vernment of interstate carriers, with respect to their
employees likewise engaged in interstate commerce, it is a regulation of
that commerce. As such, so far as the subject matter is concerned, the
commerce clause should be held applicable."[414] Under subsequent
legislation, an excise is levied on interstate carriers and their
employees, while by separate but parallel legislation a fund is created
in the Treasury out of which pensions are paid along the lines of the
original plan. The constitutionality of this scheme appears to be taken
for granted in Railroad Retirement Board _v._ Duquesne Warehouse
Company.[415]

BILLS OF LADING; THE FERGER CASE

Some years earlier the Court had had occasion in United States _v._
Ferger,[416] decided in 1919, to reiterate the rule laid down in the
Southern Railway Case, that Congress's protective power over interstate
commerce reaches all kinds of obstructions whatever the source of their
origin. Ferger and associates had been indicted under a federal statute
for issuing a false bill of lading, to cover a fictitious shipment in
interstate commerce. Their defense was that, since there could be no
commerce in a fraudulent bill of lading, therefore Congress's power
could not reach their alleged offense, a contention which Chief Justice
White, speaking for the Court, answered thus: "But this mistakenly
assumes that the power of Congress is to be necessarily tested by the
intrinsic existence of commerce in the particular subject dealt with,
instead of by the relation of that subject to commerce and its effect
upon it. We say mistakenly assumes, because we think it clear that if
the proposition were sustained it would destroy the power of Congress to
regulate, as obviously that power, if it is to exist, must include the
authority to deal with obstructions to interstate commerce (_In re
Debs_, 158 U.S. 564) and with a host of other acts which, because of
their relation to and influence upon interstate commerce, come within
the power of Congress to regulate, although they are not interstate
commerce in and of themselves. * * * That as instrumentalities of
interstate commerce, bills of lading are the efficient means of credit
resorted to for the purpose of securing and fructifying the flow of a
vast volume of interstate commerce upon which the commercial intercourse
of the country, both domestic and foreign, largely depends, is a matter
of common knowledge as to the course of business of