be used in foreign commerce was not within the terms of said act.
In Hammer v. Dagenhart, 247 U.S. 251, 272, 38 S. Ct. 529, 531, 62 L. Ed. 1101, 3 A.L.R. 649, Ann. Cas. 1918E, 724, the Supreme Court, speaking by Mr. Justice Day, said:
"Commerce 'consists of intercourse and traffic * * * and includes the transportation of persons and property, as well as the purchase, sale and exchange of commodities.' The making of goods and the mining of coal are not commerce, nor does the fact that these things are to be afterwards shipped, or used in interstate commerce, make their production a part thereof. Delaware, Lackawanna & Western R.R. Co. v. Yurkonis, 238 U.S. 439, 35 S. Ct. 902, 59 L. Ed. 1397.
"Over interstate transportation, or its incidents, the regulatory power of Congress is ample, but the production of articles, intended for interstate commerce, is a matter of local regulation. 'When the commerce begins is determined, not be the character of the commodity, nor by the intention of the owner to transfer it to another state for sale, nor by his preparation of it for transportation, but by its actual delivery to a common carrier for transportation, or the actual commencement of its transfer to another state.' Mr. Justice Jackson in Re Greene (C.C.) 52 F. 113. This principle has been recognized often in this court. Coe v. Errol, 116 U.S. 517, 6 S. Ct. 475, 29 L. Ed. 715; Bacon v. Illinois, 227 U.S. 504, 33 S. Ct. 299, 57 L. Ed. 615, and cases cited. If it were otherwise, all manufacture intended for interstate shipment would be brought under federal control to the practical exclusion of the authority of the states, a result certainly not contemplated by the framers of the Constitution when they vested in Congress the authority to regulate commerce among the states."
Under the Federal Employers' Liability Act (45 USCA § 51 et seq.), the Supreme Court in Chicago & Eastern Illinois Railroal Co. v. Industrial Commission of Illinois, 284 U.S. 296, 52 S. Ct. 151, 76 L. Ed. 304, held that a railroad employee engaged in oiling an electric motor used for hoisting coal into a chute, to be taken therefrom by locomotives engaged in interstate transportation, was not engaged in interstate commerce. See, also, Pennsylvania Railroad Co. v. Manning, 62 F.2d 293 (C.C.A. 3).
Section 2 of the Arbitration Act aforesaid, in referring to contracts for arbitration, referred to them as "a contract evidencing a transaction involving commerce."
It seems to follow that the written agreement in section 4 should be qualified in accordance with the language of section 2, and therefore that the contract itself must evidence a transaction involving interstate commerce.
The contract in this case does not evidence a transaction involving interstate commerce. I am of the opinion that this court is without jurisdiction under the Arbitration Act aforesaid, and therefore that the petition to dismiss should be sustained and the rule to show cause granted thereon should be discharged.
Let an order or decree be prepared accordingly.
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