A movement, which has been growing for a number of years, for the prohibition of the use of white phosphorus culminated in 1906 in the international convention of Berne called on the initiative of the International Association for Labor Legislation. As a result of this convention the leading countries of Europe joined in a treaty to prohibit the manufacture, importation, and sale of matches made of white phosphorus, as above stated.

Great Britain for a while held aloof from the movement, endeavoring to control the danger by the strictest kind of legal regulation. After a trial of a number of years the effort was admitted to be a failure, and legislation was therefore enacted, which became effective the first of the present year, by which Great Britain joined the alliance of the countries prohibiting the manufacture, importation, or sale of white-phosphorus matches.

A harmless substitute for white phosphorus that is commercially practicable has been found in the sesquisulphide of phosphorus and is largely in use abroad in the manufacture of the "strike anywhere" match. For the safety match red phosphorus, which is not poisonous, is generally used.

The United States is practically the only commercial country of any importance which has not taken any steps to prevent the unrestricted use of this poisonous substance in the manufacture of matches.

While several States have enacted laws prohibiting the employment of children under 15 years of age in certain operations in match factories, no State has yet made any adequate provision for the protection of the health of workers over 16 years of age in the match industry, although for over fifty years the dangers of working with white phosphorus have been known and recognized in this country.

[Inclosure B.]

MAY 17, 1910.

JOHN B. ANDREWS, Esq.,

Secretary American Association

for Labor Legislation.

DEAR SIR: We have been considering for you the question as to how, by means of federal legislation, the use of poisonous phosphorus in the manufacture of matches and the sale of matches so manufactured may be prohibited in the United States. Three methods suggest themselves, viz:

First, direct prohibition.

In view of the acknowledged unhealthy nature of the occupations of those engaged in the manufacture of such matches, it is clearly a thing which Congress can deal with, so far as relates (a) to foreign exportation or importation; (b) to interstate commerce; and (c) to Territories, the District of Columbia, and other possessions of the United States Government which are not directly under state control. It is quite as clear that it can not be extended, under our Constitution, to cover by act of Congress the prohibition of the manufacture of such matches for sale within a State or of the sale of the same within a State.

This is clear from the language of the Constitution, but also has several times been decided, the leading decision perhaps being the United States v. De Witt (9 Wall., 41), handed down in February, 1870. This decision sustained a demurrer to an indictment found under the internal-revenue act of 1867, which, in addition to imposing a tax on certain oils, made it a misdemeanor to sell illuminating oil inflammable at a lower temperature than 100° F.

It was held that unless, "except, indeed, as a necessary and proper means of carrying into execution some other power expressly granted or vested," Congress has no power "to interfere with the internal trade and business of the separate States," and it was also held that the legislation "can only have effect where the legislative authority of Congress excludes territorially all state legislation, as, for example, in the District of Columbia," and that "within state limits it can have no constitutional operation."

There has been complete acquiescence in that view since that decision was rendered, and the food and drugs act of June 30, 1906, was accordingly so drawn as to cover only interstate commerce, foreign commerce and shipment, etc., and as to this act the United States district court decided in United States v. Fifty Barrels of Whisky (165 Fed. Rep., 966), that "the United States has no authority, under the Constitution of the United States, to forbid the manufacture and the sale of goods within the limits of a State," and that "it is only when they are transported from one State to another and become a part of interstate commerce of the country that the United States has the authority to pass laws regulating them."

Accordingly, we are of the opinion that a direct prohibition would not be constitutional.

Second, by levying a prohibitive tax.

This method of prohibition has been held to be constitutional in several cases, and it is now well settled that the intention of the Government in levying a tax will not be questioned, even though the taxation results, and is intended to result, in the destruction of a business.

There are but two limitations to the power of the Federal Government to tax, viz, (a) "direct taxes must be apportioned among the States according to population," and (b) "duties, imposts, and excises must be uniform throughout the United States."

In McCray v. United States (195 U. S., 27) the Supreme Court decided in 1904 that the prohibitive tax on artificially colored oleomargarine was constitutional. It held that it was "demonstrated that the motive or purpose of Congress in adopting the acts in question may not be inquired into," and "that being their necessary scope and operation (viz, an excise tax) it follows that the acts are within the grant of power.' It is also held "the taxing power conferred by the constitutional power knows no limits except those expressly stated in that instrument," and that "if a tax be within the lawful power the exertion of that power may not be judicially restrained because of the results to arise from its exercise."

Another leading decision by the Supreme Court is Veazie Bank v. Fenno (8 Wall., 533), and decided in 1869. This tax was upon the circulating notes of state banks, and it was held that "the power to tax may be exercised oppressively upon persons, but the responsibility of the legislature is not to the courts, but to the people by whom its members are elected."

All of these rest upon the statement of Chief Justice Marshall in the early case of McCulloch v. Maryland (4 Wheat., 316, 431), “that the power to tax involves the power to destroy."

Third, by treaty.

In article 6 of the Constitution of the United States it is provided that "this Constitution and the laws of the United States, which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or the laws of any State to the contrary notwithstanding."

Since the Constitution did not confine treaties, as it did laws, of the United States to those "made in pursuance of this Constitution," it is obvious that there is no constitutional restriction upon the treatymaking power. Accordingly, also, as provided in the Constitution, treaties have often been held to override the laws of States.

Thus, in Hauenstein v. Lynham (U. S.), the Supreme Court of the United States, in 1879, held that a treaty which gave the citizens of a certain nation the right to purchase, inherit, and dispose of lands “is within the treaty-making power conferred by the Constitution."

This has been repeatedly held in other cases and has been followed by the supreme courts of various States as well.

In the same decision the court said: "There are doubtless limitations of this power as there are of all others arising under such instruments,' but in view of the fact that these limitations were not touched by the issues of the case, said: "This is not the proper occasion to consider the subject."

In De Geofroy v. Riggs (U. S.) the Supreme Court of the United States said, "that the treaty power of the United States extends to all proper subjects of negotiation between our Government and the governments of other nations is clear;" and again: "The treaty power as expressed in the Constitution is in terms unlimited, except by those restraints which are found in that instrument against the action of the Government or of its departments and those arising from the nature of the Government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the Government, or in that of one of the United States, or a cession of any portion of the latter without its consent," and also, "but with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country." It seems clear that the subject of prohibiting the manufacture of poisonous sulphur matches for sale within the same State can not possibly be "properly the subject" of negotiation with foreign countries. The only ground, therefore, upon which it might conceivably be held that it could be done incidentally as a part of a treaty with a foreign country is found in the decision of the Supreme Court in the case of The United States v. DeWitt, already cited, and in the words of that decision "except, indeed, as a necessary and proper means for carrying into execution some other power expressly granted or vested."

If it could be successfully shown that it would be absolutely necessary to carry prohibition that far in order effectually to prevent the manufacture of such matches for export to the countries which enter

into the treaty, it might conceivably come within this language. This language, however, is clearly obiter, not being in the least necessary to decide the issues of the suit then before the court, nor do I at present know of any case in which this was at issue and was so decided.

The following appear to be open, viz:

First. Modify the treaty so far as it applies in the United States by adding a provision that the prohibition shall be by means of prohibitive excise and impost taxes so that there may be no misunderstanding about the matter, and proceed to impose such taxes; or Second. Join in the treaty as it stands and pass a national prohibitive act which, while it will not apply to matches manufactured within the State for sale within the State, will probably effectually prohibit, for the reason that such manufacture for such purpose would not be profitable. It could hardly he held that the promise of a government under the treaty to pass a prohibitive act would call upon it to pass an act more far-reaching than its own powers permitted, and such would appear, therefore, to be a complete compliance with the terms of the treaty so far as our Government is concerned.

Yours, sincerely,

MILES M. DAWSON.

[Inclosure C.]

MAY 27, 1910.

Hon. CHARLES P. NEILL,

Bureau of Labor, Washington, D. C.

DEAR SIR: I am interested by the report in your recent bulletin on phosphorous poisoning; and have had some correspondence and conversations with Doctor Andrews, of the American Association for Labor Legislation, on the subject. He informs me that a bill may be introduced to prohibit interstate commerce in matches made with poisonous white phosphorus.

I write to urge that you give careful consideration to the alternative of imposing an internal-revenue stamp tax upon matches made with white phosphorus. A prohibition of interstate commerce would cause expense of enforcement, and would be of little effect unless backed up by a general prohibition by the States; for otherwise the manufacture would continue where it exists for interstate consumption, and probably in States where there are no match factories now small factories with sweat-shop conditions would spring up to manufacture cheap white sulphur matches; and to get a prohibitory bill through in all the States-even in all the important States onlywould be a long, hard job.

But if a small stamp tax, about equal to the margin of profit in the use of white phosphorus over the use of the most expensive kind, were imposed, the effect would be to stop its use; for nobody wants it. The manufacturers use it only because they can not abandon it individually and yet meet the competition of those who would still continue to use it. The tax method would therefore probably be infinitely cheaper, quicker, and more effective than the other method. I assume that it would be constitutional, on the authority of the Oleomargarine case (McCray v. United States, 195 U. S., 27).

I am not familiar with the attitude of Congress and the law officers of the Government toward such measures, nor with the comparative difficulties of securing federal legislation on the two lines considered. I therefore submit my suggestion merely for your consideration. With assurances of personal esteem and interest in your work, I remain, P. TECUMSEH SHERMAN.

Very truly, yours,

AMERICAN ASSOCIATION FOR LABOR LEGISLATION,
New York City, June 3, 1910.

Mr. CHARLES D. NORTON,

The White House, Washington, D. C.

MY DEAR MR. NORTON: At the suggestion of our friend, Mr. Miles M. Dawson, I am sending to you herewith copy of our proposed bill to tax poisonous phosphorus matches.

Sincerely, yours,

JOHN B. ANDREWS, Secretary.

PROPOSED TAX ON WHITE PHOSPHORUS MATCHES.

Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled:

SECTION 1. That for the purpose of this act the words "white phosphorus" shall be understood to mean the common white or yellow poisonous phosphorus used in the manufacture of matches. SEC. 2. That special taxes are imposed as follows:

Manufacturers of white-phosphorus matches shall pay a tax of one thousand dollars per annum. Every person who manufactures white-phosphorus matches for sale shall be deemed a manufacturer of white-phosphorus matches.

Wholesale dealers in white-phosphorus matches shall pay five hundred dollars. Every person who sells or offers for sale whitephosphorus matches in the original manufacturer's packages shall be deemed a wholesale dealer in white-phosphorus matches, but any manufacturer of white-phosphorus matches who has given the required bond and paid the required special tax and who sells any white-phosphorus matches of his own product at the place of manufacture in the original package, to which the tax-paid stamps are affixed, shall not be required to pay the special tax of a wholesale dealer in white-phosphorus matches on account of such sales.

Retail dealers in white-phosphorus matches shall pay fifty dollars. Every person who sells white-phosphorus matches otherwise than in the original manufacturer's package shall be regarded as a retail dealer in white-phosphorus matches.

Sections thirty-two hundred and thirty-two, thirty-two hundred and thirty-three, thirty-two hundred and thirty-four, thirty-two hundred and thirty-five, thirty-two hundred and thirty-six, thirtytwo hundred and thirty-seven, thirty-two hundred and thirty-eight, thirty-two hundred and thirty-nine, thirty-two hundred and forty, thirty-two hundred and forty-one, and thirty-two hundred and forty