALL PERSONS AND PROPERTY SIMILARLY SITUATED
(Barbies v. Connolly, 113 U.S. 32; Soon Hing Case, 113 U.S. 709; Railway v. Mackey, 127 U.S. 205; R. R. Co. v. Harreck, 127 U.S. 210; Walston v. Neem, 128 U.S. 578; Magoun v. Bank, 170 U.S. 293.)
The classification made by statute need not, in order to be constitutionally valid, embrace all kinds of personal property, whether such kind of personal property were the usual subjects of option dealing or not. (State v. Gritzner, 134 Mo. 512.)
It is suggested that a conviction under the Clair plan would be contested as unconstitutional because it might be claimed to be in contravention of the provision incorporated in the Constitution of the United States that no person shall be deprived of life, liberty, or property without due process of law.
Of course, it is not violative of the provision of section 1 of the fourteenth amendment of the Constitution of the United States which provides that “No State shall deny any person within its jurisdiction the equal protection of the laws."
The Clair plan contemplates a Federal statute. But we will show under it that equal protection of the laws are safeguarded.
Considering the first point first, liberty and property, as used in said constitutional provision, include the right to acquire property. That means and includes the privilege of contracting and making and enforcing contracts. (Fraser v. People, 141 Ill. 171.)
A citizen cannot be deprived of an attribute of property, like the right to make a reasonable contract wilhout due process of law. Due process of law is a general law of the land (Elliott v. People, 117 Ill. 294; Richey v. People, 155 Ill. 98).
The exemption of certain railroads does not invalidate the Adamson Act as denying equal protection of the laws; nor are carriers denied due process of law, and singling out employees engaged in the movement of trains does not render the statute invalid as denying equal protection of the laws (Wilson v. New, 243 U.S. 332).
11. Congress may possess and lawfully exercise such power of restraint upon private rights as may be found necessary to provide for the welfare of society, even though it involves laws impairing the obligation of contracts, which power is in the United States Constitution, denied the States. To what end? To perform a more perfect union—to establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.
This power as exercised in the Clair plan is known as the “police power”. In the exercise of this power Congress may by valid enactments, i.e., "Due process of law," prohibit or restrain all things hurtful to the comfort, safety, domestic tranquility of society, even though the prohibition, restruint, or regulation invade the right of liberty or property of an individual (18 Am. & Eng. Ecyc. of Law, 739, 740).
An enactment to have that effect and be valid must be an appropriate measure for the promotion of the comfort, safety, and welfare of society. It must be in fact, a police regulation. Courts are authorized to interfere and declare an act of Congress unconstitutional, or not the "Law of the land," if it conflicts with the constitutional rights of the individual and does not relate to or is not an appropriate measure for the promotion of justice, the comfort, welfare, and safety of society.
With the wisdom, policy, or necessity for such an act courts have nothing to do.
But what are the subject of the police powers and what are reasonable regulations are judicial questions and the courts may declare enactments which; under the guise of the police powers, go beyond the great principle of securing the safety or welfare of the public; to be invalid.
12. LAWS FOR THE SUPPRESSION OF GAMBLING AND ITS EVILS ARE CONSTITUTIONAL
Crandall v. White (164 Mass. 160).
Laws for the suppression of all forms of gambling have, without exception, so far as we are advised, been regarded by the court and law writers as a proper exercise of police powers. This is conceded.
But it might be contended that a contract the entering into for, which, one: Under the Clair plan stood convicted; that is, a contract for nonperishable indispensables, either food or fiber, at a cost less than the American production cost, is within itself neither illegal or immoral, is neither void nor voidable, under the principles of the common law. That it is not within the legislative power, in virtue of the police power, to deprive a citizen of the right guaranteed by the Constitution of the United States and the several States to enter into a contract which is not within itself harmful, immoral, or injurious to the health, morals, or safety of the public.
The proposition is however that, a corftract which within itself is not harmful immoral or illegal, and which constitutes a right of property or liberty within the meaning of those words as employed in the organic law of the Federal Government, cannot be denounced as illegal in the exercise of the police power of the Government. This would place à limitation upon the police power—which might greatly impair its usefulness, and often render its proper exercise entirely futile.
It would restrict its operation to declaring that illegal, which was already illegal. As we have stated it is not without the power of Congress in the proper exercise of the police power, by an enactment otherwise valid, to declare that unlawful which was theretofore lawful, even if the act so condemned, be an attribute of the right of liberty or property, guaranteed to the citizen, by the constitutional provision under consideration.
The language of the constitution is so chosen as to recognize the right of the Government to deprive a citizen of life, liberty or property by "Due process of law.” Due process of law is synonymous with Law of the land,” hence the law of the land may expressly prohibit and make criminal the doing of an act which in the absence of such law of the land, would constitute a liberty or property right, within the meaning of the Constitution, even though such act be not within itself immoral.
In Magner v. People (97 Ill. 320), it was urged that certain provisions of the then existing game laws of the State of Illinois, which declared it unlawful for anyone to have in his possession wild fowl or birds of the kind designed to be protected by the statute, that had been lawfully taken or killed in another State; were in contravention of clause 8, article 1, of the Constitution of the United States, which confers upon Congress the power to regulate commerce among the several States. It was there held that the object of the statute was the protection of the game herein mentioned and the prohibition of “all possession and sales” of such game would tend to their protection and thereby advance the ends to be secured by the legislation. The conviction of Magner of the offense of having quail in his possession which had been killed in the State of Kansas and sold by the said Magner in Illinois was upheld and on page 331 in 97 Ill. it was there said: “This is but one among the many instances to be found in the law where acts which, in and of themselves alone are harmless enough, are condemned because of the facility they otherwise offer for a cover or disguise for the doing of that which is harmful.”
The practice of gambling on the market prices of life's indispensables—that is, cotton, wool and flax, wheat, corn, rice, oats, barley, buckwheat and hay—and forcing down the price paid to the farmer on the farm to frequently a fraction of his American production cost, thus forcing 50,000,000. Americans on the farms or immediately dependent on those who do the farming in the West country and the South country off of the buying market, which they constitute, for the industries of the cities, the mills, the mines, and the factories, compels universal recognition of a pernicious evil; and that the suppression of such evil and the minimizing of it through stabilizing the minimum price of such commodities based on production cost is within the proper exercise of the police power. The absolute suppression of such gambling evil by law under the police power has been too frequently affirmed by Supreme Court decisions to be open for discussion. The restraining of this evil as proposed in the Clair plan, therefore, is well within the police power.
The evil does not consist in contracts for the purchase of or sale of grain, based on production costs, to be delivered in the future in which the delivery and acceptance of the grain so contracted for is bona fide, contemplated, and intended by the parties, but in a contract, in which the parties intend to secure, not the article contracted for but the right or privilege of receiving the difference between the contract price and the market price of the article. The object to be accomplished by the Clair plan is the minimizing or suppression of contracts of the latter character, which are in truth mere wagers as to the future market price of the article or commodity which is the subject matter of the wager, without regard to American production costs, which are protected and stabilized on many articles in the tariff schedules as are the rates on telephone, telegraph, railroad, street-cars, express, boats, and for the bankers we have even fixed the price of gold by American statutes.
Clearly a contract which gives to one of the contracting parties, a mere privilege to raid the market by selling short corn or wheat he does not own, or to buy corn or wheat, in either instance without regard to American production costs, but does not bind him to accept and pay for it, is wanting in the elements of good faith to be found in a contract of purchase and sale where both parties are bound, and offers a more convenient cover and disguise for mere wagers on the price of grain than contracts which create the relation of vendor and vendee. Such contracts are in the nature of wagers, being the mere privilege to buy the grain, should its market value prove to be greater than the price fixed in the contract for such privilege.
The prohibition of the right to enter into contracts which do not contemplate the creation of an obligation on the part of one of the contracting parties, to accept and pay for, the commodity which is the purported subject matter of the contract, but only to invest him with the option or privilege to demand the other contracting party shall deliver him the grain, if he desires to purchase it; tends materially to the suppression of the very evil intended to be eradicated. So far as that point is concerned, "the act must be deemed a valid law of the land" said the Supreme Court in the Booth case and as such must be enforced though it infringe in a degree upon the property rights of citizens. To that extent private right must be deemed secondary to the public good. How much more drastic than the Clair bill was that anti-grain futures law of Illinois.
Second-Nor do we think the enactment in question denies any person the equal protection of the law, says the Supreme Court. Its penalties are directed, as are those of the Clair bill—against all persons and classes of persons who offend against its provisions. It is true, it does not prohibit contracts for options to buy or sell or the purchase or sale on future delivery of all kind and classes of property; nor was it necessary to the validity of the act that it should reach and prohibit all contracts of that character.
The remedy need only be as comprehensive as the evil the law designs to remove. In considering as to the propriety of adopting the enactment and as to the necessary scope of the legislation under discussion, it is fair to assume it was and would be present in the legislative mind that the proposed prohibition of the right to contract was an infringement upon the rights of property and liberty of the individual, and that it was the legislative design to trench only in the slightest