STUDIES IN CONSTITUTIONAL w: ■itEeULATIO^ ►F COMPIERCE ^,;|d::pSi^-y::^;:l^:,,^, A- i:v:^>*(4'i!!l]*i^^:;''''!^'!;'til-,;- ,■;.■•:;.■, 1 IP !iiStl!H!!!|ii|;:!!':!'!;i' '111 iil'i'l /vill m HF BOUGHT WITH THE INCOME FROM THE SAGE ENDOWMENT FUND THE GIFT OF SHetirs m. Sage 1891 M.£^.^LJ...K..S..iU/. ,,.^.. .^..^//.././^S..,. 3513-1 HCfBRiMW-r^M rcat^^ui^ mt-x-^^^:^^^r Cornell University Library HF1455 .C16 Regulation of commerce under the federal olin 3 1924 032 501 201 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924032501201 STUDIES IN CONSTITUTIONAL LAW A Treatise on American Qtbensbip. By John S. Wise of the New York Bar. Due Pfocesi of Law under the Federal CoostilutioQ. By Luaus Polk McGeheb, Professor of Law in the Uni- versity of North Carolina.' Regtilation of Commerce under the Federal Constitution. By Thomas H. Calvert, Annotator of the Constitutioa in " Federal Statutes, Annotated." OlAer Volumes in Preparation, STVDIES IN CONSnTVTIONAL LAW REGULATION OF COMMERCE UNDER THE Federal Constitution BY THOMAS H. CALVERT ANNOTATOK OF THE CONSTITUTION IN " FEDEKAL STATUTES, ANNOTATED" EDWARD THOMPSON COMPANY NORTHPORT, LONG ISLAND, N. Y. 1907 tf A. Copyright 1907 by Edward Thompson CoiiPANY All rights reservtd PREFACE In the preparation of such a work as this an author is under the temptation unduly to dwell on matters of contemporary interest, and thus to lose the sense of due proportion. In taking up and prosecuting the work, it was my purpose and it has been my effort to make a clear, coherent, and comprehensive presentation of the subject, strictly within its scope, convenient for the practicing lawyer and the legislator, wiule useful also as a text-book for the student. The construction, scope, and effect of statutes passed iu exercise of the power of Con- gress to regulate commerce have not been discussed imless it seemed that a fundamental question was involved in the particular consideration. This presentation is maialy based upon a care- ful examination of all the cases on the subject decided by the Supreme Court of the United States. On the moot question of the existence and nature of a federal police power I have endeavored to find and state a general principle. The working out of the principle has relation chiefly to the question of the power to regulate comnlerce as including the power to prohibit, and the relation of this power to a consideration of the power of Congress indirectly to regidate manufacture by denying the facilities of interstate transportation to commodities not manu- factured under conditions prescribed by Congres?. In separate parts of the work these two topics are [iiij PREFACE treated, and the principle suggested can perhaps be understood only by referring to both parts. No other department of constitutional law fur- nishes such an opportunity to acquire a knowledge of the respective powers of the federal and State governments as does a study of this subject. The enlightenment acquired reveals the existence of an exclusive authority of the States as to all matters concerning their domestic commerce, and a power in the States concurrent with, but subordinate to, that of Congress respecting many matters affect- ing the instrumentalities of interstate and foreign commerce. We hear much said about enlarging the powers of the federal government by judicial construction. "Whatever else the suggestion may allude to, it cannot refer to the power of Congress to regulate the instrumentalities of interstate commerce. It is impossible to give any attention to the subject with- out being impressed with the wide powers possessed by the States over the instrumentalities of com- merce, even in matters having relation to and affect- ing their interstate and foreign business. The question of the expediency of the adoption, whether by the national government or by the States, of regulations which may be said to be within the con- current powers of the federal and State govern- ments, but inoperative as to the State enactment when Congress has legislated on the particular sub- ject, must in many instances be determined by the sufficiency of the action of the States to meet the local requirements. The failure of the States to adopt regulations to meet a supposed need, either by indifference to the wrong or delinquency or by such an exercise of the power that, on account of [iv] PBEFACB the absolute reqiiirements imposed, a regulation- cannot pass the supreme test of reasonableness, results in agitation for federal regulation of matters concerning which the power of Congress is un- doubted. There would be no need to invoke the exercise of the federal power in such cases if States adopted reasonable regulations to satisfy local requirements or opinion. This topic may be illustrated by comparing the- attempt of the State of Texas to meet the car shortage problem, and the laws of several of the- States prohibiting the running of freight trains on Sunday. In the case respecting the Texas statute,, the court seemed careful to avoid saying that the subject-matter of the statute is not a proper matter" for the exercise of the State police power. Indeed,., it was strongly intimated that such a regulation is within the same class of subjects as those regarding the speed of trains, the length and frequency of stops, the heating, lighting, and ventilation of pas- senger cars, and the furnishing of food and water to cattle and live stock. It was, however, the failure of the statute to make allowance for contingencies which good management and a desire to fulfil all legal requirements cannot provide for, that con- strained the court to declare the statute to be unreasonable and invalid. If the State laws pro- hibiting the transportation of freight on Simdays: required that freight trains should stop at twelve- o'clock on Saturday night, it cannot be supposed that they would be sustained as to trains carrying interstate and foreign freight. But by permitting trains running on Saturday night to run through to destination or to reach, before eight or nine o'clock on Stmday morning, a convenient place to wait W PEEPACB over, every requirement of reasonableness was met. Many such illustrations may be found by the investigator. The Federal Employers' Liability Act of June 11, 1906, has recently been the subject of judicial condemnation.^ The statute in part and in effect declares the liability of every common carrier engaged in commerce between the several States for injuries to any of its employees, abrogates the assumption of risk and fellow-servant doctrines, and imposes the doctrine of comparative negligence. The first point considered by the court was whether regulating the relation of master and ser- vant can be regarded as a subject of commerce or as a rule for carrying it on. Though the court answered the point in the negative, we have the impression that it has never been questioned until this case that the power of Congress over the instru- mentalities of commerce covers every relation and necessarily includes the declaration of the rules of liability of interstate carriers to their employees, and especially when such rules are obviously adopted for the purpose of impressing upon the carriers the duty of exercising every precaution for the safety of their employees. The second point of objection is one which suggests greater doubt and difficulty. It is that by reason of the terms of the statute — not, so the court thought, restricted to interstate carriers and their employees engaged strictly in interstate transportation — it is applicable to domestic as well as to interstate commerce, and, inasmuch as it can- ' In the case of Brooks v. Southern Fac. R. Co;, decided by Hon. Walter Evans, District Judge, holding the United States Circuit Court for the Western District of Kentucky. [yi] PREFACE not be limited by construction, is invalid. The cases cited by the court to support this contention had relation either to matters connected with the execu- tive department, or to declaring certain acts as crimes. In the one class of cases it may be said that whenever Congress imposes duties upon admin- istrative or executive officers the instructions must be specific and not leave the statute open to con- struction. Especially when the constitutional rights of persons may be involved, the leaving of questions of construction, requiring a limitation of the exer- cise of the powers under the statute within con- stitutional bounds, to such officers would be impos- ing upon them judicial duties. In the other class of cases the rule requiring the strict construction of crimiual statutes prevents the courts from giving to a statute, general and not separable in its terms, a narrower meaning than it is manifestly intended to bear, in order that crimes may be punished which are not described in language that brings them within the constitutional power of Congress. This statute, however, simply declares a rule of civil liability which can be invoked only in a pending action and applied by a court of law in a proper case. In an action for damages for personal in- juries sustained by the employee of a common car- rier, pending in a federal court, the court, in the absence of a federal rule of liability, would be under the necessity of searching the whole realm of the common law for a rule of decision, as modified probably by a statute of the State within which the court might be sitting. It can then surely be no strain on judicial conscience or duty to apply in proper cases the rules of liability declared by a federal statute, though the statute be open to possi- [yii] PBEFACB ble verbal criticism. It may be further safely said that if Congress were to declare any rule of liability, or by a statute general in terms were to modify or abrogate any common-law rule, it would be the duty of the courts to apply the rule in all proper cases arising under the Constitution, laws, or treaties of the United States, and in all cases arising out of transactions of which the national government has legislative jurisdiction. However this may be, the Supreme Court of the United States will doubtless be given an opportunity, at an early date, to pass upon the validity of this particular statute. T. H. C. NOBTHPOBT, N. Y., Febrwury, 1907. [Tiu] TABLE OF CONTENTS FART I. THE CONSTITUTIONAL PROVISIONS AND THE GENERAL POWER OF CONGRESS AND THE STATES. CHAPTER I. THE CONSTITUTIONAL PROVISIONS GENERALLY. Reasens for the Adoption of the Constitution 3 The Clauses Generally 5 Commerce with the Indian Tribes 7 District of Columbia and the Territories 10 Application of Common Law and State Statutory Rules IS Judicial Definitions of the Term Commerce 19 Relative Authority of Congress and the Courts to Define the Grants of Power 23 P«wer of Congress to Define a Case in Equity 28 Power of Congress to Define the Admiralty Jurisdiction 31 Pawer of Congress to Define the Term Commerce 39 OHAPTEE II. THE GENERAL POWER OF CONGRESS. The Pawer of Congress over Interstate and Foreign Commerce Generally 49 Subject to Constitutional Limitations 44 Taxation on Exports from a State 45 Preference to Ports of One State 45 May Adopt any Appropriate Means 46 What Constitutes the Power to Regulate 48 The Power to Prohibit as an Exertion of a Police Power 51 [Ix] TABLE OF CONTENTS PAGB Exclusiveness of the Power of Congress 55 The National Power of Eminent Domain „ .,. .,.,...., 59 Duty to Make Just Compensation 62 What Property May Be Taken 63 What Constitutes the Taking of Property 64 Mode of Adjudging and Making, and Measure of. Compensa- tion , 68 CHAPTEE ni. THE GENEKAL POWEE OE THE STATES. The Power of the States over Domestic Commerce 75 Local Regulations of Interstate Commerce 76 Construction of State Statutes 77 The State Police Power 79 The Public Health 83 Peace, Good Order, and Public Morals 84 The Public Safety 85 The Public Convenience 86 Invading Exclusive Power of Congress 87 Incidental Effect of Invading Exclusive Power of Congress. ... 91 Reasonableness of Its Exercise as the Snpreme Test. ; 94 Inspection Laws 97 Quarantine and Health Laws 101 Inspection and Quarantine Charges and Fees 106 PART II. SUBJECTS OF REGULATION. CHAPTEE IV. MANUFACTURE AND PRODUCTION ...,..^.,.. Ill CHAPTEE V. SALE, PURCHASE, AND EXCHANGE OE COMMODITIBS. Power of Congress in General H8 Power of the States in General 120 What Constitutea an Original Package.. ......„,,„,.:,.^,«.^,... 121 lABLB OF CONTENIS FAOB Trademarks 127 Status of C. O. D, Shipments 129 Intoxicating Liquors 131 Cigarettes 134 Oleomargarine 135 Coffee 138 Stockyards 141 Making Importations Subject to State Laws — Wilson Act. . . . 143 CHAPTER VL IRANSFORTATION OF PERSONS AND PROPERTY 6EKERALLY. Interstate and Emreign Tramportation 14S Tnnaportation Between Places te the Suae State Pawing Out> aide the State !«• Duration of Federal Protection from Opendioa of State Lam. . ICI CHAPTEE VII. RAILROAD AND EXPRE^ COMPANIES. General Power of Congress over Interstate Carriers 158 General Power of the States over Carriers 159 Prohibiting Consolidation of Competing Roads 160 Regulating Connecting Carriers 161 Regulating the Operation of Trains 163 Requiring Trains to Stop at Certain Stations 165 Accommodations for Different Races 167 Sunday Laws 171 Regulating the Sale of Tickets 171 Regulating the Time, Place, and Manner of Delivery 172 Delivery- oi. Goods on Tender of Freight Charges 173 General Power of Congress to Regulate Transportation Rates. . 174 Preference to Ports of One State over Those of Another 176 Power of States to Regulate TransportaiioB Rates 179 Regulating Domestic Part of Interstate Rate 180 Joint Through Rates 184 Bates on Long and Short Hauls 185 Sequiring Rates to be Fixed Annually and Posted 18<8 XU lABLB OF CONTSiNTS CHAPTEK VIIL TELE6BAFH AND TELEPHONE COMPANIES. PAOB Controlling Power of Congress 188 Power of States to Adopt Kegulations 191 Regulating Transmission and Delirery of Messages 192 CHAPTEK IX. NAVIGATION AND NAVIGABLE WATERS. What Are Navigable Waters 104 Power of Congress over Navigable Waters Generally 195 Power of States over Navigable Waters Generally 197 Servitude of Shore and Submerged Soil 201 Levy of Tolls for River Improvements 202 Harbor Regulations 203 Wbarves, Piers, and Docks 20S Ferries 207 Pilots and Pilotage 209 Canals 212 CHAPTER X. SHIPS AND SHIPPING. General Powers of Congress and the States 214 Inspeetion and Licensing 815 Recording Acts 217 Regulating Commerce and Admiralty Jurisdiction 219 BegulatioBB Affecting Seamen 222 CHAPTER XL BRIDGES 224 CHAPTER XII. SUNDRY SUBJECTS OP REGULATION. Warehouses and Elevators 232 Game and Fish Laws 233 Admission and Exclusion of Aliens 23g TABLE OF CONTENTS XIU FAOa ExclusioB-liytke States '•{ Criminals, and Fooi and Diseased Persons ....-.....'. ,. 241 Lotteries- •.•..-.■.■.•., . . . .• « ■.,1,^^^..^..^. . . 843 Insurance 24fi State Regulation of Foreign Corporations 248 CHAPTER XIIL DISCRIMINATIVE STATE STATUTES tSB PART III. STATJE TAXATION "AS AFFECTING COMMERCE. CHAPTER XIV. TAXATION OF IMPORTS AND EXPORTS t«3 CHAPTER XV. DUTIES OF TONNAGE 26* CHAPTER XVI. TAXATION OF PROPERTY. General Power of a State to Tax Property Within Its Limits. . . 87(i Application of the Unit Rule 282 Taxation of Gross Receipts 287 Taxation of Goods 291 CHAPTER XVII. PRIVILEGE AND OCCUPATION TAXES. On the Business of Engaging in Transportation 204 On Telegraph and Telephone Companies 300 On Drummers and Canvassers 304 ZIV TABLE OF COIflSiriB PAW On Merehaats, Feddlos, and Aoctioneen.... ,,««.. .»«««..».. 305 On ^Foreign Corporations .,«».usiii>.....*.«j..>jut>»..aiJs*.».«... 323 PAKT I. THE CONSTITUTIONAL PROVISIONS AND THE GENERAL POWER OF CONGRESS AND THE STATES. REGULATION OF COIMERCE. CHAPTEE I. THE CONSTITUTIONAL PKOVISIONS GENEEALLY. EEASONS FOE THE ADOPTION OF THE CONSTITUTION. MUCH has been said and written as to the Chapter causes which brought about the adoption - of the United States Constitution, which, Need for ' ' uniform after ratification by the requisite number of States, %^i"ti°g went into effect on the first Wednesday in March, ^o"""""- 1789. It is not within the scope of this work to inquire into the many causes of weakness which con- tributed to the downfall of the first-formed govern- ment of ' ' The United States of America. ' ' For our purpose it will be sufficient to show that one of the chief causes of its adoption was the need for a uni- form system of regulating commerce among the sev- eral States themselves, and with foreign countries, which the impotence of the federal government and the jealousies and selfishness of the respective States rendered impossible under the Confederation. It is necessary to keep this in mind, for one of the elementary and fundamental canons of constitu- tional construction requires a grant of power or a prohibition to be interpreted in view bf the mischiefs it was intended to remedy. EBGULATION OF COMMERCE Chapter No federal control of commerce under the Confedera- tion. The " Articles of Confederation and Perpetual Union " established a system which was nothing more than a federation of sovereign and independ- ent States. The Congress of the federation was without power to tax, blat was depetidfent wholly upon contributions by the States, made in response to requisitions of Congress. The government had no adequate control of commerce. Congress had no power to raise revenue by way of duties on imports, and the seaboard States not only would not consent to the exercise of this power by Congress, but but-dtetied the commerce of dther States by levying duties on imported goods which were designed for Sta.tes having iid ports,^ and by imposing duties of tonnage.^ In a concurring opinion in an early case, Mr. Justice Johnson said: " For a century the States had submitted, with murmurs, to the commercial re- strictions imposed by the parent State; and now, finding themselves in the unlimited possession of those powers over their own commerce, which they hiad so long been deprived of, and so earnestly coveted, that selfish principle which, well controlled, is so salutary, and which, imrestricted, is so unjust and tyrannical, guided by inexperience and jealousy, began to show itself in iniquitous laws and impolitic measures, from which grew up a conflict of com- toercial regulations, destructive to the harmony of the States, and fatal to their commercial interests abroad. "3 And in a later case. Chief Justice Marshall observed: " The oppressed and degraded slate of commerce previous to the adoption of the 1 Woodruff V. Parham, (1868) 8 Wall. (U. S.) 123. : See Cook v. Pennsylvania, <1878) 97 U. S. 566, and State Ton- ■ftftgfe ^ai Oases, (1870) IS Wall. (tJ. S.) 204. 3 Gibbons v. Ogden, (1824) 9 Wiheat. {V. S.) 1. BEGULATIQJ>I OF COMMEBCB Constitution can scarcely be forgotten. It was regu- Chapter lated by foreign nations witb a single view to their ' own interests ; and our disunited efforts to counteract their restrictions were rendered impotent by want of combination. Congress, indeed, possessed the power of making treaties; but the inability of the federal government to enforce them had become so apparent as to render that power in a great degree useless. Those who felt the injury jirising from this state of things, and those who were capable of estimating the influence of commerce on the pros- perity of nations, perceived the necessity of giving the control over this iniportant subject to a single governnaent- It may be doubted whether any of the evils proceeding from the feebleness of the fed- eral government contributed more to that great revo- lution which introduced the present system than the deep and general conviction that commerce ought to be regulated by Congress."* THE CLAUSES GENEKALtY. It was to meet this condition that the Constitu- The clauses tion was proposed by the Constitutional Convention ated. and ratified by the States, and to remedy the faults suggested, that the following clauses, having ^, direct or incidental reference to commerce, were adopted : Article I, Section 8. The Congress shall have power ... to regulate commerce with * Brown V. Maryland, (1827) 1-2 Whe#. i(U. S.) 418. "The conflict between the commercial regulations of the several States was destructive to their harmony and fatal to theif com- mercial interests abroad, and this was the mischief intended to be obviated by the grant to the Gongress of the power to regulate commerce with foreign nations and among the States." Per Chief Justice Fijiller, in I*ehigh Vajley E. Co. v. Pennsyly^Jlifi, .(il?92) 145 U. S. 192. EEGTJLATION OF COMMERCE ChMter foreign nations, and among the several States, ' and with the Indian tribes. Article I, Section 9. The migration or importa- tion of such persons as any of the States now- existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.® Article I, Section 9. No tax or duty shall be laid on articles exported from any State. Article I, Section 9. No preference shall be given by any regulation of commerce or reve- nue to the ports of one State over those of another ; nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another. Article I, Section 10. No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws: and the net produce of all duties and imposts, laid by any State on im- ports or exports, shall be for the use of the Treasury of the United States; and all such laws shall be subject to the revision and con- trol of the Congress. Article I, Section 10. No State shall, without the consent of Congress, lay any duty of tonnage. The first clause above givefi is the general grant of power to Congress to regulate foreign aiid inter- 5 See People v. Compagnie Gfingrale Transatlantique, (1882) 107 U. S. 59, referred to infra, p. 267. UmitatioQEK^ REGULATION OF COMMEECE 7] state commerce and intercourse with the Indian Chaptet- tribes. Article I, section 9, of the Constitution ' consists of prohibitions or limitations on the exer- THegenen* n , , grant of cise 01 the powers granted to the national govern- ^ZmxT* ment, and the clauses quoted from that section may be considered as limitations on the power given to Congress to regulate commerce, though the one pro- hibiting the laying of any tax or duty on articles exported from any State should perhaps be con- sidered rather as a limitation on the federal taxing power than on the power to regulate commerce. Article I, section 10, contains limitations on the powers of the States, and the two clauses set out are in the nature of express prohibitions in addition to or emphasizing such limitations as are implied by the grant of power to Congress to regulate commerce " with foreign nations, and among the several States, and with the Indian tribes. ' ' WITH THE INDIAN TRIBES. The relation between the national government originanr and the Indians is fast becoming a matter of mere separate"' . nations.. historic interest. In a recent case,* Mr. Justice Brewer reviews the course of this relation, and the dealings of the government with the Indian tribes, from early times. He therein shows that the Indian tribes were treated as possessing some of the attri- butes of nations with which the government made treaties. The policy of the government was to put a stop to the wanderings of these tribes and locate them on some definite territory or reservation, and there to establish for them a communal or tribal life. This policy was effected sometimes by treaty 6 Matter of Heff, (1905) 197 U. S. 488. 8 BBGULATION OP COMMERCE Chapter and sometimes by force. The practice of dealing ' with the Indian tribes as separate nations was Subjected changed in 1871 by a proviso inserted in an Indian to direct ° . , n , ^ -»t t t il^Suon. appropriation act, which reads: No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independ- ent nation, tribe, or power with whom the United States may contract by treaty." ^ From that time the Indian tribes and the iadividual members thereof have been subjected to the direct legislation of Congress, and have been treated, in the fullest sense, as wards of the nation. H^Jfrom " C)f late years, however, said Mr. Justice Brewer, federal con- << ^ -^^^ policy has fouud expression in the legis- lation of Congress — a policy which looks to the breaking up of tribal relations, the establishing of the separate Indians in individual homes, free from national guardianship and charged with all the rights and obligations of citizens of the United States. Of the power of the government to carry out this policy there can be no doubt. It is under no constitutional obligation to perpetually continue the relationship of guardian and ward. It may at ^ any time abandon its guardianship and leave the ward to assume and be subject to all the privileges and burdens of one sui juris. And it is for Congress to determine when and how that relationship of guardianship shall be abandoned. It is not within the power of the courts to overrule the judgment of Congress." Eflect rf When, in pursuance of this policy of encouraging I'ribai"' *^6 abandonment by Indians of their tribal rela- tions, the national government grants the privileges 'Act of March 3, 1871, c. 120, carried forward into Rev. Stat. U. S., § 2079, 3 Fed. Stat. Annot. 357. relations. BEGULATION OP OOMMEBCB intercourse; of citizenship to an Indian, gives him the benefit of Ch^ter and requires him to be subject to the laws, both civil and criminal, of the State, it places him outside the reach of police regulations on the part of Congress ; the emancipation from federal control thus created cannot be set aside at the instance of the govern- ment without the consent of the individual Indian and the State, and this emancipation from federal control is not affected by the fact that the lands it has granted to the Indian are granted subject to a condition against alienation and encumbrance, or the further fact that it guarantees to him an interest in tribal or other property. Until this emancipation takes place, the commer- f„"=„^*;f<,f cial relations with the Indians and the Indian tribes remain under the control of Congress, The power of Congress over commerce between a State and the Indian Territory is not less than its power over commerce among the States.* And when a tribe exists as a distinct community within the limits of a State, occupying its own territory with boundaries accurately described, intercourse with it is by the Constitution vested in the government of the United States.® sHanley v. Kansas City Southern R. Co., (1903) 187 U. S. 617. Congress has the power to regulate the ownership and distribu- tion of their property, Morris v. Hitchcock, (1904) 194 U. S. 388; Cherokee Nation v. Hitchcock, (1902) 187 U. S. 294; Stephens v. Cherokee Nation, (1899) 174 U. S. 445; and to regulate the sale of intoxicating liquors, Ea, p. Crow Dog, (1883) 109 U. S. 556; U. S. 'V. Forty-three Gallons Whiskey, (1883) 108 U. S. 491; U. S. v. Forty-three Gallons Whiskey, (1876) 93 U| S. 188. »U. S. V. Kagama, (1886) 118 U. S. 375; Howard v. IngersoU, (1851) 13 How. (U. 8.) 381; Worcester ». Georgia, (1832) 6 Pet. (U. S.) 515. 10 BEGULATION OP COMMEECE Chapter I- DISTBICT OF COLUMBIA AND THE TEHKITOBIES. The Constitution provides that Congress shall have power " to exercise exclusive legislation in all cases whatsoever, over such district (not exceed- ing ten miles square) as may, by cession of particu- lar States, and the acceptance of Congress, become the seat of the government of the United States," * and further provides that " the Congress shall have power to dispose of and raake all needful rules and regulations respecting the territory or other property belonging to the United States. "^ Legislative Uudcr thc formei clause, within the District of power over ' of cSum!"' Columbia, organized by cessions of territory from ""^^ the States of Virginia and Maryland, the national and local powers of government are united in the government of the Union.* As to the Territories, it was early considered that the latter clause was the foundation upon which the territorial governments rest,* but in later times, as questions arose regarding the government of territory acquired by conquest or Te'rritori^r ^^saty, the power of Congress in such cases was Tentoi^"' rather regarded as an incident of sovereignty and rigSty. as arising from the necessities of the case and the inability of the States to act upon the subject. In U. S. V. Kagama^ Mr. Justice Miller said that " this The Cherokees in North Carolina, who dissolved their connection ■with their nation when they refused to accompany the tribe on its removal, became citizens of the State and bound by its laws. Cherokee Trust Funds, (1886) 117 U. S. 288. 1 Article I, § 8, cl. 17. 2 Article IV, § 3, cl. 2. 3 Capital Traction Co. v. Hof, (1899) 174 U. S. 1; Shoemaker V. U. S., (1893) 147 U. S. 282; Pollard v. Hagan, (1845) 3 How. (U. S.) 212; Cohen t). Virginia, (1821) 6 Wheat. (U. S.) 264. *U. S. V. Gratiot, (1840) 14 Pet. (U. S.) 526. e (1886) 118 U. S. 375. States. REGULATION OF COMMEECB 11 power of Congress to organize territorial govern- Chapter ments, and make laws for their inhabitants, arises ' not so much from the clause in the Constitution in regard to disposing of and making rules and regula- tions concerning the territory and other property of the United States, as from the ownership of the country in which the territories are, and the right of exclusive sovereignty which must exist in the national government, and can be found nowhere else. ' ' It is not, of course, within the scope of this work J^|'*^'?°^i°( to discuss at large the powers of the national gov- ruoriesu."' ernment over the District of Columbia and the Ter- a^nrthe ritories, but the question has occasionally arisen as to the relation of the District and the Territories to commerce among the States. In Downes v. Bid- well,^ Mr. Justice Brown gives a well-nigh exhaust- ive review of the cases involving, in a constitutional sense, the government of the District and the Territories, and thus summarizes the decisions: ' ' Eliminating, then, from the opinions of this court all expressions unnecessary to the disposition of the particular case, and gleaning therefrom the exact point decided in each, the following proposi- tions may be considered as established : ' ' 1. That the District of Columbia and the Ter- ritories are not States, within the judicial clause of the Constitution giving jurisdiction in cases between citizens of different States ; " 2. That Territories are not States, within the meaning of Eevised Statutes, § 709, permitting writs of error from this court in cases where the validity of a State statute is drawn in question ; ■'' 3. That the District of Columbia and the Ter- 6 (1901) 182 U. S. 244. 12 BEGULATION OF COMMEECE Chapter ritories are States, as that word is used in treaties " with foreign powers, with respect to the ownership, disposition, and inheritance of property ; " 4. That the Territories are not within the clause of the Constitution providing for the creation of a Supreme Court and such inferior courts as Con- gress may see fit to establish ; " 5. That the Constitution does not apply to foreign countries or to trials therein conducted, and that Congress may lawfully provide for such trials before consular tribunals, without the intervention of a grand or petit jury ; " 6. That where the Constitution has been once formally extended by Congress to Territories, neither Congress nor the territorial legislature can enact laws inconsistent therewith." **owi??of -'-* ^^^ argued, in Stoutenburgh v. Hennick,'' that of^Mum-"' it is beyond the power of Congress to pass a law, solely for the District of Columbia, licensing the business of selling goods by sample. In that ease an act of the legislative assembly of the District of Columbia, requiring commercial agents whose busi- ness it was to offer merchandise for sale by sample to take out a license, was declared to be invalid as a regulation of commerce. In a dissenting opinion, Mr. Justice Miller said: '* Commerce by a citizen of one State, in order to come within the constitu- tional provision, must be commerce with a citizen of another State; and where one of the parties is a citizen of a Territory, or of the District of Columbia, or of any other place out of a State of the Union, it is not commerce among the citizens of the several States." Nevertheless, the decision of the court was not put upon the ground that it is beyond the M1889) 129 U. S. 141. ' bia. States. BEQULATION OF COMMERCE 13 power of Congress to pass a law of that character Chaptet solely for the District, but because, having express ' power " to exercise exclusive legislation in all cases whatsoever " over the District, thus possessing the combined powers of a general and of a State govern- ment in all cases where legislation is possible, and having created the District of Columbia " a body corporate for municipal purposes," Congress could only authorize it to exercise municipal powers. As the legislative assembly of the District could not exercise other than municipal powers, it was without authority to enact a law on a subject which called for national legislation.® And again, in Hanley V. Kansas City Southern Reguutioa E. Co.^^ the court avoided a direct holding as to the °^Jl^^^ power of Congress over the Territories in their JZ"^'" commercial relatiotis with the States, being satisfied, on this point, with the suggestion, through Mr. sin Beitzell v. District of Columbia, (1903) 21 App. Gas. (B. C.) 49, it was held that the provision of the Act of Congress of July 1, 1?02, relating to the District of Columbia, and requiring any one engaged in the business of a brewer's agent to pay a licence tax, was a local act and ii.tended to have a local operation only, ahd was not applitsable to the ease of a local agent of a firm of brewers whose bfewery and oflSees were located in another State, the court saying: " It is unnecessary to hold in this case that this Distrrct can be rightfully treated as a State within the meaning of the Oolttstitwti-on, in considering the question of the power of Con- gress to regulate commerce as between this District and the several States of the Union. But in consideriag the effect of the Act in question, it is not fair to presume, ia the absence of an express declaration to Wiat effect, that Congress intended to disregard the settled principle of commercial intercourse of the country, which, as embodied in the CoBstitution of the country, prohibits a State from imposMig a license tax upon persons representing owners of property outside of the State, for the jiiivilege of soliciting orders within it, as agents of each owners, for property to be shipped to persons withi'B the State." » <1903) 187 U*S. 6i7. 14 EEGULATION OF COMMEBCE Chapter Justice Holmes, that " it may be assumed that this ' power of Congress over commerce between Arkansas and the Indian Territory is not less than its power over commerce among the States."^ This was a case involving the power of the State of Arkansas to regulate the rates on goods shipped from one point in Arkansas to another point in the same State, on a through bill of lading, part of the journey being through the Indian Territory, and the total distance being about fifty-two miles in Arkansas and about sixty-four in the Indian Territory. In hold- ing that the transportation of the goods was not within the regulating power of the State, the court put its decision upon the ground stated by Mr. Justice Field in Pacific Coast Steamship Co. v. Railroad Com'rs,^ that " to bring the transporta- tion within the control of the State, as part of its domestic commerce, the subject transported must be within the entire voyage under the exclusive juris- diction of the State." ^ ^Citing Stoutenburgh v. Hennick, (1889) 129 U. S. 141. 2 (1883) 9 Sawy. (U. S.) 253. sin U. S. V. Whelpley, (1903) 125 Fed. Rep. 616, District Judge McDowell said : " If Chief Justice Marshall's ruling in Hepburn V. Ellzey, (1804) 2 Cranch (U. S.) 445, is to be the guide in con- struing the meaning of the word ' State,' as found in the Constitu- tion, it may seem difficult to find in the commerce clause authority to forbid shipments from any State to a Territory or to the District of Columbia. I am not myself expressing an opinion on the con- stitutionality of an Act of Congress regulating commerce from a State to the District of Columbia. I am inclined to think that the implication from the decision in Stoutenburgh v. Hennick, (1889) 129 U. S. 141, 9 U. S. Sup. Ct. Rep. 256, and the language of Mr. Justice Holmes in Hanley v. Kansas City Southern R. Co., (1903) 187 U. S. 617, 23 U. S. Sup. Ct. Rep. 214, are sufficient to prevent a subordinate federal court from holding such an enactment invalid, even if so inclined." In the Hepburn v. Ellzey case, referred to by Judge McDowell, it was held that the District of Columbia is not a " State " within the meaning of Article III, section 2, of the Con- BEGULATION OP COMMEBCE 15 Chapter APPLICATION OF COMMON LAW AND STATE STATUTOBY I. EULES. There is no common law of the United States in no national common the sense of a national customary law,* no abstract ^^• pervading principle of the common law mider which the federal courts can take jurisdiction. Thus, there are no common-law offenses against the United States,® nor is there a common law of copyright. The federal courts have jurisdiction only of such offenses as are defined by Acts of Congress, and copyright is dependent wholly upon legislation by Congress under the grant of power ' ' to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." ® But this does not mean, in cases of which the federal courts have jurisdiction, that they are without rules of decision in the absence of statutory enactment. It has frequently been declared by the courts that the principles and definitions of the common law will be followed and applied in the construction of con- stitutions, statutes, and contracts. Principles of the common law applicable to com- ^^""^-^i. mon carriers regulated railway traffic before the P^^'ieTo""' enactment of the Interstate Commerce Act of Febru- ary 4, 1887.'^ Kentucky Bank v. Adams Express stitution, giving jurisdiction to the federal courts of cases between citizens of different States. 4 See Smith v. Alabama, (1888) 124 U. S. 465; Wheaton v. Peters, (1834) 8 Pet. (U. S.) 591. 5U. S. V. Eaton, (1892) 144 U. S. 677; Benson V. McMahon, (1888) 127 U. S. 457; U. S. v. Britton, (1883) 108 U. S. 199; U. S. V. Worrall, (1798) 2 Call. (U. S.) 384. « Banks v. Manchester, (1888) 128 U. S. 244. 7 Ch. 104, 3 Fed. Stat. Annot. 809. See Interstate Commerce Commission v. Baltimore, etc., R. Co., (1892) 145 U. S. 263. common carriers. 16 REGULATION OF COMMEBCE Chapter Co.^ was an action to recover the value of pack- ' ages containing money, wMch, on their transporta- tion from one State to another in charge of a mes- senger of the company, were destroyed by fire. The express company set up in defense a clause in the bill of lading exempting them from liability for loss by fire. It was held that the defendants, as common carriers, could not, by any contract, relieve them- selves from responsibility for their own negligence or that of their servants and agents, and this because such a contract is xmreasonable and contrary to public policy. It was said by Mr. Justice Brewer, in Western Union Tel. Co. v. Call Pub. Co.^ that " the whole argument of the opinion [in the above case] proceeds upon the assumption that the common-law rule in respect to common carriers controlled." State laws Section 721, Eev. Stat U. S., provides that " the as rules of ' ' -"^ decision, laws of the several States, except where the Consti- tution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply." It has been generally held imder this stat- ute that decisions of State courts on questions of general jurisprudence are not binding upon the fed- eral courts, but that modifications declared by a State constitution or statute will be given full effect in the federal courts sitting within that State. In line mth this principle is the recognition of the validity of a State statute providing: " No con- tract, receipt, rule, or regulation shall exempt any corporation engaged in transporting persons or « (isre) 93 U. S. 174. » (1901) ISl U. S. 92. REGULATION OP GOMMBRCE 17 property by railway from liability of a common car- Chaste* rier, or carrier of passengers, which would exist had no contract, receipt, rule, or regulation been made or entered into," so far as it concerns liability for injuries happening within the State in a matter of interstate commerce. In sustaining the statute, the court, speaking through Mr. Justice Gray, said: " The question of the right of a railroad corpora- tion to contract for exemption from liability for its own negligence is, indeed, like other questions affect- ing its liability as a common carrier of goods or pas- sengers, one of those questions not of merely local law, but of commercial law or general jurisprudence, upon which this court, in the absence of express statute regulating the subject, will exercise its own judgment, uncontrolled by the decisions of the courts of the State in which the cause of action arises. But the law to be applied is none the less the law of the State ; and may be changed by its legislature, except so far as restrained by the constitution of the State or by the Constitution or laws of the United States. "1 The federal courts apply the principles of the common law as adopted by the several States each for itself as its local law, and " a determination in a given case of what that law is may be different in a court of the United States from that which pre- vails in the judicial tribunals of a particular State. This arises from the circumstance that the courts of the United States, in cases within their jurisdiction, where they are called upon to administer the law of the State in which they sit or by which the trans- action is governed, exercise an independent though concurrent jurisdiction, and are required to ascer- 1 Chicago, etc., R. Co. v. Solan, (1898) 169 U. S. 133. 2 18 REGULATION OF COMMERCE caiapter tain and declare the law according to their own ' judgment. ' ' ^ Application And in the State courts the principles of the -of common- -^ ■*■ vj^by""' common law may be applied in cases arising upon ^tate?""' interstate transactions. The case of Western Union ^ons?"^" Tel. Co. V. Call Pub. Co.^ was an action begun in a State court to recover sums alleged to have been wrongfully charged and collected in making imjust discrimination against the plaintiff in the trans- mission of press dispatches. The case was sub- mitted to the jury upon the propositions that where there is dissimilarity in the services rendered a difference in charges is proper, and that no recovery can be had unless it is shown, not merely that there is a difference in the charges, but that that diflfer- e^ce is so great as, under dissimilar conditions of service, to show an unjust discrimination, and that the recovery must be limited to the amount of the unreasonable discrimination, and was affirmed by the Supreme Court of the State. In sustaining the State courts, the Supreme Court of the United States, Mr. Justice Brewer delivering the opinion, said that " no one can doubt the inherent justice of the rules thus laid down." It was further said that the tele- graph company " contends that there is no federal common law, and that such has been the ruling of this court; there was no federal statute law at the time applicable to this case, and as the matter is interstate commerce, wholly removed from State jurisdiction, the conclusion is reached that there is no controlling law, and the. question of rates is left -entirely to the judgment or whim of the telegraph 2 Per Mr. Justice Matthews, in Smith v. Alabama, (1888) 124 •V. S. 465. 3 (1901) 181 U. S. 92. KEGULATION OP COMMERCE 19 company. . . . "We are clearly of opinion that Chapter this cannot be so, and that the principles of the com- ' mon law are operative upon all interstate commer- cial transactions except so far as they are modified by congressional enactment." Congress may make provision as to contracts for control o£ ° ./ jr contracts interstate carriage, permitting a carrier to limit its i^^l^'§_ liability to a particTolar sum in consideration of lower rates for transportation. But in the absence of con- gressional legislation on the subject, a State may require a common carrier, although in the execution of a contract for interstate carriage, to be liable for the whole loss resulting from negligence in the dis- charge of its duties, notwithstanding a contract may have been entered into between the carrier and the shipper limiting the carrier 's liability. It makes no difference as to the power of the State in this respect whether the principle is enacted into a statute,* or results from the rules of law enforced in the State courts, so far as the principle may be applied in trials in the State courts.' JUDICIAL DEFINITIONS OF THE TEBM COMMERCE. The Constitution gives no definition of the word No defini- " commerce." In determining the extent or the ^°|j''""- power granted to Congress " to regulate commerce," it is necessary to understand what the word means in this connection, or, at least, to know to what sub- 4 Chicago, etc., E. Co. v. Solan, (1898) 169 U. S. 133. See also Peirce v. Van Dusen, (1897) 78 Fed. Rep. 693; Ohio, etc., R. Co. V. Tahor, (1895) 98 Ky. 503; Galveston, etc., R. Co. v. Fales, (1903) 33 Tex. Civ. App. 457; Pittman v. Pacific Express Co., (1900) 24 Tex. Civ. App. 595. 5 Pennsylvania R. Co. v. Hughes, (1903) 191 U. S. 477. See, in this connection, Richmond, etc., E. Co. v. R. A. Patterson Tobacco Co., (1898) 169 U. S. 311, discussed infra, p. 162. 20' KEGULATiOW OP COMMERCE Chaptet Judicial definitions of inclu- sion. jects and conditions the word has up to the present time been recognized by the courts as applicable. The very nature of the grant may be said to forbid an attempt at exact and comprehensive definition, or at any rate the judicial definitions have been in the nature of definitions by inclusion and exclusion in the exercise of the duty of the courts to deter- mine the validity or invalidity of federal and State legislation. It has been said that the word " commerce " is a term of the largest import.* It includes traffic by the purchase, sale, and exchange of commodities,'' and the transportation of persons and property by land and water.® Navigation is also included as an element of commerce, as one of the means of inter- state intercourse, and the principal means by which foreign intercourse is effected.® Except in the case of the transportation of persons, there was and could be little controversy in the adoption of these definitions. From the earliest case, construing this clause of 6 Welton V. Missouri, (1875) 91 U. S. 275. "We know from the cases decided in tliis court that it is a term of very large signifi- cance." Hopkins v. U. S., (1898) 171 U. S. 578. TAddyston Pipe, etc., Co. ij. U. S., (1899) 175 U. S. 211; Pas- senger Cas^s, (1849) 7 How. (U. S.> 283. 8 Chicago, etc., R. Co. v. Fuller, (1873) 17 Wall. (U. S.) 560; State Freight Tax Case, (1872) 15 Wall. (U. S.) 232; Addyston Pipe, etc., Co. V. V. S., (1899) 175 U. S. 211. " Transportation for others, as an independent business, is coitt- merce, irrespective of the purpose to sell or retain the goods which the owner itaay entertaiii with regard to theny after they shall have Wen delivered." Hanley v. Kansas' City SoutHert E. Co., (1903) 187 U. S. 617. 9' State Tonnage Tax Cases, (1870) 13 Wa,ll. (U. S.)' 204; Pas- eenger Cases, (1849) 7 How. (U. S.) 283; Gloucester Ferry Co. v. Pennsylvania, (1885) 114 U. S. 100; Henderson v. New York, (1875) 92 U. S. 259; Oilman v. Philadelphia, (1865) 3 Wall. (U. S.) 713. REGTIIjATIOlSr OF OOMMEKCE 21 the Constitution, decided by the Supreme Court of Ch^ter the United States, that of Giblions v. Ogden,^ to the ' recent Lottery Case,^ and the case of Northern Se- curities Co. V. U. S.,^ the definition that it consists of every species of commercial intercourse has been repeatedly recognized,* and the question upon which the judges have been divided has been the applica- tion of this definition. The results might justify more than a mere impression that it includes inter- course without any qualifying adjective. In the Gibbons v. Ogden case, supra, which is cwef^ examined as to the particular holding in another SignJi^is. part of this worV Marshall, C. J., said: " The subject to be regulated is commerce ; and our Con- stitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and sell- ing, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubt- edly, is traffic, but it is something more ; it is inter- course. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse." The great chief 1 (1824) 9 Wheat. (U. S.) 1. 2 (1903) 188 U. S. 321. 3 (1904) 193 U. S. 197. *Pensacola Tel. Co. v. Western Union Tel. Co., (1877) 96 U. S. 1; State Tonnage Tax Cases, (1870) 12 Wall. (U. S.) 204; Passen- ger Cases, (1849) 7 How. (U. S,) 283} Henderson «. JUew York, (1875) ,92 U. S. 259; Hopjkijis v. V. S., (1898) 171 U. S. 578. 6 See infra, p. 199. 22 KEGULATIOIT OF COMMEECE I. Chapter justice later, in Brown v. Maryland,^ said that the power of Congress to regulate commerce is complete in itself and acknowledges no limitations other than are prescribed by the Constitution ; also that ' ' com- merce is intercourse ; one of its most ordinary ingre- Definitions dicuts is traffic." In the Lottery Case Mr. Justice stated in n n i fte Lottery Harlau Said: " What is the import of the word ' commerce ' as used in the Constitution? It is not defined by that instrument. Undoubtedly, the carry- ing from one State to another by independent car- riers of things or commodities that are ordinary subjects of traffic, and which have in themselves a recognized value in money, constitutes interstate commerce. But does not commerce among the sev- eral States include something more? Does not the carrying from one State to another, by independent carriers, of lottery tickets that entitle the holder to the payment of a certain amount of money therein specified also constitute commerce among the States ? ' ' And he further said that the cases therein reviewed show " that commerce among the States embraces navigation, intercourse, communication, traffic, the transit of persons, and the transmission of messages by telegraph." The remarks of Chief Justice Fuller,' in the dissenting opinion, in which three other justices concurred, give an idea of the importance of this case as recognizing the power of Congress to legislate upon subjects having relation 6 (1827) 12 Wheat. (U. S.) 419. " The legal definition of the term, as given hy this court in Mobile County v. Kimball, (1880) 102 U. S. 691, is as follows: ' Commerce with foreign countries, and among the States, strictly considered, consists in intercourse and traflBc, including in these terms navigation and the transportation and transit of persons and property, as well as the purchase, sale, and exchange of com- modities.'" Kidd V. Pearson, (1888) 128 U. S. 1. REGULATION OP COMMERCE 23 to commerce in tlie nature of interstate intercourse. Chapeer He said: " When Chief Justice Marshall said that commerce embraced intercourse, he added, commer- cial intercourse, and this was necessarily so, since, as Chief Justice Taney pointed out, if intercourse were a word of larger meaning than the word com- merce, it could not be substituted for the word of more limited meaning contained in the Constitution. Is the carriage of lottery tickets from one State to another commercial intercourse? The lottery ticket purports to create contractual relations and to fur- nish the means of enforcing a contract right. . . . If a lottery ticket is not an article of commerce, how can it become so when placed in an envelope or box or other covering, and transported by an express company? To say that the mere carrying of an article which is not an article of commerce in and of itself nevertheless becomes such the moment it is to be transported from one State to another, is to transform a noncommercial article into a commer- cial one simply because it is transported. I cannot conceive that any such result can properly follow. It would be to say that everything is an article of commerce the moment it is taken to be transported from place to place, and of interstate commerce if from State to State." REIiAirVE ATTTHORITY OF CONGRESS AND THE COURTS TO DEFINE THE GRANTS OF POWER. It has been said that the very nature of the grant The qa«»- of power to Congress forbids any attempt at exact ^4°^^^''^ or comprehensive definition. Any definition, whether statutory or judicial, must necessarily be merely inclusive or exclusive. But the inquiry, who has the power primarily to define the term commerce, 24 KEGULATION OF COMMEECE Chapter is the first question in the search for a basic prinei- ' pie of constitutional interpretation, and it suggests the proposition that to the legislative department belongs the power to define the substantive grants of power contained in the Constitution, except, perhaps, those powers which are granted to the executive department, and that to the judicial department is confided the power to determine whether the limita- tions and prohibitions prescribed by the Constitution have been duly observed. It is our purpose here to examine this question in the light of some other grants of power contained in the Constitution, in order to obtain aid therefrom in the attempt to ascertain the limit, if any, to the authority of Con- gress, under the grant of power to regulate com- merce, to define the term. SaSo?' Congress is, by Article I, section 8, given * ' power clauses. to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be imif orm through- out the United States; " and section 2 of the same article provides that " direct taxes shall be appor- tioned among the several States which may be in- eluded within this Union, according to their respec- tive numbers. ' ' It must be within the power af the courts to define what is meant by " direct " taxes in order to determine in any given case whether the constitutional requirement of apportionment has been observed in the levy of such a tax, and whether in the levy of duties, imposts, and excises the pre- scribed rule of uniformity, which is a rule of limita- tion, has been obeyed. But otherwise the right of Congress to tax within its delegated power being unrestrained, except as limited by the Constitution, BEGULATIOU OF COMMERCE 25 lapti Guaranty to States of republican form of govern- ment. it is within the authority conferred on Congress to Chapter select the objects upon which an excise should be laid,^ only further limited by the consideration that the operations of a State government cannot be con- sidered the proper subject of federal taxation, as a State tax certificate,^ State process,^ receipts from municipal bonds,i or the salary of a State officer.^ The guaranty to every State of a republican form of government is given in terms to " the United States" in section 4 of Article TV, and it would have seemed to be a judicial question to deter- mine what is the established government in a State and whether it conforms to the requirements of being . republican in form. But in Luther v. Borden,^ Chief Justice Taney said: " Under this article of the Constitution it rests with Congress to decide what government is the established one in a State. Fo:^ as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they 'McCray v. V. S., (1904) 195 U. iS. 27. sBarden v. Columbia County, (1873) 33 Wis. 445. » Smith V. Short, (1867) 40 Ala. 385; Tucker v. Potter, (1868). 36 Conn. 43; Craig v. Dimock, (1868) 47 III. 308; Warren v. Paul, <1864) 22 Ind. 276; Fifield v. Close, (1867) 15 Mich. 505; Copper- noil V. Ketcham, (1867) 56 Barb. (N. Y.) Ill; Dawson v. McCarty, (1899) 21 Wash. 314; Jones v. Keep, (1865) 19 Wis. 369. Attorney-General Stanbery advised the Secrdary of the Treasury that the stamp duty on writs and other legal papers imposed by the Internal Revenue Act of June 30, 1864, was constitutional. See Stamp Tax on Writs, (1866) 12 Op. Atty.-Gen. 23. 1 Pollock V. Fanners' L. & T. Co., (1895) 158 U. S. 601. 2 Collector v. Day, (1870) 11 Wall. (U. S.) 113, 8 (1849) 7 How. (U. S.) L 26 BEGULATION OF COMMBECE Chapter are appointed, as well as its republican character, is ' recognized by the proper constitutional authority. And its decision is binding on every other depart- ment of the government, and could not be questioned in a judicial tribunal." * Power of Congress to Define a Case in Equity. Jurisdiction The grant of judicial power in Article III, sec- ^•miaw ^JQjj 2, also presents questions as to the power of equity." Congrcss to determine to what extent and in what manner the powers granted shall be exercised. The section provides that the judicial power shall extend, in part, " to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." Although the power of Congress to define a case in equity, and declare what is or what is not a case of equitable cognizance, has not perhaps been clearly determined, there is room for discussion and the exercise of individual judg- ment until the question is more clearly and authori- tatively decided. Appiicwion Many cases declare that the federal courts cannot oi section *^ Sut^uTs. Pe^Diit the blending together in one suit of legal and equitable remedies or the setting up of equitable de- fenses to actions at law. In almost every case it will be found that the question has arisen on the application of section 914 of the Revised Statutes of the United States. That section provides: "The practice, pleadings, and forms and modes of pro- ceeding in civil causes, other than equity and admi- ralty causes, in the circuit and district courts, shall conform, as near as may be, to the practice, plead- *See also Texas v. White, (1868) 7 Wall. (U. S.) 700. KEGULATION OF COMMERCE 27 ings, and forms and modes of proceeding existing at Chapter the time in like causes in the courts of record of the ^_1 State within which such circuit or district courts are held, any rule of court to the contrary notwith- standing. " ^ It will be observed that the statute in terms excludes equity causes, and aside from that consideration, inasmuch as the distinction between cases at law and in equity is so clearly recognized by the Constitution, it could not be supposed that Congress intended that the federal courts should follow the State statutes abolishing the distinction between legal and equitable remedies, in the absence of express federal statutory authority, even if it be admitted that Congress has the right to do so. But it is another matter to say that Congress cannot declare what is a case in equity. In Irvine v. Marshall,^ Mr. Justice Daniel, speak- l^^^ ing for the court, said : ' ' "With regard to the fourth objection, of a want of jurisdiction in the courts of the United States, in the absence of express statu- tory provisions, to recognize and enforce a resulting trust like that presented by the present case, it is a sufficient response to say that the jurisdiction of the courts of the United States is properly commen- surate with every right and duty created, declared, or necessarily implied, by and under the Constitu- tion and laws of the United States." The ex- pression " in the absence of express statutory pro- visions " should be particularly noticed, as also ' ' by and under the Constitution and laws of the United States," to which combination of constitu- tional and statutory authority the courts invariably refer as the source of their authority. And in a B 4 Fed. Stat. Annot. 563. 6 (1857) 20 How. (U. S.) 558. distinction. 28 BBGUIATION OF COMMERCE Circiiit Court of Appeals case/ in wMeh Mr. Justice Brewer, as circuit justice, was one of tlie judges, tlie court said: " Congress undoubtedly had the power to define what should be a case in equity by declaring what the common law was which drew the line between the courts of law and equity, and there can be no doubt that, when so declared, that declara- tion was obligatory upon the federal courts by super- adding the authority of the legislative department of the government to that of the common law, so as not to leave the line of separation discretionary with the judges. ' ' * Sritorii -^ ^^^^ apparently in direct opposition to the to^^ore" principle suggested is that of Dunphy v. Klein- ' — - gfait}i,» which held, under the organic law of a Terri- tory, that the territorial legislature had no power to pass any law in contravention of the Constitution of the United States, or which should deprive the courts of the Territory of chancery as well as com- mon-law jurisdiction. Though required by express 'Smith V. American Nat. Bank, (1898) 89 Fed. Eep. 832. 8 " Wherever a case in equity may arise and be determined, under the judicial power of the United States, the same principles of equity must be applied to it, and It is for the courts of the United States, and for this court in the last resort, to decide what those principles are, and to apply such of them to each particular case as they may find justly applicable thereto. These principles may make part of the law of a State, or they may have been modified by its legislation or usages, or they may never have existed in its jurisprudence. Instances of each kind may now be found in the several States. But in all the States tiie equity law, recognized by the Constitution and by Acts of Congress, and modified by the latter, is administered by the courts of the United States, and upon appeal by this court." Per Mr. Justice Curtis, in Neves v. Scott, <1851) 13 How. (U. S.) 268. " The oflSce and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of rights of prop- erty." Per Mr. Justice Gray, in In re Sawyer, <1888) 124 U. S. 200. » (1870) 11 Wall. (U. S.) 610. REGULATION OF COMMERCE 29 territorial statute, condtictiiig tlie trial of a case Chapter clearly of chancery jurisdiction as a trial at common law, and rendering a decree on the verdict precisely as a judgment is rendered on a verdict at common law, was held to be error. " The case," said Mr. Justice Bradley, " being a chancery case, and being instituted as such, should have been tried as a chan- cery case by the modes of proceeding known to courts of equity. In those courts the judge or chan- cellor is responsible for the decree. If he refers any questions of fact to a jury, as he may do by a feigned issue, he is still to be satisfied in his own conscience that the, finding is correct, and the decree must be made as the result of his own judgment, aided, it is true, by the finding of the jury." This case, however, passing merely upon the power of a territorial legislature, cannot be considered as con- clusive authority on the question whether Congress has power to define the line between the courts of law and of equity.^* 3* The theory of the case of Dunphy v. Kleinsmith, supra, in oppo- sition fo the principle suggested, is weakened by the stibsequeftt case of Hornbuckle v. Toombs, (1873) 18 Wall. (U. S.) 648, wherein the court, holding that the practice, pleadings, and forms and modes of proceeding of the territorial courts, as well as their respeetiv* jurisdictions, strhject to a few express or implied conditions m the organic act itself, were intended to be left to the legislative action of the territorial assemblies, and to the regulations which might be adopted by the courts themselres, and speaking through Mr. Jus- tice Bradley, said: "The only provision' is, that the courts named shall possess both jurisdictions. If the two jurisdictions had never been exercised in any other way than by distinct modes of proceed- ing, there Would be ground for supposing that Congress intended them to be exercised in that Way. But it is well known that in many States of the Tlnion the two jufisctictions are commingled in one form of action. And there is nothing in the nature Of things to prevent stieli a moiJe of proceeding. Even in the Circuit and Dis- trict Courts of the United States the same court is invested With the two jurisdictions, having a, law side and! an ecfaity side; and the I. 30 BEGTJIiATION OP COMMERCE Chapter g^^ ^jjjg subject is to be considered in the light of the clause of the Seventh Amendment providing preserva- that " in suits at coTTimon law, where the value in tion of ' trai'by^ controversy shall exceed twenty dollars, the right ^'"'^- of trial by jury shall be preserved." In Ellis v. Davis^ Mr. Justice Matthews, delivering the opinion of the court, said: " It has often been decided by this court that the terms ' law ' and ' equity ' as used in the Constitution, although intended to mark and fix the distinction between the two systems of juris- prudence as known and practiced at the time of its adoption, do not restrict the jurisdiction conferred by it to the very rights and remedies then recog- nized and employed, but embrace . . . new forms of remedies to be administered in the courts of the United States, according to the nature of the case, so as to save to suitors the right of trial by jury in cases in which they are entitled to it, according to the course and analogy of the common law." In Boot V. Lake Shore, etc., R. Co.,^ the same learned justice said : " It is the settled doctrine of this court that this distinction of jurisdiction, between law and enforced separation of the two remedies, legal and equitable, in reference to the same subject-matter of controversy, sometimes leads to interesting exhibitions of the power of mere form to retard the administration of justice. In most cases it is diflBcult to see any good reason why an equitable right should not be enforced or an equitable remedy administered in the same proceeding by which the legal rights of the parties are adjudicated. Be this, however, as it may, a consolidation of the two jurisdictions exists in many of the States, and must be considered as having been well known to Con- gress; and when the latter body, in the organic act, simply declares that certain territorial courts shall possess both jurisdictions, with- out prescribing how they shall be exercised, the passage by the terri- torial assembly of a code of practice which unites them in one form of action cannot be deemed repugnant to such organic act." 1 (1883) 109 U. S. 485. » (1881) 106 U. S. 189. BEQULATION OF COMMERCE 31 equity, is constitutional, to the extent to which the Ch^ter Seventh Amendment forbids any infringement of ' the right of trial by jury, as fixed by the common law." From all this it may not unreasonably be inferred ^taJed"^'"" that Congress has the power to transfer causes com- monly understood to be equitable in their nature to the law side of the courts, but that its power to give to courts of equity jurisdiction of so-called actions at law is limited by the necessity to preserve the constitutional right of trial by jury " in suits at common law." Power of Congress to Define the Admiralty Jurisdiction. As further illustrating the power of Congress to determine the scope of constitutional grants, its power to determine the limits of the exercise of admiralty jurisdiction, under the clause of Article III, section 2, providing that the judicial power shall extend " to all cases of admiralty and mari- time jurisdiction, ' ' may also be considered. As to subjects of the subjects of that jurisdiction, there can now be J?™^'<=- no question of the power of the federal legislature to grant to or withhold from the federal courts juris- diction in admiralty of any subject that has any relation to maritime affairs. It was said by Mr. Justice Bradley, in In re Garnett:^ " The Act of Congress which limits the liability of ship owners was passed in amendment of the maritime law of the coimtry, and the power to make such amend- ments is coextensive with that I9.W. It is not con- fined to the boundaries or class of subjects which s (1891) 141 U. S. 1. 32 BBGULiATION OF COMMBECE Chapter I. Territorial jurisdic- tion. Statutory departure from Eng- lish doc- trine. limit and characterize the power to regulate com- merce; but, in maritime matters, it extends to all matters and places to which the maritime law extends." But the power of Congress to determine the ter- ritorial jurisdiction in admiralty is not so clear. For over fifty years after the adoption of the Con- stitution and the enactment of the Act of Congress * giving to the District Courts of the United States general jurisdiction ia admiralty, the courts, follow- ing the English doctrine, declared that admiralty jurisdiction in cases purely dependent upon the locality of the act done was limited to the sea and to tide waters as far as the tide flows. ^ In 1845 Congress passed an Act® providing ' ' That the District Courts of the United States shall have, possess, and exercise the same jurisdiction in matters of contract and tort, arising in, upon, or concerning steamboats and other vessels of twenty tons burden and upwards, enrolled and licensed for the coasting trade, and at the time employed in busi- ness of commerce and navigation between ports and places in different States and Territories upon the lakes and navigable waters connecting said lakes, as is now possessed and exercised by the said courts in cases of the like steamboats and other vessels em- ployed in navigation and commerce upon the high seas, or tide waters, within the admiralty and mari- time jurisdiction of the United States." Under this Act the case of The Propeller Genesee * Act of September 24, 1789, c. 20, brought forward into section 863, Rev. Stat. U. S., 4 Fed. Stat. Annot. 220. B See The Steamboat Thomas Jefferson, (1825) 10 Wheat. (U.S.) 428; The Steamboat Orleans v. Phoebus, (1837) 11 Pet. (U. 8.) 175. « Act of February 26, 1845, 5 Stat, at L. 726, e. 20. REGULATION OF COMMEBCB 33 Chief V. Fitzhugh '' was brought by filing a libel for Chapte* the condemnation of a vessel and the payment of . damages on account of a collision which occurred on statute ° held vabd. Lake Ontario. In holding the Act of Congress to be a valid enactment, the court, after restating the territorial admiralty jurisdiction according to the English doctrine, said, through Chief Justice Taney : ' ' The nature of the questions concerning the extent of the admiralty jurisdiction, which have arisen in this court, were not calculated to call its attention particularly to the one we are now considering. The point in dispute has generally been, whether the jurisdiction was not as limited in the United States as it was in England at the time the Constitution was adopted. And if it was so limited, then it did not extend to contracts for maritime services when made on land ; nor to torts and collisions on a tide- water river, if they took place in the body of a country. The attention of the court, therefore, in former cases, has been generally strongly attracted to that question, and never, we believe, until re- cently, drawn to the one we are now discussing, except in the case of The Thomas Jefferson, after- wards followed in The Steamboat Orleans v. Phoebus, as already mentioned. For, with this exception, the cases always arose on contracts for services on tide- water, or were upon libels for collisions or other torts committed within the ebb and flow of the tide. There was therefore no necessity for inquiring whether the jurisdiction extended further in a public navigable water. And following the English defini- tion, tide was assumed and spoken of as its limit; although that particular question was not before the court, ... It is evident that a definition that 1 (1851) 12 How. (U. S.) 443. 34 REGULATION OF COMMERCE Chapter would at this day limit public rivers in this country ^ to tide-water rivers is utterly inadmissible. We have thousands of miles of public navigable water, including lakes and rivers in which there is no tide. And certainly there can be no reason for admiralty power over a public tide-water, which does not apply with equal force to any other public water used for commercial purposes and foreign trade. The lakes and the waters connecting them are undoubtedly public waters ; and we think are within the grant of admiralty and maritime jurisdiction in the Constitu- tion of the United States. ' ' This new doctrine was afterwards followed in all admiralty causes arising on any of the navigable waters of the United States. 5tatiitecon- But the difficulty now encountered, on the ques- ieciaratory. tiou of the powcr of the legislature to define the territorial jurisdiction, is that presented by the re- marks of Nelson, J., in The Eagle,^ affirming the general admiralty jurisdiction over all the navigable waters of the United States, wherein he said : ' ' One question, and a very important one, is, whether, since the decision of The Genesee Chief, which opens the lakes and the waters connecting them to the gen- eral jurisdiction of the District Courts in admiralty, they can entertain this jurisdiction in cases outside of that conferred by this Act? If the affirmative of this question should be sustained, although the sys- tem would be disjointed and incongruous, yet it would, ia its result, remedy most of the difficulties and inconveniences now existing. But the opinions of the judges of this court, as expressed ia several cases, though the question has never been directly before the court for decision, are, that the Act should be regarded as restrictive of the general jurisdiction 8 (1868) 8 Wall. (U. S.) 15. REGULATION OP COMMERCE 35 of these courts. This was the opinion expressed by Chapter the Chief Justice in the case of The Genesee Chief, ' and has been followed by other justices in this court, who have had occasion to express any opinion in the subject. The history and operation of this Act of 1845 are peculiar. It is ' an Act extending the jurisdiction of the District Courts to certain cases upon the lakes and navigable waters connecting the same. ' At the time it was enacted it had the effect expressed and intended, and so continued for some seven years, when the case of The Genesee Chief was decided. From that time its effect ceased as an enabling act; and has been no longer regarded as such. It is no longer considered by this court as conferring any jurisdiction in admiralty upon the District Courts over the lakes, or the waters con- necting them. That is regarded as having been conferred by the grant of general admiralty juris- diction by the ninth section of the Act of 1789 to these courts." From this it will be seen that the English doctrine was followed by the courts until the Act of 1845, which may be considered in the nature of a legislative definition of the constitu- tional grant of jurisdiction, followed by judicial recognition and extension of the definition and con- struction of the constitutional grant extending the jurisdiction to all the navigable waters of the United States. It should be noticed, however, that this assump- J^^°?i„*»j tion of jurisdiction over all navigable waters by K?'a'°" judicial construction of the constitutional grant is fSSIl imder the statute of 1789, conferring on the District Courts general admiralty jurisdiction, and has not foreclosed consideration of the power of Congress to limit by express statute this territorial jurisdic- 36 REGULATION OF COMMBBCB Chapter I. Legisla- tion neces- sary to the exercise of judicial power. tion, of the federal courts in admiralty to particular waters. Whether the jurisdiction in admiralty ex- tends to all the navigable waters of the United States, conforming in this respect rather to the civil than the common law, as is now held under the general statute, or whether the jurisdiction shaU he limited to the high seas and to tide waters, would seem to be a matter of legislative discretion, but as it exists now, the general statute leaves the terri- torial extent of the jurisdiction a matter for judicial determination. We are not concerned here with the expediency or the probability of the exercise of this supposed power by Congress, but the abstract question of the existence of the power is of interest, as furnishing illustration of the wide powers of definition which Congress possesses. In TJ. 8. v. Hudson^ Mr. Jus- tice Johnson said that " of all the courts which the United States may, under their general powers, con- stitute, one only — the Supreme Court — possesses jurisdiction derived immediately from the Constitu- tion and of which the legislative power cannot deprive it," and the remark has been quoted with approval by Chief Justice Fuller.^ What is meant by legislative definition. Power of Congress to Define the Term Commerce. When the power of Congress to define the term ' ' commerce ' ' is referred to, it is not of course meant that any attempt would be made to give a statutory definition as such to the word, but that when Con- gress legislates on a particular subject under the grant of power to regulate commerce, it thereby, in 9 (1812) 7 Craneh (U. S.) 32. igtevenson v. i'ain, (1904) 196 U. S. 166. BEGTJLATION OF COMMERCE S7 effect, gives a partial djefinition to the term as includ- Cbapta: ing the particular suhjeet-matter of the statute. ' This authority to define may be discussed in view of the wide power of definition which Congress seems to possess, as appears from the foregoing canvass of several of the constitutional grants, and also from an examination of a few suggestive cases which have arisen under the commerce clause. Unlike many of the words and phrases used in The term . without the (;onstitiation, the term "commerce" has no juridical cance. juridical significaaee or meaning. The words due process of law, trial by jury, law and equity, admi- ralty and maritime, habeas corpus, bill of attainder, €x post facto, duty of tommge, and many other terms and expressions contained in that instrument, had weli-understood places and meaning in the system of jurisprudence with which the framers of the Con- stitution -were familiar. It can never he questioned that to determine the judicial . ... 1 . pO"wer to operaiion of the cou'stitutional limitations, and in fj^j^jf^^g doing so to define the terms used, is necessarily one of ftie functions of the courts. Included in this power, so far as relates to the commerce clause, is the right and duty of the courts to see that federal le^siation operates only on that commerce which is " with foreign nations, and among the several States, and with the Indian tribes." It is also the province of the courts to see that, in legislating upon this branch of commerce, none of the limita- tions or prohibitions of the Constitution, or its amenAnents, specially applicable to the national government, have been infringed. And as a last aod ultimate manifestatiioii of judiciail power, the courts may decide whether the subject of legislation by Congress has any relation to ter seems to be, that it is a right belonging to a sover- eignty to take private property for its own public uses, and not for those of another. Beyond that there exists no necessity ; which alone is the founda- tion of the right. If the United States have the power, it must be complete in itself. It can neither be enlarged nor diminished by a State. Nor can any State prescribe the manner in which it must be exercised. The consent of a State can never be a condition precedent to its enjoyment. Such con- sent is needed only, if at all, for the transfer of jurisdiction and of the right of exclusive legislation after the land shall have been acquired." * Where the government, by the construction of J|ff/*°s°^ public works, as in the case of the erection of a dam 3 (1875) 91 U. S. 367. 4 See Article I, § 8, providing that "the Congress shall have power ... to exercise exclusive legislation in all cases what- soever, . . . over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, doclcyards, and other needful build: ings." See Van Brocklin v. Tennessee, (1886) 117 U. S. 151. "Where . . . lands are acquired in any other way by the United States within the limits of a State than by purchase with her consent, they will hold the lands subject to this qualification: that if upon them forts, arsenals, or other public buildings are erected for the uses of the general government, such buildings, with their appurtenances, as instrumentalities for the execution of its powers, will be free from any such interference and jurisdiction of the State as would destroy or impair their effective use for the purposes designed. Such is the law with reference to all instru- mentalities created by the general government. Their exemption from State control is essential to the independence and sovereign authority of the United States within the sphere of their delegated powers. But, when not used as such instrumentalities, the legisla- tive power of the State over the places acquired will be as full and complete as over any other places within her limits." Per Mr. Justice Meld, in Ft, Leavenworth R. Co. v. Lowe, (1885) 114 U. S. 525. Amend' ment. 62 EEGTJLATION OP COMMEBCE Chapter for the purpose of improving the navigability of a - river, destroys the value of land, so that it consti- tutes a taking of the property for public use, the proceeding must be regarded as an actual appro- priation of the land, including the possession, the right of possession, and the fee, and when the amount awarded as compensation is paid, the title, with whatever rights may attach thereto, passes to the government.^ Duty to Make Just Compensation. Condition Not only, however, is the power one to be exer- imposed by ^ ' ' ^ Amikd- cised by the national government merely as a means by which the objects of the grants of power can be carried out, but, like all the powers granted to Con- gress by the Constitution and those possessed by Congress as incident to the particular sovereign powers thus created, it is subject to all the limita- tions imposed by such instrument. Among such limitations is the clause of the Fifth Amendment declaring: " Nor shall private property be taken for public use, without just compensation." It is, of course, not within the scope of this work to give anything like a comprehensive treatment of the powers, rights, and remedies arising out of the due observance of this restriction upon the national eminent domain power, but its application to pro- ceedings authorized by Congress under its power to regulate commerce may be considered.^ 6U. S. V. Lynah, (1903) 188 U. S. 445. See Clark v. U. S., (1902) 37 Ct. CI. 503, holding that when only a portion of a tract of land is appropriated, it will be set apart by metes and bounds, and judgment given for the value of the amount actually taken. sAnd it may be here worth noting that this limitation forms part of the same amendment which also declares : " 'Nor [shall any BEGULATION OF COMMERCE 63 What Property May Be TaJcen. ii. Whatever may be considered as a property right Any prop- is a proper subject of compensation when it is ap- propriated or destroyed^ Upon the condemnation of a lock and dam belonging to a navigation com- pany on a navigable river, the government was re- quired to pay the value of the franchise given by the State to take tolls as the value of the tangible prop- erty of the company.^ And when the United States condemn land in which a municipal corporation, though not owning the fee, has a property right which will be destroyed, in the nature of easements and improvements, including streets, sewers, and water pipes, the corporation is entitled to com- pensation.^ Lands under navigable waters are held by the ^^^^"^'^ State in trust for public uses, such as navigation ^npenj. and fishery, and the erection thereon of wharves, person] be deprived of life, liberty, or property, without due process of law." This amendment is applicable only to the federal govern- ment. The corresponding clause of the Fourteenth Amendment is a prohibition on the States to " deprive any person of life, liberty, or property, without due process of law." While there is no specific prohibition in the Fourteenth Amendment against the taking, by the States or with their authority, of private property without making just compensation, the same end has been attained by such a construction of the Fourteenth Amendment as makes such a taking of private property for private uses or without making just compensation, a deprivation " of property, without due process of law." 7 Depriving a riparian owner of the use of a stream by diverting its course for the iinprovement of a harbor (Avery v. Fox, (1868) 1 Abb. (U. S.) 246, 2 Fed. Cas. No. 674) and establishing a line of telegraph upon the right of way of a railroad would be a taking of private property. Atlantic, etc., Tel. Co. v. Chicago, etc., R. Co., (1874) 6 Biss. (U. S.) 158, 2 Fed. Cas. No. 632. sMonongahela Nav. Co. v. U. S., (1893) 148 U. S. 312. • Nahant v. V. S., (1905) 136 Fed. Rep. 273. 64 BEGULATION OP COMMERCE Chapter if piers, light-houses, beacons, and other facilities of navigation, and are not private property. The ap- propriation of such land by Congress, under its paramount power to regulate commerce, and to authorize the erection of structures thereon, as in the case of the building of piers to support interstate bridges, is not a diversion of the submerged soil from its original public use, nor is such land private property for the taking of which compensation need be given to the State.^ Taking, de- struction, or impair- ment of usefulness. Consequen- tial and incidental injury. What Constitutes the Taking of Property. In a general way it may be said that the appro- priation of land by the officers and agents of the government in carrying out a national policy, and the permanent holding of the land by the govern- ment, is a " taking," within the meaning of the constitutional provision.^ Yet perhaps only the amount actually invaded, and not the whole tract, should be considered as taken.^ But it is not neces- sary to constitute a ' ' taking ' ' that there should be an actual occupancy. When real property is de- stroyed or its usefulness is impaired, it is a taking,* though the government is not in actual occupancy of the land.^ The distinction between damage and taking must be observed.® There is a distinction between the taking of property for public uses, and a conse- 1 Stockton V. Baltimore, etc., E. Co., (1887) 32 Fed. Eep. 9. 2 See Morris v. V. S., (1895) 30 Ct. 01. 162. 8 See Clark v. V. S., (1902) 37 Ct. CI. 503. ♦ Pumpelly v. Green Bay, etc.. Canal Co., (1871) 13 Wall. (U. S.) 166. BKing V. U. S., (1893) 59 Fed. Ecp. 9. • Bedford v. U. S., (1904) 192 U. S., 217. EEGITLATION OP COMMERCE 65 quential and incidental injury to property by reason Chapter of some public work. In tlie one case, by reason of " this constitutional provision, the law implies a con- tract, a promise to pay for the property taken, while in the other case there is a simple tortious act doing injury, for which there can be no recovery xmless the government acknowledges liability,'' and, it would seem, imless the right to recover damages for the consequential injury is expressly conferred by statute ; ^ though Mr. Justice Miller, writing the opinion of the court in Pumpelly v. Green Bay, etc., Canal Go.^ said that " there are numerous authori- ties to sustain the doctrine that a serious inter- ruption to the common and necessary use of prop- erty may be, in the language of Mr. Angell, in his work on watercourses, equivalent to the taking of it, and that under the constitutional provisions it is not necessary that the land should be absolutely taken." A permanent flooding of private property is a ulnd.'""^"^ takrag. In TJ. 8. v. Lynah^ the government, in improving the navigation of the Savannah river, had placed dams and other obstructions in such manner as to hinder its natural flow, and to raise the water, which overflowed the lands of a riparian owner and caused a total destruction of their value. Such a proceeding was held to be an actual appropriation of the land,^ and the case of Mills 7U. S. V. Lynah, (1903) 188 U. S. 445. 8 High Bridge Lumber Co. v. U. S., (1895) 69 Fed. Eep. 320. » (1871) 13 Wall. (U. S.) 166. 1 (1903) 188 U. S. 445. 2 A similar ruling was made in the case of a flooding of lands by the erection of a dam across Fox river, the northern outlet of Lake Winnebago, for the improvement of the river and to enable certain persons to use the waters of the river for hydraulic pur- 5 66 REGULATION OF COMMEBCB Chapter ^7. [/. S.^ was referred to approvingly. In the Mills ' case, the flooding of land had unfitted it for rice culture and rendered new drainage necessary where the water levels were suitable. The court held that there was no taking, but simply an injury to. the lands which could be remedied, and an action to recover the consequential injury was not sustained.* Any injury consequent upon the building of a revet- ment which does not change the course of a river, but which operates to maintain the course of the river, is not a taking.^ ^^tf" ^^^ constitutional provision has no application to the riparian right of access to navigability, as that right can be enjoyed only in subjection to the right of the public. " Riparian ownership," said Chief Jus- poses, as authorized by a statute of Wisconsin Territory. It was held, upon the facts of the ease, that where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it, so as effectually to destroy or impair its usefulness, it is a taking, within the meaning of the Constitution. Pumpelly v. Green Bay, etc., Canal Co., (1871) 13 Wall. (U. S.) 166. In undertaking the improvement of the navigation of a river, property is " taken " when it is actually invaded by rendering it absolutely unfit for cultivation, whereby the owner has been com^ pelled to abandon it and has been practically ousted of possession. Williams v. U. S., (1900) 104 Fed. Kep. 50. See Merriam v. U. S., (1894) 29 Ct. CI. 250. Where an overflow is not continuous, but annual, rendering the land unfit for cultivation, and entirely destroying its value, therai is a taking. Jackson ». U. S., (1896) 31 Ct. CI. 318. 3 (1891) 46 Fed. Eep. 738. * Where the injury is the result of the faulty construction of a dam, the damages are consequential. Hayward v. U. S., (1895) 30 Ct. 01. 219. 6 Bedford v. V. S., (1904) 192 U. S. 217, affirming (1901) 36 Ct. CI. 474. But an easement in the waters of a creek is a, property right, and compensation must be given when it is destroyed by a diversion of the creek. Lowndes v. U. S., (1901) 105 Fed. Eep. 838. REGULATION OF COMMERCE 67 tice Fuller, in Gibson v. U. 8.,^ " is subject to the Chapter obligation to suffer tbe consequences of the improve- ' ment of navigation in the exercise of the dominant right of the government in that regard. ' ' The right of compensation for the taking of property has no reference to the case of an owner of land bordering on a public navigable river whose access from his land to navigability is permanently lost by reason of the construction of a pier resting on submerged lands away from but in front of his upland, and which pier was erected by the United States not with any intent to impair the rights of riparian, owners, but for the purpose only of improving the navigation of such river. The riparian owner has no property right in the submerged soil.'' And where by the construction of a dyke by the United States in a river improvement, the depth of water was reduced and a riparian owner was through the greater part of the season deprived of the use of his landing for the shipment of products from and sup- plies to his farm, the injury was held to be only consequential.* "Where a bridge has been erected by authority of ^^"1^™™' a State before Congress assumes actual jurisdiction {.ridgi. over the river for the purposes of navigation, and it is declared to be an obstruction to navigation, such obstruction may be removed without compen- sation from the United States, and such removal cannot be regarded as a " taking of private prop- erty, ' ' within the meaning of the Constitution. The 6 (1897) 166 U. S. 269. TSeranton v. Wheeler, (1900) 179 U. S. 141. 8 Gibson v. V. S., (1897) 166 U. S. 269. A very similar case was that of Friend v. U. S., (1895) 30 Ct. CI. 94. luestion. 68 REGULATION OF COMMERCE Clmpter Attorney-General so advised the Secretary of War,^ ' citing Newport, etc., Bridge Co. v. TJ. 8.,^ wherein Congress had given permission to erect a bridge across a navigable river, as authorized by the State, the federal permission being given upon condition that it might be revoked at any time if the bridge should be found detrimental to navigation. In such a case no liability could rest on the United States to pay the bridge company for the cost of any change directed in the plan of the bridge.^ Mode of Adjudging and Making, and Measure of. Compensation. "S^enL?^ ' The measure of compensation is a judicial and iuditiii not a legislative question. The ascertainment of the amount is not an element of the power of ap- propriation, but the constitutional provision for just compensation for the property taken is merely a condition or limitation upon the use of the power. " The legislature," said Mr. Justice Brewer, in « Navigable Waters, (1896) 21 Op. Atty.-Gen. 430. 1 (1881) 105 U. S. 470. 2 See also Willamette Iron Bridge Co. v. Hatch, (1888) 125 U. S. 1. Under the charter of a bridge company the contract between the bridge company and the State was that the company should have the right to erect, control, and use the bridge as a toll bridge with- out interference in the way of putting in compulsorily a draw Tintil, under the acts of some authority competent to act, the river should be employed for the purposes of practical navigation. An Act of Congress declared the bridge to be an obstruction to navi- gation, and required the construction of a draw. Denying the right of the owner of the bridge to compensation was put upon the ground that the reservation in the charter of the right of the State to require a draw to be constructed inured to the nation when the authority of the United States was exercised for the same pur- pose. U. S. V. Moline, (1897) 82 Fed. Eep. 592. BBGULATION OF COMMEBOB 69 Monongahela Nav. Co. v. V. S.,^ " may determine Chapter what private property is needed for public purposes ' — that is a question of a political and legislative character; but, when the taking has been ordered, then the question of compensation is judicial. It does not rest with the public, taking the property, through Congress or the legislature, its representative, to say what compensation shall be paid, or even what shall be the rule of compensation. The Constitu- tion has declared that jnst compensation shall be paid, and the ascertainment of that is a judicial inquiry. ' ' Though the measure of compensation is a judicial Tribunals, question, it is not necessary that jurisdiction in such cases should be left to the regularly established fed- eral courts. When an executive officer is vested by Act of Congress with power to obtain land by con- demnation, without any legislative direction as to the mode of exercising the power, the jurisdiction of any competent tribunal may be invoked to that end. Thus, it has been determined * that a proceed- ing to take land for public uses by condemnation is a suit at common law, within the meaning of the Judiciary Act of 1789,^ conferring upon the Circuit Courts of the United States jurisdiction of all suits at common law or in equity, brought by the United States or any officer thereof under the authority of any Act of Congress. And whether the tribunal 3 (1893) 148 U. S. 312. *Kohl V. U. S., (1875) 91 U. S. 367. 6 Act of Congress of September 24, 1789, c. 20, 1 Stat, at L. 78, carried forward into § 629, U. S. Rev. Stat. Section 629 was super- seded in part by the Acts of March 3, 1875, c. 137, 18 Stat, at L. 470, § 1; of March 3, 1887, c. 373, § 1; and of Angust 13, 1888, c. 866, § 1. See the title Judiciary, in 4 Fed. Stat. Annot., pp. 245 et seq., and 265 et seq. 70 EEGULATION OF COMMEECE Chapter shall be created directly by an Act of Congress, or ' whether one already established by the States shall be adopted for the occasion, is a mere matter of legislative discretion.'' jurytnai. j^ scems to bc unncccssary that the estimate of just compensation be made by a jury. The Seventh Amendment, providing that " in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved," has reference merely to such suits as at common law were ordinarily tried by jury, and among those a proceeding for condemnation was not included.'^ In Great Falls Mfg. Co. v. Atty.-Gen.,^ in reply to the contention that the Act of Congress providing for the supply of the cities of Washington and Georgetown with water from the Potomac river was tmconstitutional and void, for that the Act made no provision by which compensation for prop- erty taken under it could be constitutionally ad- justed and determined, that it did not provide for the ascertainment of such compensation by the ver- dict of a jury, and that it compelled the plaintiff to cSims°' have recourse to the Court of Claims, which is a court unknown to the Constitution, being neither a court of equity such as was known at the adoption of that instrument, nor a court of law proceeding according to the rules of the common law, but only a board of referees, constituted by one party to hear such cases as another party will consent to submit to its determination, and without the power to enforce its judgment against the party by whom it is created, the court, speaking through Mr. Justice 6U. S. V. Jones, (1883) 109 U. S. 513. TSee U. S. V. Engerman, (1891) 46 Fed. Rep. 176. s (1888) 124 r. S. 581. EEGULATION OF COMMERCE 71 Harlan, said : "By the very act of suing in the Chaptei- Court of Claims, under the statute of 1882, it [the ' plaintiff] has not only waived the right, if such right it had, to compensation in advance of the taking of its property, but the right, if 3uch it had, to demand that the amount of compensation be determined by a jury. By the same act it has estopped itself from suggesting that no judgment obtained in the Court of Claims can be enforced against the United States, but must await an appro- priation for its payment. When it resorted to that court, it knew that its judgments against the United States could only be paid out of money appropriated for that purpose by Congress. In short, the plain- tiff has voluntarily accepted the provisions of the Act of Congress in respect to the mode of ascertain- ing the compensation to be made to it." But in Bauman v. Ross^ Mr. Justice Gray said that " by the Constitution of the United States, the estimate of the just compensation for property taken for the public use, under the right of eminent domain, is not required to be made by a jury; but may be intrusted by Congress to commissioners appointed commi»- by a court or by the executive, or to an inquest con- sisting of more or fewer men than an ordinary jury. " ^ So that it would appear that all that is required is that it shall be conducted in some fair and just manner, with opportunity to the owners of the property to present evidence as to its value, and to be heard thereon. Or, as was said by Mr. Justice Brewer in Backus v. Fort Street Union Depot Co.^ a case in which it was claimed that, in 9 (1897) 167 U. S. 548. iSee also U. S. v. Jones, (1883) 109 U. S. 513. 2 (1898) 169 U. S. 557. 72 REGULATION OF COMMEECE Chapter II. "Due process of law." FuU equivalent. Consider- ing benefits. failing to provide for a jury trial upon condemna- tion under State authority, the owner had been deprived of the " due process of law " guaranteed by the Fourteenth Amendment: "All that is essen- tial is that in some appropriate way, before some properly constituted tribunal, inquiry shall be made as to the amount of compensation, and when this has been provided there is that due process of law which is required by the Federal Constitution." The requirement that " just compensation " shall be paid means that there must be a full and perfect equivalent for the property taken, and ex- cludes the takiug into account, as an element in estimating the compensation, any supposed general benefit that the owner may receive in common with all from the public uses to which his private prop- erty is appropriated.^ But inasmuch as the pro- vision contains no express prohibition against con- sidering any benefits, no such prohibition can be im- plied. In Bauman v. Ross* which was a case arising out of the exercise by Congress, not of the power to regulate commerce, but of the power to legislate for the District of Columbia, Mr. Justice Gray said that it is within the authority of Congress to direct that, when part of a parcel of land is appropriated to the public use for a highway in the District of Columbia, the tribunal vested by law with the duty of assessing the compensation or damages due to the owner, whether for the value of the part taken, or for any injury to the rest, shall take into con- sideration, by way of lessening the whole or either part of the sum due him, any special and direct benefits, capable of present estimate and reasonable 3 Monongahela Nav. Co. v. U. S., (1893) 148 U. S. 312. * (1897) 167 U. S. 548. BEGULATION OP OOMMEBCE 73 computation, caused by the establiehment of the Chapter highway to the part not taken. And such a rule as ' to special and direct benefits would seem to be equally applicable on the valuation of property con- demned for any purpose for which Congress may take it or authorize it to be taken.^ The constitutional provision does not provide Time of, ^ ■'■or provis- or require that compensation shall be actually paid ^°^y^li,i, in advance of the occupancy of the land to be taken. An Act of Congress authorizing a railroad company to locate a railway, telegraph, and telephone line through the Indian Territory, provided that before the railway should be constructed through any lands proposed to be taken, full compensation should be made to the owners for all property to be taken or damage done by reason of the construction of the road. In the event of an appeal from the finding of the referees, the company was required to pay into the court double the amount of the award, to abide its judgment; and, that being done, the com- pany might enter upon the property sought to be condemned, and proceed with the construction of its road. Such provisions were held sufficiently rea- sonable, certain, and adequate to secure the just compensation to which an owner was entitled!® A distinction has been made between a proceeding Provision ^ ° for pay- for actual condemnation and a proceeding merely to ^^„"dMo„oj ascertain the value of the property it is proposed demnitfo™' to take. And so it has been held that where an Act of Congress, adopted for the improvement of a har- bor, provides ' ' that the title to any additional lands 6 See Chesapeake, etc., Canal Co. v. Key, (1829) 3 Cranch (C. C.) 599, 5 Fed. Cas. No. 2649. Cherokee Nation v. Southern Kansas R. Co., (1890) 135 U. S. 641. 74 BEGULATION OF COMMERCE CShapter acquired for this purpose shall be vested in the ' United States without charge to the latter," there can be no condemnation proceedings for the appro- priation of such landsJ But in the case of a want of provision for the payment of the value of prop- erty when ascertained, it has been said that a pro- ceeding may be maintained to ascertain the value of the property on the ground that such a proceed- ing is not a taking of private property for public use, or one that must necessarily result in such tak- ing, but that it is only preliminary thereto, and for the purpose of ascertaining the value of the prop- erty proposed to be taken, and that the final appro- priation will not take place, if ever, until the court gives judgment to that effect, which it is not author- ized to do, and will not do, until its value has been paid to the owner or into court for it.® Tin re Manderson, (1892) 51 Fed. Rep. 501, wherein the court said : " The statement of counsel that the damages would be paid by voluntary contributions ... is too uncertain to be relied on." 8U. S. V. Oregon E,, etc., Co., (1883) 16 Fed. Rep. 524. " The taking of private property should not be allowed until compensation is actually made, thus imposing on the owner no burthen of seeking or pursuing expensive remedies, and leaving him exposed to no risk or expense in obtaining compensation." Avery V. Fox, (1868) 1 Abb. (U. S.) 246, 2 Fed. Oas. No. 674. CHAPTER III. THE GENERAL POWEE OF THE STATES. THE POWEE OF THE STATES OVER DOMESTIC COMMERCE. OVEE its internal or domestic commerce a State Chapter has full and exclusive control,^ though the '. State regulation may directly affect inter- state commerce.^ Over the instruments of commerce situated ^i'''"-, merits oi wholly within its jurisdiction, a State has exclusive wSuy™ governmental control, except when they are em- '""■^^'^"• 1 Addyston Pipe, etc., Co. v. U. S., (1899) 175 U. S. 211. Congress "has nothing to do with the purely internal com- merce of the States, that is to say, with such commerce as is carried on between different parts of the same State, if its operations are confined exclusively to the jurisdiction and territory of that State, and do not affect other nations or States or the Indian tribes." Per Chief Justice Waite, in Lord v. Goodall, etc., Steamship Co., (1880) 102 U. S. 541. A license to carry on a particular business under an Act of Con- gress conveys to the licensee no authority to carry on the licensed business within a State. License Tax Cases, (1866) 5 Wall. (U. S.) 462. 2 Covington, etc.. Bridge Co. v. Kentucky, (1894) 154 U. S. 204. Prohibiting the use of the arms or the great seal of the common- wealth, or any representation thereof, for advertising or commercial purposes, is valid. Com. v. R. I. Sherman Mfg. Oo., (1905) 189 Mass. 76, citing Plumley v. Massachusetts, (1894) 155 U. S. 461; Com. V. Huntley, (1892) 156 Mass. 236. So far as a State anti-truat law undertakes to prohibit and render null and void all arrangements, contracts, or agreements whatsoever, between persons, firms, or corporations, which inten- 76 REGULATION OF COMMEBCE Chapter ployed in foreign or interstate commerce. Their ' regulation for all purposes may be assumed by the State until Congress acts in reference to their foreign or interstate relations, and when Congress acts the State laws are superseded only to the extent that they affect those foreign or interstate relations of the instrumentality.^ LOCAL EEGXJLATIONS OF INTEBSTATE COMMEECE. To meet As 3. coroUary to the proposition that the power stin"«o( ^^ Congress is exclusive wherever the matter is na- uiSiMes. tional ia :ts character or admits of one uniform system or plan of regulation, it is now well settled that the States may legislate on subjects which can be best regulated by rules and provisions suggested by the varying circumstances of different localities, and limited to such localities respectively. " The uniformity of commercial regulations, which the grant to Congress was designed to secure against conflicting State provisions, was necessarily in- tended only for cases where such uniformity is practicable. Where from the nature of the subject tionally tend to lessen full and free competition in the importation or sale of articles imported into the State, or in the manufacture or sale of articles of domestic growth or of domestic raw material, it is invalid. State v. Virginia-Carolina Chemical Co., (1904) 71 S. Car. 544. 3 Hall V. De Cuir, (1877) 95 U. S. 485. " Whilst every instrumentality of domestic commerce is subject to State control, every instrumentality of interstate commerce may be reached and controlled by national authority, so far as to compel it to respect the rules for such commerce lawfully established by Congress. No corporate person can excuse a departure from or vio- lation of that rule under the plea that that which it has done or omitted to do is permitted or not forbidden by the State under wliose authority it came into existence." Per Mr. Justice Harlan, in Northern Securities Co. v. U. S., (1904) 193 U. S. 197. BEGITLATION OF COMMBBCB 77 or tlie sphere of its operation the case is local and Chapter limited, special regulations adapted to the immedi- '_ ate locality could only have been contemplated. State action upon such subjects can constitute no interference with the commercial power of Con- gress, for when that acts the State authority is superseded." ^ The power of the States to legislate on matters A|i^^^, of local concern is largely based upon the idea that such local regulations are in the nature of aids to commerce,® but whether in fact aids to commerce or incidental obstructions, such regulations are within the power of the States untU controlled by appropriate federal legislation.'^ incidental obstruc- tions to commerce. CONSTEUCTION OF STATE STATUTES. It is a general rule of the Supreme Court of the f„°jj^°^^5 United States to accept the construction tof the """J-y courts of a State upon its statutes and constitution '''""■''• when the federal Supreme Court is called upon to decide questions arising under such legislation.^ 5 Per Mr. Justice Field, in Mobile County v. Kimball, (1880) 102 U. S. 691. See also Leisy v. Hardin, (1890) 135 U. S. 100; Gilman v. Philadelphia, (1865) 3 Wall. _(U. S.) 713. BOardwell v. American Bridge Co., (1885) 113 U. S. 205; Escanaba, etc., Transp. Co. v. Chicago, (1882) 107 U. S. 678. 7 Gilman v. Philadelphia, (1865) 3 Wall. (U. S.) 713. " The question is not whether, in any particular case, operation may be given to both [federal and State] statutes, but whether their enforcement may expose a party to a conflict of duties. It is enough that the two statutes operating upon the same subject- matter prescribe different rules. In such case one must yield, and that one is the State law." Per Mr. Justice Brewer, in Gulf, etc., R. Co. V. Hefley, (1895) 158 U. S. 98. 8 New York, etc., R. Co. v. Pennsylvania, (1895) 158 U. S. 431; Postal Tel. Gable Co. v. Adams, (1895) 155 U. S. 688. " As the record presents none of the exceptional conditions which sometimes impel this court to disregard inadmissible construetiona 78 KEGTJLATION OF COMMERCE Chapter III. Validity as construed a federal question. When fed- eral ques- tion in- volved in construc- tion. The construction is given the same effect as if it were part of the statute,^ and the decision of a State court whether a particular statute has or has not been repealed is conclusive.^ As affecting or not interstate or foreign commerce, what the sev- eral State courts say their own statutes mean must be accepted, whether it is declared by limiting the objects of their general language to local business, or by separating their provisions into valid and in- valid parts. ^ After the construction has been given and ac- cepted, the federal question remains, whether the statute as so construed is valid. And though it might admit of question whether a State statute was designed by its framers to affect other than domestic commerce, yet if the State court gives the statute an interpretation which makes it apply to what is understood to be commerce among the States, the construction must be followed, and the statute will be declared invalid.^ But when the construction of the statute enters into the question of its relationship to commerce, the construction is not binding upon the federal court. A municipal ordinance required a license from a canvasser for the privilege of transacting the business of soliciting orders for goods manu- given by State courts to even their own State statutes and State constitutions, we shall adopt the construction of the statute of Iowa under consideration, which has been given it by the Supreme Court of that State." Kidd v. Pearson, (1888) 128 U. S. 1. 9 Howe Mach. Co. v. Gage, (1879) 100 U. S. 676. iPeik V. Chicago, etc., R. Co., (1876) 94 U. S. 164. 2 Waters-Pierce Oil Co. v. Texas, (1900) 177 U. S. 28. That an objectionable provision may be eliminated by construc- tion, see the chapter on Discriminative State Statutes, infra, p. 253. 'Wabash, etc., R. Co. v. Illinois, (1886) 118 U. S. 557; Hall v. De Cuir, (1877) 95 U. S. 485. REGULATION OF COMMERCE 79 factured in another State. The State Supreme Chapter Court * held that the ordinance was valid as an ex- ' ercise of the police power in that whether the solici- tation from house to house by itinerant vendors or canvassers is an evil to be suppressed or reduced in its proportions by appropriate legislation is under ordinary circumstances a legislative question. But, on a writ of error from the Supreme Court of the United States,^ that court was not bound by the decision of the State court on the question whether the tax was an exercise of the police power and not of the taxing power, and held the statute to be of the latter character and void." THE STATE POLICE POWER. The doctrine of the police power is one which from its very nature is not susceptible of clear statement, but can only be suggested by general dis- cussion and illustration. In a work dealing with a single one of the grants of power to the federal government, the subject of the exercise of the State police power can be particularly treated only as it is affected by that grant of power, but its general outline may be first suggested. The whole field of State regulation of matters affecting interstate and foreign commerce is more or less concerned with the exercise of this power, so that the application in detail of the principles governing it may be made 4Titusville v. Brennan, (1891) 143 Pa. St. 642. sBrennan V. Titusville, (1894) 153 U. S. 289. " When the question is raised whether the State statute is a just exercise of State power, or is intended by roundabout means to invade the domain of federal authority, this court will look into the operation and effect of the statute to discern its purpose." Per Mr. Justice Miller, in Morgan's Steamship Co. v. Louisiana Board ■of Health, (1886) 118 U. S. 455. 80 HEGTrLATION OF COMMEECE Chapter in. Police regulations of muni- cipal cor- porations. How un- derstood in a constitu- tional sense. by reference to the second and third parts of this work. The so-called police regulations of municipal corporations should not be confused with what are rnderstood in constitutional law as the reserved police powers. The twofold powers of municipal corporations, exercised on the one hand in the per- formance of public, legislative, or judicial duties, and on the other hand for private, local, or merely corporate purposes, have attached to them distinct rights and liabilities. With probably some conflict of authority on exceptional matters, it may perhaps be said, as illustrating this distinction, that a muni- cipal corporation is not liable in tort for negligence in nonfeasance or misfeasance in the performance of its public duties and governmental functions, but that in the exercise of merely corporate powers, the rules which govern the liability in tort of individ- uals or private corporations are properly appli- cable. Such distinctions are in many ways recognized between governmental and corporate functions, the former being frequently referred to as the exercise of a police power, or the power of the municipality to adopt and enforce proper police regulations. In a constitutional sense, however, the exercise of the police power of a State, though perhaps refer- able to the same source of power, inherent sover- eignty, is questioned on the ground of supposed or real repugnance to a constitutional prohibition or limitation. In the people all sovereignty restsJ In the ex- ' " When we consider the nature and the theory of our institu- tions of government, the principles upon which they are supposed to rest, and review the history of their development, we are con- BEGULiATION OP COMMERCE 81 ercise of this sovereign power, the people, and not Ch^t« the separate States, adopted the Federal Constitu- ^ tion creating a national government, granting to Asare- that government defined powers and the power ' ' to ^°^™^ make all laws which shall be necessary and proper for carrying into execution " those powers.* It is to be observed that these grants of power to the national government are implied limitations on the power of the States to legislate on the subjects of those grants, and all power not thus limited and not expressly prohibited to the States by the na- tional charter, either as originally adopted or by the subsequent amendments, remains in the people to be exercised by them through the instrumental- ities of the several State governments. But beside this power that remains in the people, because not granted to the national government nor expressly prohibited, is a reserved or police power, or " the particular right of a government which is inherent in every sovereignty," ^ and which may be exercised by the States " to protect the public health, the pub- lic morals, and the public safety, by any legislation appropriate to that end which does not encroach upon rights guaranteed by the national Constitu- tion, nor come in conflict with Acts of Congress strained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are dele- gated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and' acts. And the law is the definition and limitation of power." Per Mr. Justice Matthews, in Yick Wo v. Hopkins, (1886) 118 U. S. 356. s Article I, § 8. s Per Mr. Justice Feckham, in Lake Shore, etc., E. Co. v. Smith, (1899) 173 U. S. 684. 6 82 BBGULATION OF COMMEECE DL iiScaeral rto las to passed in pursuance of that instrument. " * In . Hennington v. Georgia,^ Mr. Justice Harlan said that " local laws of the character mentioned have their source in the powers which the States re- served and never surrendered to Congress, of pro- viding for the puhlic health, the puhlic morals, and the puhlic safety, and are not, within the meaning of the Constitution, and considered in their own nature, regulations of interstate commerce simply because, for a limited time or to a limited extent, they cover the field occupied by those engaged in such commerce." It would be impossible to state in general terms the extent of this power, but as indicating some measure of its scope, it has been said that " the police power of a State is as broad and plenary as its taxing power ; and property within the State is subject to the operations of the former so long as it is within the regulating restrictions of the latter. ' ' ' The constitutional prohibition that " no State shall . . . pass any . . . law impairing the obligation of contracts " does not only not restrict "the power of a State to protect the public morals, the public health, or the public safety, but a State legislature cannot, by any contract, divest itself of the power to provide for these objects.* The police power is not limited to the mere right to prohibit the doing of a forbidden act or to com- pel the performance of a prescribed duty, but per- mission under stated conditions may be a proper 1 Per Mr. Justice Harlan, in Missouri, etc., B. Co. v. Ha.ber, (1898) 169 U. S. 613. 2 (1896) 163 U. S. 299. *Per Mr. Justice Lamar, in Kidd v. Pearson, (1888) 128 U. S. 1. ♦ Wabash R. Co. v. Defiance, (1897) 167 U. S. 88; Bosto« Beer ^Co. V. Massachusetts, (1877) 97 U. S. 25. REGULATION OF COMMERCE 83 manifestation of this power; in other words, it in- Chapter eludes, within its appropriate limits, the power to ' regulate or restrict, as well as the power to prohibit.^ The Public Health. As part of this reserved power a State may leg- f^^^^^^ islate for the protection of the health of the com- d°s°asraT munity. Preventing the spread of contagious dis- eases among animals is a proper exercise of this power, as by declaring a rule of civil liability for damages caused by transporting cattle liable to communicate disease,® but when the regulation is beyond what is absolutely necessary for the State's self-protection, as by excluding certain cattle at certain seasons whether diseased or not, it cannot be so considered^ Statutes prohibiting the manufacture or sale of ^^J^^ffjo^ oleomargarine colored in imitation of butter,* and p"^""=- prohibiting the importation into the State of coffee so adulterated as to conceal damage,^ have been enacted to prevent fraud and deception in the sale of food products, and in the interest of public health. While a State has power to regulate the introduction of any article, including a food product, so as to insure purity of the article imported, it cannot, under cover of exerting its police powers, substantially prohibit or burden either foreign or interstate commerce. Eeasonable and appropriate laws for the inspection of articles, including food products, are valid, but absolute prohibition of an 6 Vance v. W. A. Vandercook Co., (1898) 170 U. S. 438. e Missouri, etc., R. Co. v. Haber, (1898) 169 U. S. 613. J Hannibal, etc., R. Co. v. Husen, (1877) 95 U. S. 465. sPlumley ». Massachusetts, (1894) 155 U. S. 461. • Grossman v. Lurman, (1904) 192 U. S. 189. 84 EEGXILATIOIT OF COMMEECE unadulterated, wholesome, and pure article cannot be permitted as a remedy against the importation of that which is adulterated and therefore unwhole- some.^ The introduction of an article which is not adulterated and which ia its pure state is healthful cannot be prohibited simply because such an article in the course of its manufacture may be adulterated by dishonest manufacturers for purposes of fraud or illegal gains. Peace, Good Order, and Public Morals. of CTtae"" State regulations having relation to the peace fsm-defepl ^^^ good ordcr of the commonwealth and to the of'foo/*'* promotion or preservation of public morals are pro ucts. ^j^j^jj ^jjjg reserved power. Precautionary meas- ures against social evils, and the prevention of crime and pauperism, by excluding objectionable persons,^ or being concerned in the sale of a lottery ticket though such tickets are to be drawn in an- other State,^ are considered such. Statutes for the prevention of deception or fraud, as in the sale of food products, have some relation to public morals as well as the public health,* and are permissible. Statutes have been enacted in several States pro- hibiting the running of freight trains on Sundays. In Hennington v. Georgia,^ such a statute was con- sidered as part of the policy of the State of Georgia, as it was the policy of many of the original States, 1 SchoUenberger v. PennsylTania, (1898) 171 U. S. 1. 2 Hannibal, etc, R. Co. v. Husen, (1877) 95 U. S. 465; State v. Stripling, (1896) 113 Ala. 120; State v. Harbourne, (1898) 70 Conn. 484; Louisville v. Wehmhoff, (1903) 116 Ky. 812; Ames v. Kirby, (1904) 71 N. J. L. 442; Lacey v. Palmer, (1896) 93 Va. 159. sRoselle v. Farmers' Bank, (1897) 141 Mo. 36. * See supra, p. 83. (1896) 163 U. S. 299. REGULATION OF COMMEECE 85 to prohibit all persons, imder peualties, from using Cl^ter the Sabbath as a day for labor and for pursuing ' their ordinary calliugs. The court said that the legislature no doubt acted upon the view that the keeping of one day in seven for rest and relaxation was " of admirable service to a state, considered merely as a civil institution." ^ The Public Safety. The rules prescribed for the construction of rail- fj™'*™,'' roads and for their management and operation, de- o?rai*wavs, signed to protect persons and property otherwise endangered by their use, are strictly within the scope of the local law, provided they do not directly burden or impede interstate traffic or impair the usefulness of the facilities for such traffic.'' A State may require an examination for fitness to act as a locomotive engineer,* and tiie examina- tion of railroad employees generally for color bliod- ness.® So also a statute direetiag guards and guard posts to be placed on railroad bridges and trestles and the approaches thereto, and prescribing a mode of heating passenger cars, has been held a proper exercise of this power. Possible inconveniences can- not affect .the question of the power in each State to make such reasonable regulations for the safety of passengers as iu its judgment, all things considered, are appropriate and effective.^ Until displaced by « 4 Bl. Com. *63. TCSiicago, etc., E. Co. v. Solan, (1896) 169 U. S. 133; Illinois Cent. R. Co. v.. Illinois, (1896) 163 U. S. 142. 8 Smith V. Alabama, (1888) 124 U. S. 465. 9 Nashville, etc., K. Co. v. Alabama, (1888) 128 U. S. 96. 1 " Inconveniences of this character cannot be avoided so long as each State has plenatry authority within its territorial limits to provide for ihe safety (d the public, according to its own views 86 EEGULATION OF COMMEBCE Chapter III. express legislation of Congress, such State laws govern carriers in tlie discharge of their obligations whether engaged iu purely internal commerce of the State, or in commerce among the States. Recognized element of police power. Re^latiner business of transporta- tion and communi- cation. The Public Convenience. The States may legislate not only with refer- ence directly to the public health, the public morals, or the public safety, but also with reference simply to the public convenience, subject of course to the condition that such legislation be not inconsistent with the national Constitution, nor with any Act of Congress passed in pursuance of that instrument, nor in derogation of any right granted or secured by it. This branch of the police power seems generally to be exercised and recognized in making regula- tions for the government of corporations occupied in the business of transportation and communica- tion, like railroad and telegraph companies, and which are engaged in a public employment affecting £i public interest. Regulating the stoppage of trains at designated places,^ and requiring railway com- panies to fix their rates annually for the transpor- tation of passengers and freight, and also requiring them to post a printed copy of such rates at all their stations,® may be considered as legislation having of necessity and public policy, and so long as Congress deems it wise not to establish regulations on the subject that would displace any inconsistent regulations of the States covering the same ground." Per Mr. Justice Harlan, in New York, etc., R. Co. v. New York, (1897) 165 U. S. 628. 2 Lake Shore, etc., R. Co. v. Ohio, (1899) 173 U. S. 285; Gladson V. Minnesota, (1897) 166 U. S. 427. 3 Chicago, etc., R. Co. t). Fuller, (1873) 17 Wall. (U. S.) 560. See also Gulf, etc.. R. Co. v. Hefley, (1895) 158 U. S. 98, as to BEGULATION OF COMMERCE 87 in mind the convenience of the public. The States Chw«nr may also require telegraph companies to receive, and to transmit and deliver with due diligence, messages from places either within or without the State,* and may make all necessary provisions with respect to the buildings, poles, and wires of telegraph companies in its jurisdiction which the comfort and convenience of the commimity may require.^ As serving the convenience of the public. State pi°J|^3[^ legislation authorizing the construction of a perma- If^^^^ nent bridge over a river within the State, when the bridge in fact interfered with the use of the river by vessels of a certain size which had long been accustomed to navigate it,® and regulating the open- ing and closing of bridges over a river within the State,'' as also authorizing the erection of piers and booms in a navigable river within the State,* is within this part of the police power, and may be allowed to operate in the absence of federal direction. Invading Exclusive Power of Congress. Whatever the reason given or the object to be attained, the acknowledged police power of a State a similar statute, in which case Mr. Justice Brewer said: "It may be conceded that were there no congressional legislation in respect to the matter, the State Act could be held applicable to interstate shipments as a police regulation." ■•Western Union Tel. Co. v. James, (1896) 162 U. S. 650. But a State may not regulate the delivery of messages outside the State sent from points within the State. Western Union TeL Co. V. Pendleton, (1887) 122 U. S. 347. s Western Union Tel. Co. v. Pendleton, (1887) 122 U. S. 347. "Cardwell v. American Bridge Co., (1885) 113 U. S. 205; Gil- man V. Philadelphia, (1865) 3 Wall. (U. S.) 713. TEscanaba, etc., Transp. Co. v. Chicago, (1882) 107 U. S. 678. « Pound V. Turck, (1877) 95 U. S. 459. 88 REGTTLATION OF COMMEECE laS U. S. 503. zHennington v. Georgia, (1896) 163 U. S. 299. 3 Pennsylvania R. Co. v. Huglws, (1903> 191 U. S. 477. 4 Richmond, etc., R. Co. v. R. A. Patterson Tbbacco Co., U898) 169 U. S. 311. 5 Sherlock v. Ailing, (1876) 93 V. S. 99. to commerce. 94 BfeXTLATION OP COMMEECB Chapter III. In further- ance of a federal policy. who are engaged in interstate commerce. Especially is this so with respect to regulations having in view the convenience of the public, as in enforcing track connections between two railroads,® and to rules for the safety of persons and property. They are rather to be regarded as legislation in aid of com- merce, and are considered with special favor by the courts.'' The same quality, as an aid to commerce, may attach to State legislation which, instead of being in conflict with an Act of Congress, is in furtherance of a declared federal policy with respect thereto. A State statute declaring a rule of civil liability for damages caused by transporting cattle liable to com- municate disease is one in aid of the Animal Indus- try Act,* providing means for the prosecution and cure of contagious diseases of domestic animals and regulating the examination and transportation of animals so affected.* Reasonableness of Its Exercise as the Supreme' Test. But when a State statute has been enacted which may be said to have relation to the public morals, the public health, the public safety, or the public convenience, the subject of which is not within the exclusive power of Congress or which in its opera- tion does not conflict with an Act of Congress, the last and supreme test is that of reasonableness. Indefinable. Wanting in exactness as the whole subject of police power is, this final test of reasonableness lacks • Wisconsin, etc., R. Co. v. Jacobson, (1900) 179 U. S. 287. 1 Chicago, etc., R. Co. v. Solan, (1898) 169 U. S. 133. 8 Act of Congress of May 29, 1884, c. 60; 1 Fed. Stat. Annot. 451. » Missouri, etc., R. Co. v. Haber, (1898) 169 U. S. 613. REGULATION OF COMMERCE 95 definiteness more than any other element, for " the Ch^ter exact limit of lawful legislation upon this subject cannot in the nature of things be defined. It can only be illustrated from decided cases, by applying the principles therein enunciated, determining from these whether in the particular case the rule be rea- sonable or otherwise. " ^ A statute passed in pursu- ance of any of the purposes for which this power may be exercised must have a real or substantial relation to the object for which it was enacted, and if it unreasonably or unnecessarily hampers com- merce between the States, or fails to make allowance for the practical difficulties in the administration of the law, it cannot be approved. A comparison of the Cleveland, etc., R. Co. v. ^fglin^at Illinois,'^ Gladson v. Minnesota^ and Illinois Cent. R. Itlti^s. Co. V. Illinois'^ cases, referred to in another part of this work,® respecting statutes requiring rail- roads to stop passenger trains at certain stations, will give some idea as to what have been held to be reasonable and unreasonable regulations on similar matters. In Houston, etc., R. Co. v. Mayes « attention was farn"iri°fo particularly called to the practical difficulties of ^"pp'^^'^ administering the law under consideration. In that case, a Texas statute, the material requirement of which was that when the shipper of freight should make a requisition in writing for a number of cars to be furnished at any point indicated within a cer- iPer Mr. Justice Brown, in Houston, etc., R. Co. v. Mayes, (1906) 201 a. S. 321. 2 (1900) 177 U. S. 514. 3 (1897) 166 U. S. 427. 4 (1896) 163 U. S. 142. 8 See infra, pp. 165-167. • (1906) 201 U. S. 321. 96 BBGULATION OP COMMEBCB Chapter tain mnnber of days from the receipt of the applica- " tion, and should deposit one-fourth of the freight ■with the agent of the company, the company failing to furnish them should forfeit twenty-five dollars per day for each ear failed to be furnished, the only proviso being that the law " shall not apply in cases of strikes or other public calamity, ' ' was held to be invalid as applied to cars required for interstate shipments J and the court, admitting that there is much to be said in favor of laws compelling rail- roads to furnish adequate facilities for the trans- portation of both freight and passengers, and to regulate the general subject of speed, length and fre- quency of stops, the heating, lighting, and ventila- tion of passenger cars, and the furnishing of food and water to cattle and other live stock, said, Making re- through Mr. Justicc Brown : ' ' We think an absolute quirements absolute, requirement that a railroad shall furnish a certain number of cars at a specified day, regardless of every other consideration except strikes and other public calamities, transcends the police power of the State and amounts to a burden upon interstate com- merce. It makes no exception in cases of a sudden congestion of traffic, an actnal inability to furnish cars by reason of their temporary and unavoidable detention in other States, or in other places within the same State. It makes no allowance for iater- ference of traffic occasioned by wrecks or other accidents upon the same or other roads, involving a detention of traffic, the breaking of bridges, acci- dental fires, washouts, or other unavoidable conse- quences of heavy weather. . . . While railroad companies may be bound to furnish sufficient cars for their usual and ordinary traffic, cases will inevitably arise where, by reason of an unexpected , reason- able effect. BEGTJLATION OF COMMEECB 97 turn in the market, a great public gathering, or an Chapter unforeseen rush of travel, a pressure upon the road " for transportation facilities may arise, which good management and a desire to fulfil all its legal re- quirements cannot provide for, and against which the statute in question makes no allowance." While the presumption that a statute was en- Presump- ^ ■*- tion of good acted in good faith, for any of the purposes for l^^^fZ':' which this power can be exercised, may and should by^sM be indulged, yet its operation and validity must be determined by its natural and reasonable effect,^ and this presumption cannot control the final deter- mination of the question whether it is not repugnant to the Constitution of the United States. " There may be no purpose upon the part of a legislature to violate the provisions of that instrument, and yet a statute enacted by it, under the forms of law, may, by its necessary operation, be destructive of rights granted or secured by the Constitution. In such cases the courts must sustain the supreme law of the land by declaring the statute unconstitutional and void."* INSPECTION LAWS. One of the clauses of section 10, Article I, of the Constitution provides that " no State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws."^ The clause is a constitutional recognition 7 Henderson v. New York, (1875) 92 U. S. 259. » Per Mr. Justice Harlan, in Minnesota v. Barber, (1890) 136 U. S. 313. 9 This prohibition on the power of the States to " lay any imposts or duties on imports or exports " is discussed in another part of this work, and it is there shown that the words " imports " and " ex- 7 98 KEGULATION OF COMMEKCB Chapter kapt III. Under the ■"Mmports or •exports" clause. of the power of the States to enact inspection laws with respect to goods imported from and to be exported to foreign countries, and a similar power has been construed into the commerce clause with regard to commerce between the States as part of ri'ySpw-'' *^® police power of the State. Whenever inspection '**^- laws act on a subject before it becomes an article of commerce, they are confessedly valid as matters of domestic concern. They may also be made to operate upon articles brought from one State into another for the purpose of determining their fitness for domestic use, and in so doing protecting the citi- zens from fraud.* So far as the above-quoted clause is concerned, inspection laws operating on articles intended for export or for domestic use " are confined to such particulars as, in the estimation, of the legislature and according to the customs of trade, are deemed necessary to fit the inspected article for the market, by giving to the purchaser public assurance that the article is in that condition, and of that quality, which makes it merchantable and fit for use or con- simaption. They are not founded on the idea that the things in respect to which inspection is required are dangerous or noxious in themselves. " ^ In Turner v. Maryland,^ the court, through Mr. Justice Blatchf ord, said : ' ' Recognized elements of inspec- tion laws have always been quality of the article, form, capacity, dimensions, and weight of package, ports" refer only to articles imported and exported to' foreign countries. See infra, p. 264. 1 Patapsco Guano Co. v. North Carolina Board of Agriculture, (1898) 171 U. S. 345. * Per Mr. Justice Matthews, in Bowman v. Chicago, etc., R. Co., :(1888) 125 U. S. 465. a (1882) 107 U. S. 38. REGULATION OF COMMEBCE 99 mode of putting up, and marking and branding Chapter of various kinds, all these matters being supervised " by a public officer having authority to pass or not pass the article as lawful merchandise, as it did or did not answer the prescribed requirements. It has never been regarded as necessary, and it is mani- festly not necessary, that all of these elements should coexist in order to make a valid inspection law. Quality alone may be the subject of inspec- tion, without other requirement, or the inspection may be made to extend to all of the above matters." Under the commerce clause, to ascertain the fit- Must be ' appropriate ness of articles, including food products, for use, IgfJ**^""' inspection laws must be appropriate and reasonable, and the absolute prohibition of an unadulterated, healthful, and pure article, or one imiversally recog- nized as harmless, cannot be permitted as a remedy against the importation of that which is adulterated or harmful.* The right to sell articles imported into a State in the original packages does not inter- fere with the acknowledged right of the State to use such means as may be necessary to prevent the introduction of an adulterated article,^ and though the operation of the laws may in some cases in a slight degree affect commerce, they cannot be prop- erly designated as regulations of commerce when they serve the convenience and comfort of the in- habitants of the State in the conduct of their busi- ness.* Requiring articles to be carried to a State warehouse for inspection is not unreasonable,'' and a statute providing for the appointment of gangers * SchoUenberger ». Pennsylvania, (1898) 171 U. S. 1; Austin v. Tennessee, (1900) 179 U. S. 343. Schollenberger v. Pennsylvania, (1898) 171 U. S. 1. e Pittsburg, etc., CSoal Co. v. Louisiana, (1895) 156 U. S. 590. 'Turner ». Maryland, (1882) 107 U. S. 38. 100 EEGULATION- OF COMMEBCE Chapter of coal and coke boats and prescribing a rule by " which the capacity of the carrying vessels can be determined does not conflict with the power vested in Congress over commerce.* Cannot But an inspcction law cannot be made to operate a§vancV"of in advance of the actual importation of the goods importa- " tion- to be inspected, so as to cut off the right of a citizen to ship articles of commerce to another State. One of a series of dispensary laws of the State of South Carolina provided, in part, that a sample of the liquor proposed to be shipped into the State should be sent to a State officer for analysis in advance of the shipment, and that a certificate of the officer should be attached to the package containing the liquor when it was shipped into the State. In Vance V. W. A. Vandercook Co? the court, Mr. Justice White writing' the opinion, said that the statute " deprives any nonresident of the right to ship by means of interstate commerce any liquor into South Carolina unless previous authority is obtained from the officers of the State of South Carolina. On the face of these regulations, it is clear that they sub- ject the constitutional right of the nonresident to ship into the State and of the resident in the State to receive for his own use, to conditions which are wholly iacompatible with and repugnant to the ex- istence of the right which the statute itself acknowl- edges. The right of the citizen of another State to avail himself of interstate commerce cannot be held to be subject to the issuing of a certificate by an officer of the State of South Carolina without ad- mitting the power of that officer to control the exer- cise of the right." sPittsbiirg, etc.. Coal Co. v. Louisiana, (1895) 156 U. S. 590. » (1898) 170 U. S. 438. KEQTJLATION OF OOMMEEOE 101 When it is not asserted that a particular police Chapter regulation is invalid, a finding of fact by a commis- " sioner, acting in the discharge of his duty under the f^f„y>*f law, that a brand of coffee is so prepared as to con- ia^^i^Lra- ceal damage or inferiority, does not in itself consti- "" °'^"'- tute such a direct interference with interstate com- merce as to give a Circuit Court, as a court of the United States, jurisdiction on the ground of diverse citizenship. " The suggested controversy was purely hypothetical and based the supposed consti- tutional objections on the contingency that, on issues of fact, it might be judicially determined that Ariosa came within the statute, which complainants denied. If the commissioner's conclusions were erroneous, the courts were open for the correction of the error, and the possibility that they might agree with the commissioner could not be laid hold of as tanta- mount to an actual controversy as to the effect of the Constitution, on the determination of which the result of the present suit depended. ' ' ^ That the power of a State to pass inspection laws Absence of discrimina- is further limited by the consideration that there ''o°- must be no discrimination against the products of other States and foreign countries, is shown here- after in discussing the effect of discriminative State statutes.^ QUABAHTINE AND HEALTH LAWS. In the Passenger Cases ^ the court adjudged cer- Taxes upon tain statutes of New York and Massachusetts, im- sengers. posing taxes upon alien passengers arriving in the ports of those States, to be invalid. There was no 1 Per Chief Justice Fuller, in Arbuckle v. Blackburn, (1903) 191 U. S. 405. 2 See infra, p. 256. 3 (1849) 7 How. (U. S.) 283. 102 EEGULATION OF COMMBECB Chapter III. Congres- sional opinion of the court, as a court, and each of the jus- tices wrote a separate opinion or concurred in that of one of the other justices, but Mr. Justice Wayne said : "I think the court means now to decide . . . 9. That the States of this Union may, in the exercise of their police powers, pass quarantine and health laws, interdicting vessels coming from foreign ports,, or ports within the United States, from landing pas- sengers and goods, prescribe the places and time for vessels to quarantine, and impose penalties upon persons for violating the same; and that such laws, though affecting commerce in its transit, are not regulations of commerce prescribing terms upon which merchandise and persons shall be admitted into the ports of the United States, but precaution- ary regulations to prevent vessels engaged in com- merce from introducing disease into the ports to which they are bound, and that the States may, in the exercise of such police power, without any viola- tion of the power in Congress to regulate commerce, exact from the owner or consignee of a quarantined vessel, and from the passengers on board of her, such fees as will pay to the State the cost of their detention and of the purification of the vessel, cargo, and apparel of the persons on board. ' ' The power of the States to adopt such regula- o"s°tl?i''°" tions was recognized by Congress as early as the ^'^^^ ' Act of May 27, 1796,* and Chief Justice Marshall, in Gibbons v. Ogden,^ referring to this Act and the Act of February 25, 1797,« said: " But they do not « 1 Stat, at L. 474, c. 31. » (1824) 9 Wheat. (U. S.) 1. See also Louisiana v. Texas, (1900) 176 U. S. 1 ; Morgan's Steamship Co. v. Louisiana Board of Healtk, (1886) 118 U. S. 455. • 1 Stat, at L. 619, c. 12, carried forward into §§ 4792 et seq.,. Kev. Stat. U. S., 3 Fed. Stat. Annot. 214. REGTTLATION OF COMMERCE 103 imply an acknowledgment that a State may right- fully regulate commerce with foreign nations, or among the States ; for they do not imply that such laws are an exercise of that power, or enacted with a view to it. On the contrary, they are treated as quarantine and health laws, are so denominated in the Acts of Congress, and are considered as flowing from the acknowledged power of a State to provide for the health of its citizens. But, as it was ap- parent that some of the provisions made for this purpose, and in virtue of this power, might inter- fere with and be affected by the laws of the United States, made for the regulation of commerce, Con- gress, in that spirit of harmony and conciliation which ought always to characterize the conduct of governments standing in the relation which that of the Union and those of the States bear to each other, has directed its officers to aid in the execution of these laws; and has, in some measure, adapted its own legislation to this object, by making provisions in aid of those of the States. But in making these provisions, the opinion is unequivocally manifested, that Congress may control the State laws, so far as it may be necessary "to control them, for the regula- tion of commerce." In exercising this power, however, care should always be taken that the means employed to that end do not go beyond the necessities of the case or unreasonably burden interstate commerce.'^ A State may exclude healthy persons from an infected local- Chapter- III. Power limited by necessities of the case:: 7Reid V. Colorado, (1902) 187 U. S. 137. As to disinfecting imported rags, see Train v. Boston Disinfecting Co., (1887) 144 Mass. 523; Bartlett v. Lockwood, (1896) 160 U. S. 357. 304 EEGULATIOK OF COMMBBCE Chapter HjS and may quarantine against diseased animals. ' A statute of Colorado declared, in effect, that live stock, between the dates and from the territory specified in the Act, are ordinarily in such condi- tion that their presence in the State may be danger- ous to its domestic animals, and required that before being sent into the State they should either be kept at some place north of the 36th parallel of latitude for ninety days prior to their importation into the State or that the owner should obtain from the State officers a bill of health. In Reid v. Colorado ® the court said that, without any evidence bearing upon the reasonableness or xmreasonableness of the par- ticular methods adopted by the State to protect its domestic animals, it could not be said that the stat- ute unduly burdened the exercise of the privilege of engaging in interstate commerce, and held that the statute did not cover the same ground as, and there- fore was not inconsistent with, the Act of Congress known as the Animal Industry Act.^ ammais Protectiou may not only be provided against di^llf" diseased animals, but against animals which have been exposed to disease.^ The adoption of rules of civil liability for damages that may accrue from having in possession certain cattle which have not been wintered North, and allowing such cattle to run at large,^ and from transporting cattle liable to im- part and capable of communicating Texas, splenic, 8 Compagnie Frangaise, etc., v. Louisiana State Board of Health, (1902) 186 U. S. 380. » (1902) 187 U. S. 137. lAct of May 29, 1884, c. 60; 1 Fed. Stat. Annot. 451. See also Hannibal, etc., K. Co. v. Husen, (1877) 95 U. S. 465. 2 Smith V. St. Louis, etc., K. Co., (1901) 181 U. S. 248; Rae- mussen v. Idaho, (1901) 181 U. S. 198. sKimmish v. Ball, (1889) 129 U. S. 217. BBGtriiATION OF COMMEBCE 105 or Spanish fever to native cattle,* does not conflict Clwpter with the power of Congress to regulate commerce. ' But a statute prohibiting the transportation of cer- tain cattle at a stated season of the year without regard to whether they are infected or not is a plain ^^^^\g interference with interstate commerce. A Missouri exposure " statute prohibited the driving or otherwise convey- """""• ing into or remaining in any county of the State, of any Texas, Mexican, or Indian cattle between the first day of March and the first day of November in each year. In Hannibal, etc., R. Co. v. Hwsen^ it was held that the statute was neither a quarantine nor an inspection law, and the court said: " The police power of a State cannot obstruct foreign com- merce or interstate commerce beyond the necessity for its exercise; and under color of it objects not within its scope cannot be secured at the expense of the protection afforded by the Federal Constitution. And as its range sometimes comes very near to the field committed by the Constitution to Congress, it is the duty of the courts to guard vigilantly against any needless intrusion." INSPECTION AND QTTABANTINE CHARGES AND FEES. In enacting inspection and quarantine laws, the s^^^^J" States may authorize the exaction of fees and ^"^m- charges no more than sufficient to defray the costs and expenses incurred.^ A statute of Virginia, pro- viding for the inspection of meat slaughtered over 4 Missouri, etc., R. C!o. v. Haber, (1898) 169 U. S. 613. s (1877) 95 U. S. 465. oPatapsco Guano Co. v. North Carolina Board of Agriculture, (1898) 171 U. S. 345; Morgan's Steamship Co. v. liouiaiana Board of Health, (1886) 118 U. S. 455; Passen,s;er Cases, (1849) 7 How. (U. S.) 283. See also infra, as to duties of tonnage, p. 275. 106 BEGULATION OF COMMEBCE Chapter one himdred miles from tlie place at which it was ' offered for sale, declared, " and for all fresh meat so inspected said inspector shall receive as his com- pensation one cent per pound to he paid hy the owner of the meat." In Brimmer v. Rebman '' it was held that, even if the other provisions could be sustained as an inspection law, the statute was in effect a prohibition upon the sale in Virginia of meats entirely wholesome, if from animals slaughtered one himdred miles or over from the place of sale, because the owner, being required to pay the heavy charge of one cent per pound to the inspector, as his com- pensation, could not compete upon equal terms, in the markets of that Conunonwealth, with those in the same business whose meats of like kind, from animals slaughtered within less than one hundred miles from the place of sale, were not subjected to inspection. Power of AVhile the courts may declare inspection fees ex- courts or , Congress to ccssivc, aud therefore invalid so far as the inspec- declare ' ^ excessive. |jqjj jg pf articles entering into the State from other States, a different rule seems to obtain with respect to articles imported from foreign coimtries, and this because the clause of Article I, section 10, pro- hibiting the States from laying any imposts or duties on imports or exports, " except what may be abso- lutely necessary for executing its inspection laws," also provides that " all such laws shall be subject to the revision and control of Congress. ' ' In Turner V. Maryland,^ Mr. Justice Blatchford said: "As is suggested ia Neilson v. Garza, (1876) 2 Woods (U. S.) 287, by Mr. Justice Bradley, it may be doubt- T (1891) 138 U. S. 78. 8 (1882) 107 U. S. 38. BEGtTLATION OP COMMBBCB 107 fid whether it is not exclusively the province of Con- Chapter gress, and not at all that of a court, to decide ' whether a charge or duty, under an inspection law, is or is not excessive." * > See also Fatapsco Guano Co. v. North Carolina Board of Agriculture, (1898) 171 U. S. 345; State v. Bixman, (1901) 162 Mo. 1. PART 11. 'SUBJECTS OF REGULATION. CHAPTER IV. MANTJFACTUEE AND PEODTJCTION. AS the power delegated to Congress is limited to " commerce with foreign nations, and among the several States, and with the Indian tribes, ' ' there is an internal commerce which is sub- ject to the exclusive control of the States. The principle that manufacture and production are not commerce was clearly stated by Mr. Justice Lamar in Kidd v. Pearson} He said : ' ' No distinction is more popular to the common mind, or more clearly expressed in economic and political literature, than that between manufactures and commerce. Manu- facture is transformation — the fashioning of raw materials into a change of form for use. The func- tions of commerce are different. The buying and selling and the transportation incidental thereto constitute commerce; and the regulation of com- merce in the constitutional sense embraces the regu- lation at least of such transportation." And it was said by Chief Justice Fuller, in U. 8. v. E. C. Knight Co.,^ that " Commerce succeeds to manufacture, and is not a part of it." In the Kidd v. Pearson case, supra, it was held that a statute of Iowa which, as construed by the State Supreme Court, provided that intoxicating Chapter IV. Manufac- ture and production as matters of domestic concern. Frohibitini; manufac- ture for export. 1 (1888) 128 U. S. 1. Packing houses are not engaged in interstate commerce. U. S. v. Boyer, (1898) 85 Fed. Rep. 425. 2 (1895) 156 U. S. 1. 112 EEGULATION OF COMMEECE Chapter Hquors might be manufactured and sold within " the State for chemical, medicinal, culinary, and sacramental purposes, but for no other — not even for the purpose of transportation beyond the limits of the State — was within the police power of the State, and that one who manufactured liquors ex- clusively for exportation and sale outside the State was within the prohibition of the statute. The court distinctly recognized and applied the rule that the fact that an article is manufactured for export to another State does not of itself make it an article of interstate commerce within the meaning of the Constitution.^ ^"ofation '^i^is question of the power of a State to control fnmanS? corporatlons engaged in manufacture was raised in comply" a peculiar way under a statute of Wisconsin requir- uw. '*" ing that a company incorporated elsewhere file a copy of its charter with the Secretary of State, and pay a small fee as a condition of doing busi- ness there. A foreign corporation entered into a contract within the State for the erection of a factory to be operated under the supervision of the officers of the foreign corporation, and the fact that the product was intended to be used outside the State, and that, indeed, very little could be used within the State, was held not to exempt the foreign corporation from compliance with the re- quirements of the State statutes.* An Ohio statute allowing the manufacture and sale of oleomargarine when free from any coloring matter or other ingre- dient causing it to look like or to appear to be butter as defined in the statute, and expressly forbidding the manufacture or sale within the State of any s See infra, p. 152, and Mugler v. Kansas, ( 1887 ) 123 U. S. 623, * Diamond Glue Co. v. U. S. Glue Co., (1903> 187 U. S. 611. BEGTTLATION OF COMMERCE 113 oleomargarine which contained any methyl orange, butter yellow, annotto, aniliae dye, or any other coloring matter, was held not to violate this clause when all the acts of the corporation which were complained of related to oleomargarine manufac- tured by it in the State of Ohio, in violation of the laws of that State, and therefore operated on the corporation within the State and affected the prod- uct manufactured by it before it had become a sub- ject of interstate commerce." In Addyston Pipe, etc., Co. v. U. /S.® the defend- ants were engaged in the manufacture, sale, and transportation of iron pipe at their respective places of business in the States of their residence, and had entered into a combiaation among themselves by which they agreed that there should be no competi- tion between them in any of the States or Territories mentioned in the agreement ia regard to the manu- facture and sale of cast-iron pipe. Thus provision was made, not alone for the manufacture but for the sale of the manufactured product, and the con- tract directly affected, not as a mere incident of manufacture, the sale of the articles over the terri- tory embraced in the contract. The contract was held to be within the terms and purpose of the Sherman Anti-Trust Act.'^ It was urged that this case was within the prin- ciple of the decision in the E. C. Knight Co. ease, supra. In that case it was held that although the American Sugar Refining Company, by means of a combination, had obtained a practical monopoly of the business of manufacturing sugar, yet the Act of Cfamtor Combina- tion of manufac- turers to abstain from com- petition ia sales of products. Combina- tion of manufac- turers to monopolize manufac- ture. 5 Capital City Dairy Co. v. Ohio, (1902) 183 U. S. 238. 8 (1899) 175 U. S. 211. 1 Act of Congress of July 2, 1890, c. 64, 7 Fed. SUt. Annot. 336. 8 114 EEGTJLATION OF COMMERCE €%apter i^t T>istiiiction 3ic£ween manufac- ture and tflomestic sales and ioterstate dales. oUons re- jtated in Hofthem Securities Congress did not toucli the case, because the com- bination related to manufacture only and not to commerce among the States or with foreign nations. The direct purpose was the control of the manu- facture of sugar ; there was no combination or agree- ment, in terms, regarding the future disposition of the manufactured article, nothing looking to a trans- action in the nature of interstate commerce. On the other hand, in the Addyston Pipe, etc., Co. case, supra, while no particular contract regarding the furnishing of pipe and the price for which it should be furnished was in the contemplation of the parties to the combination at the time of its formation, yet it was their intention to increase, directly and by means of such combination, the price for which all contracts for delivery within the territory embraced by the contract should be made. As giving point to the distinction between the domestic business of the defendants, so far as it consisted of the manufacture and sale wholly within their respective States, and that part of their busi- ness which related to the delivery of pipe after manufacture from their respective States to the other States and Territories covered by their con- tract, the court modified the judgment of the Court of Appeals so far as it included in its scope the enjoining of the defendants from combining in re- gard to contracts for selling pipe in their own State, and limited it to that portion of the combination or agreement which had relation to interstate sales. And as adding further emphasis to this distinc- tion, Mr. Justice Harlan, after reviewing, in the case of Northern Securities Co. v. U. S.,^ the cases which had been decided under the statute, sum- « (1904) 193 U. S. 197. EBGULATION OF COMMERCE 115 marized the propositions deducible therefrom, and Chapter having special reference to the question decided in ' the Addyston Pipe, etc., Co. case, supra, said: "Although the Act of Congress known as the Anti-Trust Act has no reference to the mere manu- facture or production of articles or commodities within the limits of the several States, it does em- brace and declare to be illegal every contract, com- bination, or conspiracy, in whatever form, of what- ever nature, and whoever may be parties to it, which directly or necessarily operates in restraint of trade or commerce among the several States or with foreign nations. . . . Combinations even among private manufacturers or dealers whereby interstate or international commerce is restrained are equally embraced by the Act. ' ' The power of Congress in some measure indi- Power of ^ ° . Congress ti rectly to regulate production and manufacture must "^^^fation"^ be conceded. By denying the facilities of interstate """'■^'^ transportation in the case of commodities which have not been manufactured under federal super- vision, this object may be attained. To insure the interstate and foreign trade in pure and imadulter- ated foods, and to prevent frauds upon purchasers of goods which are upon the interstate and foreign market, Congress would seem to have ample power. But there must be some limit, some line of demarca- tion between the power of Congress and of the States, in controlling the processes of manufacture, beyond which Congress cannot step. That there must be a limit to the power of Congress in this regard is evident both from the nature of the sub- ject and from the judicial recognition and insistence that manufacture is not commerce, or, at any rate, that in and of itself it is a matter of domestic concern. 116 EEGULATION OF COMMEBOE cwter The remark of Chief Justice Fuller, that " com- ' merce succeeds to manufacture," ia the E. C. Knight Co. case, supra, is very suggestive in this connection.* It will have been noticed that in the Addyston Pipe, etc., Co. case, supra, while the con- tract or combination was entered into with respect to articles to be thereafter manufactured, the contract nevertheless had reference to contracts of sale and delivery in other States and Territories than those Extent of in wMch the respective manufacturers resided, and power of Congress as it tended to restram interstate trade in those suggested. articles, in violation of the statute, the conspirators were enjoined from carrying out that part of their contract, but neither their right to manufacture nor their purely domestic trade could be affected by a federal statute. And in the supposed cases of indi- rect interference, by denying the privileges of inter- state transportation in the interest of the consumer, the exercise by Congress of such a right would seem to be referable to a power in the nature of an ultra- constitutional or federal police regulation.^ To the extent that manufacturers, in so far as their busi- ness is concerned in finding an interstate or foreign market for their products, may be subject to the rules prescribed by Congress by which that com- merce shall be governed, as by the rule of free com- petition, and to such regulations as may be adopted to insure the quality of the articles transported and for the prevention of fraud and imposition — to 9 As ia also that of Chief Justice Waite, that " commerce has nothing to do with land while producing, but only with the product after it has become the subject of trade,'' made in McCready V. Virginia, (1876) 94 U. S. 391, wherein the right of a State to grant the exclusive use of the land under its waters to its own citi- zens for the propagation of oysters was affirmed. 1 See supra, p. 51. REGULATION OF COMMEBCE 117 this limit, the power of Congress may probably be Chapter exerted. ' But if, mider the guise of its power to regulate coiT Vess interstate and foreign transportation, Congress were p°o«sse°' to attempt to control the processes of production facTure"" and manufacture, with the avowed or ostensible pur- pose of regulating matters which are of purely domestic or local concern, and with no federal policy to be promoted, it must be that the line, faint though it be, which marks the boundary of federal and State power, would seemingly be overstepped. For in- stance, labor laws, strictly so called, are assuredly maiters of State regulation. It may be, in order to secure the purity or quality of articles to be trans- ported from one State to another and to foreign countries, that Congress can prohibit the trans- portation of articles which have not been produced under conditions guaranteeing their purity and fit- ness for consumption, and can probably stipulate for the freedom from certain diseases of the persons employed, as well as for the sanitary condition of the premises. Here there would be an element of the federal policy — a national guaranty of the quality of the article. But federal laws regulating the hours of labor and prohibiting the employment of children, and making a conformity to those laws a condition to the interstate transportation of the goods manufactured, proper subjects of regulation though these may be, can have no relation to any- thing more than matters of local concern, as it is difficult to see how such regulations can be embraced by any conceivable rule of commerce, or how they can be considered such police regulations as would serve any distinctively federal purpose. CHAPTEK V. SALE, PUECHASE, AND EXCHANGE OF COMMODITIES. POWER OF CONGBESS IN GENERAL. Chapter T^HAT part of interstate commerce which con- • 1 sists in the sale, purchase, and exchange of Interstate commodities for transportation from one State exclusive to anothcr is national in its character and must be power of Coneress. govemed by a uniform system, and is within the exclusive power of Congress to control. So long as Congress does not pass any law regulating it, or allowing the States to do so, it thereby indicates its will that such commerce shall be free.^ l?ie*?rithin ^^ *^® other hand, Congress is without power power of to legislate respecting the traffic which is intrastate. This was clearly indicated in the case of Addyston Pipe, etc., Co. v. U. S.,^ referred to heretofore, in considering the subject of manufacture, in which case the court modified the judgment in so far as it included in its scope the enjoining of the defend- ants from combining in regard to contracts of sale to be performed within their respective States. 1 Interstate commerce con3i8ts of intercourse and traflSc between the citizens or inhabitants of different States, and includes not only the transportation of persons and property and the navigation of public waters for that purpose, but also the purchase, sale, and exchange of commodities. Addyston Pipe, etc., Co. v. U. S., (1899) 175 U. S. 211, citing Gloucester Ferry Co. v. Pennsylvania, (1885) 114 U. S. 196; Kidd v. Pearson, (1888) 128 U. S. 1. 2 (1899) 175 U. S. 211. the Sutes. EEGXJLATION OF COMMERCE 119 The Internal Revenue Act of Congress of March C!h^ 2, 1867,* provided " that no person shall mix for _ sale naphtha and illuminating oils, or shall Icnowingly sell or keep for sale or offer for sale such mixture, or shall sell or offer for sale oil made from petro- leum for illuminating purposes, inflammable at less temperature or fire-test than 110 degrees Fahren- heit; and any person so doing shall be held to be guilty of a misdemeanor, and on conviction thereof by indictment or presentment in any court of the United States having competent jurisdiction, shall be punished by fine, etc., and imprisonment." It ^'^^ was urged that the provision was in aid and sup- l^^SS port of the internal revenue tax imposed on other SrafpuS illuminating oils, analogous to provisions regulat- ing the business of distilling liquors, and the mode of packing various manufactured articles, but in U. S. V. Dewitt * the court said that if the prohibi- tion had any relation to taxation at all, it was. merely that of increasing the production and sale of other oils, and, consequently, the revenue derived from them, by excluding from the market the par- ticular kind described, and that this consequence was too remote and too uncertain to warrant the court in saying that the prohibition was an appro- priate and plainly adapted means for carrying into execution the power of laying and collecting taxes. And Chief Justice Chase, speaking for the court,, further said that " as a police regulation, relating exclusively to the internal trade of the States, it can only have effect where the legislative authority of Congress excludes, territorially, all State legisla- tion, as for example, in the District of Columbia.. 3 14 Stat, at L. 484, c. 169, § 29. * (1869) 9 Wall. (U. S.) 41. 120 REGULATION OF COMMBBCB caiaptea- Within State limits, it can have no constitutional V. . operation." POWER OF THE STATES IN GENERAL. State gen- A. State has the power to permit or entirely to )kw'?toited forhid the purchase and sale of articles within the property. State, SO loug as the legislation does not place any burden or prohibition on sales within the State of articles of commerce imported from foreign coun- tries or from other States while those goods are in the origiual packages and in the hands of the importers for sale.^ A State law prohibiting the sale of any cormnodity is not absolutely void when it is so general in its terms as to apply to importa- li A State cannot prohibit the delivery to a purchaser in the State of goods purchased by him in another State. Stemweis v. Stilsing, (1890) 52 N. J. L. 517. A shipment of goods to another State upon an order by telegraph is interstate commerce. H. Zuberbier Co. v. Harris, (Tex. Civ. App. 1896) 35 S. W. Rep. 403. In Lang v. Lynch, (1889) 38 Fed. Rep. 489, it was held that a New Hampshire statute making it a criminal oflfense for any person to solicit orders for spirituous liquors in the State, to be delivered at a place without the State, knowing, or having reasonable cause to believe, tliat if delivered the same will be transported into the State, and sold in violation of law, is valid. Goods sold after arrival within the State are not entitled to the protection of the commerce clause. Duncan v. State, (1898) 105 Ga. 457; In re Kinyon, (1904) 9 Idaho 642; Muskegon v. Zeeryp, (1903) 134 Mich. 181; Western Paper Bag Co. v. Johnson, (Tex. Civ. App. 1896) 38 S. W. Rep. 364. A State may prohibit peddling goods from door to door. Com. v. Gardner, (1890) 133 Pa. St. 284. A transaction is not a sale in original packages when it is executory and incomplete until the goods are received, unsealed, and sampled. Waaserboehr v. Boulier, (1892) 84 Me. 165. Prohibiting the sale of perishable articles at depots and landings has been held not to be within the power of the State. Spellman v. New Orleans, (1891) 45 Fed. Rep. 3. But see State v. Davidson, (1898) 50 La. Ann. 1297. BEOrrLATION OF COMMEECB 121 tions into the State from without and to permit the Chapter seizure of the articles before they have by sale or ' other transmutation become a part of the common mass of the property of the State, but the operation of the law is limited to property strictly within the jurisdiction of the State.* This right to sell goods in original packages is l^^^^Jt not only personal, but may be exercised through an ™p°""- agent of the importer.^ Nor does the fact that arti- cles are not shipped separately and directly to each individual purchaser, but are sent to an agent of the vendor at their intended destination, who de- livers them to the purchasers, deprive the transac- tion of its character as interstate commerce. It is only that the vendor uses two agencies instead of one in the delivery.® WHAT CONSTITUTES AN ORIGINAIi PACKAGE. From the apparent necessity for determining source of the point of time when goods shipped into a State from other States or from foreign countries cease to be under the protection of the Federal Constitu- tion and become subject to the operation of the laws of the State to which they are shipped, the original- package doctrine has been developed. It is Chief Justice Marshall to whom we are under obligation for the adoption of a convenient and expressive term. In the case of Brown v. Maryland, to the particular decision of which we refer elsewhere,® the chief justice said that " while remaining the prop- «Leisy v. Hardin, (1890) 135 U. S. 100. T Schollenberger v. Pennsylvania, (1898) 171 U. S. 1. See also Wagner v. Meakin, (1899) 92 Fed. Kep. 76. 8 Caldwell v. North Carolina, (1903) 187 U. S. 622. 9 (1827) 12 Wheat. (U. S.) 419. See infra, p. 309. 122 BEGULATION OF COMMEBCE , Chapter V. General considera- tions. Packages of dry goods. erty of the importer, in his warehouse, in the origi- nal form or package Lq which it was imported," an article imported into a State is within the protection of the Constitution from the operation of State laws. Early as was the point decided and important as the question is, we have only a few Supreme Court cases to aid in determining what constitutes an original package. The term is not defined by any statute, and, from the nature of the subject, it may be impossible to define the size or shape of an original package. The size ia which the importa- tion is actually made does not govern, but the ques- tion is mainly determined by the size of the package in which bona fide transactions are carried on be- tween manufacturers and wholesale dealers residing in different States.^ The clause of Article I, section 10, of the Con- stitution, provides that " no State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be abso- lutely necessary for executing its inspection laws." In May v. New Orleans ^ was involved the validity of certain tax assessments made by the city of New Orleans upon merchandise and stock in trade, which consisted of dry goods imported from foreign coun- tries, upon which duties had been levied by and paid to the government. The goods were put up for sale in packages, a large number of such packages being enclosed in wooden cases or boxes for the pur- poses of importation, and it was held that the origi- nal package was the box or case in which the goods 1 Where flour, bran, and meal are shipped in .sacks in carload lots, the goods in the sacks are the original packages. Lasater v. Purcell Mill, etc., Co., (1899) 22 Tex. Civ. App. 33. 2 (1900) 173 U. S. 496. REGULATION OF COMMERCE 123 were shipped and not the packages contained in the Chapter box or case. " In Leisy v. Hardin * quarter barrels, half barrels, ^ff^*!" and cases of beer were recognized as original pack- ages, and in a number of State and inferior federal court cases the question whether the bottles in which liquors are shipped are original packages has been presented. In those cases a distinction is recog- nized between a shipment of liquor in bottles packed in boxes, and a shipment of the bottles separately, generally holding that in the one case the box, and in the other each bottle, constitutes the original package.* Whether the size of a package is material, was P/^'^p* the question clearly presented and decided in the «""• case of Austin v. Tennessee,^ and it was held that a package of three inches in length and one and a half inches in width, containing ten cigarettes, is not an original package. Mr. Justice Brown, delivering the opinion of the court, said that " no doubt the fact that cigarettes are actually imported in a cer- tain package is strong evidence that they are original packages within the meaning of the law; but this presumption attaches only when the importation is made in the usual manner prevalent among honest dealers, and in a bona fide package of a particular 3 (1890) 135 U. S. 100. * See In re Harmon, ( 1890) 43 Fed. Rep. 372; In re Seine, ( 1890) 42 Fed. Rep. 545; Tinker v. State, (1891) 96 Ala. 115; Harrison v. State, (1890) 91 Ala. 62; Keith v. State, (1890) 91 Ala. 2; Smith V. State, (1891) 54 Ark. 248; McGregor v. Cone, (1898) 104 Iowa 465; State v. Miller, (1892) 86 Iowa 638; State v. Coonan, (1891) 82 Iowa 400; State v. Zimmerman, (1889) 78 Iowa 614; State v. Bowman, (1889) 78 Iowa 519; Grousendorf v. Howat, (1889) 77 Iowa 187; Collins v. Hills, (1889) 77 Iowa 181; Haley v. State, (1894)42 Neb. 556; State v. Chapman, (1890) 1 S. Dak. 414. 5 (1900) 179 U. S. 343. 124 BEGUXAUON OP COMMEBCE Cha>*e' size." The question was again submitted and the " same result reached in Cook v. Marshall Comity.^ The only difference between the two cases was that in the Austin v. Tennessee case, supra, a basket, furnished by the express company, was used to hold the packages, and in the Cook v. Marshall Cownty case no basket was used, the packages being shipped absolutely loose, not boxed, baled, wrapped, or covered, nor in any way attached together. On the question of the motive of the shipper in selecting such an unusual method of shipping the cigarettes, the court, again speaking through Mr. Justice Brown, said : ' ' Where the lawfulness of the method used for transporting goods from one State to another is questioned, it may be shown that the in- tent of the party concerned was not to select the usual and ordinary method of transportation, but an unusual and more expensive one, for the express purpose of evading or defying the police laws of the State. If the natural result of such method be to render inoperative laws intended for the pro- tection of the people, it is pertinent to inquire whether the act was not done for that purpose, and to hold that the interstate commerce clause of the Constitution is invoked as a cover for fraudulent dealing, and is no defense to a prosecution under the State law." Packages Teu-pound packages of oleomargarine were held garine. fo be Original packages in Schollenherger v. Penn- sylvania.'' In this case, which was an indictment and conviction for a violation of a Pennsylvania statute prohibiting the sale of oleomargarine, a special verdict had been found, in which it was 6 (1905) 196 U. S. 261. 7 (1898) 171 U. S. 1. REGtIIiATION OF COMMERCE 125 stated that the package " was of such form, size, Chapter and weight as is used by producers or shippers for ' the purpose of securing both convenience in han- dling and security in transportation of merchandise between dealers in the ordinary course of actual commerce, and the said form, size, and weight were adopted in good faith and not for the purpose of evading the laws of the Commonwealth of Pennsyl- vania." This finding seems to have had much weight with the court, and is particularly referred to in the Austin v. Tennessee cigarette case, supra, in distinguishing the two cases, on the question of the motive of the shipper. The priaciple that the size of the package ia which goods may be imported into a State is ma- terial was not established without strong dissent. In the Austin v. Tennessee case, supra, Mr. Justice Brewer wrote a vigorous dissenting opinion, attack- ing the holding of the court that a package of ten cigarettes is not an original package. Three other justices, Chief Justice Fuller, and Justices Shiras and Peckham, concurred in the dissent. In his dis- judicial • . -11 1 • !• • 1^ -I i dissent sentmg opmion, the learned justice pomted out, as ^"f^^^ a result of the decision of the court, that the deter- mination of a great constitutional question turns on the shifting opinions of individual judges as to the peculiar facts of a particular case, and that no one could tell from this annunciation where the dividing line is between the power of the States and the power of the nation. Comparing the results reached in the two leading cases, he said: " Ap- parently, the dividing line as to the size of pack- ages must be somewhere between that of a ten- pound package of oleomargarine and that of a pack- age of ten cigarettes; but where? Must diamonds, 126 EEGULATION OF COMMEECE Chapter V. Materiality of size of package as to articles within scope of police power. in order to be withia the protecting power of the nation, be carried from State to State in ten-pound packages? If it be said that diamonds are not a subject of police regulation, and that a different rule obtains in reference to them than to matters of police regulation (as might be implied from the scope of the opinion), I can only say that the con- clusion seems to me strange. Concretely, it amounts to this: The police power of the State, the power exercised to preserve the health and morals of its citizens, may prevent the importation and sale of a pint of whiskey, but cannot prevent the importa- tion and sale of a barrel; or, in other words, the greater the wrong which is supposed to be done to the morals and health of the community, the less the power of the State to prevent it. That may be con- stitutional law, but to my mind it lacks the saving element of common sense. I see no logical half-way place between a recognition of the power of the nation to regulate commerce between the States in all things which are the subjects of commerce (in whatever form or manner they may be imported) and a concession of the power of the State to pre- vent absolutely the importation and sale of articles deemed by it prejudicial to the health or morals of its citizens." It would seem, at any rate, that the size of the original package has as yet been held to be mate- rial only as to articles which may be said to come within the police power. While the cases have left it uncertain as to the size of the package which will hold the articles imported from the operation of a State law while in the original package, and per- haps the question is one impossible of exact defini- tion, the few federal Supreme Court cases which REGULATION OF COMMERCE 127 have required that court to pass upon the point, Chapter contain suggestions from which a few rules may be ' framed : 1. The package must be capable of being com- some^sug- mercially transported from one State to an- ™'"' other as a separate importation. 2. The right of the importer to sell does not depend upon whether the original package is suitable for wholesale or retail trade. 3. The fact that Congress, for the purpose of taxation, has prescribed a certain size of package to be separately stamped, is not controlling. 4. The size of the package in which bona fide transactions are carried on between the manufacturer and the wholesale dealer re- siding in different States is a material con- sideration. 5. The motive which actuates the particular method of shipment may be determined from several ciromn stances: a. From the trifling value of each parcel. 6. The absence of an address on each package. c. The fact that many parcels, for the purpose of the shipment, are aggre- gated. TEADEMARKS. In the Trade-Mark Cases,^ it was ruled that the General original trademark act* was mvalid for want ot invalid, constitutional authority, inasmuch as it was not s (1879) 100 U. S. 82. 9 Act of Congress of July 8, 1870, carried forward into §S 4937- 4947, Rev. Stat. U. S., 7 Fed. Stat. Annot. 326. 128 BEGUIiATION OF COMMEECB Chapter confined to the ease of a trademark used in foreign ' or interstate commerce, but had the broad purpose of establishing a universal system of trademark registration for the benefit of all who had already used a trademark, or wished to adopt one in the future, without regard either to the character of the trade to which it was to be applied, whether domestic as to a State or otherwise, or to the resi- dence of the owner. As a result of this decision, another act entitled "An Act to authorize the registration of trade- marks and protect the same,"^ was passed, and in Warner v. Searle, etc., Co.,^ after quoting from the new statute, the court said: " Obviously the act was passed in view of the decision that the prior act was unconstitutional, and it is, therefore, strictly limited to lawful commerce with foreign nations and with Indian tribes. It is only the trademark used in such commerce that is admitted to registry, and it can only be infringed when used in that commerce, without right, by another than its owner." Trademark The questiou of its constitutiouality was not of com- decided, however, evidently on the aspect suggested by Mr. Justice Miller in the Trade-Mark Cases, supra, when he said: " The question, therefore, whether the trademark bears such a relation to com- merce in general terms as to bring it within con- gressional control, when used or applied to the classes of commerce which fall within that control, is one which, in the present case, we propose to leave undecided. " ^ lAct of Congress of March 3, 1881, c. 138, 7 Fed. Stat. Annot. 329. The statute is, in terms, limited to " trademarks used in com- merce with foreign nations, or with the Indian tribes." 2 (1903) 191 U. S. 195. 3 See also Elgin Nat. Watch Co. v. Illinois Watch Case Oo., merce. EEGUIiATION OF COMMERCE 129 Chaptef STATUS OP C. O. D. SHIPMENTS. Y, Where merchandise is received by a carrier with interstate ■' shipment a duty to collect the price on delivery to the con- f°t"ersutr interstate commerce. signee in another State, the shipment constitutes interstate commerce. It matters not that there is a diversity of opinion among the State courts con- cerning the effect of a C. 0. D. shipment, some courts holding that under such a shipment the prop- erty is at the risk of the buyer, and, therefore, that delivery is completed when the merchandise reaches the hands of the carrier for transportation; others deciding that the merchandise is at the risk of the seller, and that the sale is not completed imtil the payment of the price and delivery to the consignee at the point of destination. In American Express Co. v. Iowa* wherein was raised the question of the operation of the Iowa prohibition law under the Wilson Act,^ as to a ship- ment C 0. T>. from the State of Illinois, Mr. Justice White, speaking for the court, said : ' ' Beyond pos- Judicui ob. sible question, the contract to sell and ship was com- pleted in Illinois. The right of the parties to make a contract in Illinois for the sale and purchase of merchandise, and in doing so to fix by agreement the time when [and] the condition on which the com- pleted title should pass, is beyond question. The shipment from the State of Illinois into the State of Iowa of the merchandise constituted interstate commerce. To sustain, therefore, the ruling of (1901) 179 U. S. 665, wherein the court refrained from passing upon the constitutionality of the act, the point not having been raised in the lower court. * (1905) 196 U. S. 133. See also infra, p. 308. B See effect of the " Wilson Act," infrg,, p. 146. 9 servauons. 130 EEGTJLATION OF COMMEBCE ^**^ter the court below would require us to decide that the " law of Iowa operated in another State so as to invalidate a lawful contract as to interstate com- merce made in such other State ; and, indeed, would require us to go yet further, and say that, although imder the interstate commerce clause a citizen in one State had a right to have merchandise consigned from another State delivered to him in the State to which the shipment was made, yet that such right was so illusory that it only obtained in cases where in a legal sense the merchandise contracted for had been delivered to the consignee at the time and place "of shipment." The learned justice further pointed out that to sustain the doctrine of the State court, that wherever merchandise shipped from one State to another is not completely delivered to the buyer at the point of shipment so as to be at his risk from that moment, the movement of such merchandise is not interstate commerce, would operate materially to cripple if not to destroy that freedom of commerce between the States which it was the great purpose of the Constitution to promote; it would prevent the citizen of one State from shipping into another miless he assxuned the risk; it would subject con- tracts made by common carriers and valid by the laws of the State where made to the laws of another State; it would remove from the protection of the interstate commerce clause all goods on consignment upon any condition as to delivery, express or im- plied; and, besides, it would also render the com- merce clause of the Constitution inoperative as to all that vast body of transactions by which the prod- ucts of the country move in the channels of inter- state commerce by means of bills of lading to the shipper's order with drafts for the purchase price REGULATION OF COMMERCE 131 attached, and many other transactions essential to Chapter the freedom of commerce, by which the complete " title to merchandise is postponed to the delivery thereof.® INTOXICATING LIQUORS. The doctrine that a State is without power to states with- ■^ out author- prohibit the importation of goods from other States jj^it "mpo?! was applied to intoxicating liquors, in the 'case of "''°"" Bowman v. Chicago, etc., R. Co.'' An Iowa statute «See also Norfolk, etc., R. Co. v. Sims, (1903) 191 U. S. 441; Parker v. State, (Tex. Crim. 1905) 85 S. W. Rep. 1155; Sedgwick V. State, (Tex. Crim. 1905) 85 S. W. Rep. 813. But compare State V. O'Neil, (1885) 58 Vt. 140; State v. Intoxicating Liquors, (1886) 58 Vt. 594. Upon an indictment against an express company for delivering liquor in violation of law, it appeared that the package was shipped C. O. D.; that the consignee had not ordered it, but offered to take it out when he could get the money to pay for it and the charges; and that it was a week before it was finally delivered. In holding that the defendant was properly convicted, the court, in Adams Express Co. v. Com., (Ky. 1905) 87 S. W. Rep. 1111, said: "A failure, therefore, upon their part to immediately- — ^that is, in a reasonable and customary time — deliver goods shipped in their charge, or their holding of such goods an unreasonable or unusual time, changes their relations at once from a common carrier to that of ordinary warehouseman. In view of this rule, and under the facts of the case at bar, we must conclude that at the time of delivering to Meeoe the whiskey in question, and in receiving the price paid by the latter therefor, appellant did not sustain to that article of merchandise, or to the consignor or consignee, the relation of common carrier, but merely that of a bailee or warehouseman, for which reason we are unable to see how it was or could have been protected in the transaction by the law of interstate commerce." T (1888) 125 U. S. 465. In that case, the License Cases, (1847) 5 How. (U. S.) 504, were reviewed. The question in those cases was whether certain statutes of Massachusetts, Rhode Island, and New Hampshire, relating to the sale of spirituous liquors were valid. The statutes of Massachusetts and Rhode Island had reference to the sale within those States respectively of intoxicating liquor imported from foreign countries, 132 EEGTJLATION OF COMMERCE ChMter attempted to forbid common carriers from bringing ' intoxicating liquors into the State of Iowa from an- other State or Territory without obtaining a certifi- cate required by the laws of Iowa. In holding that the statute was a regulation directly affecting com- merce m an essential and vital point, the court, through Mr. Justice Matthews, said that the statute Prohibiting " sccks to prohibit and stop their passage and im- tion. portation into its own limits, and is designed as a regulation for the conduct of commerce before the merchandise is brought to its border. It is not one of those local regulations designed to aid and facili- tate commerce ; it is not an inspection law to secure the due quality and measure of a commodity, it is not a law to regulate or restrict the sale of an article deemed injurious to the health and morals of the community ; it is not a regulation confined to the purely internal and domestic commerce of the State; it is not a restriction which only operates upon property after it has become mingled with and forms part of the mass of the property within the State." Prohibiting Another feature of the Iowa prohibitory law, ^rted "° v/hich prohibited the sale of intoxicating liquors ex- cept by persons holding permits authorizing them to sell and dispense liquors for pharmaceutical and medicinal purposes, and alcohol for specified chemi- cal purposes, and wine for sacramental purposes, but for no other purposes . whatever, came in for but not sold or offered for sale within the State by the importer in original packages. The statute of New Hampshire, however, applied to intoxicating liquor imported from another State, and the decision in that case upheld its validity in reference to the disposition by sale or otherwise of the intoxicating liquor after it had been brought into the State. This last ease was in effect overruled by the Bowman v. Chicago, etc., R. Co.'s case. BEGULATION OF COMMERCE 133 judicial condemnation, in Leisy v. Hardin,^ as ap- Chapter plied to liquors imported from another State and " held for sale in the original packages; wherein Chief Justice Fuller, referring to cases sustaining the power of the State to control manufacture and sale within the State, said in the opinion written for the court : ' ' These decisions rest upon the un- doubted right of the States of the Union to control their purely internal affairs, in doing which they exercise powers not surrendered to the national government; but whenever the law of the State amounts essentially to a regulation of commerce with foreign nations or among the States, as it does when it inhibits, directly or indirectly, the receipt of an imported commodity or its disposition before it has ceased to become an article of trade between one State and another, or another country and this, it comes in conflict with a power which, in this par- ticular, has been exclusively vested in the general government, and is therefore void. ' ' * s (1890) 135 U. S. 100. ^Followed by Lyng v. Michigan, (1890) 135 U. S. 161. See Kidd V. Pearson, (1888) 128 U. S. 1, referred to supra, p. 111. See also Ex p. Jervey, (1895) 66 Fed. Rep. 957; Jervey v. The Carolina, (1895) 66 Fed. Rep. 1013; State v. Intoxicating Liquors, (1900) 94 Me. 335. The fact that the shipper is a resident of the State and that the contract was executed in the State, does not take a, transaction out of interstate eonunerce and make it a State transaction when the shipper's place of business is in another State and the products are there manufactured and shipped. Sloman v. William D. C. Moebs Co., (1905) 139 Mich. 334. Liquor which has been manufactured by the citizens of a State in the State, sent out of the State, and then shipped back into the State for the express purpose of evading the prohibition laws of the State, never became a subject of interstate commerce. Crigler v. Com., (Ky. 1905) 87 S. W. Rep. 276. The application of the doctrine that a State is without power to prohibit the importation of goods from other States has been modified 134 REGULATION OF COMMERCE Chapter V. Ciffarettes as legiti- mate articles of commerce. CIGARETTES. In the case of cigarettes, a statute of Tennessee provided " that it shall be a misdemeanor for any person, firm, or corporation to sell, offer to sell, or to bring into the State for the purpose of selling, giving away, or otherwise disposing of, any ciga- rettes, cigarette paper, or substitute for the same." Upon sustaining a conviction for a sale of ciga- rettes in violation of the statute, the State Supreme Court placed its decision upon two grounds : First, that cigarettes are not legitimate articles of com- merce; second, that the sale shown to have been made was not the sale of an original package in the true commercial sense. The Supreme Court of the United States, in Austin V. Tennessee,^ affirmed the judgment of the State court upon the second ground stated, which is discussed in another part of this work,^ but as to the first ground, that cigarettes are not legiti- mate articles of commerce, Mr. Justice Brown, writ- ing the opinion of the court, said: " We are not prepared to fully indorse the opinion of that court upon the first point. Whatever product has from time immemorial been recognized by custom or law as a fit subject for barter or sale, particularly if its manufacture has been made the subject of federal regulation and taxation, must, we think, be recog- nized as a legitimate article of commerce although it may to a certain extent be within the police power of the States. Of this class of cases is tobacco. by federal statutes, as applied to intoxicating liquors and imitation dairy products. See infra, p. 143. 1 (1900) 179 U. S. 343. 2 See supra, p. 123. BEGTJLATION OP COMMERCE 135 From the first settlement of the colony of Virginia Ch«»ti»^ to the present day tobacco has been one of the ' most profitable and important products of agricul- ture and commerce, and while its effects may be in- jurious to some, its extensive use over practically the entire globe is a remarkable tribute to its popu- larity and value. "We are clearly of opinion that it cannot be classed with diseased cattle or meats,^ decayed fruit, or other articles the use of which is a menace to the health of the entire community. Congress, too, has recognized tobacco in its various forms as a legitimate article of commerce by requir- ing licenses to be taken for its manufacture and sale, imposing a revenue tax upon each package of cigarettes put upon the market, and by making ex- press regulations for their manufacture and sale, their exportation and importation." And the stat- ute was held valid as to sales by the importer not in original packages. As applied, however, to sales in original pack- f/i^'^***^ ages of cigarettes manufactured in other States, p2Sa^ State prohibitory laws are invalid.^ OLEOMAEGABINE. A further application of these principles was made in the case of the attempted regulation or pro- hibition of the sale of oleomargarine. Fully recog- nizing the power of a State to prevent the sale of an adulterated article, Mr. Justice Peckham, in Schollenberger v. Pennsylvania,'^ said: " But in sSawrie v. Tennessee, (1897) 82 Fed. Rep. 615; Iowa v. Mc- Gregor, ,'1896) 76 Fed. Rep. 956. * (1898) 171 U. S. 1. 136 KBGULATION- OF COMMEECE Chapter V. A recog- nized article of commerce. Prohibition of introduc- tion of newly dis- covered article of food. carrying out its purposes the State cannot absolutely prohibit the introduction within the State of an article of commerce like pure oleomargarine. It has ceased to be what counsel for the Commonwealth has termed it, a newly discovered food product. An article that has been openly manufactured for nearly a quarter of a century, where the ingredients of the pure article are perfectly well known and have been known for a number of years, and where the general process of manufacture has been known for an equal period, cannot truthfully be said to be a newly discovered product within the proper mean- ing of the term as here used. The time when a newly discovered article ceases to be such cannot always be definitely stated, but all will admit that there does come a period when the article cannot be so described. In this particular case we have no difficulty in holding that oleomargarine has so far ceased to be a newly discovered article as that its nature, mode of manufacture, ingredients, and effect upon the health are and have been for many years as well known as almost any article of food in daily use. Therefore if we admit that a newly discovered article of food might be wholly prohibited from being introduced within the limits of a State, while its properties, whether healthful or not, were still unknown, or in regard to which there might still be doubt, yet this is not the case with oleomargarine. If properly and honestly manufactured it is con- ceded to be a healthful and nutritious article of food. The fact that it may be adulterated does not afford a foundation to absolutely prohibit its intro- duction into the State. Although the adulterated article may possibly in some cases be injurious to KEGULATION OP COMMERCE 137 the health of the public, yet that does not furnish ChM)ter a justification for an absolute prohibition."^ " In accordance with this view, in Collins v. New Requiring oleomarga- Hampshire,^ as to a statute prohibiting the sale of JSored*" oleomargarine as a substitute for butter imless it "''"'• is of a pink color, the learned justice further said ; " In a case like this it is entirely plain that if the State has not the power to absolutely prohibit the sale of an article of commerce like oleomargarine in its pure state, it has no power to provide that such article shall be colored, or rather discolored, by adding a foreign substance to it in the manner described in the statute. Pink is not the color of oleomargarine ia its natural state. The act necessi- tates and provides for adulteration. ... If this provision for coloring the article were a legal con- dition, a legislature could not be limited to pink in its choice of colors. The legislative fancy or taste would be boimdless. It might equally as well pro- vide that it should be colored blue or red or black. Nor do we see that it would be limited to the use of coloring matter. It might, instead of that, provide that the article should only be sold if mixed with some other article which, while not deleterious to health, would nevertheless give out a most offensive smell."'' It is within the power of a State, nevertheless, to exclude from its markets any compound manu- 5 See also In re Brundage, (1899) 96 Fed. Eep. 963, reversed on other grounds in Minnesota v. Brundage, (1901) 180 U. S. 499; Ea> p. Scott, (1895) 66 Fed. Rep. 45; In re Worthen, (1891) 58 Fed. Rep. 467; State v. Bruce, (1904) 55 W. Va. 384; In re McAllister, (1892) 51 Fed. Rep. 282; In re Gooch, (1890) 44 Fed. Eep. 276. 6 (1898) 171 U. S. 30. TSee also Armoui Packing Co. v. Snyder, (1897) 84 Fed. Rep. 136. 138 EEGITLATION OF COMMEECE Chapter f actured in another State, whicli has been artificially " colored or adulterated so as to cause it to look like Exduding an article of food in general use, and the sale of article am '=' colored or wMch may, by reason of such coloration or adulter- aduiterated ^^j^j^^ chcat the gcucral public into purchasing that which they do not intend to buy. And in Plumley V. Massachusetts,^ it was held that a statute pre- venting the sale of oleomargarine in imitation of yellow butter produced from pure unadulterated milk or cream of the same, and containing a proviso that nothing therein should be " construed to pro- hibit the manufacture or sale of oleomargarine in. a separate and distinct form, and in such manner as will advise the consumer of its real character, free from coloration or ingredient that causes it to look like butter," was valid. Attention was called in the opinion of the court to the fact that the statute did not prohibit the manufacture or sale of all oleo- Prohibiting margarine, but only of such as was colored in imita- colored in tioii of vellow butter produced from unadulterated imitation of ■■■ butter. x[i\]k ov cream of such milk. If free from colora- tion or ingredient that caused it to look like butter, the right to sell it in a separate and distinct form and in such manner as would advise the consumer of its real character was neither restricted nor pro- hibited. The court held that under the statute the party was only forbidden to practice in such matters a fraud upon the general public; that the statute sought to suppress false pretenses and to promote fair dealing in the sale of an article of food, and that it compelled the sale of oleomargarine for what it really was by preventing its sale for what it was not; and that the term " commerce among the States " does not mean a recognition of a right to 8 (1894) 155 U. S. 461. BEGTTLATION OF COMMERCE 139 practice a fraud upon the public in the sale of an Chapter article even if it has become the subject of trade in ' different parts of the country.* COFFEE. In the exercise of its police powers, a State has Regruu- . X J. ; tions pre- the right to enact such legislation as it may deem 7™ud"o^r proper, even in regard to articles of interstate and '1=«p"<">- foreign commerce, for the purpose of preventing fraud or deception in the sale of any commodity and to the extent that may be fairly necessary to pre- vent the introduction or sale of an adulterated arti- cle within the limits of the State. The State of New York enacted a statute declaring that " no person shall within the State manufacture, produce, compound, brew, distill, have, sell, or offer for sale any adulterated food or drug. An article shall be deemed to be adulterated within the meaning of this Act: . . . in the case of food, ... (6) if it be colored or coated, or polished, or powdered, whereby damage is concealed, or it is made to appear better than it really is, or of greater value. ' ' * An Act of Congress, " providing for the inspection of meats for exportation, prohibiting the importation of adulterated articles of food or drink, and author- si See also In re Scheitlin, (1900) 99 Fed. Kep. 272; State v. Rogers, (1901) 95 Me. 94; In re Brosnahan, (1883) 18 Fed. Rep. 62; Waterbury v. Newton, (1888) 50 N. J. L. 534, as to oleomargarine colored with annotto; State v. Addington, (1882) 77 Mo. 110; Mc- Cann v. Com., (1901) 198 Pa. St. 509. A statute requiring the packages in which process or renovated butter is sold to be plainly marked " Renovated Butter," does not conflict with the commerce clause, but is an exercise of the police power. Hathaway v. McDonald, (1902) 27 Wash. 659. 1 Laws of the State of New York of 1893, c. 661, § 41, being c. 25 of the General Laws of the State of New York. coated and colored coffee. 140 EBGITLATION OP COMMEBCB Ch^iter izing the President to make proclamation in certain " cases," declares "that it shall be unlawful to im- port into the United States any adulterated or un- wholesome food or drug, or any vinous, spirituous, or malt liquors, adulterated or mixed with any poisonous or noxious chemical, drug, or other ingre- dient injurious to health.'"* PfoWbitine In Grossman v. Lurman^ the validity of the State statute was questioned as applied to coffee imported from a foreign country, which was of a low grade, containing many poor, withered, and black beans, and was so coated and colored as to conceal the damaged portions, or to make it to appear better than it really was, or of greater value, to the ordi- nary untrained observer. Upon three aspects the statute was held to be valid. In its enactment the State but exerted its reserved police power to legis- late for the protection of the health and safety of the community and to provide against deception or fraud; the statute did not cease to be operative as regards food products imported into the United States through the channels of foreign commerce after the enactment by Congress of the federal statute above referred to; and the fact, if it could be established, that there was a demand in some portions of the country for artificially colored coffee, and consequently that such commodity was a recog- nized article of commerce, did not give a right to deal in it protected by the commerce clause, and uncontrolled by State law.* 2 Act of August 30, 1890, e. 839, § 2, 3 Fed. Stat. Annot. 136. s (1904) 192 U. S. 189. *See also Arbuckle v. Blackburn, (1903) 191 U. S. 405, d«- miesing the appeal from (1902) 113 Fed. Rep. 616. BEGULATION OF COMMEBCB 141 STOCKYARDS. Chapter Upon a bill in equity to enjoin the commission combina- meat deal- ers to con- trol 'he of alleged violations of the Sherman Anti-Trust Act,^ the bill charged a combination of a dominant proportion of the dealers in fresh meat throughout the United States not to bid against each other in the live-stock markets of the different States, to bid up prices for a few days in order to induce the cattle men to send their stock to these stockyards, to fix prices at which they would sell, and to that end to restrict shipment of meat when necessary, to estab- lish a uniform rule of credit to dealers and to keep a blacklist, to make uniform and improper charges for cartage, and, finally, to get less than lawful rates from the railroads to the exclusion of competitors. In the opinion of the court,® written by Mr. Justice Holmes, holding that such a combination was within the meaning of the statute, the learned justice said : " When cattle are sent for sale from a place in one State, with the expectation that they will end their transit, after purchase, in another, and when in effect they do so, with only the interruption neces- sary to find a purchaser at the stockyards, and when this is a typical, constantly recurring course, the current thus existing is a current of commerce among the States, and the purchase of the cattle is a part and incident of such commerce. What we say is true at least of such a purchase by residents in another State from that of the seller and of the cattle." There is a distinction between such a business and that carried on by members of a live-stock ex- B Act of CongresB of July 2, 1890, c. 647, 7 Fed. Stat. Annot. 336. « Swift V. U. S., (1905) 196 U. S. 375. market. 142 BBGTJLATION OF COMMEECE Chapter change as brokers, buying and selling for others. " In Hopkins v. U. S.'^ it appeared that the Kansas Business Citv live-stock exchange was carried on and con- Carried on ^ , by mem- ductcd bv & board of directors at the Kansas City bers of an '^ exchange, stockyards, which were situated partly in Kansas City in the State of Missouri, and partly in Kansas City in the State of Kansas, the building owned by the stockyards company being located one-half within the State of Missouri and the other half in the State of Kansas; and half the members of the exchange had offices and transacted business in the stockyards and in that part of the building which was within the State of Kansas, and the other half in that part of the building which was in the State of Missouri; substantially all the business trans- acted in the matter of receiving, buying, selling, and handling their live stock at Kansas City was carried on by the members of the exchange as commission merchants, and large numbers of the live stock were shipped from other States ; when this stock was re- ceived at the stockyards it was sold by the members of the exchange to the various packing houses situ- ated at Kansas City, Mo., and Kansas City, Kans., and it was sold for shipment to the various other markets, particularly Chicago, St. Louis, and New York. The ordinary regulations governing the con- duct of such a business were held to be rules and charges for the facilities provided for the transac- tion of such commerce, and not to constitute viola- tions of the Anti-Trust Act, because it did not ap- pear that the parties were engaged in interstate commerce.^ ' (1898) 171 U. S. 578. sSee Anderson v. V. S., (1898) 171 U. S. 604. BEGTJLATION OF COMMEBCE 143 MAKING IMPOETATIONS SUBJECT TO STATE LAWS — WILSON ACT. In the cases of intoxicating liqnors and of imita- tion dairy products, Acts have been passed by Con- gress subjecting those articles, when transported into any State or Territory, to the operation of the laws of such State or Territory enacted in the exer- cise of its police powers, while such articles are in the original packages.^ The Act of August 8, 1890, generally known as the Wilson Act, was passed in consequence of the decision in the case of Leisy v. Harding which held, 9 The Act of August 8, 1890, c. 728, 3 Fed. Stat. Annot. 853, provides : " That all fermented, distilled, or other intoxicating liquors or liquids transported into any State or Territory or remain- ing therein for use, consumption, sale, or storage therein, shall upon arrival* in such State or Territory be subject to the operation and eflfect of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise." The Act of May 9, 1902, e. 784, § 1, 3 Fed. Stat. Annot. 127, provides : " That all articles known as oleomargarine, butterine, imitation, process, renovated, or adulterated butter, or imitation cheese, or any substance in the semblance of butter or cheese not the usual product of the dairy and not made exclusively of pure and un- adulterated milk or cream, transported into any State or Territory or the District of Columbia, and remaining therein for use, consump- tion, sale, or storage therein, shall, upon the arrival within the limits of such State or Territory or the District of Columbia, be subject to the operation and effect of the laws of such State or Territory or the District of Columbia, enacted in the exercise of its police powers to the same extent and in the same manner as though such articles or substances had been produced in such State or Territory or the District of Columbia, and shall not be exempt there- from by reason of being introduced therein in original packages or otherwise." See U. S. v. Green, (1905) 137 Fed. Rep. 179. 1 (1890) 135 U. S. 100, wherein Chief Justice Fuller said: " Undoubtedly it is for the legislative branch of the State govern- Chapter Intoxicat- ing liquors and imita- tion dairy products. Wilson Act. 144 BEGIILATION OF COMMBECE Chapter as lias been heretofore stated, that the right to im- ' port intoxicating liquors from one State into another includes, by necessary implication, the right to sell in the original package at the place where the importation terminates. One of the latest cases to construe and apply the Act of 1890 is that of Pabst Brewing Co. v. Cren- shaw.^ In the course of the opiaion in that case Mr. Justice White gives a review of the previous cases in which its validity and purpose were determined and its relation to particular State laws considered. The learned justice said : TOw'of "' ' ' '^^^ scope of this Act and the power of Con- Slwaso" gress to adopt it were passed upon in In re Rahrer, ^"- (1891) 140 U. S. 545. The scope of the Act was thus stated (p. 560) : " ' Congress has now spoken and declared that imported liquors of liquids shall, upon arrivaf in a State, fall within the category of domestic articles of a similar nature.' sutute " It was decided that although the Act had the valid. ° effect thus stated it was not repugnant to the Con- stitution of the United States, the court saying (p. 562) : ments to determine whether the maniifaoture of particular articles of traffic, or the sale of such articles, will injuriously affect the public, and it is not for Congress to determine what measures a State may properly adopt as appropriate or needful for the pro- tection of the public morals, the public health, or the public safety; but notwithstanding it is not vested with supervisory power over matters of local administration, the responsibility is upon Congress, so far as the regulation of interstate commerce is concerned, to remove the restriction upon the State in dealing with imported articles of trade within its limits, which have not been mingled with the common mass of property therein, if in its judgment the end to be secured justifies and requires such action." 4 (1905)198 U. S. 17. EEQULATION OF COMMBECB 145 " ' No reason is perceived why, if Congress dieter chooses to provide that certain designated subjects ' of interstate commerce shall be governed by a rule which divests them of that character at an earlier period of time than would otherwise be the case, it is not within its competency to do so.' " In Rhodes v. Iowa, (1898) 170 TJ. S. 412, the ^^^\f- purport of the Act was again passed upon. Eeiter- wTi°e> transit atiag the ruling made in the Rahrer case, it was decided that whilst the Wilson Act caused liquors shipped into Iowa from another State to be divested of their character as articles of interstate commerce after their delivery in Iowa to the person to whom consigned, nevertheless the Act did not authorize the laws of Iowa to be applied to such merchandise whilst in transit from another State and before de- livery in Iowa. '* In Vance v. W. A. Vandercooh Co., (1898) 170 south p,^ ' ^ ' olina Dis- U. S. 438, the operation of a liquor law of South ^^';'^ Carolina was considered. By the Act in question the State of South Carolina took exclusive charge of the sale of liquor within the State, appointed its agents to sell the same, and empowered them to purchase the liquor, which was to be brought into the State for sale. The fact was that by the Act in , question the State of South Carolina, instead of forbidding the trafiic in liquor, authorized it, and engaged in the liquor business for its own account, using it as a source of revenue. The Act in addi- tion afSxed prerequisite conditions to the shipment into South Carolina from other States of liquor to a consumer who had purchased it for his own use and not for sale. Considering the Wilson Act and the previous decisions applying it, it was decided tlmt the South Carolina law, in so far, as it took 10 146 BEGULATION OF COMMEECE canpter charge in behalf of the State of the sale of liquor " withiQ the State and made such sale a source of revenue, was not an interference with interstate commerce. In so far, however, as the State law imposed burdens on the right to ship liquor from another State to a resident of South Carolina in- tended for his own use and not for sale within the State, the law was held to be repugnant to the Con- «w«tto stitution, because the Wilson Act, whilst it delegated iDdividuai to the State plenary power to regulate the sale of liquors in South Carolina shipped into the State from other States, did not recognize the right of a State to prevent an individual from ordering liquors from outside of the State of his residence for his own consumption and not for sale. " Quite recently, at this term, in American Ex- press Co. V. Iowa, (1905) 196 U. S. 133, and Adams Express Co. v. Iowa, (1905) 196 U. S. 147, the con- struction aflSxed to the Wilson Act in the previous cases was applied, and the power of the State of Iowa to control the sale of liquors shipped from another State into that State, after their delivery to the consignee, was upheld." And in that case of Pabst Brewing Co. v. Cren- shaw, supra, it was held that a Missouri statute, creating the office of inspector of beer and malt liquors and providing for the inspection of beer and malt liquors sold in the State, and authorizing the collection of an inspection fee imposed upon beer or other malt liquors when shipped from other States into Missouri, after its delivery within that State to the consignee, and when held for sale for consumption in Missouri or for shipment to other States, was valid under the Wilson Act. Four of the justices dissented, mainly on the ground that as the Missouri law was denominated in its text an inspec- EEGULATION OF COMMERCE 147 tion law, and did not provide an adequate inspection, Chapter and besides imposed a burden beyond the cost ' of inspection, the law was repugnant to the Con- stitution of the United States when tested by previ- ous decisions determining when particular inspec- tion laws amount to a regulation of commerce, as in the cases of Atlantic, etc., Tel. Co. v. Philadel- phia,^ and Postal Tel.-Cahle Co. v. New Hope,* but the court, in the prevailing opinion, said : ' ' These cases, however, simply considered State laws which operated upon interstate commerce. To apply them to the Missouri law necessarily involves deciding that the malt liquors to which that law applied had not ceased to be articles of interstate commerce; and, therefore, again merely disregards the Wilson Act and the decisions of this court concerning it. Indeed, the whole argument upon which the entire case of the plaintiff in error proceeds rests upon this fallacious assumption, since it admits on the one hand the validity of the Wilson Law, and yet seeks to take this case out of the reach of its pro- visions by distinctions which have no foundation in reason, unless it be that that law is to be disre- garded or held to be unconstitutional."* 3 (1903) 190 U. S. 160. 4 (1904) 192 U. S. 55. 5 It has been held, since the adoption by Congress of the Act of 1890, that State statutes prohibiting the soliciting of orders for liquor to be shipped into the State to the purchaser are invalid, as such laws are not police regulations within the meaning of the Act of Congress. In re Bergen, (1900) 115 Fed. Rep. 339; Ex p. Loeb, (1896) 72 Fed. Rep. 657; State v. Hickox, (1902) 64 Kan. 650. A statute providing that "no action shall be maintained upon any claim or demand, promissory note or other security, contracted or given for intoxicating liquors sold in violation of this chapter, or for any such liquors purchased out of the State with intention to sell the same or any part thereof in violation thereof," is valid as to the purchase of liquors outside the State. Corbin v. Houlehan, (1905) 100 Me. 246. CHAPTEB VL TRANSPOETATION OF PERSONS AND PROPERTY GENERALLY. INTEBSTATE AND FOBEIGN TEANSPOETATION". Chapter T^EANSPOETATION of persons and property, ^^" I by land or water, between different States and between the United States and foreign coun- tries, constitutes interstate and foreign commerce.^ Conveyance from or to a point in one State to or from some point in another State is as mucli inter- state commerce as that which passes entirely through a State from its point of original shipment to its Paramount; destination.^ Such regulations as Congress may power of , T , Congress, lawf uUy prescribo or authorize, and which may prop- erly be deemed in regulation of interstate commerce, 1 Philadelphia, etc.. Steamship Co. v. Pennsylvania, (1887) 122 U. S. 326. " Transportation for others, as an independent business, is commerce, irrespective of the purpose to sell or retain the goods which the owner may entertain with regard to them after they shall have been delivered." Per Mr. Justice Holmes, in Hanley v. Kansas Gity Southern R. Co., (1903) 187 U. S. 617. 2 B^rgo V. Michigan, (1887) 121 U. S. 230. State statutes prohibiting the transportation of natural gas to points outside the State are invalid. Manufacturers Gas, etc., Co. V. Indiana Natural Gas, etc., Co., (1900) 155 Ind. 545; Consumers' Gas Trust Co. V. Harless, (1891) 131 Ind. 446; State ». Indiana, etc.. Oil, etc., Co., (1889) 120 Ind. 575. Prohibiting the use of more than the natural pressure in the transportation of natural gas was held to be valid in Jamieson v. Indiana Natural Gas, etc., Cov, (1891) 128 Ind. 555. But contra, Benedict v. Columbus Constr. Co., (1891) 49 N. J. Eq. 23. BEGULATION OF COMMEBCE 149 Chapter hapi are paramount,^ and the power to regulate or forbid the sale of a commodity after it has been brought into the State does not carry with it the right and power to prevent its introduction by transportation from another State.* When the entire subject of transportation of Stanof live stock from one State to another is taken under «««°'=''- direct national supervision and a system devised by which diseased stock may be excluded from inter- state commerce, all local or State regulations in re- spect of such matters and covering the same ground wiU cease to have any force, whether formally abrogated or not.® high seal. TBANSPOETATION BETWEEN PLACES IN THE SAME STATE PASSING OUTSIDE THE STATE. Continuous transportation between points in the Not same State, when part of the route is outside of the commerce. State, and over the hi^ seas or over the territory of an adjoining State, is not domestic commerce. Respecting vessels, the question was presented Navigating in Lord v. Goodall, etc., Steamship Co.^ as to tiie power of Congress to regulate the liability of the owners of vessels navigating the high seas, but engaged only in the transportation of goods and pas- 3Eeid V. Colorado, (1902) 187 U. S. 137. 4 Bowman v. Chicago, etc., R. Co., (1888) 125 U. S. 465. See stipra, p. 143. BReid V. Colorado, (1902) 187 U. S. 137. See also U. S. v. Bos- ton, etc., R. Co., (1883) 15 Fed. Rep. 209; Crawford v. Southern R. Co.,^ (1899) 56 S. Car. 136; Gulf, etc., R. Co. v. Gray, (Tex. Civ. App. 1894) 24 S. W. Rep. 837. A State statute requiring railroads to furnish double-decked cars for the shipment of sheep was held to be invalid as a regulation of commerce, as applied to interstate shipments. Stanley v. Wabash, etc., R. Co., (1890) 100 Mo. 435. « (1880) 102 U. S. 541. 150 BEGULATION OF COMMEECE Chapter VI. Distinction between power to tax and to regulate rates. sengers between ports and places in tlie same State. Finding ample authority in Congress over the sub- ject, Chief Justice Waite, speaking for the court,, said: " While on the ocean [the ship's] national character only was recognized, and she was subject to such laws as the commercial nations of the world had, by usage or otherwise, agreed on for the gov- ernment of the vehicles of commerce occupying this common property of all mankind. She was navi- gating among the vessels of other nations and was treated by them as belonging to the country whose flag she carried. True, she was not trading with them, but she was navigating with them, and conse- quently with them was engaged in commerce. If in her navigation she inflicted a wrong on another country, the United States, and not the State of California, must answer for what was done. In every just sense, therefore, she was, while on the ocean, engaged in commerce with foreign nations, and as such she and the business in which she was engaged were subject to the regulating power of Congress." ^ So far as railroads are concerned, a distinction has been made as to the power of a State over trans- portation from and to points within the State pass- ing outside the State, between the right to tax and the power to regulate the rates on such transporta- ' See further infra, as to limitation . of vessel-owner's liability, p. 221. Vessels are not engaged in domestic commerce when their voyages require them to navigate the ocean beyond the marine league. Pacific Coast Steam-Ship Co. v. Railroad Com'rs, (1883) 18 Fed. Rep. 10. It may be inferred from the route pursued by the boat and the connection between the boat and railroads at each end of her route that the boat is to some extent engaged in interstate commerce — tO' -what extent is immaterial. The Hazel Kirke, (1885) 25 Fed. Kep. 601. BEGULATION OF COMMEBCE 151 tion. In Lehigh Valley R. Co. v. Pennsylvania ® the Cb^^er rigM of a State to tax the receipts on transportation between two points within the State when the route is partly over an adjoining State, was affirmed, as the ,tax was determined in respect of receipts for the proportion of the transportation within the State, Chief Justice Fuller saying : ' ' While interstate com- merce cannot be regulated by a State by the laying of taxes thereon, in any form, yet whenever the sub- jects of taxation can be separated so that that which- arises from interstate commerce can be distinguished from that which arises from commerce wholly within the State, the distinction will be acted upon by the courts, and the State permitted to collect that arising upon commerce solely within its own terri- tory. ' ' But in respect to what may be understood as regulation, as distinguished from taxation, the doctrine of the separability of interstate and domes- tic commerce is not recognized. In Hanley v. Kansas City Southern B. Co.^ this distinction was clearly made, and the right of a State to regulate the rates on such transportation was denied. A State may levy a proportioned tax in the case of commerce admitted to be interstate, but when a rate is established it must be established as a whole. The first rule stated has been further applied Ttataper- recently ^ in an attempt to apply the provisions of ^p^^ the Sherman Anti-Trust Act to the case of a con- tract of sale of vessels, in which the vendors agreed that for a specific term they would not be engaged in rimning or operating or in any way be interested in any freight or passenger packet business between. » (1892) 146 U. S. 192. » (1903) 187 U. S. 617. 1 Cincinnati, etc., Packet Co. v. Bay, (1908) 200 U. S. 17». 152 BBGTTLATION OF COMMEEOB Chapter VI. certain places witMn the same State, on a river forming tlie boundary between that and another State. While it was held that such a contract is not in restraint of trade within the meaning of the statute, the point decided, which is of interest here, was that the transportation over a boundary river, between two points in the same State, and passing over the soil of the other State, is not interstate com- merce. Mr. Justice Holmes, writing the opinion of the court, said that it would be an extravagant con- sequence to draw from Eanley v. Kansas City Southern R. Co., supra, a case of a State attempting to fix rates over a railroad route passing outside its limits, that the contract in this case was within the Sherman Act. DUEATION OF FEDEBAL PEOTECTION FROM OPERATION OF STATE LAWS. Property becomes the subject of interstate and foreign commerce only when actually in transit from one State to another or to a foreign country.^ SSdSd'for Though goods are purchased^ or manufactured export. -fQj. export, they are not exempt from the operation 2Kelley».IUioads, (1903) 188 U. S. 1. 3 Myers v. Baltimore County, (1896) 83 Md. 385; Carrier v. Gor- don, (1871) 21 Ohio St. 605. If cotton, intended for export, is entered with a common carrier which refuses to give a foreign bill of lading and gives local bills of lading for transportation over its line within the State, and the shipper negotiates with connecting lines for the exchange of the local bills of lading for foreign bills and for the completion of the foreign transportation, the cotton is not subject to State regulations regard- ing compressing cotton. State v. International, etc., R. Co., (1903) 31 Tey. Civ. App. 219. On the other hand, in State v. San Antonio, etc., R. Co., (1903) 32 Tex. Civ. App. 58, it was held, that when cotton was purchased at different points in the State for ezi>oit, collecting it at a central BEGUiiAxiON Of commerce 153 of state laws. In Kidd v. Pearson,'^ wherein the Chapter question was discussed whether the right of a State ' to enact a statute prohibiting within its limits the manufacture of intoxicating liquors, except for cer- tain purposes, could be overthrown by the fact that the manufacturer intended to export the liquors when made, it was held that the intent of the manu- facturer did not determiae the time when the article or product passed from the control of the State and belonged to commerce, and that, therefore, the statute, in omitting to except from its operation the manufacture of intoxicating liquors within the limits of the State for export, did not constitute an unau- thorized interference with the right of Congress to regulate commerce. And in Coe v. Errol^ logs which had been cut in the State of Maine, and others which had been cut in the State of New Hampshire, were floated in course of transit down a stream in New Hampshire to the town of Errol, in the latter State; thence to be floated down the Androscoggin river to the State of Maine. The town of Errol assessed upon the property a county, town, school, and highway tax. The tax was sustained by the Supreme Court of New Hampshire as to the logs cut in that State, and abated as to those cut in Maine. In affirming the judgment of the State court, Mr. Justice Bradley, delivering the opinion of the court, said : ' ' There must be a point of time when they [goods intended for export] cease to be governed exclusively by the domestic law and begin point for olassifieation and grading, with the shifting of the bales from one bill of lading to another, did not transform the foreign shipments into local ones. * (1888) 128 U. S. 1. See also People v. Niagara Fruit Co., (1903) 173 N. Y. 629, afflrmmg (1902) 75 N. Y. App. Div. 11. B (1886) 116 U. S. 517. 154 BEGULATION OF COMMEKOB Chapter VI. Commence- ment of final move- menl. Commit- ment to common carrier. While In possession of domestic carrier. to be governed and protected by the national law of commercial regulation, and that moment seems to ns to be a legitimate one for this purpose, in which they commence their final movement for transporta- tion from the State of their origin to that of their destination. When the products of the farm or the forest are collected and brought in from the sur- rounding country to a town or station serving as an entrepot for that particular region, whether on a river or a line of railroad, such products are not yet exports, nor are they in process of exportation, nor is exportation begun until they are committed to the common carrier for transportation out of the State to the State of their destination, or have started on their ultimate passage to that State. Until then it is reasonable to regard them as not only within the State of their origin, but as part of the general mass of property of that State, subject to its jurisdiction, and liable to taxation there, if not taxed by reason of their being intended for exporta- tion, but taxed without any discrimination, in the usual way and manner in which such property is taxed in the State." ® So that this movement of interstate or foreign commerce begins when the articles have been shipped or started for transportation from a State, and though a vessel, on which goods destined for other States are being carried, plies entirely within the limits of a State and does not run in connection with, or in continuation of, any line of vessels or railway leading to other States, the goods, being in possession of a common carrier and in the course of transit to another State, are subjects of interstate « See also Diamond Match Co. v. Ontonagon, (1903) 188 U. S. 82. BEGULATION OF COMMERCE 155 commerce,^ but the carrying of them in carts or Chapter other vehicles, or even floating them, to the depot " where the journey is to commence, is no part of the interstate journey.® Temporary detention in transit does not subject ^ri'^li'""' property to the operation of State law.® Just as ^rSt^'"" goods are within federal protection as soon as they are actually delivered to a common carrier, so they continue under that protection until they have been delivered to the consignee. Moving goods shipped from a point without the State, from a platform at the depot to the freight warehouse, is a part of inter- state transportation.* And when cars containing 'The Daniel Ball, (1870) 10 Wall. (U. S.) 557, Mr. Justice Field saying for the court: "The fact that several different and independent agencies are employed in transporting the commodity, some acting entirely in one State, and some acting through two or more States, does in no respect affect the character of the transaction. To the extent in which each agency acta in that transportation it is suhjeet to the regulation of Congress." Interstate commerce begins by the actual delivery to a common carrier for transportation, or the actual commencement of its trans- fer to another State. U. S. v. Boyer, (1898) 85 Fed. Rep. 425; In re Greene, (1892) 52 Fed. Rep. 104; Bennett v. American Express Co., (1891) 83 Me. 236; Houston Direct Nav. Co. v. Insurance Co. of North America, (1895) 89 Tex. 1. sCoe V. Errol, (1886) 116 U. S. 517. A distinction may perhaps be here made between the rule that goods carried by a domestic connecting carrier in the course of inter- state transportation are within the protection of the commerce clause, and the principle, if it be a sound one, that Congress cannot subject a carrier, operating wholly within a State, to federal regulations unless such carrier engages in interstate commerce by making an arrangment with shippers or connecting carriers for continuous car- riage. See infra, p. 158. 9 A dining car is under the control of Congress while in the act of making its interstate journey, and is equally so when waiting for the train to be made up for the next trip. Johnson v. Southern Pac. R. Co., (1904) 196 U. S. 1. See also Delaware, etc., Canal Co. V. Com., (Pa. 1888) 17 Atl. Rep. 175. 1 Rhodes v. Iowa, (1898) 170 U. S. 412. 156 EEGXJLATIOSr OF COMMBBCE CJhapter freight have not been delivered to the consignee, " but remain on the tracks of the railway company ia the condition in which they have been brought into the State, the interstate transportation of the prop- erty has not been completed.^ When As soon as goods arrive in a State and become gfoods be- ^etttosuTte P^-"^ ^-^ ^*® general mass of property, they become '*''*■ amenable to State laws,^ and this time is said to arrive when the original package is no longer such in the hands of the importer, that is, when he has either sold the goods in the original package or the original package has been broken up in his hands.* coti^ barge The coal barge cases furnish peculiar illustra- tions of this rule. In Brown v. Houston^ coal mined in Pennsylvania was from that State imported into the State of Louisiana. WhUe afloat in the Missis- sippi river, in the parish of New Orleans, it was offered for sale, and it was held that it had become part of the property of the State and was subject to State taxation. It was also so held in Pittsburg, etc., Goal Co. v. Bates^ wherein the coal had not reached its exact destination, and, to accommodate the exigencies of the owner's business, the barges, about one hundred in number, were stopped and = McNeill V. Southern R. Co., (1906) 202 U. S. 543. 3 Brown v. Houston, (1885) 114 U. S. 622. 4Leisy v. Hardin, (1890) 135 U. S. 100. To goods imported from foreign States this same principle applies, but there is a distinction between the power of the State to tax goods as property which have come from other States, and goods imported from foreign countries, a distinction created by the positive prohibi- tion of the clause in Article I, § 10, declaring that " no State shall, without the consent of Congress, lay any imposts or duties on imports or exports." The question is discussed in a subsequent part of this work under the power of the State to tax goods in original packages. See infra, p. 292. 5 (1885) 114 U. S. 622. 6 (1895) 156 U. S. 577. discrimina- tion. REGULATION OF COMMEBOE 157 moored in the Mississippi river at a convenient place Chapter about nine miles above the port of Baton Rouge. But in becoming amenable to State law, it is only f^\^^^„{ to such laws as are applicable to property generally ; the goods cannot be discriminated against on account of their having come from another State.'^ From these propositions it may be stated that there may be an interior movement of property which does not constitute interstate commerce, though property be destined to or come from an- other State; in the one case, until it be shipped or started on its final journey, it is subject to the opera- tion of State law, and in the other case, though it have not reached its place of disembarkation or delivery, it may become subject to the operation of that law, but only in this latter event, probably, under such circumstances as are suggested by the cases of Brown v. Houston, and Pittsburg, etc., Coal Co. V. Bates, supra.^ 7 Howe Mach. Co. v. Gage, (1879) 100 V. S. 676; Welton v. Missouri, (1875) 91 U. S. 275; Robbins v. Shelby County Taxing Dist., (1887) 120 U. S. 489. See infra, pp. 252, 315. 8 Diamond Match Co. v. Ontonagon, (1903) 188 U. S. 82. CHAPTER VII. BAILEOAD AND EXPEESS COMPANIES. GENEBAL POWER OF CONGRESS OVER INTERSTATE CARRIERS. Chapter '4'T^HE power of Congress to subject every 1 carrier engaging in interstate commerce to ^l'^^l°l the regulations which it has adopted is un- paramount. (joubtcd, " Said Mr. Justice White, in New York, etc., R. Co. V. Interstate Commerce Commission.'^ So that all that may be said respecting the power of the States to make regulations affecting carriers engaged in interstate and foreign commerce must be understood as relating to the exercise of a police power, and subject always to the superior right of Congress to control such commerce. Not only may Congress subject every interstate carrier to its regu- lations, but under this power to regulate the inter- state transportation of persons and property, Con- gress may authorize the construction of railroads,* and may make grants of land for rights of way, even to State corporations.' Con "esl ^^ ^^^ ^® *^^* ^ state railroad corporation which road wholly operatcs a railroad wholly within the State may intrastate. ^^^ ^^ legally Compelled to submit itself to the pro- visions of an Act of Congress, even when carrying, 1 (1906) 200 U. S. 361. 2 California v. Central Pae. R. Co.. (1888) 127 U. S. 1. 'Cherokee Nation v. Southern Kansas K. Co., (1890) 135 U. S. 641. BEGULATION OF COMMEECE 159 between points in the State, freight that has been Chapter brought from or that is intended for another State.* "^"^ But when such a railroad voluntarily engages as a common carrier in interstate commerce by making an arrangement for a continuous carriage or ship- ment of goods and merchandise, it is subject, as far as such traffic is concerned, to the regulations and provisions of the Act of Congress.^ GENEBAL POWER OF THE STATES OVER CARRIERS. It will be noticed that the discussion throughout subordi- this chapter recognizes generally the power of the "o^rWuir" c, J.J.1J 1. carriers as btates to adopt regulations respecting carriers as iawiefSf" instrumentalities of commerce, in the absence of fed- =°'"'""'=«- eral regulations on the subject. It has been held that State statutes imposing a penalty for the re- fusal of a railroad company to receive freight ten- dered for transportation,® for failure to ship freight * Cincinnati, etc., R. Co. v. Interstate Commerce Commission, (1896) 162 U. S. 184. 5 Interstate Commerce Commission v. Detroit, etc., R. Co., ( 1897 ) 167 U. S. 633. A railroad existing under the laws of two States and having its main lines and branches wholly within those States, which, by virtue of its connections at several points with railroads of other corporations, and of traffic contracts and agreements, has become a link in a through line of road, over wnich freight and passengers are carried into and out of other States, is, as to those other States, engaged in interstate commerce. Norfolk, etc., R. Co. v. Pennsyl- vania, (1890) 136 U. S. 114. By the employment of several agencies in interstate transporta- tion each agency is engaged in interstate commerce, and the trans- portation of goods to forwarding agents at points within the State, where the goods are not unloaded, bulk is not broken, nor are the cars delayed to any extent, but the cars are at once transferred to other carriers to be forwarded to their ultimate destination outside the State, constitutes interstate commerce and is not subject to State regulation. Cutting v. Florida R., etc., Co., (1891) 46 Fed. Rep. 641. e Currie v. Raleigh, etc.. Air Line R. Co., (1904) 135 N. Car. 535. 160 EEGUIiATION OF COMMKBCE Chapter vcithin a prescribed time/ or requiring payment of ' or refusal to pay a claim for lost or damaged goods "within a certain time, are valid,* but statutes requir- ing freight to be shipped over a route designated by the shipper,^ or authorizing service of attachment process on a freight car loaded with interstate freight, have been declared to be interferences with commerce.^ In a former part of this work it has been shown that a statute, the material requirement of which is that when the shipper of freight shall make a requisi- tion in writing for a number of cars to be furnished at any point indicated within a certain number of days from the receipt of the application, and shall deposit one-fourth of the freight with the agent of the company, the company failing to furnish them shall forfeit twenty-five dollars per day for each car failed to be furnished, the only proviso being that the law " shall not apply ia cases of strikes or other public calamity," while not far from the line of proper police regulation, does not make allowance for the practical difficulties in the administration of the law, and, as applied to interstate commerce, transcends the legitimate powers of the legislature.* PEOHIBITING CONSOLmATION OF COMPETING EOADS. States may A State may prohibit a railroad company from combma- acqulriiig, by purchase, lease, or otherwise, any petine parallel or competing line, or from operating the TBagg V. Wihniiigton, etc., R. Co., (1891) 109 N. Car. 279. 8 Porter v. Charleston, etc., K. Co., (1901) 63 S. Car. 169. • Lowe V. Seaboard Air Line R. Co., (1901) 63 S. Car. 248. iWall V. Norfolk, etc., R. Co., (1903) 52 W. Va. 485. 2 Houston, etc., R. Co. v. Mayes, (1906) 201 U. S. 321, reversing (1904) 36 Tex. Civ. App. 606. See supra, p. 95. REGULATION OF COMMEECE 161 same. Such action is a legitimate exercise of the police power of the State to create and regulate the instruments of interstate commerce, so far as neces- sary to the conservation of the public interests.^ And it has been said that several States through which interstate railroads run may authorize the consolidation of the roads in the adjoining States.* That the Sherman Anti-Trust Law operates to Chapter ,vn. Application Appli of Shermaa prevent parallel or competing interstate railroads ^^1'''^™*' from entering into contracts or combinations, is pointed out in a previous part of this work.® REGULATING CONNECTING CARRIERS. Railroads may be compelled by the States to make track connections at the intersections of other roads for transferring cars from the lines or tracks of one company to those of another, as well as for facilities for the interchange of cars and traffic between their respective lines.® Such regulations, affording facilities to interstate commerce, do not regulate such commerce within the meaning of the Constitution, unless in particular cases they conflict with Acts of Congress.^ But the imposition upon the initial or any con- necting carrier, of the duty of tracing the freight and inf ormLag the shipper, in writing, when, where, how, and by which carrier the freight was lost, damaged, or destroyed, and of giving the names of the parties and their official position, if any, by » Louisville, etc., E. Co. v. Kentucky, (1896) 161 U. S. 677. ^Baardman v. Lake Shore, etc, R. Co., (1881) 84 N. Y. 157. 5 See supra, p. 42. • Wisconsin, etc., R. Co. v. Jacobson, (1900) 179 U. S. 287. T See Council Bluffs v. Kansas City, etc., R. Co. (1876) 45 Iowa States may require facilities for inter- change of traffic. Requiring connecting carrier to furnistl evidence < of loss. 338. 11 162 EEGTJLATION OF COMMERCE cr^pter whom the truth of the facts set out in the informa- - tion can be established, is, when applied to interstate commerce, a violation of the commerce clause.* Such a statute is much more onerous than the one sustained in Richmond, etc., R. Co. v. R. A. Patter- son Tobacco Co.^ which provided that although a carrier be released or exempted by contract from liability beyond its own line, yet, " if such thing be lost or injured such common carrier shall himself be liable therefor, unless, within a reasonable time after demand made, he shall give satisfactory proof to the consignor that the loss or injury did not occur while the thing was in his charge." Such a statute as this latter one simply establishes a rule of evidence ordaining the character of proof by which a carrier might show that, although it re- ceives goods for transportation beyond its own line, nevertheless, by agreement, its liability is limited to its own line. This is very different from the duty imposed upon the carrier by the former statute, which imposes a liability unless the detailed in- formation provided for in the statute is obtained and given to the shipper.^ 8 Central of Georgia R. Co. v. Murphey, (1905) 196 U. S. 194, reversing (1903) 116 Ga. 863. » (1898) 169 U. S. 311. 1 A Missouri statute providing in part that " whenever any ■property is received by a common carrier to be transferred from one place to another, vfithin or without this State, or when a railroad -or other transportation company issues receipts or bills of lading in this State, the common carrier, railroad, or transportation company issuing such bill of lading shall be liable for any loss, damage, or injury to such property, caused by its negligence or the negligence of any other common carrier, railroad, or transportation company to which such property may be delivered, or over whose line such prop- erty may pass; and the common carrier, railroad, or transportation company issuing any such receipt or bill of lading shall be entitled to recover, in a proper action, the amount of any loss, damage, or REGULATION OF COMMERCE 163 REGULATING THE OPERATION OF TRAINS. Chapter VII. Regulating speed of State regulations respecting matters pertaining in matters to the running of trains may be adopted and en- thelVte^^ C J 'nil- °^ conven- torced, especially when they concern the safety or p^^buc"''"* convenience of the public, except where they conflict with valid federal regulations.^ Eegulating the speed of railroad trains only indi rectly affects interstate commerce, and is within "■""'• the power of the State, at least until Congress acts in the matter.* In Crutcher v. Kentucky^ injury it may be required to pay to the owner of such property, from the common carrier, railroad, or transportation company, through whose negligence the loss, damage, or injury may be sustained," was construed by the State court as not depriving a carrier engaged in interstate traffic from limiting his liability to hia own line. As so •construed, the statute was held to be valid. Missouri, etc., E. Co. v. McCann, (1899) 174 U. S. 580. A statute providing that " when there are several connecting railroads under different companies, and the goods are intended to Ije transported over more than one railroad, each company shall be responsible only to its own terminus and until delivery to the con- necting road; the last company which has received the goods as 'in good order ' shall be responsible to the consignee for any damage, open or concealed, done to the goods, and such companies shall settle among themselves the question of ultimate liability," was held to be valid as affording a remedy through the medium of a rule of evidence prescribing the probative value of a voluntary admission against the last road receiving the goods as " in good order." K-avanaugh v. Southern R. Co., (1904) 120 Ga. 62. 2 A State may require carriers to post in conspicuous places at their stations the time of the arrival of trains, whether or not the trains stopping at such stations are on time, and, if late, how much, and the fact that in order to carry out such a requirement the carrier may have to bring into use the communication of informa- tion possessed by servants at one point on the line of the road to those at another point on the line, situate in different States, does not make the regulation invalid. State v. Indiana, etc., E. Co., (1892) 133 Ind. 69. Providing for the lighting of railway crossings is valid. St. Bernard v. Cleveland, etc., R. Co., (1896) 4 Ohio Dec. 371. 3Erb V. Morasch, (1900) 177 U. S. 684. 4 (1891) 141 U. S. 47. 164 EEGULATION OP COMMEBCB Chapter Mr. Justice Bradley, speaking for tlie court, said: " '• It is . . . within the undoubted province of the State legislature to make regulations with regard to the speed of railroad trains in the neighborhood of cities and towns; with regard to the precautions to be taken in the approach of such trains to bridges, tunnels, deep cuts, and sharp curves ; and, generally, with regard to all operations in which the lives and health of people may be endangered, even though such regulations affect to some extent the operations of interstate commerce. Such regulations are eminently local in their character, and,, in the ab- sence of congressional regulations over the same subject, are free from all constitutional objections, and unquestionably valid. ' ' ^ Examina- A State may prescribe that engineers on railroad employees, traius engaged in the transportation of passengers and freight, including interstate trains, shall undergo an examination by a State board as to their qualifications before becoming entitled to operate locomotive engines within the State,® and a statute which declares that all persons afflicted with color blindness and loss of visual power to the extent therein defined are " disqualified from serving on railroad lines within the State in the capacity of locomotive engineer, fireman, train conductor, brakeman, station agent, switchman, flagman, gate- tender, or signal man, or in any other position which sA statute which prohibits the running of trains at a greater speed than six nuiles an hour across a highway in or near thickly settled loealities (Clark v. BostoD, etc., R. Co., (1887) 64 N. H. 323), and a muKbcipal: ordinance which prohibits the running of passenger trains at a greater speed than ten miles an hour or freight trains at a greater speed than six miles per hour (Chicago, etc., R. Co. V. CailinTiille, (1902> 200' lU. 314), have been held valid. « Smith V. Alabama, (1888) 124 U. S. 465. REGULATION OF COMMERCE 165 requires the use or discrimination of form or color Chapter signals," and which provides for their examination . and periodical re-examination, is valid J A State statute forbidding the heating of pas- Heating of senger cars in that State by stoves or furnaces kept •=»«• inside the cars or suspended therefrom is valid, although such cars may be employed in interstate commerce, when Congress has not adopted any regulations with which such a State regulation would conflict.* Requiring Trains to Stop at Certain Stations. Several State statutes regulating the stoppage of trains at certain places have been before the Su- preme Court of the United States, with the result of determining to a fair degree of clearness the line between regulations which are reasonable and valid and those which are unreasonable and invalid. In the earliest of these cases, Illinois Cent. R. Co. v. Illinois,^ the provisions of an Illinois statute, requir- Requiring . . n 1 • II. fast traintfl- ing a fast mail tram from Chicago to places south of jrom^dirlci the Ohio river, over an interstate highway estab- ™""- lished by authority of Congress, to delay the trans- portation of its interstate passengers and United States mail, by turning aside from its direct route and running to a station three and one-half miles away from a point on that route, and back again to the same point, before proceeding on its way; and to do this for the purpose of discharging and re- ceiving passengers at that station, for whom the railroad company furnished other and ample accom- T Nashville, etc., R. Co. v. Alabama, (1888) 128 U. S. 96. 8 New York, etc., E. Co. v. New York, (1897J 165 U. S. 628. » (1896) 163 U. S. 142. 166 BEGULATION OF COMMERCE Chapter VII. At county seats. At towns over a cer- tain size. At county seats re- gardless of number of trains. modation, were held to be an unreasonable restric- tion of interstate traffic. Upon the contrary, in Gladson v. Minnesota,^ a Minnesota statute requiring every railroad to stop all its regular passenger trains, running wholly within the State, at its stations in all county seats long enough to take on and discharge passengers with safety, was held to be a reasonable exercise of the police power of the State, even as applied to a train connecting with a train of the same company running into another State, and carrying some inter- state passengers as well as the mail. In Lake Shore, etc., R. Co. V. Ohio ^ a statute of Ohio providing that every railroad company should cause three of its regular trains carrying passengers, if so many were run daily, Sundays excepted, to stop at a station, city, or village containing over three thousand in- habitants, for a time sufficient to receive and let off passengers, was held to be, in the absence of legisla- tion by Congress upon the subject, consistent with the Constitution of the United States, when applied to trains engaged in interstate commerce through the State of Ohio. Finally, in Cleveland, etc., R. Co. v. Illinois,^ the question presented was whether a statute of Illinois was valid which required every passenger train, re- gardless of the number of such trains passing each way daily and of the character of the traffic carried by them, to stop at every county seat through which such trains might pass by day or night, and regard- less also of the fact whether another train desig- nated especially for local traffic might stop at the 1 (1897) 166 U. S. 427. « (1899) 173 U. S. 28.5. » (1900) 177 U. S. 514. BEGTJLATION OF COMMERCE 167 vfi. same station within a few minutes before or after ChapteK- the arrival of the train in question. In holding the . statute to be a direct burden upon interstate com- merce, the court, after referring to the eases above mentioned, said, through Mr. Justice Brown: " With no disposition whatever to vary or qualify the cases above cited, neither the conclusions of the court nor the tenor of the opinions are opposed to the principle we hold to in this case, that, after all local conditions have been adequately met, railways have the legal right to adopt special provisions for through traffic, and legislative interference there- with is unreasonable, and an infringement upon that provision of the Constitution which we have held ^ requires that commerce between the States shall be free and unobstructed." Accommodations for Different Races. A Louisiana statute, as construed by the State courts, required those engaged in interstate com- merce to give all persons traveling in that State, upon the public conveyances employed in such busi- ness, equal rights and privileges in all parts of the conveyance, without distinction or discrimination on account of race or color. In Hall v. DeCuir * it was held that the statute did not act upon interstate busi- ness through the local instruments to be employed after arriving within the State, but directly upon the business as it arrived in the State from without or went out from within, and was a direct burden upon interstate commerce. In a later case, that of Chesapeake, etc., R. Co. V. Kentucky,^ the question presented was whether RequiriaF that equal accommo- dations be g^iven to interstate passengers. Separate coach lav... 4 (1877) 95 U. S. 485. 5 (1900) 179 U. S. 388. commerce. 168 EEGtTLATION OF COMMEECE Chapter the separate coaeh law of Kentucky, requiring all ' railroad companies operating roads within the State of Kentucky, whether upon lines owned or leased by them, as well as all foreign companies operating roads within the State, to furnish separate coaches or cars for travel or transportation of white and colored passengers upon their respective lines of railroad, and to post in some conspicuous place upon each coach appropriate words in plain letters indi- cating the race for which it was set apart, was an infringement upon the exclusive power of Congress Construed to regulatc interstate commerce. The State courts as applied to domestic had coustrued the act as applymg alone to domestic commerce. x x */ C3 commerce, but in one case^ the Kentucky Court of Appeals had said: "If it were conceded (which it is not) that the statute is invalid as to interstate passengers, the proper construction to be given it would then be that the legislature did not so intend it, but only intended it to apply to transportation within the State, and, therefore, it should be held valid as to such passengers. It seems to us that a passenger taking passage in this State, and railroad companies receiving passengers in this State, are bound to obey the law in respect to this matter so long as they remain within the jurisdiction of the State. ' ' In the Chesapeake, etc., R. Co. v. Kentuchj case, supra, the court, accepting the construction of the State court that the Act might be limited by construction to domestic commerce, held that it was valid as applied to the particular case, and in reply to the suggestion that the statute must be construed to regulate the travel or transportation on all rail- roads of all white and colored passengers, while they are in the State, without reference to where their • Ohio Valley R. Co. v. Lander, (1898) 104 Ky. 431. BBGTTIiATION OF COMMBBCE 169 journey commences and ends, the court said: Chapter " Granting that the last sentence from the opinion " of the Court of Appeals, above cited, would seem to justify the railroad in placing iaterstate colored passengers in separate coaches, we think that this prosecution does not necessarily iuvolve that ques- tion, and that the Act must stand, so far as it is applicable to passengers traveling between two points in the State. ' ' ^ It will be noticed that the cases holding that statutes requiring separate accommodations for different races are valid have involved statutes which were expressly limited to domestic passengers, or which, if general in terms, have been limited by construction of the State courts to such persons, and that the invalidity of such statutes as applied to interstate passengers is a matter of inference. It is generally considered, upon the authority of these cases, that such statutes are invalid in so far as they affect interstate traffic, and it must be ad- mitted that this is at least the proximate and natural inference. In Smith v. State,^ however, where the Tennessee Supreme Court had under consideration a statute 7 Sec also Louisville, etc., R. Co. v. Mississippi, (1890) 133 U. S. 587, as to a Mississippi statute, which, as construed by the State Supreme Court, affected only commerce within the State. And in Plessy v. Ferguson, (1896) 163 U. S. 537, it was not claimed that the separate coach law of Louisiana was an inter- ference with interstate commerce, as the transaction in that case occurred on a local line, with both its termini within the State; the invalidity of the statute was urged upon the ground that it abridged the privileges or immunities of citizens, deprived the plain- tiff of his property without due process of law, and also denied him the equal protection of the laws, but the contention was overruled, and the statute was held to be no violation of the Fourteentii Amend- ment. 8 (1898) 100 Tenn. 494. 170 EEGITLATION OF COMMEBOE Chapter whicli provided for separate and equal accommoda- • tions, imposing no burden on either race and giving A state case to each equal accommodations and privileges in coa^tTuw every respect, the statute was held to be a reason- tofS*' able police regulation and applicable to both intra- senee?s"' State and interstate travel. Chief Justice Snod- grass wrote the opinion of the court, and, enumer- ating the subjects of police regulation as including those relating to the order, the comfort, and the well-being of the public, as well as those relating to health, morals, and safety, said: "If it be true, as is sometimes said, that race prejudices exist here that make it uncomfortable or unsafe or promotive of disorder to mix the races in public conveyances, then both safety and good order are promoted, as well as comfort, in their separation. The State is to judge of the necessity for such a regulation." This suggestion of the chief justice must be under- stood as being limited in his mind by the considera- tion of the absence of controlling federal regulation. That such a State regulation imposes a burden upon the carrier, was supposed by the court not to be a valid objection, as an incidental burden resulting from the operation of a reasonable police regulation is not a regulation of commerce within the meaning of the Constitution.^ But in Hart v. Stated holding a Mai yland statute to be invalid as applied to inter- state passengers, the State Supreme Court, re- ferring to the Smith v. State case, supra, said: ' ' The contrary conclusion was reached in an exceed- ingly able opinion, but as we understand the de- cisions of the Supreme Court on analogous ques- » Green v. Bridgeton. (1879) 9 Cent. L. J. 206, 10 Fed. Cas. No. 5754. 1 (1905) 100 Md. 595. KEGULATION OP COMMERCE 171 tions, and the views so strongly indicated by them Chapter on this particular subject, we do not feel at liberty 1_ to follow the Tennessee court. ' ' " Sunday Laws. State laws relating to the observance of Sunday suspending 1 1 • n 1 transpor- have been uniformly recognized as enacted m the gJi°j°^ legitimate exercise of the police power of the State, and in line with that doctrine it has been held, in Hennington v. Georgia,^ that a statute declaring that the transportation of freight shall be suspended on the sabbath day, under certain conditions and exceptions, although in a limited degree affecting commerce, establishes a rule of civil conduct, and is not a needless intrusion upon the domain of federal jurisdiction, nor strictly a regulation of interstate commerce, but, considered in its own nature, is an ordinary police regulation designed to secure the well-being and to promote the general welfare of the people within the State by which it was established.* REGULATING THE SALE OF TICKETS. Several of the States have passed statutes, with Prohibiting , the busi- the ostensible purpose of preventing frauds upon ^^°\^^_ travelers, prohibiting the sale of tickets by others ''«™s=- than specially authorized agents. In most cases the statutes have been sustained as not being regu- 2 See also Anderson v. Louisville, etc., R. Co., (1894) 62 Fed. Eep. 46; State v. Hicks, (1892) 44 La. Ann. 770. 3 (1896) 163 U. S. 299. 4 See also State v. Southern R. Co., (1896) 119 N. Car. 814; Norfolk, etc., R. Co. v. Com., (1896) 93 Va. 749; State v. Baltimore, etc., R. Co., (1884) 24 W. Va. 783. 172 REGULATION OF COMMKECE Chapter lations of commerce.^ In New York, however, it VII. iias been held that the business of selling passage tickets, or of ticket brokerage, is a lawful and legiti- mate business, and that such a statute is invalid as a deprivation of the " liberty " guaranteed by the State constitution.® ^^lating A statute regulating the term within which privueges. tickets may be used and providing for stop-over privileges has been said to be inapplicable to tickets issued for interstate travel/ but regulations requir- ing railway companies to have depots open a reason- able time before the departure of trains have been sustained.* REGULATING THE TIME, PLACE, AND MANNER OP DELIVEEY. A State, in the exercise of its police power, has authority to make reasonable regulations concern- ing the place, manner, and time of delivery of mer- chandise moving in the channels of interstate com- merce,^ but an order directing carriers to deliver all cars containing interstate freight beyond their ?e^vi""ff ^^S^^ of way to a private siding imposes a direct right^'or"'* and onerous burden on interstate commerce. And "^y- if such an order is made iji favor of a particular sBurdick v. People, (1894) 149 III. 600; Stedman v. State, (1878) 64 Ind. 597; Fry v. State, (1878) 63 Ind. 552; State v. Corbett, (1894) 57 Minn. 345; State v. Thompson, (Oregon 1906) 84 Pac. Rep. 476; Com. v. Keary, (1901) 198 Pa. St. 500. 6 People V. City Prison, (1898) 157 N. Y. 116. 7Lafarier v. Grand Trunk R. Co., (1892) 84 Me. 286. 8 Hall V. South Carolina R. Co., (1886) 25 S. Car. 564. 3 Statutes which enforce the duty of a carrier to deliver property specified in a bill of lading to the legal holder thereof and which protect the rights of the holder are valid in the absence of con- gressional legislation on the subject. Arkansas Southern R. Co. *. German Nat. Bank, (1906) 77 Ark. 482. REGULATION OP COMMKECB 173 persoa or corporation, it is not only invalid as a <^pter regulation of commerce, but is the assertion of a . power concerning a subject covered by Acts of Con- gress which forbid, and provide remedies to pre- vent, unjust discriminations and the subjecting to ttndue disadvantages by carriers engaged in inter- state commerce.^ Delivery of Goods on Tender of Freight Charges. The Interstate Commerce Act of February 4, 1887, as amended by the Act of March 2, 1889, after requiring coromon carriers to print and post at stations the schedules of fares and rates, provides : "And when any such common carrier shall have established and published its rates, fares, and charges in compliance with the provisions of this section, it shall be unlawful for such common carrier to charge, demand, collect, or receive from any per- son or persons a greater or less compensation for the transportation of passengers or property, or for any services in connection therewith, than is speci- fied in such published schedule of rates, fares, and charges as may at the time be in force. " ^ * A Texas statute imposed a penalty for failure to deliver goods on tender of the rate named in a bill of lading, ^^f^^ The State statute, as applicable to interstate ship- stfe^iaws. 1 McNeill V. Southern R. Co., (1906) 202 U. S. 543. A State cannot compel a common carrier engaged in interstate transportation to deliver ears of Uve stock moving in the chan- nels (A interstate commerce at a particular place beyond its own line different from the general place of delivery established by the railway company, when it is not the means of making a physical connection that is aimed at, but it is sought to compel delivery of the cars at a partteular place andl in a, particular way. Central Stock Yards Co. v. Louisville, etc., R. Co., (1902) US Fed. Rep. 113. 1 * 25 Stat, at L. 855, 3 Fed. Stat. AniM*. 828. 174 KBGtTLATION OF COMMEECB Copter ments, was held to bo valid by the State Supreme ■ Court,^ but in Gulf, etc., R. Co. v. Hefley,^ Mr. Justice Brewer, for the United States Supreme Court, said: " Clearly the State and the national Acts relate to the same subject-matter and prescribe different rules. By the State Act the bill of lading is made controlling as to the rate collectible, and a failure to comply with that requirement exposes the delinquent carrier to its penalties, while the national statute ignores the bill of lading and makes the published tariff rate binding, and subjects the offender, both carrier and agent, to severe penal- ties. The carrier cannot obey one statute without sometimes exposing itself to the penalties pre- scribed by the other ; ' ' but further remarked : "It may be conceded that were there no congressional legislation in respect to the matter, the State Act could be held applicable to interstate shipments as a police regulation." GENEBAl, POWEB OF CONGRESS TO REGULATE TKANS- POETATION BATES. Prohibit In U. S. V. Joint TraiHc Assoc* a bill was filed combina- " troiratM!"" ^^^ *^® purpose of obtaining an adjudication that an agreement entered into between some thirty-one different railroad companies was illegal and enjoin- ing its further execution. It was held that Con- gress, in the exercise of its right to regulate com- merce among the several States, or otherwise, has the power to prohibit, as in restraint of interstate commerce, a contract or combination between com- 2 Gulf, etc., R. Co. V. Dwyer, (1890) 75 Tex. 672. a (1895) 158 U. S. 98. * (1898) 171 U. S. 505. REGULATION OP COMMEECE 175 peting railroad corporations entered into and Chapter formed for the purpose of establishing and main- ' taining interstate rates and fares for the transporta- tion of freight and passengers on any of the rail- roads, parties to the contract or combination, even though the rates and fares thus established are reasonable. And as to the power of Congress directly or indirectly to control the rates of inter- state carriers, it was held in Northern Securities Co. V. U. S.» that the Anti-Trust Act of July 2, 1890, embraced contracts between railroads in restraint of trade and commerce, and, affirming the power of Congress to protect the public against a combina- tion formed for the purpose of obtaining the con- trol of rates for passengers and freight, the court, speaking through Mr. Justice Harlan, said: " Will f^°™^'- it be said that Congress can meet such emergencies ^i^^f by prescribing the rates by which interstate carriers shall be governed in the transportation of freight and passengers? If Congress has the power to fix such rates — and upon that question we express no opinion — it does not choose to exercise its power in that way or to that extent. It has, all will agree, a large discretion as to the means to be employed in the exercise of any power granted to it. For the present, it has determined to go no further than to protect the freedom of commerce among the States and with foreign states by declaring illegal all con- tracts, combinations, conspiracies, or monopolies in restraint of such commerce, and make it a public offense to violate the rule thus prescribed. How much further it may go, we do not now say. ' ' But this may perhaps be considered as an in- stance of judicial caution, to avoid giving or inti- B (1904) 193 U. S. 197. 176 EEGUIAIION OF COMMERCE Chapter mating an opinion on a question not under con- ' sideration. As a State has power to regulate rates for domestic transportation,® if the power of Con- gress over the subject of commerce among the States is the same as that of the States in respect to purely local or internal commerce, as has been so often said, there must be a power in Congress directly to control interstate rates, within due con- stitutional limits J Within con- It is tmdoubted that the power, if possessed, restrictions, would havc to bc exerciscd in subjection to consti- tutional restrictions, and that rates could not be established which would have the effect of so limit- ing the earnings of the companies as in effect to deprive them of their property without due process of law. This consideration, as well as that of the extent of the jurisdiction of the courts to protect the rights of the carriers, raises fundamental con- stitutional questions not within the scope of this work. Preference to Ports of One State over Those of Another. Preference It has bccu suggcstcd at titnes that the power of as between ^'^ . nofbl-*"'^ Congress directly to regulate the rates of interstate ports" transportation could not be exercised, or w'ould be difficult to exercise, without violating the limitation, on the power to regulate commerce contained in the clause of Article I, section &, of the Constitution, declaring that * ' no preference shall be given by any regulation of conunerce or revenue to the ports of one State over those of another." Though such a .'.^.eSee infra, p. 179. ■t See Kentucky, etcr., Bridge Co. v. Effiristille, ete., B. Co., f 193»> 37 Fed. Rep. 567. EEGTILATION OF COMMEBCE 177 tended.. liberal ccmstruction of the clause may be given as CiiapteF will enforce its prohibition in its spirit and to its .entirety, it cannot be given a construction not con- sistent with its terms. The clause does not say that no preference shall be given to one port over another, but that it shall not be given " to the ports of one State " over " those of another." And if the singular be considered as included in the plural, it can only be considered as a prohibition of the preference of one or more ports " of one State " over one or more ports " of another," and not as a prohibition of the preference of one port in a State over another port in the same State.* The clause can only be intended to prohibit posi- inddenui tive legislation looking to a direct privilege or pref- ^°^^^^ erence. In the exercise of the national power of eminent domain there is the limitation of the Fifth Amendment: " nor shall private property be taken for public use, without just compensation." Clear and positive, and having a definite purpose, as is this limitation, it has repeatedly been held to re- quire compensation to be made only when property is actually taken or totally destroyed and not when damage to property results as the incidental effect of operations carried on by or under the authority of the national government. Much less then can it be supposed that the prohibition with regard to preferences to ports can have any reference to regu- lation of rates by Congress incidentally having the effect of creating a preference. »This suggestion does not go even so far as the dictum of Mr. Justice Nelson in Pennsylvania v. Wheeling, etc., Bridge Co., ( 1855 ) 18 How. (U. S.) 421, wherein he said that "what is forbidden is not discrimination between individual ports within the same or dif- ferent States, but discrimination between States." 12 178 EEGTTLATION OF COMMEBCE Chapter VII. Declaring bridge to t)e a lawful _ -structure. pbstruc- d'on of one of two channels. l^egulation oi rates creating a preference. In two cases it has been held that the prohibition as to preference of ports is not against any inci- dental advantages that might result from the legis- lation of Congress upon subjects connected with commerce and confessedly within its power. In the first of these cases, Pennsylvania v. Wheeling, etc., Bridge Co.,^ it was held that an Act of Congress declaring a bridge to be a lawful structure, whereby, as claimed, the interruption of the navigation of steamboats, and the delay and expense arising therefrom, virtually operated to give a preference to one port over that of another, was not within the meaning of the clause. A like result was reached in South Carolina v. Georgia^ as to an obstruction placed by authority of Congress at the head of one channel in a navigable river between two States, for the purpose of improving another channel by increasing the flow of water through the latter, thus increasiag its depth and waterway, as also the scouring effects of the current, at the expense of the obstructed channel; the court, through Mr. Justice Strong, saying: " The prohibition of such a pref- erence does not extend to acts which may directly benefit the ports of one State and only incidentally injuriously affect those of another, such as the im- provement of rivers and harbors, the erection of lighthouses, and other facilities of commerce." Having reference then only to congressional leg- islation producing a direct and positive result in- tended to be prohibited, it is difficult to conceive of any regulation of rates for interstate transporta- tion that would be likely of adoption by or under the authority of Congress, that could have more than » (1855) 18 How. (U. S.) 421. 1 (1876) 93'U. S. 4. EEGULATION OF COMMEBCE 179 a mere incidental effect, if any, of giving a prefer- Chapter ence to one port over that of another, much less to ^"" a port or ports of one State over a port or ports of another State. POWER OF STATES TO REGULATE TRANSPORTATION RATES. While rates on interstate traffic cannot be affected by State legislation,^ a State has power to limit the amount of charges by railroad companies for the transportation of persons and property within its own jurisdiction, unless restrained by some contract in the charter, or unless what is done subject to is in effect a deprivation of the carrier's propertv tionaiunu- . - - » T r r J tations. Without due process of law or a denial of the equal protection of the law, or amounts to a regulation of foreign or interstate commerce.^ And though a rail- 2 The action of a State board of railroad commissioners in fixing rates for continuous transportation between two points in the State is invalid when a large part of the route is outside the State. Han- ley V. Kansas City Southern R. Co., (1903) 187 U. S. 617. See supra, p. 151. A statute providing that an express company may charge $1.50 for every dollar charged by the railroad company whose lines it may be using, for transporting like articles by the regular freight trains of such railroad companies, except that for carrying packages weigh- ing less than five pounds the rate of compensation shall not exceed twenty-five cents for any distance within the State, and for packages weighing more than five and less than fifty pounds the rate of com- pensation shall not exceed fifty cents for all distances within the State, is invalid as to a shipment by express from a point without the State to a point within. Southern Express Co. v. Goldberg, (1903) 101 Va. 619. A State cannot interfere with " proportional tariffs " or collection of freight rates which apply wholly to interstate business and which have been approved of and acquiesced in by the United States Com- merce Commission and the diff^erent companies on whose roads they are efTective. J. Rosenbaum Grain Co. v. Chicago, etc., R. Co., (1903) 130 Fed. Rep. 46. 3 Georgia R., etc., Co. v. Smith, (1888) 128 U. S. 174; Railroad Commission Cases, (1886) 116 U. S. 307. 180 EEGXJLATION OF COMMEECE Chapter VII. road corporation is organized imder an Act of Con- gress, as to. business done wholly within the State it is subject to the control of the State im the matter of domestic rates, when there is nothing, in the act creating the company which indicates an intent on the part of Congress to remove the corporation in all its operations from the control of the State, and there is nothing in the enforcement by the State of reasonable rates for transportation wholly within the State which will disable the corporation from discharging all the duties and exercising all the powers conferred by Congress.* Exclusive po-wer in Congress, Regulating Domestic Part of Interstate Rate. If the transportation be partly within and partly without a State, the State cannot regulate that part of the transportation that is within. The rate can- not be split up according to the jurisdiction of the State or Territory nor can it be fixed by joint action of the States. There can be but one rate, fixed by one authority, and, if the transportation is from one State into another, the authority is in Congress.* A statute of Wisconsin passed in 1874 classified- Chief Justice Waite said that railroad companies are incor- porated as carriers for hire, and given extraordinary powers, in order that they may the better serve the public in that capacity,, and that they are, therefore, engaged in a public employment affect- ing the public interest, and are subject to legislative control as to their rates of fare and freight, unless protected by their charters. Ghiieago, etc., E. Co. v. Iowa, ( 1876) 94 U. S. 155. The power of the State cannot be denied because it may prescribe a different classification from that established by the- companies, nor because it may be advisable for the companies to rearrange their interstate rates for their own convenience. Ames v. Union Pae. R. Co., (1894) 64 Fed. Rep. 165. * Reagan v. Mercantile Trust Co., (1894) 154 U. S. 413. oHanley v. Kansas City Southern R. Co., (1903) 187 U. S. ftU. BEGULATION OF COMMEECB 181 railroads in the State, fixed tlie limit of fare for the ^i^SEf^'^ transportation of any person, classified freights and ' the maximum rates therefor, and prescribed cer- Eariy state ' ^ statutes taia penalties and forfeitures for receiving any ™stainea. greater rate or compensation fo-r carrying freight or passengers than the act provided. The statute further provided that " notMng contained in this act shall be taken as in any manner abridging or controlling the rates for freight charged by any rail- road company in this State for carrying freight which comes from beyond the boundaries of the State, and to be carried across or through the State ; but said railroad companies shall possess the same power and right to charge such rates for carrying such freight as they possessed before the passage of this act." As providing for a maximum charge to be made for fare and freight upon the transporta- tion of persons and property carried within the J^^^l^^/^m State, or taken up outside the State and brought thttlL within it, or taken up inside and carried without, the statute, in PeiJc v. Chicago, etc., B. Co.,^ was held not to be a regulation of commerce between the States, the court saying: " The law is confined to State commerce, or such interstate commerce as directly affects the people of Wisconsin. Until Con- gress acts in reference to the relations of this com- pany to interstate commerce, it is certainly within the power of Wisconsin to regulate its fares, etc., so far as they are of domestic concern. With the people of Wisconsin this company has domestic relations. Incidentally these may reach beyond the -State. But certainly, until Congress undertakes to legislate for those who are without the State, 6 (1876) 94 U. S. 164. See also Chicago, etc., E. Co. v. Iowa, (1876) 94 U. S. 155. 182 BEGULATION OF COMMEECE Chapter Wisconsin may provide for those witliiii, even " though it may indirectly affect those without." Early cases But lu Wabush, etc, B. Co. V. Illinois,'' a differ- ent conclusion was reached. An Illinois statute provided that if any railroad corporation should charge, collect, or receive for the transportation of any passenger or freight of any description upon its railroad, for any distance within the State, the same or a greater amount of toll or compensation than was at the same time charged, collected, or received for the transportation in the same direc- tion of any passenger or like quantity of freight of the same class over a greater distance of the same road, all such discriminating rates, charges, collec- tions, or receipts, whether made directly, or by means of rebate, drawback, or other shift or evasion, should be deemed and taken against any such rail- road corporation as prima facie evidence of unjust discrimination prohibited by the provisions of the statute. The State Supreme Court* interpreted the statute to include cases of transportation partly within and partly without the State, and effectual as to so much of the transportation as was within the limits of the State, and, following the authority of Chicago, etc., B. Co. v. lowa,^ and Peih v. Chi- cago, etc., B. Co.^ held the statute as so construed to be valid. But on a writ of error, the court in Wabash, etc., B. Co. v. Illinois, supra, virtually overruled the Chicago, etc., B. Co. v. Iowa and Peik V. Chicago, etc., B. Co. cases, supra, and said: " It 7 (1886) 118 U. S. 557. See Burlington, etc., R. Co. v. Dey, (1891) 82 Iowa 312. s People V. Wabash, etc., R. Co., (1882) 104 111. 476. » (1876) 94 U. S. 155. 1 (1876) 94 U. S. 164. BEGULATION OF COMMEECE 183 might admit of question whether the statute of Chapter Illinois, now under consideration, was designed by its framers to affect any other class of transportai- Accepting *^ construc- tion than that which begins and ends within the u°e"bysute limits of the State. The Supreme Court of Illinois '=°""- having in this case given an interpretation which makes it apply to what we understand to be com- merce among the States, although the contract was made within the State of Illinois, and a part of its performance was within the same State, we are bound, in this court, to accept that construction; " and said further: " Of the justice or propriety of the principle which lies at the foundation of the Illinois statute it is not the province of this court to speak. As restricted to a transportation which begins and ends within the limits of the State it may be very just and equitable, and it certainly is the province of the State legislature to determine that question. But when it is attempted to apply to transportation through an entire series of States a principle of this kind, and each one of the States shall attempt to establish its own rates of trans- portation, its own methods to prevent discrimina- tion in rates, or to permit it, the deleterious in- fluence upon the freedom of commerce among the States and upon the transit of goods through those States cannot be overestimated. ' ' " 2 Before Congress legislated on the subject of discrimination in freight charges by the Interstate Commerce Act of 1887, the right of a, carrier to make discriminations was recognized at common law, and no State statute could aflfect such discriminations in respect ta interstate shipments. Gatton v. Chicago, etc., R. Co., (1895) 95 Iowa 112. A statute enacted to prevent unfair or unjust discriminations by express companies, and to this end prohibiting the granting by Buch companies to any one carrier, class, or combination of carriers, any terms, credit, privileges, advantages, usages, accommodations. 184 BBGUIiATION OP COMMERCE Chapter VII. Joint Through Rates. b'ltSe"" -^ State statute creating a railroad and ware- commis- sion. house commission, and defining its duties, is valid in so far as it authorizes the conunission to establish joint through rates or tariffs over the lines of inde- pendent connecting railroads within the State, and arbitrarily to apportion and divide joint earnings.^ "Right to To the suggestion that the State may interfere andappor- as betwccn the railways and their customers, the tion among "^ iafiroZds. shippers of freight, but cannot do so as between the railways themselves, by fixing joint tariffs and apportioning such tariffs among the several rail- ways interested in the transportation, the court, through Mr. Justice Brown, said: " The prac- tical result of that argument is this, that if there were within a certain State five connectiag roads of one hundred miles each in length, which among themselves had established a joint tariff for the whole five hundred miles, the State would be power- less to interfere with such tariff, though its right to do so would be unquestioned if the whole five hundred miles were owned and operated by a single company. To state such a proposition is prac- or facilities in the receipt, transmission, or delivery of express matter which they did not grant to all others, was held to be valid, but the case itself was one of transportation between two points ■within the State. Adams Express Co. «. State, (1903) 161 Ind. 328. But, it seems, as a railroad company has a right to make a con- tract with respect to interstate commerce, and to bind itself to cer- tain rates, that a contract with a city by which, as a condition to occupy its streets, a company binds itself to impose no rates which are unequally discriminating against the city, may be enforced. Iron Mountain R. Co. v. Memphis, (1899) 96 Fed. Rep. 113. When a statute is construed to be limited to -domestic commerce, it is valid. Railroad Com'r v. Wabash R. Co., (1900) 123 Mich. 669. 3 Minneapolis, etc., R. Co. v. Minnesota, (1902) 186 U. S. 257. REGULATION OP OOMMEECB 185 tically to answer it. Grramting that a State has no Chamter right to interfere "with the internal economy of a ' railroad farther than to secure the safety and com- fort of passengers, as, for example, to fix the wages of employees or control its contracts for construc- tion, or the purchase of supplies, it Jias a clear right to pass upon the reasonableness of contracts in which the public is interested, whether such con- tracts be made directly with the patrons of the road, or for a joint action in the transportation of persons or property in which the public is indirectly concerned." Rates on Long and Short Hauls. In Louisville, etc., R. Co. v. Kentucky,* the va- sutute .,-,-, applied to lidity of a Kentucky statute declarmg that it should i^^°l be unlawful for any person or corporation owning {^^p^p"- or operating a railroad in the State to charge or receive any greater compensation in the aggregate for the transportation of passengers, or of property of like kind, under substantially similar circum- stances and conditions, for a shorter than for a longer distance, over the same line, in the same direction, the shorter being included in the longer distance, was considered. The statute was based upon a constitutional provision of similar tenor. As the particular case was one involving only transportation from one point in the State to an- other by a corporation of that State, and the statute did not in terms embrace a case of interstate com- merce, it was held to be enforceable. But in another case the State Supreme Court construed the State constitutional provision as not * (1902) 183 U. S. 503. haul. 186 EEGTJLATION OF COMMERCE Chapter confined to a case where the long and short hauls VII ' were hoth within the State of Kentucky, and held Interstate that it extcndcd to and embraced a long haul from long haul " fk'ihl)""*^" ^ place outside of to one within the State, and a shorter haul between points on the same line and in the same direction, both of which were within the State. As so construed, the regulation was declared invalid in Louisville, etc., R. Co. v. Eubank,^ the court saying that the vice of such a provision, thus applied, lies in the regulation of the rates between points wholly within the State, by the rates which obtain between points outside of and points within the State. The court further said, Mr. Justice Peekham writing the opinion, that " the fact which vitiates the provision is that it compels the carrier to regulate, adjust, or fix his interstate rates with some reference at least to his rates within the State, thus enabling the State by constitutional pro- vision or by legislation to directly affect, and in that way to regulate, to some extent the interstate com- merce of the carrier, which power of regulation the Constitution of the United States gives to the Fed- eral Congress." Requiring Rates to Be Fixed Annually and Posted. In Chicago, etc., R. Go. v. Fuller,^ the question was as to the validity of a statute of Iowa requiring that each railroad company should, in the month of September, annually, fix its rates for the transporta- tion of passengers and of freight of different kinds ; that it should put up a printed copy of such rates at all its stations and depots, and cause a copy to re- 6 (1902) 184 U. S. 27. » (1873) 17 Wall. (U. S.) 560. BEGTJLATION OF COMMEBCE 187 main posted during the year; and tliat a failure to Chapter fulfil these requirements, or the charging of a higher rate than was posted, should subject the offending company to the payment of the penalty prescribed. Mr. Justice Swayne, speaking for the court, said: " In all other respects there is no interference. No other constraint is imposed. Except in these particulars the company may exercise all its facul- ties as it shall deem proper. No discrimination is made between local and interstate freights, and no attempt is made to control the rates that may be charged. It is only required that the rates shall be fixed, made public, and honestly adhered to. In this there is nothing unreasonable or onerous. The public welfare is promoted without wrong or injury to the company. The statute was doubtless deemed to be called for by the interests of the community to be affected by it, and it rests upon a solid founda- tion of reason and justice. It is not, in the sense of the Constitution, in any wise a regulation of com- merce." And even, added the court, if the State statute is a regulation, it is local in its character, and may be sustained in the absence of Congres- sional legislation.'^ ^ The Interstate Commerce Act of 1887 requires printed schedules of rates to be posted, and advances and reductions to be made only after public notice. See Act of February 4, 1887, c. 104, § 6, as amended by the Act of March 2, 1889, c. 382, § 1, 3 Fed. Stat. Annot. 827. CHAPTEE Vin. TELEGEAPH AND TELEPHONE COMPAIHES. CONTBOLLING POWER OF CONGRESS. Chapter /'^ OMMUNICATION by telegraph is commerce, and telegraph lines when extending through vnL _c Telegraph different states are instruments of com- strumentof mcrcc, and are subiect to the regulating power of commerce. >-< u j. Congress, free from the control of State regulations except such as are strictly of a police character.* Chief Justice Waite, speaking for the court ia Western Union Td. Co. v. Texas, ^ said: "A tele- graph company occupies the same relation to com- merce as a carrier of messages, that a railroad company does as a carrier of goods. Both com- panies are instruments of commerce, and their business is commerce itself. They do their trans- portation in different ways, and their liabilities are in some respects different, but they are both indis- pensable to those engaged to any considerable ex- tent in commercial pursuits." 1 Western Union Tel. Go. t>. Jamea, (1896) 162 tJ. S. 650; West- em Union Tel. Co. v. Alabama State Board of Assessment, (1889) 132 U. S. 473; Leloup v. Mobile, (1888) 127 U. S. 640; Western Union Tel. Co. v. Pendleton, (1887) 122 U. S. 347; Pensacola Tel. Co. V. Western Union Tel. Co., (1877) 96 U. S. 1. Messages between points in the same State, transmitted over the wires of the same company and in part over the territory of another State, do not constitute interstate commerce. Railroad Com'rs v. Western Union Tel. Co., (1893) 113 N. Car. 213; Western Union Tel. Co. V. Reynolds, (1902) 100 Va. 459. 2 (1881) 105 U. S..460. BEGTJLATiaN OF COMMERCE 189 In a few State cases* it has been held that the Chapter telephone is an instrument of commerce. And from the case of Riehmond v. Southern Bell Telephone, Telephone *■ ' as an in- etc, Co.,* it may be inferred that the interstate comS«ce°^ business of a telephone company may be sub- jected to federal regulation, but a reading of the case leaves it very uncertain what degree of control Congress may exercise. In that case the question was presented whether a telephone company is entitled to claim the benefit of the pro- visions of the Act of Congress of July 24, 1866, referred to below,** that is, whether the words " telegraph company " included a telephone com- pany. In holding that the privileges of the statute cannot be extended by implication only, the court, Mr. Justice Harlan writing the opinion, said : ' ' If judicial " suggestions the act be construed as embracing telephone com- m°^^lf panics, numerous questions are readily suggested. ^"{^pSlnl May a telephone company, of right, and without '"""p*"""- reference to the will of the States, construct and maintain its wires in every city in the territory in which it does business? May the constituted authorities of a city permit the occupancy only of certain streets for the business of the company? May the company, of right, fiH every street and alley in every city or town in the country with 3 See. Muskogee Nat. Telephone Co. v. Hall, ( 1901 ) 4 Indian Tier. 18; Matter of Pennsylvania Telephone Co., (1891) 48 N. J. Eq. 91. Prohibiting discrimination between patrons and regulating the rental for the use of telephonea is valid, as to a company engaged in interstate business. Central Union Telephone Co. v. State, (1888) 118 Ind. 194. * (1899) 174 U. S. 761. In Muskogee Nat. Telephone Co. v. Halli (L902) 118, Fed. Rep. 382, it was held a State coxild not graat the excloBive right to operate telephone lines within its borders. 4 * See infra, p. 190. 190 BEGULATION OF COMMEECB Chapter poles on which its wires are strung, or may the local authorities forbid the erection of any poles at all? May a company run wires into every house in a city, as the owner or occupant may desire, or may the local authorities limit the number of wires that may be constructed and used within its limits? These and other questions that will occur to every one indicate the confusion that may arise if the Act of Congress, relating only to telegraph companies, be so construed as to subject to national control the use and occupancy of the streets of cities and towns by telephone companies, subject only to the reasonable exercise of the police powers of the State. ... If Congress desires to extend the provisions of the Act of 1866 to companies en- gaged in the business of electrically transmitting articulate speech — that is, to companies popularly known as telephone companies, and never otherwise designated in common speech — let it do so in plain words. It will be time enough when such legisla- tion is enacted to consider any questions of consti- tutional law that may be suggested by it. " Telegraph By the Act of Congress of July 24, 1866,* tele- compames . . toron«m« g^'aP'! companios were authorized under certam conditions to construct, maintain, and operate lines of telegraph over the public domain and along any military or post roads of the United States. In Pensacola Tel. Co. v. Western Union Tel. Co.* it was held that the statute was constitutional so far as it declared the erection of telegraph wires to be, as against State interference, free to all who » Act of July 24, 1866, c. 230, brought forward into the Revised Statutes of the United States, §§ 5263 et seq., 7 Fed. Stat. Annot. 205. « (1877) 96 U. S. 1. to construct lines over post roads, etc. BEGULATION OP COMMERCE 191 accepted its terms and conditions, and that a tele- Chapter graph company of one State accepting them could |_ not be excluded by another State from prose- Gram by cuting its business within her jurisdiction. In this fSi^gJJ, case a State statute had conferred upon a single corporation the exclusive right of transmitting in- telligence by telegraph from a certain portion of its territory, and it was held to be an attempt to regulate commerce, and to conflict with the above Act of Congress^ POWEE OF STATES TO ADOPT REGULATIONS. The States may adopt regulations affecting tele- Matters of graph companies, when such regulations are on mat- '"n. ters of local concern, and unless their operation im- pairs the ability of the companies to attend to their interstate and foreign business.* Under the police power, a State may make all necessary provisions with respect to the buildings, poles, and wires of telegraph companies in its jurisdiction which the comfort and convenience of the community may 7 See also Western Union Tel. Co. v. Pennsylvania R. Co., (1904) 195 U. S. 540; Leioup v. Mobile, (1888) 127 U. S. 640; Western Union Tel. Co. v. Pendleton, (1887) 122 U. S. 347; Western Union Tel. Co. V. Atlantic, etc., Tel. Co., (1869) 5 Nev. 102. 8 A State may require offices to be established at places con- venient to routes to be designated by the State Railroad Commission. Western Union Tel. Co. v. Mississippi R. Commission, (1896) 74 Miss. 80. A statute declaring a stipulation in a contract for the trans- mission of a message to be invalid which required notice of a claim for damages against a telegraph company to be given within sixty days after breach of the contract, is void, so far as it applies to messages sent into, and received from, another State. Western Union Tel. Co. v. Burgess, (Tex. Civ. App. 1897) 43 S. W. Rep. 1033. Gambling operations by means of telegraphic communications may be prohibited. State v. Harbourne, (1898) 70 Conn. 484; Louisville v. Wehmhoff, (1903) 116 Ky. 845. 192 BEGTJLATION OF COMMEBCE Chapter VIII. require,® and a State or the local authority may re- quire the removal of poles and wires from a street to a less frequented alley ,^ and may require electric wires and cables to be placed under the surface of the streets.^ Requiring prompt delivery within the Sute. Re|;ulating delivery in other States. Regulating Transmission and Delivery of Messages. A State statute which requires telegraph com- panies diligently to transmit and deliver messages is a valid exercise of power in relation to mes- sages by telegraph from points outside and directed to some point within the State. Such a statute " imposes a penalty," said Mr. Justice Peckham, in Western Union Tel. Co. v. James,^ " for the pur- pose of enforcing this general duty of the company. The direction that the delivery of the message shall be made with impartiality and in good faith and with due diligence is not an addition to the duty which it would owe in the absence of such a stat- ute."* But a statute requiring telegrams to be delivered by messenger to the persons to whom they are addressed, if they reside within one mile of the telegraph station or within the city or town within which such station is, and which applies when the delivery is to be made in another State, is not within the power of a State, as conflict and con- fusion would follow the attempted exercise by sev- 9 See infra, p. 301. iMicMgan Telephone Co. v. Charlotte, (1899) 93 Fed. Eep. 11. 2 Western Union Tel. Co. »; New York, ( 1889 ) 38 Fed. Kep. 552. 3 (1896) 162 U. S. 650, affirming (1892) 90 Ga. 254. See also Western Union TeL Co. v. Lark, (1895) 95 Ga. 806. * A statute imposing a penalty for delay may be enforced in the case of a message between points in the same State passing en route out of the State. Western Union Tel. Co. v. Hughes, (1905) 104 Va. 240. transmis- sion. BEGULATION OF COMMEBCE 193 eral States of such, a power ; ^ though State courts Chapter have held statutes to be valid which impose penal- '__ ties for failure to transmit messages intended for Penalizing *^ negligence other States when the acts of negligence occur stau""'^ within the State," as where there is a failure to transmit the message from the point of originJ A State cannot provide that messages for and ^/^s^'§Jing from officers of justice shall take precedence^ or that arrangements may be made with publishers of newspapers for the transmission of intelligence of general and public interest out of its order, but that all other messages shall be transmitted in the order in which they are received. An attempt, by penal statutes, to enforce delivery of such messages in other States, in conformity with such a rule,^ could hardly fail to lead to confusion with their statutes.® 5 Western Union Tel. Co. v. Pendleton, ( 1887 ) 122 U. S. 347. 6 Western Union Tel. Co. v. Howell, (1894) 95 Ga. 194. See Western Union Tel. Co. ». Meredith, (1883) 95 Ind. 93. 7 Postal Tel. Cable Co. v. Umstadter, ( 1905 ) 103 Va. 742. s Western Union Tel. Co. v. Pendleton, (1887) 122 U. S. 347. 13 CHAPTEE IX. NAVIGATION AND NAVIGABLE WATEES. Chapter bapl Kot limited to tidal "Waters. Wheu navi- gable in fact. WHAT ABE NAVIGABLE WATEES. THE common-law test of navigability, as held by tbe English admiralty courts, that waters are navigable which are subject to the ebb and flow of the tide, has long since been discarded in this country in favor of the more liberal principles of the civil law, equally with the common law embraced by the Constitution, as being more suited to the con- ditions of this country, with its vast extent and its inland seas, bays, and rivers.^ When Congress legislates respectiug the " navi- gable waters of the United States," it is now imder- stood that such streams are meant as are navigable in fact, and which by themselves or their connection with other waters or means of transportation form a continuous channel for commerce of a substantial and permanent character among the States or with foreign countries. They are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways of commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel by water.^ But it cannot be supposed, in lEscanaba, etc., Transp. Co. v. Chicago, (1882) 107 U. S. 678; Nelson v. Leland, (1859) 22 How. (U. S.) 48. 2 Miller v. New York, (1883) 109 U. S. 385; Escanaba, etc., Transp. Co. v. Chicago, (1882) 107 U. S. 678; The Daniel Ball, commerce. EEGULATION OF COMMERCE 195 the absence of express provision, to be the intention Chapter of Congress to interfere with or prevent. the exer- cise by a State of its power to reclaim swamp and overflowed lands by regulating and controlling the current of small streams not used habitually as arteries of interstate commerce.' POWER OF CONGRESS OVER NAVIGABLE WATERS GENERALLY. The subject of the respective powers of the Jj'/^l"**" national and State governments in the control and ?egSat° regulation of navigation and navigable waters, necessarily and constantly arises in the considera- tion which is hereafter given to the power to regu- late ships and shipping, and ferries; to the power to authorize the erection of bridges, wharves, piers, and docks, and the construction of canals, locks, dams, and booms ; and to the laws respecting pilot- age. It may here be said, however, that while the power of Congress to regulate the navigable waters which are connected with the ocean, between the States, or accessible from a State other than those in which they lie, is not expressly granted in the Constitution, it is nevertheless a power incidental to the express power granted by the commerce clause. It involves such control as may be neces- sary to insure their free navigation.* (1870) 10 Wall. (U. S.) 557; Rhea v. Newport News, etc., R. Co., <1892) 50 Fed. Rep. 16; Neaderhouser v. State, (1867) 28 Ind. 257. 3 Leovy v. U. S., (1900) 177 U. S. 621. Small streams declared navigable by State statutes, for the pur- pose of preserving them for the use of sawlogs and various kinds of small water craft, and to prevent people from putting dams across them, are not made navigable streams of the United States. Duluth Lumber Co. v. St. Louis Boom, etc., Co., (1883) 17 Fed. Rep. 419. * Leovy v. V. S., (1900) 177 U. S. 621; Miller v. New York, 196 EEGULATION OP COMMEECE Ch^ter Besides having the authority to supersede the action of a State which is considered rather to ob- t^ra^Ji" struct than to promote navigation, Congress may power. exercise its power over navigable waters affirma- tively. The case of South Carolina v. Georgia,^ which was a bill in equity filed by the State of South Carolina against the State of Georgia, the Secretary of War, and United States engineer officers, for an injunction to restrain the respondents from " ob- structing or interrupting " the navigation of the Savannah river, affirmed the power of Congress to euthorize the placing of an obstruction at the point of divergence of two channels, for the purpose and probable effect of improving the channel on the Georgia side of the island at the expense of the channel on the South Carolina side, by increasing the flow of water through the former, thus increas- ing its depth and waterway. Not only was such action by Congress well within its derivative power over navigable rivers, but it was not within the limitation on the exercise of that power contained in Article I, section 9, of the Constitution declaring (1883) 109 U. 8. 385; Eseanaba, etc., Transp. Co. i\ Chicago, (1882) 107 U. S. 678; Gilman v. Philadelphia, (1865) 3 Wall. (U. S.) 713; Grand Trunk R. Co. v. Backus, (1891) 46 Fed. Rep. 211; Jolly v. Terre Haute Draw-Bridge Co., (1853) 6 McLean (U. S.) 237, 13 Fed. Cas. No. 7,441. It is immaterial that the stream was originally non-navigable or artificially constructed. Navigable Waters, (1891) 20 Op. Atty.- Gen. 101. When a compact between States to keep open the navigation of a river is sanctioned by Congress, it becomes a law of the Union. Pennsylvania v. Wheeling, etc.. Bridge Co., (1851) 13 How. (U. g.) 518. Imposing embargoes on any or every class of commercial subjects is within the power of Congress. U. S. v. Marigold, (1850) 9 How. (U. S.) 560; Gibbons V. Ogden, (1824) 9 Wheat. (U. S.) 1. 6 (1876) 93 U. S. 4. EEGULATION OP COMMERCE 197 that " no preference shall be given by any regula- Chapter tion of commerce or revenue to the ports of one ' State over those of another," because of the inci- dental benefit to the ports of the State on the side of the river on which the improved channel flowed.® POWER OF STATES OVER NA'V^GABLE WATERS GENERALLY. The power of a State over waters which are con- subject to nected with interstate traffic may be exercised so authority of Con- long as the free navigation of the waters is not im- s^'^^^- paired, or any system for the improvement of their navigation provided by the general government is not defeated. When, in the judgment of Congress, the action of a State is deemed to encroach upon free navigation, that body may interfere and control or supersede it, remove the obstruction, and provide against a recurrence of the evil.''' With respect to rivers within the limits of a Regulating State, which are connected with interstate traffic, within ' State limits. the State may authorize any improvement, and may provide for the removal of obstructions from the rivers and harbors and deepen their channels.* In « Congress may authorize alterations to be made in tlie course, width, etc., of navigable streams for the purpose of affording increased facilities for navigation, and for this purpose may take the property of a riparian owner, but only upon making or providing just compensation. Avery v. Fox, (1868) 1 Abb. (U. S.) 246, 2 Fed. Cas. No. 674. The California Debris Commission Act, the Act of March 1, 1893, c. 183, 5 Fed. Stat. Annot. 61, was held to be within the power of Congress. North Bloomfield Gravel Min. Co. v. U. S., (1898) 88 Fed. Rep. 664, affirming (1897) 81 Fed. Rep. 243. iHuse V. Glover, (1886) 119 U. S. 543; Eseanaba, etc., Transp. Co. V. Chicago, (1882) 107 U. S. 678; Gilman v. Philadelphia, (1865) 3 Wall. (U. S.) 713. sSandst;. Manistee River Imp. Co., (1887) 123 U. 8. 288; Mobile County V. Kimball, (1880) 102 U. 8. 691. 198 BEGULATION OF COMMEECB Chapter the absence of express national legislation for- ' bidding it, the power to regulate navigable waters witMn the limits of a State, especially such as are not highways of interstate commerce, extends even to the closing of them under the exercise of its police power, and any abridgment of the rights or privi- leges of those who have been accustomed to use them is an affair between the government of the State and its citizens, unless it comes in conflict with the Constitution or laws of the United States.^ This power of the States includes the right to construct or authorize the construction of locks, dams, and booms across navigable rivers and tidewater creeks, and to regulate the use of the same until Congress interferes and either assumes control of the improve- ments or compels their removal.^ EKiusion Even if Congress has the power to exclude the ofStateau- . i • ^ r^, , j_ j."i thorityover exercise of authority by a State over waters entirely tapiied°°' 'within its limits, it must be done expressly and not by mere implication. Though Congress may, in a limited sense, have taken possession of such a river, by improving it, by causing it to be surveyed, and by establishing lines beyond which no wharf, dock, or other structure shall be erected in the river with- out the approval or consent of the Secretary of oLeovy v. U. S., (1900) 177 U. S. 621; Escanaba, etc., Transp. Co. V. Chicago, (1882) 107 U. S. 678; Northern Transp. Co. v. Chicago, (1878) 99 U. S. 635. lU. S. V. Bellingham Bay Boom Co., (1900) 176 U. S. 211; Huse V. Glover, (1886) 119 U. S. 543; Pound v. Turck, (1877) 95 U. S. 459; W^illson v. Black Bird Creek Marsh Co., (1829) 2 Pet. (U. S.) 245. In the absence of legislation by Congress, a State has power to improve its lands and promote the general health by authorizing dams to be built across its interior streams, though they were previ- ously navigable to the sea by vessels engaged in the coastwise trade. Manigault v. Springs, ( 1905 ) 199 U. S. 473. BEGULATION OF COMMEBCE 199 War, this has a mere negative effect, and does not Chapter indicate the will of Congress that parties having ' simply the consent of the Secretary may erect structures without reference to the wishes of the State on the subject.^ The distinction between the power of a State over navigable waters which are interstate routes and those which are remotely connected with other means of interstate transportation, is illustrated by the Gibbons v. Ogden^ and the Veasie v. Moor* cases. Both cases involved the power of a State to grant an exclusive right to navigate waters of the State. In the Gibbons v. Ogden case, which was the earliest and leading case upon the commercial power of Congress, it was held that the acts of New York giving to Livingston and Fulton the ex- fj^^f^^fj'*,"^ elusive right, for a certain number of years, to navi- '"teAtit"^ gate all the waters within its jurisdiction with '■°""- vessels propelled by steam, were unconstitutional and void. Making the navigation of those waters subject to a license of the grantees of the State, that ife, to such a tax or other burden as they might levy, was an obstruction to commerce between the States and in conflict with the laws of Congress respecting the coasting trade. Although the sole point in judgment was whether the State could regulate com- merce on her waters in the face of such legislation by Congress, yet the argument of the court was that such attempted control of the navigable waters of 2 Cummings v. Chicago, ( 1903 ) 188 U. S. 410, wherein Mr. Justice Harlan said : " Whether Congress may, against or without the expressed will of a State, give affirmative authority to private par- ties to erect structures in such waters, it is not necessary in this case to decide." See also Montgomery v. Portland, (1903) 190 U. S. 89. 3 (1S241 9 Wheat. (U. S.) 1. i (1852) 14 How. (U. S.) 568. 200 EEGXILATIGN OF COMMERCE Chapter IX. Exclusive navigation of domestic improved waters. Rights of new States- the State was an encroachment upon the power of Congress, independently of that legislation. In the Veazie v. Moor case, the power of the State of Maine to grant the sole right of navigating the river Penobscot, in that State, was sustained. It appeared that the river is situated entirely within the State, that it has its rise far in the interior of the State, that it is not subject to the tides above the city of Bangor near its mouth, and that, between Bangor and Oldtown, a distance of eight miles, the Penobscot passes over a fall. It further appeared that the river was crossed by four dams erected for manufacturing purposes, and for the above space was not and never had been navi- gable, but that there was a railroad from Bangor to the steamboat landing at Oldtown. The legislature granted to certain parties authority to improve the navigation of the river above Oldtown, and further provided that if the parties should perform the con- ditions of the grant, they should have the sole right of navigating the river by boats propelled by steam as far up as they should render the same navigable. The exclusive grant was sustained even against a vessel which had a federal license to carry on the coasting trade. The provision commonly inserted in an Act of Congress admitting a new State into the Union, that all the navigable waters shall be common highways and forever free, does not deprive the new State of any of the powers which the original States pos- sessed over such waters within their limits. In such cases the statute usually declares that the State is admitted into the Union on an equal footing with the original States in all respects whatever.® cCardwell v. American Bridge Co., (1885) 113 U. S. 205. The Ordinance of 1787 for the government of the territory of the REGULATION OP COMMEBCE 201 Servitude of Shore and Submerged Soil. ix.^^ The common-law test of the navigability of state and waters, that they are subject to the ebb and flow of owner^p. the tide, is now important only when considering the rights of riparian owners to the bed of the stream, as in some States it governs in that matter.® The ownership of, and sovereignty over, the shore and submerged soil is in the several States and indi- vidual owners under them,'' but this is subject to the servitude in respect of navigation created in favor of the federal government by the Constitution.^ United States northwest of the Ohio river contained a clause declar- ing that certain navigable waters should be common highways and forever free. Upon the admission of any part of the territory as a State, such a limitation ceased to have any operative force, even if it had any after the adoption of the Constitution. " Equality of constitutional right and power is the condition of all the States of the Union, old and new." Escanaba, etc., Transp. Co. v. Chicago, (1882) 107 U. S. 678; Sands v. Manistee River Imp. Co., (1887) 123 U. S. 288; Huse v. Glover, (1886) 119 U. S. 543. = Escanaba, etc., Transp. Co. v. Chicago, (1882) 107 U. S. 678. T New States admitted into the Union since the adoption of the Constitution have the same rights as the original States in the tide waters, and in the lands below the high-water mark, unless Congress made grants of lands below high-water mark of navigable waters in any territory of the United States, and before its admission as a State, in order to perform international obligations, or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several States, or to carry out other public purposes appropriate to the objects for which the United States hold the territory. Shively ». Bowlby, (1894) 152 U. S. 1. A statute granting the right of property in tide-water marsh lands, with power to reclaim and drain, is invalid. Coxe v. State, (1895) 144 N. Y. 396. 8 Gibson v. U. S., (1897) 166 U. S. 269; Illinois Cent. R. Co. v. Illinois, (1892) 146 U. S. 387; Galveston v. Menard, (1859) 23 Tex. 349. Private riparian rights of access are subsidiary to congressional power over commerce. Winifrede Coal Co. v. Central R., etc., Co., (1890) 11 Ohio Dee. (Reprint) 35, 24 Cine. L. Bui. 173. 202 EEGULATION OP COMMEECB Chapter lapter IX. Levy of Tolls for River Improvements. To meet ToUs may be levied upon all who use the rivers incurred. aud harbors improved by the State or xmder its authority, to meet the expenses incurred in improv- ing the navigation, as by the removal of rocks, the construction of dams and locks to increase the depth of water and thus extend the line of navigation, or the construction of canals around falls.** Regu- lating the floating of logs and the exaction of reason- able charges for the use of a boom and its works, including the fees of State oflScials for inspecting and scaling, cannot be considered a burden upon interstate commerce.^ A statute declaring that " it shall be unlawful for any person or corporation to transport, or carry through pipes, conduits, ditches, or canals the water of any fresh-water lake, pond, brook, creek, river, or other stream of this State, into any other State, for use therein," is valid as applied to a tidal stream, the bed of which, so far as the tide ebbs and flows, is the property of the State. McCarter v. Hudson County Water Co., (N. J. 1905) 61 Atl. Rep. 710. » Sands v. Manistee River Imp. Co., (1887) 123 U. S. 288; Huse V. Glover, (1886) 119 U. S. 543; Gloucester Ferry Co. ». Pennsyl- vania, (1885) 114 U. S. 196; Mobile County v. Kimball, (1880) 102 U. S. 691. Charging tolls for improved navigation does not violate the clause of Article I, section 10, of the Constitution, providing that "no State shall, without the consent of Congress, lay any imposts or duties on imports or exports." McReynolds v. Smallhouse, (1871) 8 Bush (Ky.) 447. Nor does it conflict with action by Congress establishing a port of entry and delivery. Thames Bank v. Lovell, (1847) 18 Conn. 500. See also infra, p. 274. 1 Lindsay, etc., Co. v. Mullen, (1900) 176 U. S. 126; Hospes ». O'Brien, (1885) 24 Fed. Rep. 145; Harrigan v. Connecticut River Lumber Co., (1880) 129 Mass. 580; Scott v. Willson, (1825) 3 N. H. 321; Craig v. Kline, (1870) 65 Pa. St. 399. A State may give to a boom company, operating in a limited territory, the right to require compensation from the owners of logs floated singly for releasing them from obstruction in the stream. BEGTJLATION OF COMMBEOB 203 Chapter HABBOB BEGULATIONS. IX. A State may, by its legislature, or through a ^^^°!^% board of harbor commissioners, establish, for the harto""" l^rotection and benefit of commerce and navigation, ■'"'*■ harbor lines in navigable waters, not inconsistent with any legislation of Congress limiting the build- ing of wharves and other structures upon lands not already built upon.^ The power of Congress is not limited to estab- ^2n|ressto lishing harbor lines where none have previously IIStTreru- existed, but it may supersede any regulations that '"'°"'' a State has made, and the same power may be exer- cised in the same place in a different manner as often as the needs of commerce in that locality may require. But if there should be a violation of the laws of the United States by the location of harbor lines by a State, the vindication of the federal laws should be left to the general government, and cannot be invoked in a private suit to restrain State action which it is alleged will invade the property rights of the complainant.^ A State cannot make any regulations respecting state regu- vessels while in a harbor which would amount specting vessels. to regulations of commerce. In Foster v. New Orleans * a State statute was held to be void which Duluth Lumber Co. v. St. Louis Boom, etc., Co., (1883) 17 Fed. Eep. 419. A statute giving to riparian owners compensation for logs drifted on shore is valid. Henry v. Roberts, (1892) 50 Fed. Rep. 902. But a statute granting to county supervisors the right to charge and collect toll for the floating of logs and lumber is invalid. Carson River Lumbering Co. v. Patterson, (1867) 33 Cal. 334. aProsser v. Northern Pac. R. Co., (1894) 152 U. S. 59; Grand Trunk R. Co. v. Backus, (1891) 46 Fed. Eep. 211. sYesler v. Washington Harbor Line Comrs., (1892) 146 U. S. " 646; Navigable Waters, (1899) 22 Op. Atty.-Gen. 501. 4 (1876) 94 U. S. 246. 204 EEGUIiATION OF COMMERCE Chapter IX. Survey of hatches. Display of lights. declared it to be unlawful for any person other than the master and wardens of a port to make any survey' of the hatches of sea-going vessels arriving at the port, or to make any survey of damaged goods going on board, of such vessels. The act was not, in the sense of the Constitution, an inspection law, but its purpose had been declared by the State courts to be to furnish official evidence for the parties immediately concerned, and, where the goods were damaged, to virovide for and regnlste their sale. The power of the States and their local bodies to make general regulations for the government of vessels lying in a harbor was summarized by Chief Justice Taney, in the case of Gushing v. The Ship John Fraser,^ wherein he said that " the local authorities have a right to prescribe at what wharf a vessel may lie, and how long she may remain there, where she may unload or take on board particular cargoes, where she may anchor in the harbor, and for what time, and what description of light she shall display at night to warn the passing vessels of her position, and that she is at anchor and not under sail." The case was one of collision, in which one of the vessels at the time of the collision was lying at anchor in a harbor, and was held to be partly in fault for not displaying the light pre- scribed by the local rules nor the usual signal light of a vessel at anchor at a place where vessels were continually passing.® But in a similar case,^ the vessel at anchor was held not to be at fault in B (1858) 21 How. (U. S.) 184. « So much of a statute as declares in what parts of the waters of the State it shall not be lawful for vessels to anchor is valid. Green V. Steamer Helen, (1880) 1 Fed. Kep. 916. 7 The Steamboat New York v. Rea, (1855) 18 How. (U. S.) 223. BEGULATION OF COMMEBCB 205 failing to show a light in conformity with the local Chapter statutes, but only a light sufficient within the re- " quirements of the admiralty rule. Harbor dues or port charges may be exacted by Harbor^ a State from vessels in its harbors sufficient to meet "="' " meet ex- the expenses incurred by the execution of the regu- ?«"=«=• lations, and as compensation for services actually rendered.® A Louisiana statute, enacting that the master and wardens of the port of New Orleans should be entitled to demand and receive, in addition to other fees, the sum of five dollars, whether called on to perform any service or not, for every vessel arriving in that port, was declared to be invalid as a Regulation of commerce.^ WHABVBS, PIEES, AND DOCKS. A State may directly or through its municipali- state^^^ ties authorize the construction of wharves, piers, ^^^^°u|^ and docks on navigable waters within its limits or ri°g"uute.'° bordering thereon, and may regulate their use, in any manner which does not conflict with existing 8 Harbor Master v. Southerland, (1872) 47 Ala. 511. Fees required for services actually rendered or tendered are not imposts or duties on imports or exports, which the States are for- bidden to lay, by Article I, section 10, of the Constitution. New Orleans v. Ship Martha J. Ward, (1859) 14 La. Ann. 287; New Orleans t). Prats, (1845) 10 Rob. (La.) 459. 9 Southern Steamship Co. v. Portwardens, (1867) 6 Wall. (U. S.) 31. See the discussion in Gloucester Ferry Co. v. Pennsylvania, (1885) 114 U. S. 196. Requiring fees to be paid whether the ofBcer is called upon to render any service or not is a burden upon commerce. Webb v. Dunn, (1882) 18 Fla. 721; Geraghty v. Hackley, (1872) 36 N. J. L. 459; Hackley v. Geraghty, (1870) 34 N. J. L. 332. As to fees for harbor masters and wardens being duties of tonnage, see infra, p. 271. 206 BEGULATION OF COMMERCE Chapter IX. Federal and State power to define line of navigfa- billty. Wharfage. federal regulations.^ The local regulations may- designate places for the landing of vessels.* The channel bank or liae of navigability may be defined by the State in the absence of regulations by Congress, and in the absence of regulations by Congress or by the State or local authorities, the riparian proprietor may erect for himself, or for the use of the public, docks and wharves out to the line of navigability.^ A State may authorize the con- struction of wharves even below low-water mark when Congress has not passed any law affecting the right.* But, as in the case of bridges erected by State authority alone, the risk of congressional interference is assumed, so in erecting wharves or piers below low-water mark, even with local or State authority, their interference with navigation is liable to be abated by federal regulations establish- ing harbor liaes and defining the line of navigability. Wharfage is governed by local laws when there is no Act of Congress on the subject. By the State laws it is generally required to be reasonable, and by those laws its reasonableness is to be judged.^ The rule that wharfage is governed by local laws 1 Pound V. Turck, (1877) 95 U. S. 459; Cincinnati, etc., Packet Co. V. Catlettsburg, ( 1881 ) 105 U. S. 559 ; Parkersburg, etc., Transp. Co. V. Parkersburg, (1882) 107 U. S. 691. 2 Cincinnati, etc., Packet Co. v. Catlettsburg, (1881) 105 U. S. 669. 8 Grand Trunk R. Co. v. Backus, (1891) 46 Fed. Rep. 211. 4 Savannah v. State, (1848) 4 Ga. 26. s Charges to defray the expenses of wharves and other works necessary for the loading and unloading of vessels, and to secure convenient access to them, are not inconsistent with the clause of Article I, section 10, of the Constitution, providing that " no State shall, without the consent of Congress, lay any imposts or duties on imports or exports." St. Louis v. Schulenburg, etc.. Lumber Co., (1882) 13 Mo. App. 56; First Municipality v. Pease, (1847) 2 La. Ann. 538; Worsley v. Second Municipality, (1844) 9 Rob. (La.) 324. REGULATION OP COMMERCE 207 is subject to two restrictions. In the first place, the ChMter rates must not discriminate in favor of vessels ply- ' ing exclusively on the waters of the State, nor against the productions of other States." In the second place, they must not violate the last clause of section 10, Article I, of the Constitution, pro- viding that ' * no State shall, without the consent of Congress, lay any duty of tonnage." This limita- tion is discussed in another place.'' FERRIES. The extent of the power of the States to author- ^'JJft*"^"^ ize and regulate ferries has not been clearly deter- flfrfes'ova mined. The power to regulate ferries over waters waTeVs.'" entirely within their limits is one that may be exer- cised exclusively by the States,^ but whether a State may Kcense and regulate ferries over waters sepa- rating two States is still a debatable question. In an early case, Gibbons v. Ogden^ there is a dictum by Chief Justice Marshall to the effect that laws respecting turnpite roads, ferries, etc., form a portion of that immense mass of legislation which embraces everything within the limits of a State not surrendered to the federal government. Later cases,^ following that suggestion, have sustained the towSg"*' power of one State to grant a license or franchise Chief Justice Ma for a ferry across a navigable river, being the dictum!"' «Guy V. Baltimore, (1879) 100 U. S. 434. See also Broeck v. The Barge John M. Welch, (1880) 2 Fed. Rep. 364. 1 See imfra, p. 272. 8 U. S. V. Jackson, (1841) 26 Fed. Cas. No. 15,458; Mills v. St. Clair County, (1845) 7 111. 197; Marshall v. Grimes, (1866) 41 Miss. 27; Carroll v. Campbell, (1891) 108 Mo. 550. » (1824) 9 Wheat. (U. S.) 1. 1 Fanning v. Gregoire, (1853) 16 How. (U. S.) 524; Conway V. Taylor, (1861) 1 Black (U. S.) 603. 208 EEGTJLATION OF COMMEECB IX. Chapter boundary between the granting State and another State, upon the theory that the nature of the business of ferrying is such that the granting of a privilege on the subject does not regulate interstate commerce. Upon the supposed authority of these cases, the power of a State to exact a license tax for the privi- lege of ferrying across a river lying between two States was affirmed in Wiggins Ferry Co. v. East Doctrine of St. Louis.^ But iu Gloucester Ferry Co. v. Penn- early cases ^ doubted. sylvania^ a statute of Pennsylvania, imposing a tax on the business of landijig and receiving passengers and freight at a wharf in Philadelphia, on trans- portation across the Delaware river from New Jersey, by a ferry company incorporated and domi- ciled in New Jersey, was held to be void as repug- nant to the commerce clause. These cases have been reviewed in a recent case,* wherein the power of a county to recover statutory Transfer penalties uicurred by a transfer company because ^aSs^OTt- it had carried on a ferry for transporting railroad cars. ears from the county to the shore of another State without obtaining a license from the county, as was required by the law of the State, was denied. Mr. Justice White, speaking for the court, observed: " Conceding, arguendo, that the police power of a State extends to the establishment, regulation, and licensing of ferries on a navigable stream, being the boundary between two States, none of the cases justifies the proposition that such power embraces transportation by water across such a river which does not constitute a ferry in a strict technical 2 (1882) 107 U. S. 365. a (1885) 114 U. S. 196. * St. Clair County v. Interstate Sand, etc., Transfer Co., (1904) 192 U. S. 454. BESULATION OF COMMERCE 209 sense; " and he defined a ferry in a strict sense as Ch^ter confined to the transportation of persons with or ' without their property. Though conceding, as above, arguendo, the court strongly intimated that the doctrine of the early cases, that the police power of the States extends to the regulation of ferries over navigable waters constituting boundaries between States, has been modified by the ruling in the Gloucester Ferry case, supra, and by the case of Covington, etc., Bridge Co. v. Kentucky^ wherein it was held that one State has not power to regulate the rates of toll over a bridge connecting that State with another. PILOTS AND PILOTAGE The States have power to legislate concerning statepower pilots and pilotage, as, although such laws are regu- lations of commerce, they fall withiu that class of powers which may be exercised by the States until Congress sees fit to act upon the subject.® The Act ■' passed by the first Congress that met Federal after the adoption of the Constitution, which de- ofsuie ^ ^ ' laws, clared that pilots shall continue to be regulated '' by 5 (1894) 154 TJ. S. 204. Perries are within the scope ^of the adniiralty juriadietion of the federal courts. The Steamboat Cheeseman v. Two Ferryboats, (1870) 2 Bond (U. S.) 363^ 5 Fed. Cas. No. 2,633. 6 Gibbons v. Ogden, (1824) 9 Wheat. (U. S.) 1; Cooley v. Board of Wardens, (1851) 12 How. '(U. S.) 299; Ex p. MoNiel, (1871) 13 Wall. (U. S.) 236; Wilson v.,McNamee, ^(1880) 102 U. S. 572; Olsen V. Smith, (1904) 195 U. S. 332; The South Cambria, (1886) 27 Fed. Eep. 525; The Charles A. Sparks, (1883) 16 Fed. Eep. 480; The William Law, (1882) 14 Fed. Rep. 792; The Alzena, (1882) 14 Fed. Eep. 174; The Clymene, (1882) 12 Fed. Rep. 346, affirming (1881) 9 Fed. Rep. 164; Bamaby v. State, (1863) 21 Ind. 450; Cisco V. Roberts, (1867) 36 N. Y. 292; People v. Sperry, (1867) 50 Barb. (N. Y.) 170; State v. Penny, (1882) 19 S. Car. 218. T Act of August 7, 1789, c. 9. See 5 Fed. vStat. Annot. 747. 14 210 REGTJXiATION OF COMMBBCB Chapter IX. "Federal -statutes paramount. 'Compen- sation of ;3>ilots. such laws as the States may respectively hereafter enact for that purpose " was a clear and authorita- tive declaration that the nature of the subject was such that until Congress shall find it necessary to exert its power it should be left to the legislation of the States ; that it is local and not national ; and that it is likely to be best provided for, not by one system or plan of regulations, but by as many as the legislative discretion of the several States should deem applicable to the local peculiarities of the ports within their limits. Acts of Congress have been passed regulating the employment of any pilot licensed by either of the States divided by boundary waters, and the employment of pilots on coastwise vessels, and also prohibiting discrimination in the rate of pilotage. These laws, and any which Con- gress may see fit to enact on the subject, supersede only such State legislation as directly conflicts there- with,^ and even where a State statute contains a conflicting provision, the statute will otherwise be given operation when the Supreme Court of that State has, by construction, eliminated the objection- able provision.^ Laws regulating the compensation of pilots have been passed by the maritime States, in some in- stances providing that when a vessel is spoken by a pilot, and his services declined, he should be enti- tled to compensation, generally one-half pilotage fees, and such laws have been declared to be within 8 Thompson v. Darden, (1905) 198 U. S. 310; Spraigue v. Thomp- Bon, (1886) 118 U. S. 90, reversing (1882) 69 Ga. 409; Pacific Mail Steamship Co. v. Joliflfe, (1864) 2 Wall. (U. S.) 450. See Freeman V. The Undaunted, (1889) 37 Fed. Rep. 662; The Alameda, (1887) 31 Fed. Kep. 366; Chapman v. Miller, (1844) 2 Spears L. (S. Car.) 769. sOlsen V. Smith, (1904) 195 U. S. 332. BEGULATION OP COMMEEOB 211 the power of tlie States to enact.* In Wilson v. Chapter McNamee,^ wherein was questioned the validity of ' the New York statute requiring the payment of com- pensation when services have been tendered, though the master of a vessel may have refused to accept the services of the pilot, it was objected that the services were tendered outside the iurisdiction of Haifpuot- " age on the State of New York. But the court held that a »«?^?f^/ vessel at sea is considered as a part of the territory to which it belongs when at home, and that the pilot, upon his boat, had the same authority from the laws of New York to tender and demand employment, and the same legal consequences, under the circum- stances, followed the refusal of the master, as if both vessels had then been infra fauces terree, where the mimicipal jurisdiction of the State was complete and exclusive. This principle, said the court, by Mr. Justice Swayne, " is, of course, subject to the paramount authority of the Constitution and laws of the United States over the foreign and inter- state commerce of the country, and the commercial marine of the country engaged in such commerce, 1 " If the services are accepted, a contract is created between the master or owner of the vessel and the pilot, the terms of which, it is true, are fixed by the statute; but the transaction is not less a contract on that account. If the services tendered are declined, the half fees allowed are by way of compensation for the exertions and labor made by the pilot, and the expenses and risks incurred by him in placing himself in a position to render the services, which, in the majority of cases, would be required. The transaction, in this latter case, between the pilot and the master or owners, cannot be strictly termed a contract, but it is a transaction to which the law attaches similar consequences; it is a qiMsi contract. The absence of assent on the part of the master or owner of the vessel does not change the case. In that large class of transactions designated in the law as implied contracts, the assent or convention which is an essential ingredient of an actual contract is often wanting." Per Mr. Justice Field, writing the opinion of the court, in Pacific Mail Steamship Co. V. JoHffe, (1864) 2 Wall. (U. S.) 450. 2 (1880) 102 U. S. 572. 212 EEGCTLATIOISr OF COMMEECE Chapter IX. Preference to ports of one State. and subject also to the like power of Congress ' to define and punish piracies and felonies committed on the high seas and offenses against the law of nations.' "^ Clause 6, section 9, of Article I of the Constitu- tion, which provides that no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another, does not deny to Congress the power to permit the several States to adopt pilotage regulations.* Power of Congress to construct. Authority of State over canal not con- nected with navigable waters. CANALS. Congress no doubt has power to construct or authorize the construction of canals and waterways to connect navigable bays, harbors, and rivers with each other or with the interior of the country for the accommodation of interstate commerce, and to prescribe regulations for their use and protection.^ A canal constructed by a State, or a watercourse partaking of the character of a canal, exclusively within the interior of a State, not connecting other navigable waters, and made practicable for naviga- 3 It has been said that the ground of the recognition and approval of the right of the States to establish pilotage regulations has been the Beoessity of conforming ihe regula/tions to the local peculiar- ities of each port, and that when that is satisfied, any further inter- ference with commerce is as liable to objection as any other com- mercial regulation. Williams v. The Lizzie Henderson, (1880) 29 Fed. Cas. No. 17,726a. * Thompson v. Darden, (1905) IflS U. S. 310. A State pilotage law which is found to be within the appropriate line which limits laws for the regulation of pilots and pilotage, and which imposes half pilotage whrai a pilot is not received, is not repu^ant to the clause of Article I, seetiom 8, of the Constitution, which declares that all duties, imposts, and excises shall be uniform throughout the United States, nor is it in effect an impost or duty on imports or exports or a duty of tonnage within the meaning of Article I, section 10. Cooley v. Board of Wardens, (1851) 12 How. (U. S.) 299. 5 Stockton V. Baltimore, etc., R. Co., (1887) 32 Fed. Eep. 9. EEGULATION OF COMMERCE 213 tion by the funds of the State, or by privileges it Chapter may have conferred for the accomplishment of the " same end, is exclusively within the power of the State to regulate,^ and a license procured from the United States to prosecute the coasting trade con- veys no privilege to the vessel licensed to use such canals and improved waterways free of tolls or of any conditions whatever. In this connection it is of interest to note, though Admiralty ' ° jurisdiction. not strictly concerning the subject of commerce, that it has been held that a United States admiralty court had jurisdiction in rem in the case of a collision between two canal boats of more than twenty tons burden, one of which was in tow and the other pro- pelled by steam, which occurred on a canal used as a highway for commerce between ports in different States, though the canal was wholly artificial, and wholly within the body of a State, and subject to its ownership and control, and though one or the other of the vessels was at the time of the collision on a voyage from one place in the State to another place therein.'^ The ease of The Robert W. Par- sons * was one also of admiralty jurisdiction, wherein it was decided that a contract for the repair of a canal boat while lying on a drydock in a canal wholly within the limits of a State, connecting navigable waters, was within the exclusive jurisdiction of admiralty. « Veazie v. Moor, (X852) 14 How. (U. S.) 568. In an opinion given to the Secretary of War on February 10, 1899, Attorney-General John W. Griggs said: "Canals being arti- ficial waterways are likewise means of commercial transportation, as well as natural lakes and rivers, and the same principles may be applied to them that are applied to bridges, turnpikes, streets, and railroads." Navigable Waters, (1899) 22 Op. Atty.-Gen. 332. TEa; p. Boyer, (1884) 109 U. S. 629. 8 (1903) 191 U. S. 17. CHAPTER X. SHIPS AND SHIPPING. GENERAL POWEES OF CONGBESS AND THE STATES. Chapter A S instruments of intercourse and trade, ships t,^ter p^ and vessels, as well as the officers and sea- Powerof men employed in their navigation, are em- Congress and"r^s' braced in the power of Congress to regulate com- merce.^ A law or rule emanating from any lawful authority which prescribes terms or conditions on which alone a vessel can discharge its passengers is a regulation of commerce, and, in the case of vessels and passengers coming from foreign ports, is a regulation of commerce with foreign nations, and Use by for- canuot be adopted by a State.^ Congress may per- SPtaprove- mit or prohibit the entrance into United States ments pal- '■ tws^coun- ports of any foreign ship which in its construction "^- or equipment uses any improvement patented in this country, or may prescribe the terms and regulations upon which such vessel shall be allowed to enter. The rights of property and exclusive use granted to a patentee do not extend to a foreign vessel lawfully entering, and the use of such improvement, in the construction, fitting out, or equipment of such vessel, while she is coming into or going out of a port of the United States, is not an infringement of the rights of a patentee, provided it was placed upon 1 state Tonnage Tax Cases, (1870) 12 Wall. (U. S.) 204. 2 Henderson v. New York, (1875) 92 U. S. 259. EBGTJLATIOIir OF COMMEBCE 215 her in a foreign port, and authorized by the laws of Ghapter the country to which she belongs.' Acts of Congress making it a criminal offense to f^?^*^', plunder vessels in distress,* to board a vessel before '»"»• arrival.* or to enter into a conspiracy to cast away any vessel,® are within the power of Con- gress to regulate commerce by means of water transportation. Local police regulations respecting vessels ply- fe'iJSP'*"'^* ing the navigable waters of a State may be enforced, ''°"' however, when they do not conflict with federal regu- lations. Thus a statute requiring vessels to be pro- vided with fire screens,'' and a municipal ordinance prohibiting the emission of dense smoke from boats,* have been held to be valid. INSPECTION AND LICENSING. Congress may provide and has provided for the enrolment and licensing of vessels engaged in the coasting trade.^ Ships or vessels of the United States, within the meaning of Acts of Congress, are those which are registered and enrolled under fed- 3 Brown v. Duchesne, (1856) 19 How. (U. S.) 183. *Rev. Stat. U. S., | 5358, 7 Fed. Stat. Annot. 87; U. S. v. Coombs, (1838) 12 Pet. (U. S.) 72. 5 Rev. Stat. U. S., § 4606, 7 Fed. Stat. Annot. 86; U. S. v. Ander* son, (1872) 10 Blatchf. (U. S.) 226, 24 Fed. Cas. No. 14447. 8 Rev. Stat. U. S., § 5364, 7 Fed. Stat. Annot. 89; U. S. v. Cole, (1853) 5 McLean (U. S.) 513, 25 Fed. Cas. No. 14832. 7 Burrows v. Delta Transp. Co., ( 1895 ) 106 Mich. 582. s Harmon v. Chicago, (1884) 110 111. 400. »Sinnot v. Davenport, (1859) 22 How. (U. S.) 227. Boats wholly engaged on ferries within a State, and owned in- such State, are subject to Acts of Congress requiring steamboats to be licensed and inspected. U. S. v. Jackson, (1841) 26 Fed. Cas. No. 15,458; The Steamboat Sunswick, (1872) 6 Ben. (U. S.) 112, 23 Fed. Cas. No. 13,624; Inspection of Steam Ferry Boats, (1884)> 18 Op. Atty.-Gen. 16. 216 EBGTILATION OF COMMEECB Chapter eral statutes.^ In The Daniel Ball^ the question was presented whether Acts of Congress requiring the Vessel ply- inspection and licensing of vessels are applicable Smrstete. to a steamer engaged as a common carrier between places in the same State, when a portion of the merchandise transported by her is destined to places in other States, or comes from places without the State, she not rimning in connection with or in con- tinuation of any line of steamers or other vessels, or any railway line leading to or from another State. The Daniel Ball was a vessel propelled by steam, engaged ia navigating Grand river iu the State of Michigan, and to recover the penalty pro- vided for want of inspection and license imder Acts of Congress a libel was filed by the United States. The court laid down the rule that " the fact that several different and iadependent agencies are em- ployed in transporting the commodity, some acting entirely in one State, and some, acting through two or more States, does ia no respect affect the char- acter of the transaction. To the extent in which each agency acts in that transportation, it is subject to the regulation of Congress," and while mindful that the case related to transportation on navi- gable waters, intimated that the rule might apply to interstate commerce when carried on by land transportation, i-igiiters A steamboat engaged as a lighter and towboat,* and tug- boats. or simply as a tugboat,* is entitled to the privileges resulting from federal enrolment and to exemption from burdens imposed by State regulation. 1 WHte's Bank t). Smith, (1868) 7 WalL (U. &) 646. 2 (1870) 10 Wall. (U. S.) 55,7. 3 Foster v. Da-cemport, (1859) 22 How. (U. 8.) 244. 4Harman v. Chicago, (1893) 147 U. S. 396. RBGTJLATION OF COMMEBCE 217 Vessels enrolled and liceiHiSedv pursuant to the Ch^er laws of the United States, have conferred: upon them " as full and complete authority to carry on the coast- f *=^^°'„t ing, foreign, and interstate trade as it is in the and license. power of Congress to confer.^ Such enrolment and license, nevertheless, confer no right that should be derived from State permission nor immunity from the operation of the valid laws of a State. They do not give a vessel any ferry rights,® and if a vessel of the United States engaged in commerce between two States be interrupted therein by a law of the State, the seizure, detention, and forfeiture of such vessel may be authorized in the enforcement of the State law, as in the case of such a law prohibiting the use of particular instruments in dredging for oysters.'^ EECOEDING ACTS. Matters pertaining to the title and property of J^^/^l vessels of the United States may be regulated by ^''^^■ Congress, and include recording acts enacted for the protection of bona ftde purchasers and mort- gagees. Such a statute was the Act of Congress of July 29, 1850,® providing,, in part, " that no bill of sale, mortgage, hypothecation, or conveyance of any vessel, or part of any vessel of the United States, shall be valid against any person other than the grantor or mortgagor, bis heirs and devisees, and persons having actual notice thereof, unless such bill of sale, mortgage, hypothecation, or con- veyance is recorded in the office of the collector of B Gibbons «. Ogden, (1824) 9 Wheat. (U. S.) 1. 6 Conway v. Taylor, (1861) 1 Black (U. S.) 603. 7 Smith V. Maryland, (1855) 18 How. (U. S.) 71. 8 This part of the statute was brought forward into Kev. Stat. U. S., I 4192, 7 Fed. Stat. Annot. 42. 218 BEGULATION OF COMMEBCE Chapter the customs, where such vessel is registered or en- ' rolled," and the recording of a mortgage under the act protects the interest of the mortgagee against subsequent purchasers or mortgagees by its own force, irrespective of any State law on the subject.^ State regis- A State canuot require owners of such vessels tration . j ■ ii '»"*. to comply with State regulations respectmg the registration of vessels, when such regulations im- pose conditions upon the privilege of navigating the waters of the State in addition to those required by federal laws,^ and a statute which provides that a mortgage given to secure a note which does not on its face show that it is secured by a chattel mort- gage, shall be absolutely void, is inapplicable to a mortgage on a vessel recorded under an Act of Congress.^ 9 Aldrich v. Mtna. Ins. Co., (1869) 8 Wall. (U. S.) 491; White's Bank v. Smith, (1868) 7 Wall. (U. S.) 646; Shaw v. McCandless, (1858) 36 Miss. 296. 1 Such a law, passed by the State of Alabama in 1854, providing that it should be the duty of the owners of steamboats navigating the waters of the State, before such boat should leave a port of the State, to file in the office of the probate judge a statement in writing, Betting forth the name of the steamboat and of the owner or owners, his or their place or places of residence, and their interest therein, which statement should be signed and sworn to by the owners, or their agent or attorney, and which statement should be recorded by the said judge of probate; and also, in case of a sale of said boat, making it the duty of the vendee to file a statement of the change of ownership, his place of residence, and the interest transferred, which statement was required to be signed by the vendor and vendee, his or their agent or attorney, and recorded in the office of the afore- said judge, was held to be invalid, in Sinnot v. Davenport, (1859) 22 How. (U. S.) 227. 2 The Gordon Campbell, (1904) 131 Fed. Rep. 963. State statutes providing that a mortgage of personal property shall not be valid unless possession of the mortgaged property be delivered to, and retained by, the mortgagee, or unless such mort- gage shall be duly recorded in the place in which the property shall be at the time of the mortgage, or in the place in which the mort- EEGTJLATION OF COMMEBCE 219 BEGtTLATING COMMERCE AND ADMIRALTY JURISDICTION. Chapter lapti But the question as to what vessels may be re- quired to conform to the regulations prescribed by Congress, whether those engaged in interstate and foreign commerce or all vessels navigating the navi- gable waters of the United States, can be deter- mined by reference to the decisions of the United States Supreme Court only to a limited extent. The necessity of keeping in mind the dual power of the federal government over navigable waters, under the power to regulate commerce, and also under the grant of admiralty and maritime juris- diction, involves the questions, as they arise, in some doubt.^ With respect to the power to regulate commerce, it must be conceded that Congress has power to pre- scribe the law of the highway, so far as may be necessary to protect interstate and foreign com- merce, and to promote the safety and convenience of navigable waters considered as highways of commerce. To federal regulations having that ob- ject all vessels must conform, whether they are engaged in foreign or interstate commerce, in purely intrastate commerce, or in no commerce at all as in the case of pleasure yachts. All such vessels must comply with the rules prescribed for the prevention of collisions, such as rules concerning lights, signals, and steering and sailing, and for the qualifications and licensing of pilots and engineers.* gagoT resides, are invalid as conflicting with the Acts of Congress above referred to. Mitchell v. Steelman, (1857) 8 Cal. 363; Cun- ningham V. Tucker, (1873) 14 Fla. 251; Wood v. Stockwell, (1867) 55 Me. 76. 3 See supra, p. 194. * While a rule of navigation prescribed by the law of a State, as All vessels to conform to federal rules of the highway. 220 REGTTLATION OF COMMEECE Chapter To the grant of admiralty and maritime juris- ' diction may probably be referred tbe power of Con- number^of S^ess to prescribe rules, and to declare penalties for -Preclu" their violation, respecting the carrying of more alaLtfire. passengsrs than allowed by law,^ and precautions to be taken against fire/ even as applied to vessels engaged in intrastate trade. Lawofves- The power to prescribe the rules by wMeh navi- sel-owner's . '^ , . liabuity. gatioH shall be governed, necessarily mvolves the right to declare the liability of the owners of vessels plying on navigable waters of the United States to the lights a vessel shall carry, is; binding, upon the courts of the State, it cannot regulate the deeiaions, of the federal courts,: admin- istering the general admiralty law. They can be governed only by the principles peculiar to that system, generally recognized in maritime countries, as modified by Acts of Congress; The Steam- boat New York v. Rea, (1855) 18 How. (U. S.) 223. sThe City of Salem, (1889) 37 Fed. Rep. 846; The Hazel Kirke, (1885) 25 Fed. Rep. 601. Requiring laws for the safety of passengers to be conspicuously posted on vessels is within the power of Congress, under this clause and the clause respecting admiralty and maritime jurisdiction. The Lewellen, (1868) 4 Biss. (U. S.) 156, 15 Fed. Cas. No. 8307. 6 The Garden City, (1886) 26 Fed. Rep. 766. But in The Gretna Green, (1883) 20 Fed. Rep. 901, which was an action to recover statutory penalties because barges, carrying passengers on excursions, and being towed, were not provided with the means of safety for carrying passengers prescribed by Acts of Congress, the court said: "The complaint is that the barges were not provided with the means of safety for passengers as prescribed by Congress. They were in tow of a steamer which, the petition shows, was regularly enrolled and licensed, and subject to the laws of Congress. It may be that Congress has: the power to prescribe the law of the highway so far as may be necessary to protect the interstate commerce, but no court will lindertake to expound the Constitution and declare incidental powers, unless the question is directly presented, and the case imperatively requires it. The steamer which had these barges in tow being subject to the naviga- tion laws of the United States, the mere fact that she- took in tow the barges had nothing to do with any interference with the proper navigation of the Ohio river." EEGtTLATIOW OP COMMERCE 221 or the Mgh seas for infractions of the regulations Chapter prescribed, though the vessels are engaged in the " transportation of passengers and goods between ports and places in the same State.''^ The power of Congress to legislate respecting the limitation of vessel-owners' liability is not, however, limited by the commerce clause. Such a law is one in amend- ment of the maritime law of the country, and the power of Congress to make amendments of the maritime law has been held to be coextensive with that law.* But with reference to the rights and Application liabilities of persons engaged in commerce, the laws l.^'^jf^f^^^ of the States govern in matters upon which the ''^''"'"es. laws of Congress are silent; and in the absence of federal regulations touching the liability of parties for marine torts resulting in the death of persons injured, a State statute giving a right of action in such cases to the personal representatives of the deceased constitutes no encroachment upon the com- mercial power of Congress.® State statutory liens enforceable in admiralty state statu- , , . . -, J, tory liens in rem when the lien is asserted as an incident of a ^°'',?2p?"** maritime debt for necessary supplies or materials furnished, or for repairs or labor on the credit of the ship, cannot be treated as burdens npon com- merce or classed with laws intended to interfere with freedom of commercial intercourse.^ In John- son V. Chicago, etc., Elevator Co? the validity of a TLord V. Goodall, etc., Steamship Co., (1880) 102 U. S. 541. s/ra re Garnett, (1891) 141 U. S. 1. See Providence, etc.. Steam- ship Co. V. Hill Mfg. Co., (1883) 109 U. S. 578. sSherJock v. Ailing, (1876) 93 U. S. 99. iThe Lottawamna, (1874) 21 Wall. (U. S.) 558; The Robert Dollar, (1902) 115 Fed. Kep. 218; The Del Norte, (1898) 90 Fed. Eep. 506. 2 (1886) 119 U. S. 388. or labor. 222 REGULATION OF COMMERCE Chapter X. State statute was questioned giving a lien by attach- ment in a suit in personam on water craft used in navigating tlie waters of the State, for damages arising from injuries done to persons or property through negligence. The suit was brought in the State court to recover damage to a warehouse by the negligent towing of a schooner, and, in sustain- ing the validity of the statute, the court said that " the proceeding to enforce the lien, in this case, was not such a regulation of commerce among the States as to be invalid, because an interference with the exclusive authority of Congress to regulate such commerce, any more than regulations by a State of the rates of wharfage for vessels, and of remedies to recover wharfage, not amounting to a duty of ton- nage, are such an interference because the vessels are engaged in interstate commerce." Federal regulations for the pro- tection of seamen. REGULATIONS AFFECTING SEAMEN. Mr. Justice Brewer, speaking for the court, in Patterson v. Bark Eudora^ said that " it is within the power of Congress to protect all sailors shipping in our ports on vessels engaged in foreign or inter- state commerce, whether they belong to citizens of this country or of a foreign nation." In that case it was held that an Act of Congress making it unlaw- ful to pay any seaman wages in advance, making such payment a misdemeanor, and in terms provid- ing that such payment shall not absolve the vessel or its master or owner from full payment of wages after the same shall have been actually earned, is valid as applied to contracts of sailors for services interstate and foreign.* The liberty of contract guaranteed by the Constitution does not extend to » (1903) 190 U. S. 169. *Act of Congress of June 26, 1884, c. 121, § 10, as amended by REGULATION OF COMMEBCB 223 such contracts, as, said tlie learned justice, " Con- Chapter tracts with sailors for their services are, as we have , . seen, exceptional in their character, and may be sub- consutu- I ' •/ tionalguar- jected to special restrictions for the purpose of ugeifty of securing the full and safe carrying on of commerce '=°'»*™"='- on the water. Being so subject, whenever the con- tract is for employment in commerce, not wholly within the State, legislation enforcing such restric- tions comes within the domain of Congress, which is charged with the duty of protecting foreign and interstate commerce."^ That such contracts are not within the spirit of Requirine -'■ seamen to constitutional prohibitions is further illustrated by contacts, the case of Robertson v. Baldwin,^ in which Acts of Congress, in so far as they required seamen to carry out contracts contained in their shipping articles,'^ were held not to be in conflict with the Thirteenth Amendment of the Constitution, forbidding slavery and involuntary servitude. The federal statute im- posing a penalty for harboring or secreting seamen * "||J'°n'afd has been repealed,^ but State statutes prohibiting ^^''^^f^^^*" aiding or enticing seamen to desert while in the waters of the State, have been held to be valid, when there is no Act of Congress on the subject.^ If a State statute should prohibit sailors of foreign vessels from loading or unloading their own vessels, it would be to that extent invalid.^ the Act of June 19, 1886, e. 421, § 3, and the Act of December 21, 1898, c. 28, § 24; 6 Fed. Stat. Annot. 871. B See also Ex p. Pool, ( 1821 ) 2 Va. Cas. 276. 6 (1897) 165 U. S. 275. 7 Rev. Stat. U. S., §§ 4598 and 4599, repealed by the Act of December 21, 1898, c. 28, § 25. 8 Rev. Stat. U. S., § 4601, 6 Fed. Stat. Annot. 918. 9 Act of December 21, 1895, c. 28, § 25, 6 Fed. Stat. Annot. 870. 1 Handel v. Chaplin, (1900) 111 Ga. 800; Ex p. Young, (1900) 36 Oregon 247. 2 Cuban Steamship Co. v. Fitzpatrick, (18,95) 66 Fed. Rep. 63. Chapter XI. Genera] rules. Wheeling Bridge Cases. B CHAPTEE XI. BEIDGES. EIDGrES over navigable streams wMcli are entirely within the limits of a State are of the class of subjects on which the power of the State may be exercised as local in their nature,^ and by concurrent action two States may bridge waters between them.^ The power of the States is subordinate to that of Congress,^ but to render the action of a State invalid, the general government must directly interfere.* The first cases involving the power of Congress and of the States were the Wheeling Bridge Cases? A comparison of these cases with more recent ones, recognizing bridges as proper subjects of local legis- lation, subject to the paramount power of Congress, shows how, in the early days of constitutional con- struction, it was necessary for the federal Supreme Court occasionally to explain previous decisions in iCaTdwell v. American Bridge Co., (1885) 113 U. S. 205; Escanaba, etc., Transp. Co. v. Chicago, (1882) 107 U. S. 678. 2 Decker v. Baltimore, etc., R. Co., (1887) 30 Fed. Rep. 723. 3 In 1;he absence of action by Congress, the power of the States to regulate or abate is plenaiy. Navigable Waters, (1891) 20 Op. Atty.-Gen. 101; Rhea v. Newport News, etc., R. Co., U892) 50 Fed. Rep. 16; Green, etc.. River Nav. Co. v. Chesapeake, etc., R. Co., (1888) 88 Ky. 1; State v. Leighton, <1891) 83 Me. 419; Talbot County V. Queen Anne's County, (1878) 50 Md. 245; Dover v. Ports- mouth Bridge, (1845) 17 N. H. 200. 4 Escanaba, etc., Transp. Co. v. Chicago, (1882) 107 U. S. 678. 5 Pemisylvania v. Wheeling, etc., Bridge Co., jlSSI) 13 How. {U. S.) 518, (1855) 18 How. (U. S.) 421. BE6TTLATI0N OF COMMEECB 225 a manner which even very careful investigation Chapter would consider little if any removed from an atti- ' tude of directly overruling them. The cases were heard upon the equity side of the court in the exer- cise of its original jurisdiction, the State of Penn- sylvania being the party complainant. That State owned certain valuable public works, canals and rail- ways, constructed at great expense as channels of commerce, for the transportation of passengers and goods, from which a large revenue, as tolls, was re- ceived by the State. The works terminated on the Ohio river, and were constructed with direct refer- ence to its free navigation. The bills filed by the State charged the Wheeling and Belmont Bridge Company, a corporation chartered by the State of Virginia, with having constructed its bridge so low as to cause material obstruction to the commerce of the Ohio river, and especially injurious to the lines of improvement in the construction of which the State had expended several millions of dollars. Upon the final hearing in the first case, the court adopted the report of the commissioner, based upon a mass of testimony, and found as a fact that the bridge was an obstruction to navigation, that the State of Pennsylvania was entitled to relief, and decreed that the obstruction be removed, either by elevating the bridge to a height designated or by abatement. In the course of the opinion, written by Mr. Justice McLean, to the objection that there was no Act of Congress prohibiting obstructions on the Ohio river, the court said: " Congress have not declared in terms that a State, by the con- struction of bridges, or otherwise, shall not obstruct the navigation of the Ohio, but they have regu- lated navigation upon it, as before remarked, by 15 226 EBGTJLATION OP COMMBECE aj>ter licensing vessels, establishing ports of entry, im- _ posing duties upon masters and other officers of boats, and inflicting severe penalties for neglect of those duties, by which damage to life or prop- erty has resulted. And they have expressly sanc- tioned the compact made by Virginia with Ken- tucky, at the time of its admission into the Union, ' that the use and navigation of the River Ohio, so far as the territory of the proposed State, or the territory that shall remain within the limits of this Commonwealth lies thereon, shall be free and com- mon to the citizens of the United States.' " But this is no more than has been done by Congress with reference to the other navigable waters of the United States, and the power of Congress in the particular matter under consideration, as was said by Chief Justice Taney, in a dissenting opinion, had not been exercised. Soon after the rendition of this decree an Act of Congress was passed declaring the bridge to be a lawful structure in its then position and elevation. Shortly thereafter the bridge was blown down by a violent storm, and the company was preparing to rebuild it according to the original plan, when the State moved for a temporary injunc- tion before one of the justices of the Supreme Court, 'v^rhich was granted. The court held upon the final hearing in this case that as an Act of Congress had (■declared the bridge to be a lawful structure, it could ■not be considered an obstruction to navigation in -contemplation of law, although it still might be so in fact, and dissolved the injunction. In the course -of the opinion in this second case, Mr. Justice Nelson, referring to the first case, said: " It was claimed, however, that Congress had acted upon the subject •and had regulated the navigation of the Ohio river, EEGULATION OF COMMERCE 227 and had thereby secured to the public, by virtue of Chapter its authority, the free and unobstructed use of the ' same ; and that the erection of the bridge, so far as, it interfered with the enjoyment of this use, was inconsistent with and in violation of the Acts of Congress, and destructive of the right derived under them; and that, to the extent of this interference with the free navigation of the river, the act of the legislature of Virginia afforded no authority or justification. It was in conflict with the Acts of Congress, which were the paramount law. ' ' But it may be safely said that no one can read the opinion in the first case, apart from the subsequent judicial explanations, without concluding that the court put its decision upon the broad ground that it possessed an independent jurisdiction in equity to declare a bridge across a navigable stream, the erection of which had not been authorized by Congress, to be an obstruction to navigation, and as such to be a public nuisance, and to order its abatement. The court has never since assumed, and perhaps has not had occasion to assume, this position, and it is prob- able, in the case of an obstructing structure erected by authority of a State, but without authority of Congress, that the court would await positive action by the political department of the federal government. The paramount authority being in Congress, its Fe'J.erai^j"- sovereign powers may be exercised, directly or construct through a corporation created for that object, to construct bridges for the accommodation of inter- state commerce by land, without the consent of the State,® and it may authorize the erection of neces- eLuxton v. North River Bridge Co., (1894) 153 U. S. 525; Pennsylvania R. Co. v. Baltimore, etc., R. Co., (1888) 37 Fed. Rep. 129; Stockton v. Baltimore, etc., R. Co., (1887) 32 Fed. Rep. 9. 228 EEGUIiATION OF COMIVIEBCE Chapter XI. Power to declare bridges lawful or unlawful. Power of Congress to require removal — Taking of private property. sary piers upon lands under water.'^ When Con- gress chooses to act it is not concluded by anything that the States, or individuals by their authority, have done. Congress may declare certain bridges to be law- ful * or unlawful structures,* and abate any erections that may have been made, remove offending bridges, and punish those who shall thereafter erect them.* In so doing Congress determines between the rival and conflicting claims of those who use the bridge as a highway, and those who use the river as a high- way, which must yield to the other, and how f ar.^ Those who act on State authority alone neces- sarily assume all the risks of legitimate con- gressional interference. When Congress has not authorized the erection of a bridge, but a State has, the action of Congress in requiring its removal can- not be regarded as a " taking of private property " within the meaning of the Fifth Amendment.^ And when congressional permission is given upon con- 7 Stockton V. Baltimore, etc., R. Co., (1887) 32 Fed. Rep. 9; Decker v. Baltimore, etc., R. Co., (1887) 30 Fed. Rep. 723. 8 Clinton Bridge, (1870) 10 Wall. (U. S.) 454. Though it in fact does impede steamboat navigation. Pennsylvania v. Wheeling, etc.. Bridge Co., (1855) 18 How. (U. S.) 421. When the erection of a bridge is sanctioned by Congress, it is not a lawful structure unless as built it conforms to the terms and limitations of the authority. Pennsylvania R. Co. v. Baltimore, etc., R. Co., (1888) 37 Fed. Rep. 129. 9 When Congress has declared a bridge to be an unlawful struc- ture, no legislation of a State can make it lawful. Newport, etc., Bridge Co. v. V. S., (1881) 105 U. S. 470. See also U. S. v. Keokuk, etc.. Bridge Co., (1891) 45 Fed. Rep. 178; Decker v. Baltimore, etc.. R. Co., (1887) 30 Fed. Rep. 723. 1 Willamette Iron Bridge Co. v. Hatch, (1888) 125 U. S. 1; Gil- man V. Philadelphia, (1865) 3 Wall. (U. S.) 713. 2 Winifrede Coal Co. v. Central R., etc., Co., (1890) 11 Ohio Dec. (Reprint) 35, 24 Cine. L. Bui. 173. 3 Navigable Waters, (1896) 21 Op. Atty.-Gen. 430. REGULATION OF COMMEBCB 229 dition that it may be revoked at any time if the Ct^ter bridge shall be found detrimental to navigation, ' the existence of the franchise is dependent upon the will of Congress, and the grantee assumes all the risks of loss arising from any exercise of the power which Congress has seen fit to reserve.* The action of Congress in declaring a bridge to fj'*''^''""^^ be a lawful structure, whereby it is claimed the gy^uSor- interruption of the navigation of vessels engaged in j-uptloiTtr commerce, and the delay and expense arising there- ""'nation, from, stop the trade and business at one port or divert the same in some other direction or channel of commerce, is not a violation of the prohibition contained in Article I, section 9, of the Constitution, declaring that " no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another. ' ' ^ The Act of Congress of September 19, 1890, ch. f^^l'l^^ 907, conferred on the Secretary of War, when he has reason to believe that any bridge over any navigable waterway is an unreasonable obstruction to free navigation, authority to give notice to the owners so to alter the same as to render navigation reason- ably free. In Lake Shore, etc., R. Co. v. Ohio ® it was held that the statute does not deprive the States of authority to grant power to bridge such streams, or to render lawful all bridges previously built with- 4 Newport, etc., Bridge Co. v. V. S., (1881) 105 U. S. 470. « Pennsylvania v. Wheeling, etc.. Bridge Co., (1855) 18 How. (U. S.) 421. Though a port of entry has been created by Congress above a bridge, a court of the United States is without authority to restrain its erection, when the bridge has been authorized by a State over a navigable river lying wholly within the limits of the State. Milnor V. New Jersey R. Co., (1857) 3 Wa!l. (U. S.) appendix, 782, 17 Fed. Caa. No. 9620. 6 (1897) 165 U. S. 365. State action 230 KEGtTLATION OF COMMEBCE Chapter out authority, but simply creates an additional and •^^' cumulative remedy to prevent such structures, although authorized by the States, from interfering with commerce. When a bridge is constructed in accordance with both State and federal require- ments, it must be deemed a lawful structure and cannot be treated as a public nuisance/ Reguiat- Congress undoubtedly has power to regulate the Pow«of tolls on bridges used in interstate transportation. Coneress. ° , This right has even been asserted and sustamed m the case of a bridge between one of the United States and a foreign country. A corporation was organ- ized pursuant to concurrent legislation on the part of New York State and of Canada, authoriz- ing a New York corporation and a Canadian cor- poration to consolidate and enjoy the franchises conferred by the legislation of the respective sov- ereignties. Under these acts the corporation was authorized to build and maintain a bridge across the Niagara river for the passage of persons on foot and in carriages, and for the passage of railway trains, and to fix and demand tolls for the use of the bridge and its approaches. As this river is a public navigable stream, it has been held that Con- gress had power to prescribe the compensation which the bridge company might charge for the use of its property, notwithstanding that by the State and Canadian legislation no limitation upon the rates of toll to be charged for the use of the bridge by railway trains was imposed, but the directors were empowered expressly or by implication to charge such tolls as they might deem expedient.* T Miller v. New York, (1883) 109 U. S. 385. 8 Canada Southern R. Co. v. International Bridge Co., (1881) 8 Fed. Rep. 190. EEGTJLATION OF COMMERCE 231 A State has power to regulate the rates of toll Chapter on bridges over navigable waters wholly within the " State, subject to the paramount authority of Con- l^°J gress, but in the case of a bridge connecting two JX'*'* States, such a power does not rest in one of the adjoining States, though it would seem that they have the power by reciprocal action to fix upon a tariff which shall be operative upon both sides of the river, always, of course, subject to the same paramount authority.® » Covington, etc., Bridge Co. v. Kentucky, (1894) 154 U. S. 204. CHAPTEE Xn. SUNDET SUBJECTS OF KEGULATION. Chapter XII. Subject to local regu- lations. T WAEEHOUSES AND , ELEVATORS. HE regulation of warehouses and elevators is a matter of domestic concern, as the business is carried on within the limits of the State. Incidentally they may become connected with inter- state commerce, but not necessarily so, and until Con- gress acts in reference to their interstate relations, the State may exercise all the powers of govern- ment over them, even though in so doing it may indi- rectly operate upon commerce outside its immediate jurisdiction. An Illinois statute prescribing the maximum rates for storing and handling grain in public warehouses,^ and a North Dakota statute de- claring elevators to be public warehouses and regu- lating their charges,^ have been held not to be invalid as regulations of conimerce. In Budd v. New York,^ holding that a New York statute regu- lating the charges of floating and stationary eleva- tors was a regulation of commerce only on the waters of the State of New York, the court said: " It is of the same character with navigation laws in respect to navigation within the State and laws regulating wharfage rates within the State, and other kindred laws." iMuim V. Illinois, (1876) 94 U. S. 113. 2 Brass v. North Dakota, (1894) 153 U. S. 391. 3 (1892) 143 U. S. 517. transac* tions. REGULATION OF COMMEBCE 233 But when a grain elevator company is engaged Chapter in the business of exporting grain, and stops cars in _, transit to put the grain through the elevator for the ^j*?";].*^'™ purposes of cleaning and preparing it for further f^J^^^^ transportation, an order of a State railroad com- mission which in effect directs that grain purchased by the elevator company shall move through the place where the elevator is located, under seal in the cars in which it reaches that point, or shall be trans- ferred by the railroad company to a connecting carrier without being stopped or treated at the ele- vator, relates to and affects interstate or foreign shipments of grain, makes it impossible for the elevator company to fulfil its contract for the ex- portation of grain, and has been said to be invalid.* GAME AND FISH LAWS. A Connecticut statute ^ provided that ' ' every person who shall buy, Sell, expose for sale, or have in his possession for any purpose, or who shall himt, pursue, kill, destroy, or attempt to kill any wood- cock, quail, ruffled grouse, called partridge, or gray squirrel, between the first day of January and the first day of October, the killing or having in pos- session of each bird or squirrel to be deemed a sepa- rate offense, . . . shall be fined not more than *J. Eoaenbaum Grain Co. v. Chicago, etc., R. Co., (1903) 130 Fed. Rep. 46. A corporation owned a grain elevator and freight warehouse and several lines of railroad tracks which were used to afford facilities for access to its elevator and warehouse by cars owned by other companies. Its entire business consisted in loading, unloading, and storing grain and other freights which were the subjects of inter- state or foreign transportation; no local freights were handled. It was held that the business of the corporation was of an interstate character. People v. Miller, (1904) 178 N. Y. 194. 5 Gen. Stat. Com., §§ 2530 and 2546, Revision of 1888. 234 BEGULATION OF COMMERCE Establish- ing a close season for eame. Chapter twenty-five dollars; " and tliat " no person shall at " any time kill any woodcock, ruffled grouse or quail for tlie purpose of conveying the same beyond the limits of this State; or shall transport or have in possession, with intent to procure the transporta- tion beyond said limits, any of such birds killed within this State. The reception by any person within this State of any such bird or birds for ship- ment to a point without the State shall be prima facie evidence that said bird or birds were killed within the State for the purpose of carrying the same beyond its limits." In State v. Geer^ the State Supreme Court held, in interpreting the stat- ute by the light afforded by previous enactments, that one of its objects was to forbid the killing of birds within the State during the open season for the purpose of transporting them beyond the State, and also additionally as a distinct offense to punish the having in possession, ^f or the purpose of transporta- tion beyond the State, birds lawfully killed within the State. It then decided that the statute, in creating this latter offense, did not violate the interstate commerce clause. In affirming the judgment of the State court, the Supreme Court of the United States T said that aside from the authority of the State, derived from the common ownership of game and the trust for the benefit of its people which the State exercises in relation thereto, the right to preserve game pro- ceeds from the undoubted existence in the State of a police power to that end, which may be none the less efficiently called into play because by doing so interstate commerce may be remotely and indirectly 8 (1891) 61 Conn. 144. TGeer v. Conneetieut, (1896) 161 U. S. 519. Common ownership of game. BEGXTLATION OP COMMERCE 235 affected; such power flowing from the duty of the copter State to preserve for its people a valuable food supply, which belongs in common to all the people As^an^e«r- of the State, which can only become the subject of p°^« ownership in a qualified way, and which can never be the object of commerce except with the consent of the State and subject to the conditions which it may deem best to impose for the public good.^ Fisheries within the territorial jurisdiction of a fJ^ttoS'Sf State are subject to State regulation and protection. ««''«"«• In holding a Massachusetts statute, passed for the protection of the fisheries " within the jurisdiction of this commonwealth " valid, Mr. Justice Blatch- ford, in writing the opinion of the court in Man- chester V. Massachusetts,^ said that the statute 8 A state may prohibit the exportation of game. Organ v. State, (1892) 56 Ark. 267; American Express Co. v. People, (1890) 133 111. 649. Contra, State v. Saunders, ( 1877 ) 19 Kan. 127. In In re Davenport, (1900) 102 Fed. Rep. 540, it was held that importation of game from another State cannot be prohibited. But in Stevens v. State, ( 1899 ) 89 Md. 669, the court said that the total prohibition of having game, from whatever source derived, in posses- sion during the closed season, is a reasonable if not necessary means of protecting the domestic game of the State making the prohibition. To the same eflfeet see Magner v. People, (1881) 97 111. 320; People V. O'Neil, (1896) 110 Mich. 324; State v. Judy, (1879) 7 Mo. App. 524; Phelps v. Racey, (1875) 60 N. Y. 10. In Ex p. Maier, (1894) 103 Cal. 476, the court held that such a statute covered a sale of deer meat from an animal imported into the State, as the original package had been broken, saying: " Whether petitioner could have sold the meat as an entire carcass is a question which does not confront us, and which it is not, there- fore, necessary to determine." In People v. Hesterberg, (1906) 184 N. Y. 126, it was held that under the Act of Congre&s of May 25, 1900, c. 553, I 5, 3 Fed. Stat. Annot. 152, providing that game animals or birds, or the bodies of such, imported into a State, shall be subject to the operation of the laws enacted in the exercise of its police powers, a State may prohibit the importation or possession of the bodies of game animals or birds during the close season. 8 (1891) 139 U. S. 240, affirming (1890) 152 Mass. 230. 236 BEStTLATION OF COMMEBCB aiapte Swimming Ssli. caiapter " was evidently passed for the preservation of the fish, and makes no discrimination in favor of citi- zens of Massachusetts and against citizens of other States. If there be a liberty of fishing for swim- ming fish in the navigable waters of the United States common to the inhabitants or the citizens of the United States, npon which we express no opin- ion, the statnte may well be considered as an im- partial and reasonable regulation' of this liberty; and the subject is one which a State may well be permitted to regulate within its territory, in the absence of any regulation by the United States. The preservation of fish, even although they are not used as food for human beings, but as food for other fish which are so used, is for the common benefit ; and we are of opinion that the statute is not repugnant to the Constitution and laws of the United States. . . . "We do not consider the question whether or not Congress would have the right to control the menhaden fisheries which the statute of Massachusetts assumes to control; but we mean to say only that, as the right of control exists in the State in the absence of the affirmative action of Congress taking such control, the fact that Congress has never assumed the control of such fisheries is persuasive evidence that the right to control them still remains in the State." And so the question was left open as to the right of Congress to control fisheries ia the bays, inlets, harbors, and ports of the United States.^ tfenhaden isb. 1 A State may prohibit the taking of fish during certain seasons, though they may be taken with the purpose to ship them to another State. Eic p. Fritz, (1905) 86 Miss. 210. And a State may make it unlawful to have certain fish in possession during the close season, though such fish were taken in foreign waters. People v. Lassen, (Mich. 1906) 106 N. W. Rep. 143. See People v. Buffalo Fish Co., EEGULATION OF COMMERCE 237 A State may protect the growth of oysters in copter the waters of the State by prohibiting the use of ' particular instruments in dredging for them. This f^l^^^°^ power results from the State ownership of the soil, °2^e. from the legislative jurisdiction of the State over it, and from the duty to preserve unimpaired those public uses for which the soil is held. It is within the power of the State to authorize the seizure, detention, and forfeiture of a vessel enrolled and licensed for the coasting trade of the United States, for a disobedience by those on board of the com- mands of such a law.^ License fees may be exacted of those engaged in the business of planting, grow- ing, and taking oysters.^ And the citizens of other States can be prohibited from planting oysters in a stream in that State where the tide ebbs and flows, when its own citizens have that privilege. As the State owns the land under water adapted to the propagation and improvement of oysters, it may grant the exclusive use of it for that purpose to its own citizens. ' ' There is here no question of trans- portation or exchange of commodities, but only of cultivation and production. Commerce has nothing to do with land while producing, but only with the product after it has become the subject of trade. ' ' * (1900) 164 N. Y. 93, wherein the majority of the court assented to the position that the statute was applicable only to fish taken within the State. 2 Smith V. Maryland, (1855) 18 How. (U. S.) 71. See also Cor- field V. Coryell, (1823) 4 Wash. (U. S.) 371, 6 Fed. Cas. No. 3230, that a State may prohibit the taking of oysters at certain times and with destructive instruments. sDize V. Lloyd, (1888) 36 Fed. Rep. 651; State v. Corson, (1901) 67 N. J. L. 178; Johnson v. Loper, (1884) 46 N. J. L. 321; Haney V. Compton, (1873) 36 N. J. L. 507. *Per Chief Justice Waite, in McCready v. Virginia, (1876) 94 U. S. 391. See also State v. Harrub, (1891) 95 Ala. 176; State v. Medbury, (1855) 3 R. I. 138. 238 EEGULATION OF COMMERCE Chapter XII. Plenary power of Congress. ADMISSION AND EXCLUSION OF ALIENS. In the Japanese Immigrant Case ^ Mr. Justice Harlan said : ' ' That Congress may exclude aliens of a particular race from the United States; pre- scribe the terms and conditions upon which certain classes of aliens may come to this country; estab- lish regulations for sending out of the country such aliens as come here in violation of law; and commit the enforcement of such provisions, conditions, and regulations exclusively to executive officers, without judicial intervention, are principles firmly estab- lished by the decisions of this court. "^ Congress may exclude some and admit others, and the reasons for its discrimination are not open to challenge in the courts, and it has the right to make the exclusion effective by punishing those who assist in intro- ducing, or attempting to introduce, aliens in viola- tion of its provisions.'' The Act of Congress of March 3, 1903, declaring that the following, among others, shall be excluded from admission into the United States: " anarchists, or persons who be- I'eve in or advocate the overthrow by force or violence of the government of the United States or of all governments or of all forms of law, or the (1903) 189 U. S. 86. « See also Lem Moon Sing ». U. S., (1895) 158 U. S. 538. It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such con- ditions as it may see fit to prescribe. Nishimura Ekiu v. U. S., (1892) 142 U. S. 651. See also Wong Wing v. U. S., (1896) 163 U. S. 228; Fong Yue Ting v. U. S., (1893) 149 U. S. 698; Chinese Exclusion Case, (1889) 130 U. S. 581; In re Florio, (1890) 43 Fed. Rep. 114; U. S. v. Craig, (1886) 28 Fed. Rep. 795. TLees V. U. S., (1893) 150 U. S. 476. EBGTILATION OF COMMEBCB 239 assassination of public officials," is not open to con- Chapter stitutional objection.* ' An Act of Congress ® provided : ' ' That there Head money tax shall be levied, collected, and paid a duty of fifty pasf^^gers. cents for each and every passenger, not a citizen of the United States, who shall come by steam or sail vessel from a foreign port to any port within the United States." To the objection that the statute was in violation of the first clause of section 8 of Article I of the United States Constitution, pro- viding that " the Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the coromon defense and general welfare of the United States; but all duties, imposts, and excises shall be imiform throughout the United States," the Supreme Court said : ' ' But the true answer to all these objections is that the power exercised in this instance is not the taxing power. The burden imposed on the ship owner by this statute is the mere incident of the regulation of commerce — of that branch of foreign commerce which is involved in immigration. ' ' ^ And even if such a statute violates provisions contained in prior treaties of the United States with friendly nations, the statute must prevail in all the judicial courts of this country.^ The right to expel or deport foreigners who have Power to not been naturalized nor taken any steps towards port aliens, becoming citizens of this country is as absolute and 8U. S. V. Williams, (1904) 194 U. S. 279. 9 Act of August 3, 1882, 3 Fed. Stat. Annot. 294. By the Act of August 18, 1894, c. 301, 3 Fed. Stat. Annot. 295, the amount of the head money was increased to one dollar. iPer Mr. Justice Miller, in Head Money Cases, (1884) 112 U. S. 580. See also Thingvalla Line v. U. S., (1889) 24 Ct. CI. 255. 2 See Chinese Exclusion Case, (1889) 130 U. S. 681. 240 EEGULATION" OF COMMERCE Chapter XII. Personal rights gfuaranteed by the Con- stitution applicable to aliens Fifth and Sixth Amend- ments. imqualified as the right to prohibit and prevent their entrance into the country.^ But in exercising the power to deport aliens found to be unlawfully within the United States, the personal rights guaranteed by the Constitution can- not be violated. Section four, chapter sixty, of the Act of Congress of May 5, 1892, provided: " That any such Chinese person or person of Chinese descent convicted and adjudged to be not lawfully entitled to be and remain in the United States shall be imprisoned at hard labor for a period of not exceeding one year, and thereafter removed from the United States, as hereinbefore provided. ' ' And in a previous section of the act a summary hearing is provided for before a justice, judge, or commis- sioner. In a case in which a commissioner of a Circuit Court for the United States found that cer- tain Chinese persons were unlawfully within the United States and not entitled to remain within the same, and he adjudged that they be imprisoned at hard labor at and in the Detroit house of correction for a period of sixty days from and including the day of commitment, and that at the expiration of said time they be removed from the United States to China, it was objected that the statute inflicted an infamous punishment and hence conflicted with the Fifth and Sixth Amendments of the Constitu- tion, which declare that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, and that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed. The :Fong Yue Ting v. U. S., (1893) 149 U. S. 698. REGULATION OP COMMEEOE 241 court, in Wong Wing v. U. 8.,* Mr. Justice SMras Chapter writing the opinion, said: " Our views upon the ^^' question thus specifically pressed upon our atten- tion may be briefly expressed thus: We regard it as settled by our previous decisions that the United States can, as a matter of public policy, by con- gressional enactment, forbid aliens or classes of aliens from coming within their borders, and expel aliens or classes of aliens from their territory, and can, in order to make effectual such decree of exclu- sion or expulsion, devolve the power and duty of identifying and arresting the persons included in such decree, and causing their deportation, upon executive or subordinate officials. But when Con- gress sees fit to further promote such a policy by subjecting the persons of such aliens to infamous punishment at hard labor, or by confiscating their property, we think such legislation, to be valid, must provide for a judicial trial to establish the guilt of the accused." EXCTLTJSION BY THE STATES OF CEIMIKALS AND POOR AND DISEASED PERSONS. In Hannibal, etc., B. Co. v. Husen,^ Mr. Justie3 Asanexer- cjtrong, writing the opinion of the court, incidentally poij" said: " It may also be admitted that the police power of a State justifies the adoption of precau- tionary measures against social evils. Under it a State may legislate to prevent the spread of crime, or pauperism, or disturbance of the peace. It may exclude from its limits convicts, paupers, idiots, and lunatics, and persons likely to become a public * (1896) 163 U. S. 228. B (1877) 95 U. S. 465. 16 power. 242 EEGTJLATION OP COMMEBCE Chapter charge, as well as persons afflicted by contagious or ' infectious diseases. ' ' ® But in Chy Lung v. Freeman "^ it had been held that a California statute which provided that the commissioner of immigration was to satisfy him- self whether or not any passenger who should arrive in the State by vessel from any foreign port or place (who was not a citizen of the United States) was lunatic, idiotic, deaf, dumb, blind, crippled, or infirm, and was not accompanied by relatives who were able and willing to support him, or was likely to become a public charge, or had been a pauper in any other country, or was from sickness or disease (existing either at the time of sailing from the port of departure or at the time of his arrival in the State) a public charge, or likely soon to become so, or was a convicted criminal, or a lewd or debauched woman, and that no such person should be permitted to land from the vessel, unless the master or owner or consignee should give a separate bond in each case, conditioned to save harmless every county, city, and town of the State against any expense incurred for the relief, support, or care of such person for two years thereafter, was invalid. Mr. Justice Miller, Must be in the course of the opinion, said: " We are not iJE. called upon by this statute to decide for or against the right of a State, in the absence of legislation by Congress, to protect herself by necessary and proper laws against paupers and convicted criminals from abroad; nor to lay down the definite limit of such right, if it exist. Such a right can only arise from a vital necessity for its exercise, and cannot be car- • See also State v. The Steamship Constitution, (1872) 42 Cal. 478. T (1876) 92 U. S. 275. jiropnate. EEGULATION OP COMMEKCE 243 ried beyond the scope of that necessity. When a Chapter State statute, limited to provisions necessary and ' appropriate to that object alone, shall, in a proper controversy, come before us, it will be time enough to decide that question. The statute of California goes so far beyond what is necessary, or even appro- priate, for this purpose, as to be wholly without any soimd definition of the right under which it is sup- posed to be justified. Its manifest purpose, as we have already said, is not to obtain indemnity, but money."* And consistently with this principle it Requiring has been held that a State statute requiring rail- return any ^ *-* who should roads to return paupers, which was so general that a|sSJi%. it applied to all persons brought into the State by a carrier, without regard to wealth or poverty when brought in, and undertook to impose on the carrier the burden of removing or supporting any who should, within the time named, become destitute, was invalid.^ LOTTEBIES. The carrying of lottery tickets from one State to another by an express company engaged in carrying sin In re Ah Fong, (1874) 3 Sawy. (U. S.) 144, 1 Fed. Ca8. No. 102, Mr. Justice Field, holding the Circuit Court of the Dis- trict of California, said: "The extent of the power of the State to exclude a foreigner from its territory is limited by the right in which it has its origin, the right of self-defense. Whatever outside of the legitimate exercise of this right affects the intercourse of foreigners with our people, their immigration to this country and residence therein, is exclusively within the jurisdiction of the general gov- ernment, and is not subject to State control or interference." A California statute prohibiting the coming of Chinese persona into the State, providing for registration and certificate of residence, and determining their status, was held to be void in Ex p. Ah Cue, (1894) 101 Cal. 19T. See also Lin Sing v. Washburn, (1862) 20 Cal. 534. » Bangor v. Smith, (1891) 83 Me. 422. 244 EEGULATIOSr OF COMMEECE Chapter freight and packages from State to State, although ' sTieh tickets may be contained in a box or package, Deciared^^ Can by an Act of Congress be legally made to con- by'con"^ stitute comjnerce among the States. gress. rpjjg determination of the Lottery Case ^ involved the consideration of three questions, namely, whether lottery tickets are subjects of commerce, whether the power to regulate commerce includes the power to prohibit the transportation of recognized arti- cles of commerce, and, as closely connected with puestions the second question, whether prohibiting the trans- tte^Lottery portation of lottery tickets mf ringed rights secured or protected by the Constitution. The second ques- tion is discussed at length in the first part of this work, in considering what constitutes the power to regulate.^ Four justices dissented, and so close were the constitutional questions presented, that Mr. Justice Harlan, writing the opinion of the court, said: " The whole subject is too important, and the questions suggested by its consideration are too difficult of solution, to justify any attempt to lay down a rule for determining in advance the validity of every statute that may be enacted under the com- merce clause. We decide nothing more in the present case than that lottery tickets are subjects of traffic among those who choose to sell or buy them; that the carriage of such tickets by inde- pendent carriers from one State to another is there- fore interstate commerce; that under its power to regulate commerce among the several States, Con- gress — subject to the limitations imposed by the Constitution upon the exercise of the powers granted — has plenary authority over such commerce, and 1(1903) 188 U. S. 321. 2 See supra, p. 50. BEGULATION OF COMMERCE 245 may proMbit the carriage of sueli tickets from State Chapter to State ; and that legislation to that end, and of that L, character, is not inconsistent with any limitation or restriction imposed upon the exercise of the powers granted to Congress." So far as State legislation respecting lotteries state iaw» " -*■ " respecting is concerned, it has been held that a ticket in a lot- i°"eries. tery, authorized at the place of issue, cannot be regarded as within the protection of the commerce clause. In view of the legislation of Congress, this certainly must be so.^ And even in the absence of any legislation by Congress, the police power of the States would seemingly justify legislation prohibit- ing the introduction of lottery tickets into the State. INSUBANCB. In Paul V. Virainia * Mr. Justice Field, writing judical. ■^ declacation. the opinion of the court, said: " Issuing a policy ^^^^Vrs^o't of insurance is not a transaction of commerce. The <:o°"n"«- policies are simple contracts of indemnity against loss by fire, entered into between the corporations and the assured, for the consideration paid by the latter." ^ In that case it was held that a statute of Virginia, providing that no insurance company, not 3 Eoselle v. Farmer's Bank, ( 1897 ) 141 Mo. 36. When foreign government bonds are coupled with conditions and stipulations which change their character from a simple government bond for the payment of a certain sum of money to a species of lottery ticket, they are not salable within a State which prohibits the sale of any lottery tickets within the State. Ballock v. State, (1890) 73 Md. 1. 4 (1868) 8 WalL (U. S.) 168. 5 See also Philadelphia F. Assoc, v. New York, (1886) 119 U. S. 110; and. see Liverpool Ins. Co. «. Massachusetts, (1870) 10 Wall. (U. S.) 566, as to a statute held to be applicable to an English joint-stock association having the attributes generally found in CQiporations. 246 BEGTJLATION OF COMMEBCE Chapter incorporated under the laws of the State, should ' carry on its business within the State without pre- viously obtaining a license, until it had deposited with the treasurer of the State bonds of a specified character varying in amount according to the ex- tent of the capital employed, was valid. A State statute which in effect annuls the pro- visions of a policy declaring that the contract shall be construed and interpreted according to the laws of the State in which the company was incorporated,' and also a statute making it unlawful for an insur- ance agent or broker to act in the negotiation of insurance with a foreign insurance company not admitted to do business within the State,'^ have been held to be valid.^ State reira- But deprivation of liberty of contract, without lation as an „ , . . , *oUce"°' "^® process of law, m violation of the Fourteenth power. Amendment, has been held to result from the opera- tion of a statute prohibiting the makiag of a marine insurance contract by the assured himself and not through a broker, outside the State, on property then in the State. That the regulation of insur- ance might be the proper subject for the exercise of the police power has been suggested by Mr. Justice Peckham, when, speaking for the court, on the ques- tion of the liberty of the citizen to contract for in- «New York L. Ins. Co. v. Cravens, (1900) 178 U. S. 389. 'Nutting V. Massachusetts, (1902) 183 U. S. 553; Hooper 17. California, (1895) 155 U. S. 648. sin Lafayette Ins. Co. v. French, (1855) 18 How. (U. S.) 404, it was held that where an insurance company chartered by one State was allowed to do business in another, upon the condition that ser- vice of process upon the agent of the corporation should be con- sidered as service upon the corporation itself, a judgment against the company, obtained by means of such process, should be received with like full faith and credit in the State in which it was chartered. REGULATION OF OOMMEECE 247 surance, he said that " this does not interfere in Chapter XII any way with the acknowledged right of the State ' to enact such legislation in the legitimate exercise of its police or other powers as to it may seem proper. ' ' ^ The emphatic and repeated declarations of the Power of ^ ^ Congress United States Supreme Court, in the above cases, 5°g^^rance that insurance is not commerce, would seem to pre- mercfc°°^ elude further inquiry. All the cases, however, arose on State statutes. That Congress has the power to define, by inclusion and exclusion, what are the sub- jects of commerce — subject to the right of the courts to say that the subject declared by Congress to be commerce has no relation to intercourse — has been discussed in the first part of this work in the section on the power to define commerce.^ If, under the principles there outlined, the sub- Probawe y r ^ ' judicial ject of insurance may be said to be embraced by the ^f °f J";°^ term commerce, as generally defined, as imderstood Si by economists, or as colloquially used, the courts would probably be constrained to accept the legis- lative declaration that insurance is commerce, and to permit the operation of federal legislation on inter- state and foreign insurance transactions. It is not easily perceivable, however, how Congress can con- stitutionally legislate on the subject, except indi- rectly, as by denying mail and interstate transporta- tion facilities to a company which is not, in its interstate business, complying with the regulations prescribed by or vmder the authority of Congress. The situation would present a condition for which there is no precedent. Sustaining the validity of eff^^j'**, federal regulations would not necessarily mean the reeuutioiw- • Allgeyer v. Louisiana, (1897) 165 U. S. 578. i See supra, p. 36. 248 BBGULAXION OF COMMEECE Chapter actual overruling of tlie foregoing insurance cases. Upon the repeal of the federal legislation, it would be within the province of the court to declare, in the absence of federal legislation, that insurance is not commerce, and again to give effect to State statutes. And even if federal laws were enacted. State regula- tions governing the conduct of the business of a domestic insurance company with citizens of the same State would not be rendered inoperative. Likewise, provisions of State statutes regulating transactions by citizens of the State with foreign insurance companies, which were not in actual con- flict with the federal regulations, would probably be sustained if the suggestion above referred to, that the regulation of insurance partakes of the nature of the exercise of a police power, were followed. Power to exclude forei^ cor- porations or admit them on conditions. STATE KEGfTTLATIOIir OF FOBEIGlir COEPOBATIONS. Article IV, section 2, clause 1, of the Constitu- tion provides that " the citizens of each State shall be entitled to all privileges and immunities of citi- zens in the several States." The term citizens, as there used, applies only to natural persons, not to artificial persons created by the legislature and pos- sessing only the attributes which the legislature has prescribed. Consequently, corporations are not citizens within the meaning of the above clause. Having no legal existence beyond the limits of the State which created it, a corporation cannot enter other States or claim the aid of their laws ia the enforcement of its contracts, except upon the comity of those States. Having the absolute power of excluding the foreign corporation, a State may impose such conditions upon permitting the corpora- BEGULATIGN OP ■ COMMBBCE 249 tion to do business witlmi its limits as it may judge Chapter expedient.^ ;_ Two exceptions or qnalifications are attached to Exceptions J.1 • T A (• 1 to the rule. this role. One of these qnahfications is that the State cannot exclude from its limits a corporation which is engaged in interstate or foreign commerce.^ The other limitation on the power of the State is 2 Diamond Glue Co. v. U. S. Glue Co., (1903) 187 U. S. 611; Waters-Pierce Oil Co. v. Texas, (1900) 177 U. S. 28; Connectieut Mut. L. Ins. Co. V. Spratley, (1899) 172 U. S. 602; Orient Ins. Co'. V. Daggs, (1899) 172 U. S. 557; Blake v. MeClung, (1898) 172 U. S. 239; New York v. Roberts, (1898) 171 U. S. 658; Allgeyer v. Louisiana, (1897) 165 U. S. 578; Hooper v. California, (1895) 155 V. S. 648; Cruteher v. Kentucky, (1891) 141 U. S. 47; Home Ins. Co. V. New York, (1890) 134 U. S. 594; Pritts v. Palmer, (1889) 132 U. S. 282; Philadelphia F. Assoc, v. New York, (1886) 119 U. S. 110; Doyle v. Continental Ins. Co., (1876) 94 U. S. 540; Home Ins. Co. V. Augusta, (1876) 93 U. S. 116; Liverpool Ins. Co. v. Massa- chusetts, (1870) 10 WaU. (U. S.) 566; Ducat v. Chicagp, (1870) 10 Wall. (U. S.) 410; Paul u Virginia, (1868) 8 Wall. (U. S.) 168; Lafayette Ins. Co. v. French, (1855) 18 How. (U. S.) 404. A further application of this principle, with its limitations, is- dealt with in », later part of this work in discussing the taxation of the franchises of foreign corporations. See infra, p. 313. sFritts V. Palmer, (1889) 132 U. S. 282; Cooper Mfg. Co. v. Ferguson, (1885) 113 U. S. 727; Pensacola Tel. Co. v. Western Union Tel. Co., (1877) 96 U. S. 1. A foreign corporation engaged in furnishing milling machinery and adjusting it in position in the mill is engaged in an act of interstate commerce, and need not comply with State laws requiring foreign corporations, before doing business in the State, to register their charters. Milan Milling, etc., Co. v. Gorten, (1894) 93 Tenn. 590. A foreign corporation engaged in the press-dispatch business is not engaged in interstate commerce. Associated' Press ii. Com., (Ky. 1901) 60 S. W. Rep. 295. A loan of money by a foreign corporation to a citizen of the State is not a matter of interstate commerce. Nelms v. Edinburg American Land Mortg. Co., (1890) 92 Ala. 157. The execution of a canvasser's bond to a foreign corporation is a transaction of interstate commerce. Gunn v. White Sewing Mach. Co., (1892) 57 Ark. 24. 250 BEGXJLATION OF COMMEBCE Chapter where tiie corporation is in the employ of the fed- ' eral government or has been organized nnder the laws of Congress.* Mr. Justice Bradley, at Circuit, said that " if Congress should employ a corpora- tion of shipbuilders to construct a man-of-war, they would have the right to purchase the necessary timber and iron in any State of the Union," ^ and in Pembina Consol. Silver Min., etc., Co. v. Pennsyl- vania ® Mr. Justice Field, in quoting with approval this passage, added ' ' — without the permission and against the prohibition of the State. ' ' Interstate Though a foreign corporation cannot be excluded xorei||n cor- ° o jr comply" '° ^y ^ State when it is engaged in interstate or foreign «bS'"*' commerce, it nevertheless must comply with and is subject to the laws of the State governing the strictly local or domestic part of the business of such corporation. A foreign railroad company must provide equal accommodations for separate races, for the purely domestic part of its business, when the law of the State requires that arrange- ment,'' and the rates charged by a railroad, incor- porated in two States, may be regulated by one of those States as to the intrastate transportation.^ The mere fact that a railroad corporation has been organized under the laws of Congress does not ex- empt it from State control in respect to rates for local freight. Congress can wholly remove such a corporation from State control, but in the absence of something in the statutes indicating an intention on the part of Congress so to remove it, the State ♦ Reagan v. Mercantile Trust Co., (1894) 154 U. S. 413. 8 Stockton V. Baltimore, etc., R. Co., (1887) 32 Fed. Rep. 9. e (1888) 125 U. S. 181. 'Louisville, etc., R. Co. v. Mississippi, (1890) 133 U. S. 587. s Railroad Commission Cases, (1886) 116 U. S. 307. KEGULATION OF COMMERCE 251 lias the power to prescribe the rates for all local Chapter business carried by it." L_ Not only is a foreign corporation, engaged in Jj^fpjf^*,. interstate commerce, under the control of the State P°bjec°"o in respect to its local business, but its business, both powlrl""" interstate and local, is within the control of the State in the exercise of its police power. Thus, interstate railroads must comply with State laws regulating the heating of cars,^ requiring the examination of locomotive engineers for color blindness,^ and pro- hibiting the running of freight trains on Sunday ; * and such corporations are within the operation of statutes invalidating contracts exempting a carrier from its common-law liability.* In like manner, a foreign telegraph company is liable to a statutory penalty for failing to deliver dispatches within the State with due diligence, though they may have been sent from outside the State.* "Reagan v. Mercantile Trust Co., (1894) 154 U. S. 413. iNew York, etc., R. Co. v. New York, (1897) 165 U. S. 628. So far as concerns any leased line of railroad within a State, a foreign corporation is subject to the State police regulations. Von Steuben v. Central R. Co., (1895) 4 Pa. Dist. 153. 2 Nashville, etc., R. Co. v. Alabama, (1888) 128 U. S. 96. sHennington v. Georgia, (1896) 163 U. S. 299. 4 Chicago, etc., R. Co. v. Solan, (1898) 169 U. S. 133. B Western Union Tel. Co. v. James, (1896) 162 U. S. 650. CHAPTER Xin. DISCEIMINATIVE STATE STATUTES. Chapter '' I ^ H hi lack of legal force of State discriiniiiative xin. ^ statutes was stated by Mr. Justice Harlan, in stateswith- Ch^ i^- Baltimore,^ wherein he said: "No todiSiiS- State can, consistently with the Federal Constitution, impose upon the products of other States, brought" therein for sale or use, or upon citizens because en- gaged in the sale therein, or the transportation thereto, of the products of other States, more onerous public burdens or taxes than it imposes upon the like products of its own territory. If this were not so, it is easy to perceive how the power of Congress to regulate commerce with foreign nations and among the several States could be practically annulled, and the equality of commercial privileges secured by the Federal Constitution to citizens of the several States be materially abridged and impaired."^ 1 (1879) 100 U. S. 434. See also the discussion of discrimination by taxation, infra, p. 315. 2 As to statutes prohibiting any but citizens of the State from planting oysters in or taking them from the navigable waters of the State, see that part of this work respecting the regulation of oyster fisheries, supra, p. 237. A State cannot prohibit the peddling of goods from other States. Sayre v. Phillips, (1892) 148 Pa. St. 482. A municipal ordinance providing that a railroad company whose business included the transportation of persons to a town in another State should sell to residents of the city, for a sum not to exceed REGULATION OF COMMERCE 253 But though a part of a State statute be dis- chapter criminatory, and therefore void, whether the legal ' clauses can be eliminated without destroying the construc- , -i . . . ^ •! o tion of stat- otner provisions is a State and not a federal ques- SLVrim^"''^ tion, and the Supreme Court of the United States ?S"™'*' will accept the interpretation given by the State court and will test their validity accordingly. And when the invalid clause is eliminated by the con- struction given by the State court, the statute, as so construed, will be allowed to operate.^ A municipal corporation, being authorized specifying thereto by statute, selected a certain kind of asphalt, "'4^'^" ff ■L ' municipal the product of a foreign country, for use in making S?"' improvements. It was held that the specification $1.50, commutation tickets good for thirty rides for thirty days from the date of issue, from any point on its line in the city over its bridge to any point in another State to which its cdrs might be operated, then from said point in that other State over its bridges and lines to any point on its lines in the city, was held to be invalid for discriminating in favor of the citizens of the State as against those of another State. State v. Omaha, etc., R., etc., Co., (1901) 113 Iowa 30. A statute requiring seed packets to be dated, and excepting seed sold by farmers in open bulk to other farmers, is invalid. In re Sanders, (1892) 52 Fed. Rep. 802. As is also a statute stipulating conditions to the sale of trees, plants, shrubs, or Tines, and excepting such grown in the State. In re Schechter, (1894) 63 Fed. Rep. 695. sOlsen V. Smith, (1904) 195 U. S. 332, as to a pilot law, the discriminating provisions of which, if allowed to stand, would have been in conflict with an Aot of Congress. See also Howe Mach. Co. V. Gage, (1879) 100 U. S. 676, infra. Statutes favoring domestic wines were held to be invalid in Mc- Creary v. State, (1883) 73 Ala. 480; Powell v. State, (1881) 69 Ala. 10; Higgins v. Rinker, (1877) 47 Tex. 381. But in Ex p. Kinnebrew, (1888) 35 Fed. Rep. 52, and State v. Deschamp, (1890) 53 Ark. 490, the invalid clause or clauses were Btriefcen out and the sale of imported and domestic wines permitted; and in Weil v. Calhoun, (1885) 25 Fed. JRep. 865, the clause pro- tecting domestic wines was declared Toid and the broad prohibition clause was given full effect. 254 BEGXJLATION OF COMMERCE Chapter XIII. Action of State officer under a State mo- nopoly. of this particular asphalt, there being other de- posits in other States from which suitable asphalt could have been had, was not an interference with interstate commerce. While such use of a foreign commodity to the exclusion of like material found in the United States may in a limited degree affect interstate commerce, it is not one of those direct interferences with the power over, and express con- trol of, the subject given by the Constitution to Congress. Nor can the provisions of the Sherman Anti-Trust Act be invoked in such a case, as that statute was not intended to affect contracts which have only a remote and indirect bearing upon commerce.* Under one of the South Carolina dispensary laws, it was urged that the law, giving to the State officers exclusive right to purchase all the liquor to be sold in the State, gave the officers the oppor- tunity, by exercising their right of purchase, to buy * Field V. Barber Asphalt Paving Co., (1904) 194 U. S. 618. In People v. Coler, (1901) 166 N. Y. 144, it was held that a statute requiring only materials manufactured in the State to be used on public works was invalid as a regulation of commerce. But in Allen v. Labsap, (1905) 188 Mo. 692, it was held that a municipal ordinance, providing that " all ordinances and contracts authorizing the doing of public work in the city of St. Louis which involves the use of dressed rock, granite, or stone shall contain a provision that the work of dressing such rock, granite, or stone shall be done within the territorial limits of the State of Missouri," was valid. A statute requiring goods made by convict labor, except as thus made in the enacting State, to be branded, was held to be invalid in People V. Hawkins, (1895) 85 Hun (N. Y.) 43. The statute was amended by striking out the discriminating clause, but, as thus amended, was held to be invalid as discriminating against prison- made goods in favor of those made by free labor. People v. Hawkins, (1898) 157 N. y. 1. See Bogart v. State, 10 Ohio Dec. (Reprint) 365, 20 Cine. L. Bui. 458, as to the invalidity of a statute requiring a license to be paid to sell convict-made goods. BEGXJLATION OF COMMERCE 255 in one State to the detriment and exclusion of the ^^^i®' products of every other State. It was argued that this arbitrary power demonstrated the inherent dis- crimination arising from legislation which made State ofl&cers the sole persons authorized to buy and sell liquor, and that these supposed unjust conse- quences could only be avoided by recognizing the right of the residents of all other States to ship their products into the State and sell them in original packages. But the court, speaking by Mr. Justice White, in Vance v. W- A. Vandercooh Co.,^ said: " To maintain this proposition, the presumption must be indulged in that the State officer, in pur- chasing as provided by the State statute, instead of buying fairly and in the best markets, affording an equal chance to all sellers and to every locality, will, on the contrary, so act as to discriminate against the products of one or more States and in favor of those of others. Such a presumption would be equally justified in case the State law authorized only resi- dents to be licensed to sell liquor and restricted the number of such licenses. The persons so licensed, whether one or one hundred, would buy where they pleased the liquor they proposed to sell, and it would therefore be fully as cogent to argue that they might elect to buy in one place instead of another, and thus discriminate against the persons or places ifrom where or from whom they did not buy." And Effect of as disposing completely of the contention, it was pointed out that the right to ship merchandise from one State into another, guaranteed by the commerce clause and protected until the termination of the shipment by delivery at the place of consignment, is wholly unaffected by the Act of Congress of August (1898) 170 U. S. 438. 256 EBGUIiATION OP COMMEBGE Chapter xm. Inspection laws. S, 1890,^ whicli allows State authority to attacli to the origiiial package before the sale but only after dielivery. And it was fxirther said that the conclu- sion that it is the right of every resident of South Carolina to receive for his own use liquor from other States, and that the inhibitions of a State statute do not operate to prevent liquors from other States from being shipped into such State, on the order of a resident for his use, " demonstrates the unsoundness of the contention that if State agents are the only ones authorized to buy liquor for sale in a State, and they select the liquor to be sold from particular States, the products of other States will be excluded. ' ' '^ The power of a State to pass inspection laws is limited by the consideration that no discrimination can be made against products or industries of some States in favor of products and industries of its own or of other States.® Requiring certain mate- rials brought into the State to be inspected and have 6 See supra, p. 143. 7 " When a State recognizes the manufacture, sale, and use of intoxicating liquors as lawful, it cannot discriminate against the bringing of such articles in, and importing them from other States; * * * such legislation is void as a hindrance to interstate com- merce and an unjust preference of the products of the enacting State as against similar products of the other States." Per Mr. Justice Shiras, in Scott v. Donald, (1897) 165 U. S. 58. 8 Austin V. Tennessee, (1900) 179 U. S. 343; Brimmer v. Eebman, (1891) 138 U. S. 78. A Massachusetts statute requiring an inspection of all lime im- ported or sold in that State, but prescribing no standard either of quality, or mode of packing, or size of casks, except as to lime manufactured in Massachusetts or imported from Maine, was held to be invalid, for providing for the forfeiture of a cask of lime sold or exposed to sale when the cask was not of the prescribed size, while there was no provision as to the size of a cask in which lime might be sold if imported from any State but Maine. Hig^ns v. Three Hundred Casks lime, (1880) 130 Mass. 1. BEGULATION OF COMMERCE 257 the State inspection marked thereon, when not re- Chapter XIII quired of similar materials manufactured in the State, is an instance of discrimination, and a statute of Virginia declaring as follows: "(1) All flour brought' into this State and offered for sale therein shall be reviewed, and have the Virginia inspection marked thereon. (2) Any person or persons selliag or offering to sell such flour without review or in- spection, as provided in the preceding section, shall be fined the sum of five dollars, for the use of the commonwealth, for each barrel so sold or offered for sale," was held to be void.* The State of Minnesota passed' a statute pro- inspection . ^ of animals vidmg that all cattle, sheep, and swme to be ^^S'^tered! slaughtered for human food within the respective ^°'^°°^ jurisdictions of the inspectors should be inspected by the proper local inspector appointed ia Minne- sota, within twenty-four hours before the animals were slaughtered, and that a certificate should 'be made by such inspector, showing, if such were the fact, that the animals, when slaughtered, were f oimd healthy and in suitable condition to be slaughtered for human food. But in Minnesota v. Barber ^ Mr. Justice Harlan, delivering the opinion of the court, witun said that " as the inspection must take place within f^ur"hours the twenty-four hours immediately before the suughter- slaughtering, the act, by its necessary operation, excludes from the Minnesota market, practically, all fresh beef, veal, mutton, lamb, or pork — in what- ever form, and though entirely sound, healthy, and fit for human food — taken from animals slaughtered in other States; and directly tends to restrict the sVoight V. Wright, (1891) 141 U. S. 63. See Glover v. Flour Inspectors, (1891) 48 Fed. Rep. 348. 1 (1890) 136 U. S. 313. 17 258 REGULATION OF COMMEKCE Chapter ■When -slaughtered ^ ' compulsory posing compulsory pilotage on all vessels outward pilotage. bound through the capes is not in and of itself discriminatory. The fact that Virginia has no appreciable commerce from her own ports inward bound through the capes, and that the State does not subject the commerce on her internal waters to a compulsory charge for pilotage, does not render the law invalid, as in conflict with an Act of Con- gress avoiding the provisions of all State regula- tions making " any discrimination in the rate of pilotage or half pilotage between vessels sailing between the ports of one State and vessels sailing between the ports of different States, or any dis- crimination against vessels propelled in whole or in part by steam, or against national vessels of the United States. "3 The city of Baltimore adopted a municipal ordi- i„ wharf •' . . aero fnr nance declaring that " all vessels resorting to or tlfngmu- lying at, landing, depositing, or transportmg goods wharves. or articles other than the production of this State, on or from any wharf or wharves belonging to the mayor and city council, or any public wharf in the said city, other than the wharves belonging to or rented by the State, shall be chargeable with the wharfage as fixed by this ordinance, upon all goods or articles landed or deposited on any wharf or wharves belonging to the said mayor and city council; and the master or owner of the vessel so Colo. 78; Hoffman v. Harvey, (1891) 128 Ind. 600; State V. Klein, (1890) 126 Ind. 68. 3 Thompson v. Darden, (1905) 198 U. S. 310. 260 BEGTJLATION OF COMMEBCE Ch^ter depositing, landing, or transporting said goods or articles, shall be responsible for the same." In Chiy V. Baltimore* it was argued in support of the ordi- nance that the city, by virtue of its ownership of the wharves, had the right, in its discretion, to permit their use to all vessels landing thereat with the products -of Maryland, and that those operating vessels laden with the products of other States could not justly complain, so long as they were not re- quired to pay wharfage fees in excess of reasonable compensation for the use of the city's property. But it was held that while the city, if it chose, could have permitted the public wharves, which it owned, to be used without charge, or could have exacted wharfage fees equally from aU who used its improved wharves, it could not be permitted by dis- criminations of that character to impede commercial intercourse.^ * (1879) 100 U. S. 434. 5 A statute which makes a distinction of wharfage between canal boats plying on the waters of the State exclusively, and all other canal boats and barges, is invalid; wharfage charges can be com- pensatory merely, and a mere compensatory payment must be gen- eral and uniform. Broeck v. The Barge John M. Welch, (1880) 2 Fed. Rep. 364. PART III. STATE TAXATION AS AFFECTING COMMERCE. o CHAPTER XIV. TAXATION OF IMPOETS AND EXPORTS. NE of the clauses enumerated in the beginning Chapter- of this work is that of Article I, section 10, ^^- providing that " no State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any State on imports or exports shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress. ' ' Chief Justice Marshall, in an early case,^ pointed Limitations ' ./ 7 X- Qjj taxing out that this clause is to be considered as part of p°^'at°^. the taxing power and not as part of the power to „«?"' regulate commerce, and that, the power having been given to Congress ' ' to lay and collect taxes, duties, imposts, and excises," it was probable that the Constitutional Convention was of the opinion that a State might impose duties on imports and exports, if not expressly forbidden. However this may be, it can hardly be doubted that, even in the absence of this prohibition, the same rule that is applied to goods received from other States would be applied' to imports from foreign countries, under the power granted to Congress to regulate commerce " with foreign nations, and among the several States,"' 1 Gibbons v. Ogden, (1824) 9 Wheat. (U. S.) 1. definitions. 264 KEGTJLATION OF COMMEECB Copter which is, as is hereafter shown,^ that the goods re- ' ceived from other States cannot be discriminated against by taxes imposed upon them on account of their nondomestic origin. But this prohibition on the State to lay imposts or duties on imports or exports does not permit imports to be taxed even as property within the State, until after they cease to be imports by being mingled with other property in the State.^ Meaning of The meaning of the words " imposts or duties chSf~ on imports or exports " was thus stated by Chief Tusticc Marshall's J ustice Marshall : * " An impost, or duty on imports, is a custom or a tax levied on articles brought into a country, and is most usually secured before the im- porter is allowed to exercise his rights of ownership over them, because evasions of the law can be pre- vented more certainly by executing it while the arti- cles are in its custody. It would not, however, be less an impost or duty on the articles, if it were to be levied on them after they were landed. The pol- icy and consequent practice of levying or securing the duty before or on entering the port does not limit the power to that state of things, nor, conse- quently, the prohibition, unless the true meaning of the clause so confines it. What, then, are ' im- ports ' ? The lexicons inform us, they are ' things imported.' If we appeal to usage for the meaning of the word, we shall receive the same answer. They are the articles themselves which are brought into the country. ' A duty on imports,' then, is not merely a duty on the act of importation, but is a duty on the thing imported. It is not, taken in its s See infra, p. 315. 3 gee infra, p. 292. « Brown v. Maryland, <1827) 12 Wheat. (U. S.) 410. BEGULATION OP OOMMEECE 265 XIV. literal sense, confined to a duty levied while the Chapter article is entering the country, but extends to a duty levied after it has entered the country." But at the close of the opinion, the case holding that a State statute taxing, by way of discrimination, im- porters who sold, by wholesale, foreign goods, was repugnant to this clause, the chief justice remarked: " It may be proper to add, that we suppose the principles laid down in this case, to apply equally to inaportations from a sister State." This casual remark, in connection with the particular holding, seems to have been misunderstood, and left open the question whether the words " imports and ex- ports " include importations from other States. The words " imposts," " imports," and " ex- similar -*- ' ^ ' words pre- ports," being frequently used in the Constitution, if hlve'^mtiar there is a clear idea of what either word means in "«*°'°ff- any particular connection in which it may be found, this furnishes a satisfactory test of its definition in other parts of the same instrument. Referring to that clause of Article I, section 8, which provides that " the Congress shall have power to lay and coUect taxes, duties, imposts, and excises, . . . but all duties, imposts, and excises shall be uniform throughout the United States," Mr. Justice Miller, speaking for the court in Woodruff v. ParhamJ^ said : "Is the word ' impost, ' here used, intended to confer upon Congress a distinct power to levy a tax upon all goods or merchandise carried from one State into another? Or is the power limited to duties on foreign imports? If the former be in- tended, then the power conferred is curiously ren- dered nugatory by the subsequent clause of the s (1868) 8 Wall. (U. S.) 123. 266 EEGITLATION OF COMMERCE Cha^r ninth section, which declares that no tax shall be '__ laid on articles exported from any State, for no article can be imported from one State into another which is not, at the same time, exported from the former. But if we give to the word ' imposts,' as nsed in the first-mentioned clause, the definition of Chief Justice Marshall, and to the word ' export ' the corresponding idea of something carried out of the United States, we have, in the power to lay duties en imports from abroad, and the prohibition to lay such duties on exports to other coxmtries, the power samewords and its limitations concerning imposts." In the cmMal- Articles of Confederation, also, it was provided that *'°''' no State should lay any imposts or duties which might interfere with any stipulation in treaties en- tered into by the United States, and that no treaty of commerce should be made whereby the legisla- tive power of the respective States should be re- strained from imposing such imposts and duties on foreigners as their own people were subjected to, or from prohibiting the exportation or importa- tion of any species Of goods or commodities what- soever; and " in these two articles," said the court further, ' ' the words * imports, ' ' exports, ' and ' im- posts ' are used with exclusive reference to foreign trade, because they have regard only to the treaty- making power of the federation. ' ' From the neces- sary interpretation of these clauses, and the fact that one of the chief reasons for assembling the Constitu- tional Convention was the necessity of vesting in Congress the power to levy duties on foreign goods and of imposing a restraint upon the States in that respect, the word " imports " in the clause under consideration must refer to goods imported from foreign countries and not to goods imported from persons. REGULATION OF COMMEBCB 267 other states, and the word " exports " has a cor- Chapter relative meaning.^ ^ The words refer to property, in regard to which words re- some one is owner and is either the importer or ex- «^y°;;;'°"» porter, and not to persons. The language of Article I, section 9, that " the migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dol- lars for each person," was relied on in People v. Compagnie Generate Transatlantique^ to sustain a contention that the words " imports " and " ex- ports " are applicable to persons as well as prop- erty. But Mr. Justice Miller said: " There has never been any doubt that this clause had exclusive reference to persons of the African race. The two words ' migration ' and ' importation ' refer to the different conditions of this race as regards freedom and slavery. When the free blacli man came here he migrated ; when the slave came, he was imported. The latter was property, and was imported by his owner as other property, and a duty could be im- posed on him as an import. We conclude that free human beings are not imports " within the meaning of the Constitution.^ «See also Austin v. Tennessee, (1900) 179 U. S. 343; Patapsco Guano Co. v. North Carolina Board of Agriculture, (1898) 171 U. S. 345; Pittsburg, etc., Coal Co. v. Bates, (1895) 156 U. S. 577; Coe V. Errol, (1886) 116 U. S. 517; Brown v. Houston, (1885) 114 U. S. 622. 7 (1882) 107 U. S. 59. 8 See Crandall v. Nevada, (1867) 6 Wall. (U. S.) 35; wherein it was held that while a statute of Nevada, imposing a capitation tax upon passengers leaving the State by the means furnished by common carriers, and requiring that the carriers should pay the 268 REGULATION OF COMMEBCE Chapter XIV. Considered in other parts of this work. By reason of its close connection with the power granted to Congress to regulate conunerce, and the resulting restriction on the taxing power of the States, the application of this express prohibition has occasionally arisen in particular connections, where it was urged that the taxation under consid- eration violated both clauses.® tax, could not be declared a violation of the commerce clause or of the clause prohibiting a. State from laying any imposts or duties on imports or exports, it was void as tending to embarrass the operations of the national government. 9 Consult the index under Imports and Exports, and see espe- cially infra, pp. 292, 309, 322, 324. CHAPTER XV. DUTIES OF TONNAGE. THE last clause of Article I, section 10, of the Chapter xv. Federal Constitution, provides, in part, that " " no' State shall, without the consent of Con- Asaiimi- gress, lay any duty of tonnage. " As to the power of thetaxtag Congress in this regard. Chief Justice Marshall, declaring that this is a restriction on the taxing power and not on the power to regulate commerce, said, in Gibbons v. Ogden:^ " This tax may be imposed by a State, with the consent of Congress; and it may be admitted that Congress cannot give a right to a State, in virtue of its own powers. But a duty of tonnage being part of the power of imposing taxes, its prohibition may certainly be made to depend on Congress, without afford- ing any implication respecting a power to regu- late commerce. It is true that duties may often be, and in fact often are, imposed on tonnage, with a view to the regulation of commerce ; but they may be also imposed with a view to revenue ; and it was, therefore, a prudent precaution to prohibit the States from exercising this power." A duty of tonnage within the meaning of the what con- Constitution has been defined to be " a charge upon ^^^y°^^_ a vessel, according to its tonnage, as an instrument of commerce, for entering or leaving a port, or navigating the public waters of the country. ' ' ^ Any 1 (1824) 9 Wheat. (U. S.) 1. 2 Per Mr. Justice Field, in Huse v. Glover, (1886) 119 U. S. 543. 270 EEGULATIOIT OF COMMEECB Ch^ter charge or burden which in its essence is a contribu- " tion claimed for the privilege of entering a port or remaining in it, or departing from it, imposed by the authority of the State, is within the prohibi- tion.^ As will be seen later, while a tax estimated on the tonnage is one of the tests, yet it is not a necessary element of a " duty of tonnage," as any tax for the privilege of entering a port and navi- gating the navigable waters of the State is, in a constitutional sense, a " duty of tonnage." By an Act of Congress * the tonnage of a vessel is defined to be the entire internal cubical capacity, or con- tents of the ship or vessel expressed in tons of one hundred cubical feet each, as estimated by pre- scribed rules of admeasurement and computation. Taxation of Ou the Questiou of the validity of the taxation vessels as it i-i property, of vcssels accordiug to their value as personal prop- erty by a city in which a company owning vessels has its principal office, Mr. Justice Clifford, speak- ing for the court in Wheeling, etc., Transp. Co. v. Wheeling,^ said that " tonnage duties on ships by the States are expressly prohibited, but taxes levied by a State upon ships or vessels owned by the citi- zens of the State as property, based on a valuation of the same as property, are not within the prohi- bition, for the reason that the prohibition, when properly construed, does not extend to the invest- ments of the citizens in such structures." But a tax on vessels plying in the navigable waters of a 3 Keokuk Korthern Line Packet Co. v. Keokuk, (1877) 95 U. S. 80. *Act of May 6, 1864, c. 83, carried forward into section 4153, Rev. Stat. U. S., and amended by the Acts of August 5, 1882, c. 398, § 1; June 19, 1886, c. 421, § 5, and March 2, 1895, c. 173, i 1. See 7 Fed. Stat. Annot. 21. B (1878) 99 U. S. 273. See also infra, p. 279, note 3. EEGTJLATION OF COMMERCE 271 State, proportioned to the tonnage, is void as a Chapter tonnage tax as applied to vessels, duly enrolled and ' licensed under Acts of Congress, owned by a citizen propor- of the State, and used exclusively in the transporta- tonnage, tion of freight and passengers between ports, points, or landings within the limits of the State, on navi- gable waters. To the suggestion that, in imposing such a tax, the legislature merely referred to the registered tonnage of the vessels as a way or mode to determine and ascertain the tax to be assessed on the steamboats, and to furnish a rule or rate to govern the assessors in the performance of their duties, the court, through Mr. Justice .Clifford lq the State Tonnage Tax Cases^ said: " Suppose that could be admitted, it would not have much tendency to strengthen the argument for the defend- ant, as the suggestion concedes what is obvious from the schedule, that the taxes are levied with- out any regard to the value of the steamboats. But the proposition involved in the suggestion cannot be admitted, as, by the very terms of the act, the tax is levied on the steamboats wholly irrespective of the value of the vessels as property, and solely and exclusively on the basis of their cubical contents as ascertained by the rules of admeasurement and computation prescribed by the Act of Congress." A New York statute providing that any vessel which should enter the port of New York, or load or unload or make fast to any wharf therein, should pay as fees a certain amount, according to the class of the vessel, to be computed from the tonnage ex- pressed in the registers of enrolment of such vessels, was held to be objectionable as exacting a tax where there were no services rendered or offered to be e (1870) 12 Wall. (U. S.) 204. 272 REGULATION OF COMMEECE Chapter XV Fees charged wbea no services rendered. Wharfage rendered. Either of tlie three disjimctive conditions brought a vessel within the statute and made her liable to the burden prescribed/ And a Louisiana statute enacted that the master and wardens of the port of New Orleans should be entitled to demand and receive, in addition to other fees, the sum of five dollars, whether called on to perform any service or not, for every vessel arriving in that port. The tax was held to be in a fair sense of the word a duty of tonnage, the court saying: '* In the most obvious and general sense, it is true, those words describe a duty proportioned to the tonnage of the vessel; a certain rate on each ton. But it seems plain that, taken in this restricted sense, the con- stitutional provision would not fully accomplish its intent. The general prohibition upon the States against levying duties on imports or exports would have been ineffectual if it had not been extended to duties on the ships which serve as the vehicles of conveyance. This extension was doubtless intended by the prohibition of any duty of tonnage. It was not only a pro rata tax which was prohibited, but any duty on the ship, whether a fixed sum upon its whole tonnage or a sum to be ascertained by com- paring the amount of tonnage with the rate of duty."« Wharfage, however, is not a duty of tonnage. The fact that the rates charged are graduated by the size or tonnage of the vessel is of no consequence in this connection.® As was said by the court in Tinman Steamship Co. v. Tinker, (1876) 94 U. S. 238. See also supra, p. 205. s Southern Steamship Co. v. Portwardens, (1867) 6 Wall. (U. S.) 31. » Ouachita Packet Co. v. Aiken, (1887) 121 U. S. 444; Cin- cinnati, etc.. Packet Co. v. Catlettsburg, (1881) 105 U. S. 559; North- BEGULATION OF COMMEBCB 273 Parhersburg, etc., Transp. Co. v. ParTcershurg^ copter " Whether a charge imposed is a charge of wharf- ' age, or a duty of tonnage, must be determined by the terms of the ordinance or regulation which im- poses it. They are not the same thiag; a duty of tonnage is a charge for the privilege of entering, or trading or lying in, a port or harbor; wharfage is a charge for the use of a wharf. Exorbitant wharfage may have a similar effect as a burden on commerce as a duty of tonnage has ; but it is exor- bitant wharfage, and not a duty of tonnage; and the remedy for the one is different from the remedy for the other. The question whether it is the one or the other is not one of intent, but one of fact and law : of fact, as whether the charge is made for the use of a wharf, or for entering the port; of law, as whether, according as the fact is shown to exist, it is wharfage or a duty of tonnage. The intent is not material, and is not traversable. ' ' A municipal corporation of a State, having by JJ^^fp*' the law of its organization an exclusive right to make wharves, collect wharfage, and regulate wharfage rates, can charge and collect wharfage proportioned to the tonnage of the vessels from the owners of enrolled and licensed steamboats mooring and land- ing at the wharves constructed on the banks of a navigable river. In Keokuk Northern Line Packet Co. V. Keokuk,^ the court said: " The prohibition to the State against the imposition of a duty of ton- nage was designed to guard against local hindrances to trade and carriage by vessels, not to relieve them western Union Packet Co. v. St. Louis, (1879) 100 U. S. 423; Vicks- burg V. Tobin, (1879) 100 U. S. 430. 1 (1882) 107 U. S. 691. a (1877) 95 U. S. 80. 18 274 BEGULATION OF COMMEBCB /^pt< Tolls for using im- proved waters. Chapter from liability to claims for assistance rendered and facilities furnished for trade and commerce. It is a tax or a duty that is prohibited; something im- posed by virtue of sovereignty, not claimed in right of proprietorship. Wharfage is of the latter char- acter." But in Cannon v. New Orleans,^ an ordi- nance imposing a tax so proportioned was held in- valid, not because the charge was for wharfage, nor even because it was proportioned to the tonnage of the vessels, but because the charge was for stop- ping in the harbor though no wharf was used. In the same way that charges for wharfage, graduated by the tonnage within the meaning of the Constitution, are not duties of tonnage, the exaction of tolls for passing through improved waters, as compensation for the use of artificial facilities constructed, is not a tonnage duty though the rates are prescribed according to the tonnage of the vessels and the amount of freight carried.* A license fee by a State either directly or through one of its municipal corporations upon the keepers of ferries living in the State, for boats owned by them and used in ferrying passengers and goods, is not a tonnage tax. Such a tax is levied on the ferry keeper and not on the ferry boat, and is not graduated by the tonnage of the ferry boats, being the same whether the boats are of large or small carrying capacity. This last, although not a con- clusive circumstance, is one of the tests applied to determine whether a tax is a tax on tonnage or not." In Morgan's Steamship Co. v. Louisiana Board Ferry Ucense, s (1874) 20 Wall. (U. S.) 577. 4Huse V. Glover, (1886) 119 U. S. 543. B Wiggins Ferry Co. v. East St. Louis, (1882) 107 U, S. 365. See also infra, p. 297. EEGULATION OP COMMEBCB 275 of Health,^ it was held that a fee exacted for the C^ter examination which the quarantine laws of the State ' require in regard to all vessels passing a quarantine euiranune station is not a tonnage tax. ^Mr. Justice Miller, in delivering the opinion of the court in that case, said: " We are of opinion that the fee complained of is not a tonnage tax, that, in fact, it is not a tax within the true meaning of that word as used in the Constitution, but is a compensation for a service rendered, as part of the quarantine system of all countries, to the vessel which receives the certifi- cate that declares it free from further quarantine requirements." But a tax on every vessel arriving when no ... service at a quarantine station, whether any service is rendered.! rendered or not, in order to defray the expenses of her quarantine regulations, assessed at five dollars for the first hundred tons of her capacity, and one and a half cents for every additional ton, is a ton- nage tax.'' « (1886) 118 U. S. 455. TPeete v. Morgan, (1873) 19 Wall. (U. S.) 581. See also as to inspection and quarantine charges and fees, supra, p. 105. CHAPTER XVI. TAXATION OF PROPEETT. GENEEAIi POWEE OF A STATE TO TAX PEOPEETY WITHIN ITS LIMITS. Chapter /'^EDINARY property taxes, upon property ■^^^' v_y having a situs within its territory, may be Of prop- taxed by a State,^ though the property may fntersSfe'" be employed in interstate commerce.^ A tax or ?omm"rce. othcT burdeu imposed upon the property of either a domestic or a foreign corporation because it is used to carry on interstate or foreign commerce is in- valid as an interference with the power of Congress in the regulation of such commerce.^ But a State may tax aU property, real and personal, withia its borders, belonging to persons or foreign or domes- tic corporations, although employed in interstate or foreign commerce, to the same extent that other property within its jurisdiction is taxed.* 1 Property in the shape of bonds and credits may be taxed. State Board of Assessors v. Comptoir Nat. d'Bscompte, (1903) 191 U. S. 388; New Orleans v. Stempel, (1899) 175 U. S. 309; Kirtland v. Hotchkiss, (1879) 100 U. S. 491. A tax imposed by a State statute on legacies is not void as to a legatee who is neither a citizen of the United States nor domiciled in that State. Mager v. Grima, (1850) 8 How. (U. S.) 490. 2 Atlantic, etc., Tel. Co. v. Philadelphia, (1903) 190 U. S. 160. s Gloucester Ferry Co. v. Pennsylvania, (1885) 114 U. S. 196. 4 Western Union Tel. Co. v. Taggart, (1896) 163 U. S. 1; Pull- man's Palace Car Co. v. Pennsylvania, (1891) 141 U. S. 18; Marye V. Baltimore, etc., R. Co., (1888) 127 U. S. 117; Delaware Railroad Tax, (1873) 18 Wall. (U. S.) 206. BEGtTLATION OF COMMERCE 277 In assessing such property for taxation, the Ch^ter State is not limited to the cost of the property, but '_ may assess it on the value which it has as used and vaiue which results from its use, notwithstanding that its from ^se in ' ■• *-' conlnierce. increased value may result from use in interstate commerce.® A State may levy a tax on the rolling stock and Sock'and other movable personal property brought into and "erionii . used in the State by a railroad company,® sleeping ^'°^"'■^■ car company,'' or refrigerator car company* doing business therein, and where the specific and individ- ual items of property so used and employed are not continuously the same but are constantly changing according to the exigencies of the business, the tax may be fixed by an appraisement and valuation of the average amount of property thus habitually used.* The State of Peimsylvania imposed taxes on Tousre- *^^^^**^ for tolls paid by one company to another for the nse of ^^f^'^'^- its railroad, and the State Supreme Court thus de- fined the term " tolls," as used in the tax laws of that State: " Toll is a tribute or custom paid for passage, not for carriage — always something taken B Postal Tel. Cable Co. v. Adams, (1895) 155 U. S. 688; Cleye- land, etc., E. Co. v. Backus, (1894) 154 U. S. 439. sMarye v. Baltimore, etc., K. Co., (1888) 127 U. S. 117. 'Pullman's Palace Car Co. v. Pennsylvania, (1891) 141 U. S. 18; Pullman's Palace Car Co. v. Twombly, (1887) 29 Fed. Kep. 658. 8 Union Refrigerator Transit Co. v. Kentucky, ( 1905 ) 199 U. S. 194; Union Refrigerator Transit Co. i;. Lynch, (1900) 177 U. S. 149; American Refrigerator Transit Co. v. Hall, (1899) 174 U. S. 70. 9 When the complaint contained no averment as to the average number of cars used in the State, the court said : " The presumption is that the action of the taxing officers was correct and regular, and that the number of cars assessed by the State board of equalization was the average number used and employed by plaintiff in error in the State of Utah during 1897." Union Refrigerator Transit Co. v. Lynch, (1900) 177 U. 8. 149. road. 278 BEGXTLATION OP COMMEBCE Chapter for a liberty or privilege, not for a service; and '__ such is the common understanding of the word. Nobody supposes that tolls taken by a turnpike or canal company include charges for transportation, or that they are anything more than an excise de- manded and paid for the privilege of using the way." In holding the tax to be valid, Mr. Justice Shiras, speaking for the court in New York, etc., R. Co. V. Pennsylvania,^ said: " The tax complained of is not laid on the transportation of the subjects of interstate commerce, or on receipts derived there- from, or on the occupation or busiaess of carrying it on. It is a tax laid upon the corporation on ac- count of its property in a railroad, and which tax is measured by a reference to the tolls received. The State has not sought to interfere with the agree- ment between the contracting parties iu the matter of establishing the tolls. Their power to fix the terms upon which the one company may grant to the other the right to use its road is not denied or in any way controlled. It is argued that the imposi- tion of a tax on tolls might lead to increasing them in an effort to throw their burthen on the carrying company. Such a result is merely conjectural, and, at all events, too remote and indirect to be an in- terference with interstate commerce. The inter- ference with the commercial power must be direct, and not the mere incidental effect of the require- ment of the usual proportional contribution to pub- lic maintenance. ' ' Value of In estimating the value of the property of a «mp"ny's tclcgraph company situate within a State, it may be regarded not abstractly or strictly locally, but 1 (1895) 158 U. S. 431. BBGULATION OF COMMEBCE 279 as a part of a system operated in other States, and Chapter a State is not precluded from taxing the property ' because the State had not created the company or conferred a franchise upon it, or because the com- pany has derived rights or privileges under an Act of Congress, or is engaged in interstate commerce.* A ship or vessel engaged in interstate or foreign sups or commerce may be taxed as other personal property,* 2 Western Union Tel. Co. v. Missouri, (1903) 190 U. S. 412. See further, infra, p. 282. A statute imposing a tax equal to one dollar per mile for the line of poles and first wire and fifty cents for each additional wire was considered to he invalid as fixing arbitrary sums without regard to the value of the property, and as in effect a tax on the privilege of doing business in the State. Com. v. Smith, (1891) 92 Ky. 38. A remedy by injunction directing the officers and agents of a telegraph company to desist from the prosecution of its business until taxes are paid would violate the provisions of an Act of Con- gress which says that the company accepting its provisions " shall have the right to construct, maintain, and operate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the military or post-roads of the United States." If a resort to a judicial proceeding to collect u. tax is deemed expedient, there remain to the court all the ordinary means of enforcing its judgment — executions, sequestration, and any other appropriate remedy in chancery. Western Union Tel. Co. v. Atty.-Gen., (1888) 125 U. S. 530. 3 The enrolment of a ship or vessel does not exempt the owner of the same from taxation for his interest in the ship or vessel as property, upon a valuation of the same, as in the case of other per- sonal property. Wheeling, etc., Transp. Co. v. Wheeling, (1878) 99 U. S. 273. See also Old Dominion Steamship Co. v. Virginia, (1905) 198 U. S. 299; Moran v. New Orleans, (1884) 112 U. S. 69. A tax on money or capital invested in shipping is valid. People V. Tax, etc., Com'rs, (1866) 48 Barb. (N. Y.) 157; Perry v. Torrence, (1838) 8 Ohio 521; State v. Charleston, (1851) 4 Rich. L. (S. Car.) 286. The power of the States to tax vessels engaged in commerce is limited by the clause of Article I, section 10, of the Constitution, providing that "no State shall, without the consent of Congress, lay any duty of tonnage." See Moran v. New Orleans, (1884) 112 U. S. 69; State Tonnage Tax Cases, (1870) 12 Wall. (U. S.) 204. See also supra, p. 270. 280 SEGXJLATION OF COMMEBCE c^ter but there must be a situs for the purpose of taxation. '__ Section 4141, Eev. Stat. U. S., provides: " Every vessel, except as is hereinafter provided, shall be registered by the collector of that collection-dis- trict which includes the port to which such vessel shall belong at the time of her registry; which port shall be deemed to be that at or nearest to which the owner, if there be but one, or, if more than one, the husband or acting and managing owner of such vessel, usually resides. ' ' This section creates what may be called the home port of the vessel, — an artificial situs which may control the place of taxa- Artificiai tiou in the absence of an actual situs elsewhere. In Hays v. Pacific Mail Steamship Co.* ocean steamers owned and registered in New York and regularly plying between Panama and San Fran- cisco and ports in Oregon, remaining in those ports no longer than was necessary to land and receive passengers and cargo and for repairs and supplies, were held not to be subject to taxation in California, but at the artificial situs established by their regis- try.^ And in St. Louis v. Wiggins Ferry Co.,^ it was held that certain ferry boats belonging to an Illinois corporation and plying between East St. Louis, Illinois, and St. Louis, Missouri, were not taxable in the latter State, but at their home port in the former State, the court saying that a tax was void when there was no jurisdiction as to the prop- erty taxed. « (1854) 17 How. (U. S.) 596. 5 See also Morgan v. Parham, (1872) 16 Wall. (U. S.) 471, as to a steamship registered in Kew York, and employed as a coasting steamer between Mobile and New Orleans, and regularly enrolled as a coaster in Mobile. It was lield that she was not subject to taxa- tion by the State of Alabama. 6 (1870) 11 Wall. (U. S.) 423. BEGULATION OP COMMEBCE 281 But where a vessel, though engaged in interstate Chapter commerce, is employed in such commerce wholly ^ within the limits of a State, it is subject to taxation Actual situs in that State. Being engaged wholly within the limits of a State, it has an actual situs there for the purposes of taxation, although it may have been registered or enrolled at a port in another Stated A State may also tax the property of a bridge Bridge. company, erected over one of the navigable waters of the United States. The fact that a bridge be- tween low-water marks on either side of the river is used for purposes of interstate commerce does not exempt it from taxation,* and its erection under the authority or with the consent of Congress,** and the declaration of Congress that railway bridges over navigable rivers shall be regarded as post roads, do not interfere with the right of the State to im- pose taxes.^ In the case of a bridge over a river dividing two States, each State may tax that part of the bridge within its limits, and when the dividing line between the two is the middle of the stream, it is a question of fact where that line divides a bridge, and it is not within the province of the Supreme Court of the United States to review the findings of the State courts in regard to the part assessed in the State.^ TOM Dominion Steamship Co. v. Virginia, (1905) 198 U. S. 299. Dredges employed in the improvement of navigable waters are subject to taxation thwugh owned by a corporation organized in another State. McRae v. Bowers Dredging Co., (1898) 90 Fed. Rep. 360. 8 Henderson Bridge Co. v. Henderson, (1891) 141 U. S. 679. 'Henderson Bridge Co. v. Henderson, (189&) 173 U. S. 592. 1 Henderson Bridge Co. v. Kentucky, (1897) 166 V. S. 150. 2 Keokuk, etc., Bridge Co. v. Illinois, (1900> 175 U. S. 626. In Henderson Bridge Co. v. Henderson, ( 1899 ) 173 U. S. 592, the court said that whether a municipal corporation in the State of 282 EEGXTLATION OF COMMEECE Chapter XVI. Proportion of whole value as a basis for taxation. Mode of aacertain- ing value— Railroads. APPLICATION OP THE UNIT BULE. As to railroad, telegraph, sleeping car, and ex- press companies, engaged in interstate commerce, their property, in the several States through which their lines or business extend, may be valued as a unit for the purposes of taxation, taking into con- sideration the uses to which it is put and all the elements making up aggregate value, and a propor- tion of the whole fairly and properly ascertained may be taxed by the particular State, without vio- lating any federal restriction. The valuation is thus not confined to the roadbed, ties, rails, and spikes of the railroad company, or to the horses, wagons, and furniture of the express company, or to the poles, wires, and instruments of the telegraph company, or to the cars of the sleeping car com- pany; but includes the proportionate part of the value resulting from the combination of the means by which the business is carried on, a value existing to an appreciable extent throughout the entire domain of operation. The rule applies to both domestic and foreign corporations.^ A proper mode of ascertaining the assessable value of so much of the whole property as is situ- ated in a particular State is, in the case of rail- Kentucky had authority to tax so much of the property of a bridge company as was permanently between low-water mark on the Ken- tucky shore and low-water mark on the Indiana shore of the Ohio river depended primarily upon the question whether the boundary- of Kentucky extended to low-water mark on the Indiana shore. It had been settled, in Handly v. Anthony, (1820) 5 Wheat. (U. S.) 374, and in Indiana v. Kentucky, (1890) 136 U. S. 479, as to the boundary between Kentucky and Indiana, that the jurisdiction of Kentucky extends to the low-water mark on the Indiana shore of the Ohio river. 3 Pullman's Palace Car Co. v. Pennsylvania, (1891) 141 U. S. 18. REGULATION OF COMMERCE 283 roads, to take that part of the value of the entire Chapter . XVI road which is measured by the proportion of its '__ length therein to the length of the whole ; * in the Telegraph case of a telegraph company, to take such a propor- tion of the whole value of the capital stock as the length of its lines within a State bears to the length of all its lines everywhere, deducting a sum equal to the value of its real estate and machinery subject to local taxation within the State ; ® and in the case sieepinsr- ' car com- of a sleeping car company, to take such proportion p*"^- of the capital stock as the number of miles of rail- road over which its cars are run in a particular State bears to the whole number of miles traversed by them in that and other States.® In the case of express companies, a rule to be Express ^ company. followed by a State board in making the assessment, that " in determining the value of the property of said companies in this State, to be taxed within the State and assessed as herein provided, said board shall be guided by the value of said property as determined by the value of the entire capital stock of said companies, and such other evidence and rules as will enable said board to arrive at the true value in money of the entire property of said com- panies within the State of Ohio, in the proportion which the same bears to the entire property of said companies, as determined by the value of the capital stock thereof, and the other evidence and rules as 4 Cleveland, etc., K. Co. v. Backus, (1894) 154 U. S. 439. The rule was followed in ascertaining the value of movable prop- erty, and sustained, in Pittsburgh, etc., R. Co. v. Backus, (1894) 154 U. S. 421. See also Maine v. Grand Trunk R. Co., (1891) 142 U. S. 217, as to a unit method of taxing the gross receipts. 5 Western Union Tel. Co v. Taggart, (1896) 163 V. S. 1. Pullman's Palace Car Co. v. Pennsylvania, (1891) 141 U. S. 18. 284 EEGULATION OF COMMEBCE c^ter aforesaid," was held to be valid J Upon, a petition '__ for a rehearing, this principle of taxation was re- aflSrnied. Mr. Justice Brewer wrote the opinion of the court, and referred to the fact that in the city of New York were located the headquarters of the cor- poration, whose corporate property was confessedly of the value of $16,000,000 — a value which could be realized by its stockholders at any moment they saw fit ; that its tangible property and its business were scattered through many States, all whose powers could be LQvoked to protect its property from tres- pass and secure it in the peaceful transaction of its widely dispersed business; and that the tangible property was worth only $4,000,000. Answering the contention that the value of the tangible prop- erty in such a case is the limit of the combined taxing power of the States in which the corporation operates, the learned justice pointed out the injus- tice of asking those States to protect property having such a high actual value, and limiting their taxing power to the value of the tangible property, and said that ' ' courts must recognize things as they are and as possessing a value which is accorded to them in the markets of the world, and that no finespun theories about situs should interfere to enable these large corporations, whose business is carried on through many States, to escape from bearing in each State such burden of taxation as a fair distribution of the actual value of their property among those States requires. ' ' ^ The fact that a telegraph company, whether domestic or foreign, has accepted the provisions of 'Adams Express Co. v. Ohio State Auditor, (1897) 165 U. S. 194. See also Adams Express Co. v. Kentucky, (1897) 166 U. S. 171. 8 Adams Express Co. v. Ohio State Auditor, (1897) 166 U. S. 185. EEGULATION OF COMMERCE 285 the Act of Congress of July 24, 1866, ch. 230, now chapter embodied in §§ 5263-5269, Eev. Stat. U. S.,'does not L exempt it from tlie operation of a statute of a State Effect of in which it owns a line of telegraph, requiring it to gr^ss au- be there taxed on such proportion only of the whole J^'^l'Sfy to value of its capital stock as the length of its line in ^oadsfet?" that State bears to the length of its lines every- where; and to prevent its whole tax in that State from amounting in any event to more than that, it is provided that from the taxable portion of the value of its capital, so ascertained, shall be deducted the value of any property owned by it in that State which is subject to local taxation in the cities and towns.® In Western Union Tel. Co. v. Atty.-Qen.^ the court said that the franchise of such a company to be a corporation was derived not from the Act of Congress, but from the laws of the State under which it was organized, and that " it never could have been intended by the Congress of the United States, in conferring upon a corporation of one State the authority to enter the territory of any other State and erect its poles and lines therein, to establish the proposition that such a company owed no obedience to the laws of the State into which it thus entered, and was under no obligation to pay its fair proportion of the taxes necessary to its support." In defining what is meant by valuation as a unit valuation for the purpose of taxation, the court, especially re- fined-'*'" ferring to express companies, in the Adams Express Co. V. Ohio State Auditor case,^ said: " The unit is a unit of use and management, and the horses, • Massachusetts v. Western Union Tel. Co., (1891) 141 U. S. 40. 1 (1888) 125 U.S. 530. i (1897) 165 U. S. 194. 286 BEGtTLATION OP COMMEECE Chapter wagons, safes, pouches, and furniture ; the contracts '__ for transportation facilities; the capital necessary to carry on the business, whether represented in tangible or intangible property, in Ohio, possessed a value in combination and from use in connection with the property and capital elsewhere, which could as rightfully be recognized in the assessment for taxation in the instance of these companies as the others. We repeat that while the unity which ex- ists may not be a physical unity, it is something more than a mere unity of ownership. It is a unity of use, not simply for the convenience or pecuniary profit of the owner, but existing in the very necessi- ties of the case — resulting from the very nature of the business." The same principle undoubtedly applies in the case of telegraph companies. Exccp- There may be exceptional cases, as for instance, of vaiuatie vrhcre the terminal facilities in some large city are terminal ^ '^ facilities. q£ enormous value, and so give to a mile or two of track in such city a value out of all proportion to any similar distance elsewhere along the line of the road, or where in certain localities the com- pany is engaged in a particular kind of business requiring for sole use in such localities an extra amount of rolling stock. If testimony to this effect is presented by a railroad company to a State board, it must be assumed, in the absence of anything to the contrary, that such board, in making the assess- ment of track and rolling stock within the State, took into account the peculiar and large value of such facilities and such extra rolling stock. But whether in any particular case such matters are taken into consideration by the assessing board does not affect the validity of the law, when the law does not require that the valuation of the prop- BEGULATION OF COMMERCE 287 erty within the State shall be absolutely determined C!^^*^' upon a mileage basis.^ '__ TAXATION OF GROSS RECEIPTS. The question of the power of a State to tax the suteswith- ^ -^ out power gross receipts of a corporation engaged in interstate ^"j'p*^ fj;^ commerce was first presented in State Tax on Rail- LnTfom'gn way Gross Receipts.* The S'tate of Pennsylvania imposed a tax upon the gross receipts of certain transportation companies, and in this particular case taxed the gross receipts of a railroad company, chartered by the State, derived partly from the freight of goods transported wholly within the State, and partly from the freight of goods exported to points without the State, which latter were dis- criminated from the former in the reports made by the company. The validity of the tax was sustained on the ground, among others, that the tax, being collectible only once in six months, was laid upon a fund which had become the property of the com- pany, miagled with its other property, possibly ex- pended in improvements, or otherwise invested. In Farao v. Michigan ° it was held that a State tax on course of '^ "^ . . - , decisions. the gross receipts of a foreign railroad corporation from iaterstate transportation is a burden on inter- state commerce. In this case the court explained the case of State Tax on Railway Gross Receipts, supra, but distinctly overruled it in Philadelphia, etc., Steamship Co. v. Pennsylvania,^ wherein it was held that a tax upon the gross receipts of a steam- » Pittsburgh, etc., R. Co. v. Backus, (1894) 154 U. S. 421. See also Cleveland, etc., K. Co. v. Backus, (1894) 154 U. S. 439. « (1872) 15 Wall. (U. S.) 284. » (1887) 121 U. S. 230. e (1887) 122 U. S. 326. 288 BBGULATION OF COMMEBCB Chwter ship company, incorporated under the laws of the ' taxing State, derived from the transportation of persons and property by sea, between different States, and to and from foreign comitries, is a burden upon interstate and foreign commerce. Sati^re*" Nevertheless, a State may levy a tax on the ceipts. receipts of an interstate corporation, whether it be a domestic corporation,'^ or one organized under the laws of another State,® when the statute confines the tax to the intrastate business, and in no way relates to the interstate business of the company.^ In Maine v. Grand Trunk R. Co} it was held that the imposition of a tax on a foreign railroad corpora- tion, operating a railroad partly within and partly without the State,' levied upon the receipts ascer- tained by dividing the gross transportation receipts over its whole extent by the total number of miles operated, to obtain the average gross receipts per mile, and taking the gross receipts in the State to be the average gross receipts per mile multiplied by the number of miles operated within the State, was not a regulation of interstate and foreign commerce, the court saying that a resort to the receipts was simply to ascertain the value of the business done by the corporation, and thus obtain a guide to a reasonable conclusion as to the amoimt of the privi- lege tax which should be levied. 'Lehigh Valley R. Co. v. Pennsylvania, (1892) 145 U. S. 192. See also the discussion supra, p. 151, as to the separability of the 1 receipts on domestic from receipts on interstate transportation. 8 Pacific Express Co. v. Seibert, (1892) 142 U. S. 339. 9 A State may tax transportation within the State when in its course it passes through another State than that of its origin and destination, if there is no breaking of bulk or transfer of pas- sengers in the other State. Lehigh Valley R. Co. v. Pennsylvania, (1892) 145 U. S. 192. See supra, p. 156. 1 (1891) 142 U. S. 217. REGULATION OF COMMEBCE 289 A single tax assessed upon receipts derived Chaflter partly from interstate commerce and partly from '__ commerce within the State, but which have been separa- returned and assessed in' gross and without separa- intrastate "^ from inter- tion and apportionment, is not wholly invalid. "»" tax. Such a tax is invalid only in proportion to the ex- tent that such receipts were derived from interstate commerce, and when the means are presented whereby the receipts arising from commerce wholly within the State, and from that which was interstate, can be separated, the tax may be levied on the domestic receipts.^ The State of Maryland granted to the Baltimore ?J'p^'J^^^j» and Ohio Eailroad Company the right to make a lH^^"^ branch or lateral road from Baltimore to Wash- ington, with a stipulation in the charter that the company should, at the end of every six months, pay to the State one-fifth of the whole amount which might be received for the transportation of pas- sengers. In holding that this was not a violation of the commerce clause, the court, in Baltimore, etc., R. Co. V. Maryland,^ speaMng through Mr. Justice Bradley, said: " So long, therefore, as it is con- ceded (as it seems to us it must be) that the power to charge for transportation, and the amount of the charge, are absolutely within the control of the State, how can it matter what is done with the money, whether it goes to the State or to the stock- holders of a private corporation? As before said, the State could have built the road itself and charged 2 Western Union Tel. Co. v. Alabama State Board of Assessment, (1889) 132 U. S. 472; Eatterman v. Western Union Tel. Co., (1888) 127 U. S. 411. 3 (1874) 21 Wall. (U. S.) 456. 19 290 BEGULATION OP COMMEECE «^^ter any rate it chose, and could thus have filled the , '__ coffers of its treasury without being questioned therefor. How does the case differ, in a constitu- tional point of view, when it authorizes its private citizens to build the road and reserves for its own use a portion of the earnings? We are unable to see any distinction between the two cases. In our judgment there is no solid distinction. If the State, as a consideration of the franchise, had stipulated that it should have all the passenger money, and that the corporation should have only the freight for the transportation of merchandise, and the cor- poration had agreed to those terms, it would have been the same thing. It is simply the exercise by the State of absolute control over its own prop- erty and prerogatives." But Mr. Justice Harlan, in Northern Securities Co. v. U. /S.,* referring to the Baltimore, etc., R. Co. v. Maryland case, supra, said : "In the case just referred to the court does not say, and it is not to be supposed that it will ever say, that any power exists in a State to prevent the enforcement of a lawful enactment of Congress, or to invest any of its corporations, in whatever busi- ness engaged, with authority to disregard such en- actment or defeat its legitimate operation. On the •contrary, the court has steadily held to the doctrine, vital to the United States as well as to the States, that a State enactment, even if passed in the exer- cise of its acknowledged powers, must yield, in case 'of conflict, to the supremacy of the Constitution of the United States and the Acts of Congress enacted in pursuance of its provisions." * (1904) 193 U. S. 197. EEGULATION OF COMMERCE 291 Chapter TAXATION OF GOODS. XVI. Property actually in transit from one State to wuie another State is exempt from local taxation, in transit, although if it be stored for an indefinite time during such transit, at least for other than natural causes, or lack of facilities for immediate transportation, it may be lawfully assessed by the local authorities.'* In Brown v. Houston ® it was held that coal mined in Pennsylvania and sent by water to New Orleans to be sold in the open market there on accoimt of the owners in Pennsylvania, and lying at New Orleans in flatboats for sale, became intermingled, on its arrival there, with the general property of the State, and was subject to taxation under the general laws of Louisiana, although it might have been, after arrival, sold from the vessel on which the transportation was made, without being landed, and for the purpose of being taken out of the country by a vessel bound to a foreign port.'' The products of a State, though intended for ex- intended portation to another State, and partially prepared oKelley v. Rhoads, (1903) 188 U. S. 1, holding that a flock of sheep, driven without unnecessary delay across a State for ship- ment, and not for the purpose of grazing, was exempt from taxation by the State through which it was being transported. A State may tax property brought into the State merely for the purpose of undergoing a partial process of manufacture. Standard Oil Co. V. Combs, (1884) 96 Ind. 179. A stamp tax on bills of lading for the transportation to any point outside the State is a tax on the goods, and, when the goods are being exported to a foreign country, is a tax on exports within the prohibition of the clause of Article I, section 10, providing that " no State shall, without the consent of Congress, lay any imposts or duties on imports or exports." Almy v. California, (1860) 24 How. (U. S.) 169. • (1885) 114 U. S. 622. » See also Pittsburg, etc., Coal Co. v. Bates, (1895) 156 U. S. 577. 292 EEGULATION OP COMMERCE C^ter for that purpose by being deposited at a place or port of shipment within the State, are liable to be taxed like other property within the State. The rule in relation to the products of a State intended for exportation to a foreign country or to another State, as to the point of time at which the taxing power of the State over them terminates, is that such goods do not cease to be part of the general mass of property in the State, subject, as such, to its jurisdiction, and to taxation in the usual way, until they have l3een shipped, or entered with a common carrier for transportation, or have been started upon such transportation in a continuous route or journey.® Imports In considering the power of the States to tax coulifries. imported goods while in the original packages and in the possession of the importer, it has to be borne in mind that the clause of section 10, Article I, pro- viding, in part, that " no State shall, without the consent of Congress, lay any imposts or duties on imports or exports," creates a distinction in this regard between goods imported from foreign coun- tries and from other States. The word ' ' imports ' ' in the clause quoted applies only to articles im- ported from foreign countries,^ and is an absolute prohibition of State taxation of goods imported from foreign countries while they are in the original packages and before they have, by the act of the sCoe V. Errol, (1886) 116 U. S. 517, holding that logs, which had been drawn down to the place from which they were to be transported, there to remain until it should be convenient to send them to their destination, were taxable by the State. See also, Diamond Match Co. v. Ontonagon, (1903) 188 U. S. 82. And see also as to duration of federal protection, supra, p. 152. 9 Patapseo Guano Co. v. North Carolina Board of Agriculture, (1898) 171 U. S. 345. REGULATION OF COMMEKCE 293 importer, become incorporated in the mass of prop- Chwter erty of tlie State and are lield for sale,^ but when the '__ importer sells the imported articles, or otherwise mixes them with the general property of the State by breaking up the packages, they become incor- porated with the mass of property and are subject to State taxation.^ On the other hand, a different rule obtains with pOTtedfrom respect to articles transported from one State to ""tnofher. another. In such cases, there is no positive pro- hibition like that against taxation of imports from foreign countries, and the States have the power, after the goods imported from other States have reached their destination and are held for sale, to tax them, without discrimination, like other prop- erty within the State.* iMay V. New Orleans, (1900) 178, U. S. 496; Low v. Austin, (1871) 13 Wall. (U. S.) 29. See also infra, p. 309, as to the right to impose a license tax for the privilege of selling such goods. 2 Waring v. Mobile, (1868) 8 Wall. (U. S.) 110. When original packages of imported goods have been sold, and the proceeds have become assets of the importer, in the shape of credits and bills receivable, the property must be regarded as having lost its distinctive character as an import and having become mixed with the mass of the importer's property. People v. Wells, (1905) 107 N. Y. App. Div. 15, affirmed (1896) 184 N. Y. 275. 3 American Steel, etc., Co. v. Speed, (1904) 192 U. S. 500. CHAPTER XVn. PEIVILEGE AND OCCUPATION TAXES. ON THE BUSINESS OF ENGAGING IN TBANSPOETATION. Chap ter T T may be stated as a rule of general application, '_ 1 that no State can compel a party, individual, or corporation to pay for the privilege of engaging in interstate commerce.^ ^usini^^of The business of transporting passengers^ and gers^a^nT"' freight^ luto, through, or out of a State cannot be "'^'''' subjected to taxation by the State. 1 Atlantic, etc., Tel. Co. v. Philadelphia, (1903) 190 U. S. 160. In Crandall v. Nevada, (1867) 6 Wall. (U. S.) 35, it was held that a State capitation tax upon every person leaving the State, or passing through it, by any common carrier, was not void as a regulation of commerce, but, as the operation of such a statute would embarrass the operations of the national government, it was held void. A license tax for the privilege of fishing in State waters (Mor- gan V. Com., (1900) 98 Va. 812), or on the business of canning or packing oysters (Applegarth v. State, (1899) 89 Md. 140; State v. Applegarth, (1895) 81 Md. 293), is valid. To carry on the business of collecting soiled clothing and sending it to another State to be laundered and returned, a license may be required. Smith v. Jackson, (1899) 103 Tenn. 673. But see Com. I). Pearl Laundry Co., (1899) 105 Ky. 259. zPickard v. Pullman Southern Car Co., (1886) 117 U. S. 34, overruling Pullman Southern Car Co. v. Gaines, (1877) 3 Tenn. Ch. 587; Tennessee v. Pullman Southern Car Co., (1886) 117 U. S. 51, affirming (1884) 22 Fed. Rep. 276; Henderson v. New York, (1875) 92 U. S. 259; Passenger Cases, (1849) 7 How. (U. S.) 283. But eee New York v. Miln, (1837) 11 Pet. (U. S.) 102. 3 The invalidity of a State tax on interstate and foreign com- merce is not cured by including, in the provisions of the statute BEGULATION OF COMMEBCE 295 This does not, however, prevent a State from ^^^JF" levying a franchise tax upon a railroad company , for the privilege of maintaining a separate, inde- Francho.: pendent local service, preliminary or subsequent to ratei^^ any interstate transportation. This is illustrated |?^f**- by the ease of New York v. Knights The Pennsyl- vania Railroad Company had established a cab stand on its own premises at the Twenty-third street ferry in the city of New York, and maintained a service of cabs and coaches under special licenses from the city of New York, whereby they could stand on those premises only. The sole business- done by those cabs and coaches was to bring the company's passengers to and from its ferry from Twenty-third street to Jersey City. The charges .for. this service were separate from those of the company for further transportation, and no part of its receipts from the cab service was received as compensation for any service outside the State of New York. It was held that the State tax on the cab service was valid though it had not been profit- able to the company, but had been operated at a loss. While the privilege of carrying on an interstate O" p™*;^ transportation business cannot be taxed, a State ij||.^ statute laying a tax upon a transportation com- pany, which in terms applies strictly to business done in the transportation of passengers taken up at one point in the State and transported wholly within the State to another point therein, is not an interference with interstate commerce. In Allen v. Pullman's Palace Car Co.^ it was argued that the imposing it, the same or a like tax on domestic commerce. State Freight Tax Case, (1872) 15 Wall. (U. S.) 232, reversing Tonnage- Tax Cases, (18-69) 62 Pa. St. 286. i (1904) 192 U. S. 21. 6 (1903) 191 U. S. 171. 296 EEGtTLATION OP COMMEBCB Obiter tax collected for carrying one or more local pas- ^_ sengers on cars operating within the State was assessed upon traffic which bore such small propor- tion to the entire business of the company within the State, that it could not have been levied in good faith upon purely local business, and was but a thinly disguised attempt to tax the privilege of inter- state traffic. Upon a similar contention in Pullman Co. V. Adams,^ the court said that as, under the law of the State, the company had the right to choose between what points it would carry, and therefore to give up the carriage of passengers from one point to another within the State, it could not complain of being taxed for the privilege of doing a local busi- ness which it was free to renounce.'' The same principle has been applied in the case of express companies. So long as the taxation of the business of an express company does not apply to or affect in any manner the business which is interstate in character, but applies to and affects only the busi- ness which is done within the State, it is valid.^ Mcensing A State and its mxmicipalities cannot exact a vessel- T p owners. hceuse from an owner of vessels duly enrolled and licensed under the laws of the United States and employed in the coasting trade, for the privilege • (1903) 189 U. S. 420. ' " If the payment of this tax was compulsory upon the company before it could do a carrying business within the State, and the burden of its payment, because of the minor character of the domes- tie traffic, rested mainly upon the receipts from interstate traffic, there would be much force in this objection." Allen v. Pullman's Palace Car Co., (1903) 191 U. S. 171. 8 Osborne v. Florida, (1897) 164 U. S. 654. In Osborne v. Mobile, (1872) 16 Wall. (U. S.) 479, it was held that a municipal ordinance was not invalid in requiring payment of a license for the privilege of transacting in that city a business ex- tending beyond the limits of the State. But the case was overruled in Leloup v. Mobile, (1888) 127 U. S. 640. REGULATION OF COMMEECB 297 of navigating a navigable stream within the State chapter unless the license is a charge by way of compensa- '_ tion for a specific improvement.^ The question of Keepers the power of a State or municipal corporation to ° '"'^^' levy a license upon the keepers of ferries was dis- cussed in St. Clair County v. Interstate Sand, etc., Transfer Co.,^ wherein it was held that a municipal corporation could not require a license from a ferry company for transporting railroad cars across a river between two States. Among other cases, the court referred to Gloucester Ferry Co. v. Pennsyl- vania,^ and Wiggins Ferry Co. v. East St. Louis.^ In the first of those cases it was held that a ferry company, incorporated and domiciled in New Jersey, carrying on a ferry business over the Delaware river between Camden, New Jersey, and Philadel- phia, and owning a wharf or slip at which its boats landed, could not be taxed for the privilege of re- ceiving and landing passengers and freight at its wharf in Philadelphia. In the second case, the ferry company was in the enjoyment of a ferry franchise to operate across the Mississippi river between Illinois and Missouri. The company was domiciled in Illinois, that State being the situs of its boats and other property, and it was held that the exaction of a license tax by a municipal corporation in Illinois for the privilege of ferrying across the river between the two States was not repugnant to sHarman v. Chicago, (1893) 147 U. S. 396, reversing (1892) 140 111. 374; Moran v. New Orleans, (1884) 112 U. S. 69. A State tax on immigrants arriving from foreign ports is a regulation of commerce with foreign nations. People v. Compagnie Gfinerale Transatlantique, (1882) 107 U. S. 59. 1 (1904) 192 U. S. 454. s (1885) 114 U. S. 196. « (1882) 107 U. S. 365. 298 EEGTTLATION OF COMMERCE Chapter XVII. For privi- lege of keeping an office. On an agency es- tablished to facilitate interstate business. License tax on railroad agency — Soliciting interstate traffic. the commerce clause. It will be noticed that the St. Clair County case, supra, limits the application of the Wiggins Ferry case, supra, and that this case seems to have been decided upon the idea that the tax was in the nature of a tax on property having a situs within the State.* A license tax cannot be imposed upon a foreign corporation for the privilege of keeping an office in the State used to facilitate the transaction of its interstate commerce,^ but, within the principle recog- nized and heretofore stated, that the privilege of carrying on the domestic part as distinguished from interstate business may be taxed, it has been held that a State may impose a tax for the privilege of keeping an office in the State when there is trans- acted at that office intrastate as well as interstate business.*' A statute or municipal ordinance requiring a transportation agency to pay a license tax as a con- dition to doing any business in the State is invalid as to an agency of a foreign corporation doing an interstate business.'^ In McCall v. California,^ it was held that a railroad agency cotild not be re- quired to pay a municipal license tax on the busi- ness of soliciting interstate traffic. In the particular case, the person was an agent in the city of San * See also as to duties of tonnage, supra, p. 274. 6 Norfolk, etc., R. Co. r. Pennsylvania, (1890) 136 U. S. 114. A license tax may be imposed upon a foreign corporation for the privilege of keeping an office in the State when such corporation is not engaged in interstate commerce. Pembina Consol. Silver Min., etc., Co. V. Pennsylvania, (1888) 125 U. S. 181. o Atty.-Gen. v. Electric Storage Battery Co., (1905) 188 Mass. 239. 'See Crutcher v. Kentucky, (1891) 141 U. S. 47, as to agents «f express companies, and Clyde Steamship Company v. Charleston, (1896) 76 Fed. Eep. 46, as to steamship agencies. » (1890) 136 U. S. 104. EEGTJLATION OF COMMEECE 299 Francisco, California, for a railroad company oper- Chapter ating a continuous line of road between Chicago '__ and New York, and the only duty he was required to perform was to induce people contemplating taking a trip East to be booked over the line he represented. The court, Mr. Justice Lamar de- livering the opinion, said: " The object and effect of his soliciting agency were to swell the volume of the business of the road. It was one of the ' means ' by which the company sought to increase and doubtless did increase its interstate passenger traffic. It was not incidentally or remotely con- nected with the business of the road, but was a direct method of increasing that business. The tax upon it, therefore, was, according to the principles established by the decisions of this court, a tax upon a means or an occupation of carrying on interstate commerce, pure and simple." The principle that when a tax is laid not in terms upon the domestic business, but is a gross sum imposed, regardless of the fact that the greater portion of the business may be interstate in character, the construction of the State court will be accepted as in reality a part construc- . .. tion of stat- of the statute itself, was applied m Kenrer v. mebystate ' -*- ■*- court — Stewart,^ as to a municipal tax on the distributing ^IJ^""^ agent of a packing house shipping dressed meats bSSS! into the State, when the record did not show what proportion of such business was interstate and what proportion was domestic. The tax was held to be valid, and Mr. Justice Brown, delivering the opinion of the court, said: " If the amount of domestic business were purely nominal, as, for in- stance, if the consignee of a shipment made in Chicago, upon an order filled there, refused the 9 (1905) 197 U. S. 60. 300 EBGULATION OP COMMERCE Chapter XVII. goods shipped, and the only way of disposing of them was by sales at Atlanta, this might be held to be strictly incidental to an interstate business, and in reality a part of it, as we held in Crutcher v. Kentucky, (1891) 141 U. S. 47; but if the agent carried on a definite, though a minor, part of his business in the State by the sales of meat there, he would not escape the payment of the tax, since the greater or less magnitude of the business cuts no figure in the imposition of the tax. There could be no doubt whatever that, if the agent carried on his interstate and domestic business in two distinct establishments, one would be subject and the other would not be subject to the tax, and in our view it makes no difference that the two branches of busi- ness are carried on in the same establishment. The burden of proof was clearly upon the plaintiff to show that the domestic business was a mere incident to the interstate business." As a con- dition to doin^ busi- Dcss in the State. On domes- tic business. ON TELEGRAPH AND TELEPHONE COMPANIES. A State cannot exact a license tax from a tele- graph company, doing an interstate as well as a domestic or internal business, as a condition to doing business within the State,* but such a tax upon a telegraph company on business done exclusively within the State, and not including any interstate or government business, is an exercise of the police power, and not an interference with interstate com- merce.2 When a State imposes an occupation tax in the way of a tax on messages generally, so far iLeloup V. Mobile, (1888) 127 U. S. 640, reversing (1884) 76 Ala. 401. •2 Postal Tel. Cable Co. v. Charleston, (1894) 153 U. S. 692, affirming (1893) 56 Fed. Kep. 419. REGULATION OF COMMERCE 301 as it operates on private messages sent out of the Chapter State, it is beyond the power of the State, and whether such a law can be used to enforce the col- lection of the tax on messages sent by private parties from one place to another exclusively within its own jurisdiction, is a question entirely within the juris- diction of the courts of the State.* The advantages or privileges that are conferred Effect of privileg'es upon telegraph companies by Acts of Congress are ^""^f/j'^'^ in the line of authority to construct and maintain Co°k«ss. lines as means or instruments of commerce, and are not necessarily inconsistent with a right on the part of the States in which business is done and property acquired to tax the same within the limitations of constitutional restrictions, as in the case of imposing a license tax on business done exclusively within the State.* Municipal taxation of the poles and wire belong- on poies ing to a telegraph company using the streets of a - J^°J,^', city is not a regulation of commerce if it is reason- able. Under the Acts of Congress respecting the use of the post roads of the United States the occu- pation of the streets by a telegraph company cannot be denied by the municipal corporation, but a sum may be charged on each pole erected as compensa- tion in the nature of rental for the use of the street.^ And so a license fee of a certain amount per pole and per mile of wire may be imposed to cover the cost of local governmental supervision." As has s Western Union Tel. Co. v. Texas, (1881) 105 U. S. 460. * Postal Tel. Cable Co. v. Charleston, (1894) 153 U. S. 692. BSt. Louis V. Western Union Tel. Co., (1893) 148 U. S. 92. « Atlantic, etc., Tel. Co. v. Philadelphia, (1903) 190 U. S. 160; Western Union Tel. Co. v. New Hope, (1903) 187 U. S. 419. Though the telegraph company has no office in the borough, a municipal corporation may impose such a license fee for each pole and super- vision. •302 REGULATION OF COMMERCE Chapter xvn. Reason- ableness varies in difierent munici' palities. been said, the charges in such cases must be reason- able,^ but an ordinance imposing a fee for super- vision must be taken as prima facie reasonable.® The question of reasonableness is one of fact and cannot be the same ia one city as in another. What is reasonable in one municipality may be op- pressive and unreasonable in another.® In Postal Tel.-Cahle Co. v. Taylor ^ it was held that the ordi- nance in question imposed an imreasonable license fee. It appeared from the affidavit of defense that the license fees imposed by the ordinance were not based upon the cost and expense to the borough for inspection and supervision or regulation of the de- fendant's lines and business, but the fees were im- posed notwithstanding they were more than twenty times the amount that might have been or could and mile of wire within its limits. Taylor v. Postal Tel. Cable Co., (1902) 202 Pa. St. 584. •' A municipal ordinance charging the sum of five dollars per annum as rental for each and every telegraph or telephone pole erected or used in the streets in the city, cannot be assumed to be so excessive as to be unreasonable and void. St. Louis v. Western Union Tel. Co., (1893) 148 U. S. 92, rehearing denied St. Louis v. Western Union Tel. Co., (1893) 149 U. S. 465. See also Postal Tel. Cable Co. v. Baltimore, (1895) 156 U. S. 210, as to two dollars per pole rental fee. A municipal charge of one dollar per annum for each pole and of two dollars and fifty cents per mile of wires suspended above ground was held to be unreasonable in Philadelphia v. Western Union Tel. Co., (1897) 82 Fed. Rep. 797. 8 Western Union Tel. Co. v. New Hope, (1903) 187 U. S. 419. 9 Atlantic, etc., Tel. Co. v. Philadelphia, (1903) 190 U. S. 160. See Postal Tel. Cable Co. v. New Hope, (1904) 192 U. S. 55, wherein, the jury having found a verdict for a sum less than the amount of the tax claimed, it was held that- the court should have entered judgment for the defendant declaring the ordinance un- reasonable and void. Upon finding the ordinance unreasonable, it was not the province of the jury to assess a tax and render verdict for the amount it might judge reasonable. 1 (1904) 192 U. S. 64. EEGULATION OF COMMERCE 303 possibly be incidental to such inspection, super- *^^^*^' vision, and regulation, together with all reasonable measures and precautions that might have been or possibly could be required to be taken by the borough for the safety of its citizens and the public, or which might have been or possibly could be in- curred as expenses for the most careful, thorough, and efficient inspection and supervision that might have been made of the poles and wires of the com- pany, and that the borough had not discharged or attempted to discharge its duty of inspecting the poles and wires for the purpose of seeing that they were safe. The court, its opinion being delivered by Mr. Justice Peckham, said: " We assume that a tax of this kind ought to be large enough to «over all expenses of police supervision of the prop- erty and instrumentalities used by the company in the borough, and that it is not bound to furnish such supervision for nothing, but may, ia addition to ordinary property taxation, subject the corpora- tion to a charge for the expenses of the supervision. The borough is also not compelled to make its ex- penditures for these purposes in advance of demand- ing the tax from the defendant, but it must be remembered that such a tax is authorized only in support of police supervision, and if it were possible to prove in advance the exact cost, that sum would be the limit of the law. As in the nature of things this is ordinarily impossible, the municipality is at liberty to make the charge enough to cover any reasonably anticipated expenses, and the payment of the fee cannot be avoided because it may subse- quently appear that it was somewhat in excess of the actual expense of the supervision, nor can the •company then recover the difference between the amount of the license fee and such cost." 304 BEGtJLATION OF COMMEBCE Chapter XVIL ON DRUMMERS AND CANVASSERS. saiesby RobMns V. Shelby County Taxing Dist? has gen- ?oods'to be erally been looked upon as the leading case on the toto'the question of the power of the States to impose license taxes on persons engaged in the sale of goods which are to be shipped into the State on order. In that case it was held that a statute requiring all persons not having a regular licensed house of business in a particular taxing district, and spiling goods therein by sample, to pay a license, was a burden on inter- state commerce as applied to persons selling goods that were in another State.* Such a tax cannot be imposed whether the individual taxed be a resident or a nonresident of the State.* Mode of In the case of a sale by a canvasser, the fact that delivery. , . . . . \ the article is not shipped directly to the purchaser, but is sent to another agent of the vendor residing in the State, who delivers it to the purchaser, and the further fact that separate parts of the article sold are in separate packages when received by the agent for delivery, do not deprive the transaction of its interstate character.^ General The right to imposB a license tax, however, on a merchan o ± 77 firm established and doing business as general mer- dise brokers. 2 (1887) 120 U. S. 489. 3 See also Asher v. Texas, (1888) 128 U. S. 129; Corson v. Mary- land, (1887) 120 U. S. 502; Walling v. Michigan, (1886) 116 U. S. 446; and see Stoutenburgh v. Hennick, (1889) 129 U. S. 141, as to an act of the legislative assembly of the District of Columbia. *Stockard v. Morgan, (1902) 185 U. S. 27. B Caldwell v. North Carolina, (1903) 187 U. S. 622. A person who takes orders from samples for goods which he engages to deliver, and which are to be shipped into the State from another State, is not engaged in interstate commerce when such orders are not transmitted to such other State, or filled there, but are filled from goods not in the original packages of importation but from goods sent to him in bulk, C. O. D., from such other State.. In re Pringle, (1903) 67 Kan. 364. BEGXJIATION OF COMMEBCE 305 chandise brokers was affirmed in FicMen v. Shelby Ch^ter County Taxing Dist.'^ It was a material fact in tliat '_ case tliat the persons had taken out a general and unrestricted license to do business as brokers, and were thereby authorized to do any and all kinds of commission business, and therefore became liable to pay the privilege tax exacted. Although their principals happened in a particular year to b6 wholly nonresidents, the fact might have been otherwise, because their business was not confined to transac- tions for nonresidents. But Chief Justice Fuller said : ' ' What position they would have occupied if they had not undertaken to do a general commis- sion business, and had taken out no licenses therefor, but had simply transacted business for nonresident principals, is an entirely different question, which does not arise upon this record. ' ' ^ ON MEBCHANTS, PEDDLEBS, AND AUCTIONEEBS. While a license tax cannot be imposecl on the ,^°'gPf'^^-it. business of soliciting orders for goods to be trans- 'Srldf^ ported from another State, such a tax may be state."' ' exacted from persons already in the State, as merchants, peddlers, or auctioneers, when the deal- ings are neither accompanied nor followed by any transfer of goods, or of any order for their transfer, from one State to another, but_the tax is one upon the privilege of selling goods that are already within the State, though they have been brought in (1892) 145 U. S. 1. li Requiring conuniasion merchants to procure a license and give bond for the benefit of persons intrusting them with consignmeuts, is not a regulation of commerce. State v. Edwards, (1905) 94 Minn. 225; State v. Wagener, (1899) 77 Minn. 483. 20 306 EEGULATION OF COMMBKCE Chapter XVII. Difference lietween sales of ^[oods with- in the State -sind of ^£oods not -within the Sate. Cases par- licularly mociced iHnstrating (he distinc- from other^tates.® So long as the tax is uaiform on all sales hj vendors^ "onhe particular class, whether citizens of the State or of some other State, and whether the goods sold are the "prodxice" of that State or another State, it cannot be considered as an attempt to fetter commerce among th6^ States? It thus becomes necessary to observe particu- larly the difference between the right of a State or a municipal corporation to impose privilege taxes upon drummers and canvassers on the one hand, and upon merchants, peddlers, and auctioneers on the other. In the case of the first class of dealers, a privilege tax, though it may be general and uniform upon all of the same class, cannot be required of such members of the class as are engaged in solicit- ing orders for goods which are to be shipped upon the order from another State or from a foreign coimtry. But in the case of th e s econ d_cla ss, a State may impose a privilege tax when its levy is gejieral and imiform, because the goods are within the State at the time of sale. The distinction may be illus- trated by a comparison of Bobbins v. Shelby County Taxing Dist.,^ and Howe Mach. Co. v. Gage? In the former of these cases, it will be remem- bered, a statute requiring a license tax to be paid by a drummer soliciting trade in goods to be shipped from another State was held to be a burden upon interstate commerce. But in the Howe Mach. Co. v. Gage case, the facts agreed, as shown by the record, were as follows: The Howe Machine Company, sEmert v. Missouri, (1895) 156 U. S. 296, affirming State v. Emert, (1890) 103 Mo. 241. » Woodruflf c. Parham, (1868) 8 Wall. (U.S.) 123. 1 (1887) 120 U. S. 489. a (1879) 100 U. S. 676. EEGULATION OP COMMERCE 307 a corporation of Connecticut, mamifacturing sewing Chapter machines at Bridgeport in that State, and having an office at Nashville in the State of Tennessee, sent into Sumner county, for the purpose of sell- ing or peddling machines, an agent who traveled through the country, in a wagon with one horse, for the purpose of exhibiting and offering for sale the company's machines. The machines offered for sale and sold by him were manufactured in Con- necticut, and brought into Tennessee for sale; and he paid, under protest, a tax required of him imder the statutes of Tennessee for the privilege or license to peddle or sell the machines of the com- pany in Sumner county.. By those statutes, " all articles manufactured of the produce of the State " were exempt from taxation; and " all peddlers of sewing machines " were required to pay a tax of fifteen dollars. The Supreme Court of Tennessee having held that the latter provision ' ' levied the tax upon all peddlers of sewing machines, without re- gard to the place of growth or produce of material or of manufacture," the United States Supreme court, speaking by Mr. Justice Swayne, considered itself " bound to regard this construction as cor- rect, and to give it the same effect as if it were a part of the statute; " and decided that " the stat- ute in question, as coiistrued by the Supreme Court of the State, makes no such discrimination. It ap- plies alike to sewing machines manufactured in the State, and out of it. The exaction is not an unusual or unreasonable one. The State, putting all such machines upon the same footing with respect to the tax complained of, had an unquestionable right to impose the burden." The distinctive fact in this case was that the agent would either sell the ma- 308 EEGULATIOIf OF COMMEECE Chapter cMh© he was exhibiting or would send an order to 1_ be filled from stock in the possession of the State agency at Nashville. The machine being within the State at the time of the sale or contract of sale, the transaction was not one of interstate commerce,^ Goods^ In Norfolh, etc., B, Co. v. Sims* these were the in° 123 Smith V. State, 100 Tenn. 494 169, 170 South Cambria, The, 27 Fed. Rep. 525 209 South Carolina v. Georgia, 93 U. S. 4 178, 196 Southern Express Co. v. Goldberg, 101 Va. 619 179 Southern Steamship Co. v. Portwardens, 6 Wall. (U. S.) 31.205, 272 Spellman v. New Orleans, 45 Fed. Itep. 3 120 Spraigue v. Thompson, 118 U. S. 90, 69 Ga. 409 210 Stamp Tax on Writs, (1866) 12 Op. Atty.-Gen. 23 25 Standard Oil Co. v. Combs, 96 Ind. 179! 291 Stanley v. Wabash, etc., R. Co., 100 Mo. 435 149 State V. Addington, 77 Mo. 110 139 State V. Applegarth, 81 Md. 293 294 State V. Baltimore, etc., R. Co., 24 W. Va. 783 171 340 TABLE OF CASES CITED PAGE State V. Buunan, 162 Mo. 1 107 State V. Bowman, 78 Iowa 519 123 State V. Bruee, 55 W. Va. 384 137 State V. Chapman, 1 S. Bak. 414 123 State V. Charleston, 4 Rich. L. (S. Car.) 286 279 State 17. Coonan, 82 Iowa 400 123 State V. Corbett, 57 Minn. 345 172 State V. Corson, 67 N. J. L. 178 237 State V. Davidson, 50 La. Ann. 1297 120 State V. Deschamp, 53 Ark. 490 253 State V. Edwards, 94 Minn. 225 305 State V. Emert, 103 Mo. 241 306 State «. Geer, 61 Conn. 144 234 State V. Harbourne, 70 Conn. 484 84, 191 State V. Harrub, 95 Ala. 176 237 State V. Hiekox, 64 Kan. 650 147 State V. Hicks, 44 La. Ann. 770 171 State V. Indiana, etc.. Oil, etc., Co., 120 Ind. 575 148 State V. Indiana, etc., R. Co., 133 Ind. 69 163 State V. International, etc., R. Co., 31 Tex. Civ. App. 219 152 State V. Intoxicating Liquors, 94 Me. 335 133 State V. Intoxicating Liquors, 58 Vt. 594 131 State V. Judy, 7 Mo. App. 524 235 State V. Klein, 126 Ind. 68 259 State V. Leighton, 83 Me. 419 224 State V. Medbury, 3 R. I. 138 237 State V. Miller, 86 Iowa 638 123 State V. Omaha, etc., R. Co., 113 Iowa 30 253 State V. O'Neil, 58 Vt. 140 131 State V. Penny, 19 S. Car. 218 209 State V. Rogers, 95 Me. 94 139 State V. San Antonio, etc., R. Co., 32 Tex. Civ. App. 58 152 State V. Saunders, 19 Kan. 127 235 State V. Southern R. Co., 119 N. Car. 814 171 State V. Stripling, 113 Ala. 120 84 State V. The Steamship Constitution, 42 Cal. 578 242 State V. Thompson, (Oregon 1906) 94 Pae. Rep. 476 172 State V. Virginia-Carolina Chemical Co., 71 S. Oar. 544 76 State V. Wagener, 77 Minn. 483 305 State V. Zimmerman, 78 Iowa 614 123 State Board of Assessors v. Comptoir Nat. d'Escompte, 191 U. S. 388 276 State Freight Tax Case, 15 Wall. (U. S.) 232 20, 59, 295 State Tax on Railway Gross Receipts, 15 Wall. (U. S.) 284... 287 State Tonnage Tax Cases, 12 Wall. (U. S.) 204 4, 20, 21, 214, 271, 279 TABLE OF OASES CITED 341 FAOE Steamboat Cheeseman v. Two Ferryboats, 2 Bond (U. S.) 363, 5 Fed. Gas. No. 2633 209 Steamboat New York v. Rea, 18 How. (U. S.) 223 204, 220 Steamboat Orleans v. Phoebus, 11 Pet. — Different agents for sale and delivery 121 Right to sell goods by 121 Aliens — Anarchists, exclusion of ' 238 Constitutional personal rights applicable to 240 Head money tax 239 Power of Congress to admit on conditions 238 Power of Congress to exclude 238 Power of Congress to expel or deport 239 States, exclusion by 243 note Anarchists — Exclusion of 238 [345] 346 INDEX Anti-Tmst Law — PAas Combination of competing railroad companies 42 Combination of manufacturers to abstain from competition. 113 Combination of manufacturers to monopolize manufacture. . 113 Combination of railroads to control rates 174 Contract of sale of vessels 151 Injunction, remedy by , 47 Meat dealers, combination of 141 Propositions stated in Northern Securities case 4S Article I, section 8, clause 1 — fiead money tax Z39 Meaning of " imposts," " imports," and " exports " 265 Article I, section 8, clause 2 — Pilots and pilotage 212 note Article I, section 8, clause 3 — Clause quoted (^ Article I, section 8, clause lO — Piracies and felonies, power to define and punish — Protection of commerce 47 Article I, section 8, clause 17 — Clause quoted 10, 61 note Article I, section 8, clause 18 — Power of Congress to carry into execution the defined powers gt Article I, section 9 — Prohibitions or limitations on federal power T Article I, section O, clause 1 — Clause quoted Q Exclusive reference to persons of African race 267 Article I, section 9, clause 5 — Clause quoted ^ Limitation on taxing power 45 Article I, section 9, clause 6 — Bridge declared by Congress to be a lawful structure 229' Clause quoted g Limitation on federal government 46 Obstruction of one of two channels iqq Pilots and pilotage.. 212. Article I, section 9, clause 8 — As afifecting regulation of rates 178. Article I, section 10 — Prohibitions or limitations on State power 7 INDEX 347 Article I, section 10, clanse 2— faoe Clause quoted 6 Harbor dues 205 Limitation on taxing power or regulation of commerce 263 Original packages of dry goods 122 Power in Congress to declare inspection fees excessive 106 Recognition of State inspection laws 97 Wharfage 206 Article I, section 10, clause 3 — Clause quoted 6 Limitation on taxing power 269 Article III, section 2, clanse 1 — Congress, power of, to define admiralty jurisdiction 31 Congress, power of, to define case in equity 26 Territories not States 14 note Article rV, section 2, clause 1 — Discrimination by taxation 316 Foreign corporations not citizens in several States 248 Article IV, section 3, clanse 2 — Clause quoted 10 Article IV, section 4 — Republican form of government, guaranty of to States .... 25 Asphalt — Authorizing particular kind for municipal improvement . . . 253 Attachment — Of loaded freight car 160 Auctioneers — License tax for privilege of selling goods 305 License tax for privilege of selling imported goods 300 Between places in same State, passing outside State — See Communication Between Fiaces in Same State; Tbanspobtation Between Places in Same Stats. Bills of exchange — Stamp tax on 310 note Tax for privilege of dealing in foreign bills of exchange 310 Bills of lading — Stamp tax on 291 note Bonds — Taxation by State 276 note Booms — States may authorize conatruotion of 87, 198 Tolls for floating of logs 202 348 INDEX Bran — '^<^^ Original packages of 122 note Bridges — Abatement or alteration of under eminent domain 67 Concurrent federal and State action 229 Construction and regulation of, under the State police power 87 Construction may be authorized by Congress 227 Declaring structure lawful as giving preference to one port. 178 Lawful or unlawful, power of Congress to declare 227 Navigation, as impeding 228 note Opening and closing, regulating the 87 Port of entry above bridge 229 note Preference to ports of one State 229 Relative powers of Congress and States 224 Removal, power of Congress to require 228 Removal, requiring, as taking of private property 228 taxation of corporate franchise 312 note Taxation of property of bridge company erected over navi- gable stream 281 Tolls, power of Congress to regulate 230 Tolls, ^ower of States to regulate 231 Wheeling Bridge Cases 224 Bntter — Process butter to be marked " Renovated Butter " 139 note Canals — Admiralty jurisdiction 213 Not connected with navigable waters, power of State over. . 212 Power of Congress to construct 212 CanTaBsers — See Dbummebs and Canvabsebs. Carriers — See Express Companies; Railboads; Refbioebatob Cab Companies; Ships and SHiPFiira; Sleeping Cab Companies. Child labor — Power of Congress to regulate 117 Cigarettes — As legitimate articles of commerce 134 Original packages of 123 Prohibiting sale of 88 Prohibiting sales in original packages 135 Classification of national and State povers — Exclusive and concurrent federal and State powers 55 INDEX 349 Clauses — paoe Enumeration of 5 Coal barge cases — See DuBATioN of Federal Pbotectiok. C< O. D. shipments — Interstate shipments as constituting interstate commerce.. 129 License tax on merchants in other States shipping goods C. O. D 308 Not affected by diverse opinion of State courts 129 CoiEee — Artificially colored, as a recognized article of commerce .... 140 Power of States to prevent fraud or deception 139 States prohibiting importation when adulterated 83 Collisions — Rules for prevention of, to be observed 219 Combination of competing railroads — States may prohibit 160 Commerce — See Depinition of Commebce. Common latv, application of principles of — See Rules of Decision. Common carriers, principles applicable to 15 Contract exempting carrier from liability for loss by negli- gence 16 Copyright, no common law 15 No national common law 15 Offenses, no common law 15 Operative on interstate transactions 19 Rules of decision in absence of statutory enaxitment 15 Common lair of United States — See Rules of Decision. Application by State courts in interstate transactions 18 Discrimination in rates 18 How determined in general courts in different States 17 Communication between places in same State — Messages passing over territory of another State 188 Penalty for delay in message passing outside State 192 note Concurrent federal and State po-nrers — Exclusive and concurrent powers stated 55 Taxation 56 Confederation, the — ' Confederation of sovereign and independent States 4 Conflicting commercial regulations under 4 350 INDEX Confederation, the — Continued — PAOB Levy duties on imports, without power to 4 Tax, without power to 4 Treaties, power of making 5 Congress, exclnsive poxrer of — Classification of national and State powers 55 Interstate communication by telegraph 188 Naturalization 56 Sale, purchase, and exchange of commodities 59 State's power as to local matters 57 Transportation and exchange of commodities 58 When power is exclusive 56 Congress, general poiver of — See under different subjects of regulation and generally throughout this index; Eminent Domain; Manu- FACTUEE AND PBODUCTION; ReGITLATION OP RATES. Adoption of any appropriate means 46 Coextensive with interstate and foreign commerce 40 Constitutional limitation, subject to 44 Corporations or individuals, commerce by 41 Domestic commerce of State not comprehended 40 Injunction, remedy by 47 May authorize construction of railroads 158 Reaches within territorial jurisdiction of States 40 Resulting in preference to ports of one State 176 Rules by which commerce governed 42 Transportation of persons and property 148 Without power to tax exports from State 45 Connecting carriers — Requiring carrier to furnish evidence of loss 161 States may require facilities for interchange of traffic 161 Constrnction of Constitution, principles of — Mischiefs to be remedied 3 Constrnction of railroads — See Police Powee. ^ Constrnction of State statutes by State conrti — Construction by State courts generally accepted 77 Discriminative feature, to avoid 253 Federal question involved in construction 78 Joint through rates 184 note Prohibitory law limited by construction 120 Rates on long and short hauls 185 Regulation of rates 183 Separate-coach laws 168 Validity as construed a federal question 78 INDEX 351 Contagions diieases— p^ob Preventing spread of, by the States 83 Contraots limiting liability for negligence — Absence of statute 16 Congress, power of, to make provision 19 Right of carrier to contract for exemption 17 State, power of, to regulate 19 State statute prohibiting 16 Convict-made goods — Required to be branded ' 254 note Credits — Taxation by State 276 note Crime, prevention of — State police power, under 84 Criminal lairs — Harboring and aiding seamen to desert 223 Navigation, for protection of 215 Piracies and felonies committed on high seas 47 Power of Congress to regulate commerce by 47 Criminals — Exclusion of, by States 241 Dairy products — Making importations subject to State laws 143 Dams — Condemnation of, by federal government 63 States may authorize construction of 198 Tolls charged for improvements by erection of 202 Define commerce, poiver to — See PowEB TO Define Commeece. Definition Of commerce — Attitude of federal courts to State legislation 38 Communication by telegraph 188 Inclusion and exclusion, mainly by definitions of 20 Insurance, power of Congress to declare to be commerce. . . . 247 Intercourse 21, 22 Judicial definitions 19 Judicial inquiry not excluded by federal legislative defini- tion 38 Legislative definition, weight given to 39 Loan of money 249 note Lottery Case, definitions in 22- Manufacture and production Ill Navigation 20 Not limited to trafiic 21 352 INDEX Definition of commerce — Continued. VASB Power of Congress to define commerce 36 Press-dispatch business 249 note Purchase of goods upon order by telegraph 120 note Purchase, sale, and exchange of commodities 20 Statutory definition by inclusion and exclusion 36 Term "commerce" without juridical significance 37 Trade marks 128 Transportation of persons and property 20 Ultimate judicial power to determine relation of statute to commerce 37 Whether limited to commercial intercourse 22 Whether subject of legislation has relation to commerce. .. 37 Definition of snlistantive grants of power — See Admibaltt Jubisdiction ; Jurisdiction in Law AND Equity. Congress, wide powers of definition possessed by 36, 37 Guaranty to States of republican form of government 25 Of jurisdiction in cases " in law and equity " 26 Power of Congress to transfer equitable and legal causes. . . 31 Power of legislative department 24 Under taxation clause 24 Delivery — Of cars beyond right of way 172 On tender of freight charges 173 Deportation of aliens — See Aliens. Discrimination in rates ^ See Regulation of Rates. Contract of carrier with city 184 note Legislation by Congress 183 note Recognized at common law 183 note Discriminative State statutes — Action of State officers under State monopoly 254 Construction of statute to avoid discriminative features . . . 253 Convict-made goods required to be branded 254 note Discriminative statutes invalid 252 Inspection laws — Animals slaughtered over 100 miles from place of sale. 258 In favor of enacting and an adjoining State 256 note No discrimination to be made 256 Of animals to be slaughtered for food 257 Pilotage, exempting certain vessels from compulsory 259 Specifying particular articles for municipal improvement. . 253 States cannot discriminate against goods from other States. 157 IISTDBX 353 Discriminative State atatntea — OfmUnued. VMM State taxation — Absence of discriunnartion 323 Different modes of collecting tax 32» Exempting agents selling articles Bianufactnred in State 317 Exempting goods manufactured in State 32* Exempting sales at place of manufacture 321 Exempting sales of articles produced in State 316 Goods imported from foreign countries, diserimination against 322, 324 Method of taxation giving atlvantage to domestic prod- ucts 319 Privileges and immunities of citizens 31& Wharfage for using municipal wharf 259 Diseased animals — State quarantine regulations 104 Diseased persons — Exclusion of, by States 241 District of Columbia — Commerce among the States, relation to 11 Congress possesses powers of general and State government over 13 Congress, power of, to regulate commerce with 12 General power of Congress over 10 Legislative assembly possesses municipal powers only 12 Legislative assembly without power to regulate commerce with States 12 Municipal powers of 12 Not a State within judicial clause of Constitution 11 State as word is used in treaties 12 Docks — See Whabves, Pieks, and Docks. Right of State to authorize cotnstracticm in domestic waters . 19S Dredges — State taxation of 281 Dmmmers and canvassers — Absence of discrimination in privilege taxes 323 Difference between sales of goods within State and of goods not within State 30ft License to sell goods not within State 304 Mode of delivery immaterial 304 Dry goods — Original packages of 122 23 354 INDEX ZHiration of federal protection — Faob Breaking up or sale of original package 156 Cars waiting for train to be made up 155 note Ceases when goods become part of general mass of properly. 156 Coal barge cases 156 Commencement of final movement 154 Deliyery of cars to consignee 155 Entered with common carrier 152 note Floating logs 153 Goods intended for export 152 Moving goods from platform to freight warehouse 155 Property actually in transit 152 Sale or breaking up of original package 156 State taxation — Coal in flat boats, arrival of 291 Goods intended for export 291 Logs in course of transportation 292 note On arrival of goods within State 292 Property actually in transit 291 While being carried to carrier's depot 155 While in possession of domestic carrier 154 While temporarily detained in transit 155 Snties — Meaning of term 264 Snty of tonnage — Clause imposing prohibition on States quoted 6 Fees charged when no service rendered 271 Ferry license 274 Limitation on taxing power S69 Municipal wharfage 273 Quarantine fee 275 Taxation apportioned to tonnage 271 Taxation of vessels 279 note Taxation of vessels as property 270 Tolls for using improved waters 274 Wharfage 272 What constitutes 269 "XleTators — See Wabehouseb and Elevators. Embargoes — Power of Congress to impose 196 note Smlnent domain — See Laiids Pubchased fob Fedebal Pubposk. Actual occupancy unnecessary 64 Alteration in course and width of navigable streams. . .197 note INDEX 355 Eminent domain — Continued. page Any property right may be taken 63 Aqueduct to Washington and Georgetown, construction of 60 note Artificial highways may be taken 60 Benefit, including general or special 72 Bridge, abatement or alteration of 67 Consequential and incidental injury not taking 64 Depriving riparian owner of use of stream . . . i 63 note Distinction between damage and taking 64 Due process of law 71 Establishing telegraph upon railroad right of way 63 note How property taken 60 Including general or special benefit 72 Jurisdiction — Any competent tribunal 69 Of commissioners 71 Of Court of Claims 70 Of State tribunals 70 Of United States Circuit Courts 69 Jury trial, right to 70 " Just compensation " to be full equivalent 72 Land actually invaded to be considered as property taken. . 64 Limitation of Fifth Amendment 45, 62 Lock and dam, condemnation of 63 Means for carrying out any federal purpose 59 Measure of compensation 72 Measure of compensation a judicial question 68 Municipal easements as property rights 63 Kot a substantive power 59 Payment, provision for, as condition of actual condemnation. 73 Payment, time of, or provision for 73 Permanent flooding of private property 65 Permanent holding of land constitutes taking 64 Property designated by executive officer 60 Riparian right of access 66 State's consent unnecessary 60 State's general authority to exercise power of 59 Submerged soil not private property 63 Territories, in 60 note Title, passing of 61 Tolls, right to take, in estimating value of property 63 Engineers — Of vessels, rules for qualification and licensing of 219 Bequiring examination of railroad engineers 164 ETidence — State rule of, as affecting liability of connecting carriers . . 93 356 IKDEX Examination of railroad employees •• PAOE See Police Poweb. Exchange — Business carried on by members of live-stock exchange 141 License tax on exchange brokers 310 Exchange of commodities — See Sai£, Pubch&se, and Exchange of Gojumodiiies. Ezclnsion of aliens—' See AuENS. Exclusion of particular persons liy the States — Crime and pauperism, for prevention of \ 84 Exclusive navigation, grant of — Of domestic improved waters 200 To navigate interstate route 199 Exclnsiveness of poiver of Congress — See CoNGBESS, Exclusive Poweb of. Exports — See Impobts and Expobts. Congress without power to tax , 6 Express companies — State regulation of transportation charges 179 note State taxation — Application of unit rule 282 Gross receipts, see Gboss Receipts, Taxation of. On agency maintained within State 298 On privilege of doing local business 296 Unit rule, mode of ascertaining value 283 Unit rule, valuation as unit defined 285 Federal places — Local federal police regulation applicable to 119 Federal police poorer — See Police Poweb; Pbohibit, Powee of Conqbess to. Ferries — Definition of, in strict sense 209 License fee as duty of tonnage 274 Licensing of, by State 297 State's authority to regulate over domestic waters 207 State taxation of business of landing and receiving passen- gers and freight 208 Subject to federal licensing laws 215 Transfer companies transporting railroad cars 208 Within scope of admiralty jurisdiction , 209 note INDEX 357 Fiftli Amendment— PAOB See Eminent Domain. Aliens, application to 240 As limitation on power of Congress to prohibit 53 Bridges, requiring removal of 228 Limitation on power of eminent domain 45, 62 Fire — Precautions against, on vessels 220 Fish laws — See Game Laws. Establishing close season 236 note License tax for privilege of fishing 294 note License tax on business of canning or packing oysters . . 294 note Menhaden fish 236 Oyster culture, State protection of 237 Oysters, discrimination in favor of citizens in planting or taking 252 note Oysters, prohibiting taking with destructive instru- ments 237 note Possession during close season prohibited 236 note State protection of fisheries. 235 Swimming fish 236 Flonr — Original packages of 122 note Foods — Coffee, preventing deception in sale of 139 Inspection laws 99 Newly discovered article of 136 Power of Congress to insure purity 115 Power of State to prevent sale of adulterated 83, 135 Foreign eopporations — Engaged in furnishing and adjusting machinery 249 note Engaged in interstate commerce, State cannot exclude 249 Engaged in manufactiire, compliance with State law 112 Engaged in press-dispatch business 249 note Execution of canvasser's bond 249 note Franchise tax on 313 In employ of federal government. States cannot exclude . . . 250 Interstate, subject to State police power 251 Interstate, to comply with local regulation 250 License tax for privilege of keeping office in State 298 Loan of money 249 note Organized by Congress, States cannot exclude 250 Power of States to exclude or admit on conditions 248 Tax for privilege of carrying on business within State 309 358 INDEX Fenrteentli Amendment — Paob Separate-coach law 169 State .eminent domain power, limitation on 63 note State regulation of insurance as exercise of police power . . 246 Franchise tax — Of domestic corporations 312 Of foreign corporations 313 On business of dealing in imported goods 313 On capital stock 313 note Payment as condition to doing business in State 314 Free competition, rale of — See Anti-Teubt Law. Power of Congress to declare 42 Freight cars — Attachment of, when loaded with interstate freight 160 Requiring railroads to furnish 160 Game lairs — See Fish Laws. Common ownership of game 234 Establishing close season for game 233 Exportation of game prohibited 235 note Federal statutes subjecting game to operation of State laws 235 note Importation of game prohibited 235 note Possession during close season prohibited 235 note Gangers of coal boats — Appointment under State inspection laws 99 Grants of powers See Definition of Substantive Gbants op Poweb. Gross receipts, taxation of — From interstate and foreign commerce 287 From intrastate commerce 287 Separability of intrastate from interstate tax 289 Stipulation in charter for tax on receipts 289 Harbor lines — See Habbob Regulations. Harbor regnlations — Display of lights 204 Dues sufficient to meet expenses 205 Fees charged when no services rendered as duty of tonnage. 272 Harbor lines — Authority of State to establish 203 Power of Congress to establish 203 INDEX 35^ Harbor Tegala,HonB — Contitmed. PAOI Regulating place of anchorage 204 note State regulations respecting vessels. 203 Survey of hatches 204 Hatches, surrey of — As harbor regulation 204 Hiring laborers to be employed oatslde State — Privilege tax on business of 311 Immigrants — State tax on 297 note- Imports and exports — Absence of discrimination 324 Clause imposing prohibition on States quoted 6 Congress without power to tax exports 45 Franchise tax on business of dealing in imported goods. . . . 313 Harbor dues 205- Inspection laws 97 License tax on privilege of selling goods imported 309 Limitation on taxing power or regulation of commerce .... 263- Meaning of term 264 Pilots and pilotage 212 note Refer to property and not to persons 267 Stamp tax on bills of lading 291 note Taxation on becoming incorporated with mass of property . . 292 Tax for privilege of dealing in foreign bills of exchange. . . . 310 Wharfage not a duty on 206 Imposts — ' Meaning of term 264 Indian tribes, regnlation of commerce -with — ' Cherokees in North Carolina 10' Clause quoted 6 Effect of abandonment of tribal relations 8 Emancipation from federal control 8 Federal control before emancipation 9 Ownership and distribution of property, regulation of 9 Separate nations, originally treated as 7 Subject to direct federal legislation 8 Injunction — Power of Congress to regulate by 47 Prohibiting business of telegraph company until tax is paid » ■ • • -279 note Inspection and licensing of vessels — Confers no immunity from operation of State laws 217 CongresSj power of, to provide for 215- 360 INDEX Siupectiom and licensing of Tesaels — Continued. SAsa Lighters and tug boats 216 Of ferries 215 Of vessels plying between places in same State 216 Payment of tolls for use of improved waterways 213 Xaspection and qnaramtine laivs — Charges and fees — Power of courts or Congress to declare excessive 106 Sufficient to pay costs and expenses 105 Imports and exports 97 Inspection — Absolute prohibition not pennitted 99 Appointment of gaugcrs of caal boats 99 Before subject becomes an article of commerce 98 Discrimination, absence of 101 Discrimination, animals slaughtered over 100 miles from place of sale 258 Discrimination in favor of enacting and an adjoining State 256 note Discrimination, no, to be ma;de 256 Discrimination in slaughtering of animals for food. . . . 257 Elements of inspection laws 98 Finding of fact by administrative officer 101 Must be appropriate and reasonable 99 No operation in advance of importation 100 On. commerce between the States 98 Keasonable and appropriate 83 Requiring goods to enter State warehouse 99 Rule to determine capacity of vessels 100 To insure fitness of article for use 98 Quarantine and health — Against animals exposed to disease 104 Against diseased animals 104 Congressional recognition of State laws 102 Disinfecting rags 103 note Duty of tonnage, quarantine fee as 275 Excluding healthy persons from infected locality 103 Limited by necessities of the case 103 Reasonableness 104 Taxes upon alien passengers 101 lainrance — Judicial declaration that insurance is not commerce 245 License tax on agents and brokers 311 Power of Congress to declare insurance commerce 247 State regulation as exercise of police power 246 INDBZ 361 iBtozicating littnora^ FAOB See Wilson Act. Inspection law, effect of Wilson- Act. .,.....,, 146 Original packages of 123 Prohibiting sale of imported liquors 132 Prohibiting transportation by States 132 Right to import for individual consumption notwithstand- ing Wilson Act 148 States, power of — Prohibiting sale of imported liquors 132 States without authority to prohibit importation. ...... i 131 Joint througb rates — See Regulation of Rates. Jurisdiction — See Admibalty Jubisdiction; Jubisdiohoit vx Law AND Equity. Jurisdiction in lair and equity — Effect of § 914, U. S. Rev. Stat 28 Necessity for federal statutory provisions 27 Power of Congress to define 26 Power of Congress to transfer causes 31 Power of territorial legislature to ignore distinction 28 Preservation of right of trial by jury 30 Providing new forms of remedies 30 State statutes blending legal and equitable remedy 26 Jury — See Tbial by Juey. Lands purchased for federal pnrpoae— • See Eminent Domain. Exclusive jurisdiction acquired by State's consent, how. . . . 61 Iianndry business — License tax on 294 note Iiai7 and equity^ See Jubisdiction in Law and Equxtt. Legacies — Taxation by State 276 note Liability — See Contbacis Limiting Liabiutt fob, Neougence; Limitation of Vessel Owners' Liabujiy; Ecles OF Liability. Liens — On vessels, foe suppliea or labor 221 Lighters — Inspectiaa and licoising of 216 362 IKDEX Iiimitatioii of Teiael ownen' liability — PAOI Navigating high seas between points in same State 149 Power of Congress to legislate on 289 Xilmltstions and prohlbltiona of Conititittlon — Aliens, rights of, under 240 Commerce clause as limitation on powers of States 38 Judicial power to define terms used 37 National government, upon 7 Power of Congress subject to 44 Power of judicial department to define 24 Power of judiciary to define " direct " taxes 24 Regulation of rates 176 Seamen, when not applicable to 222 States, upon 7 Xiimlting liability for negligence — See CONTBACTS LiHIIINO LlABIUTT FOB NEOLiaENCE. Iiive stock — Transportation from one State to another 140 Loan of money — As commerce 249 note Locks ^ States may authorize construction of 198 Logs — Fees for inspecting and scaling logs 202 Intended for export. State taxation of 292 note Toll for floating as county charge 203 note Tolls charged for improvements by erection of 202 Tolls for use of boom 202 Lotteries — Foreign government bonds coupled with lottery condi- tions 245 note Lottery tickets declared subjects of commerce by Congress . . 243 Prohibiting transportation of lottery tickets 244 Prohibition of, by Congress 50 State laws respecting lotteries 245 States prohibiting sale of tickets 84 Manufacture and production — Commerce succeeds to Ill Congress, power of — By indirection 115 Child labor 117 Denial of interstate transportation facilities 115 Extent of power suggested 116 Power to control process of manufacture limited 117 INDEX 363 MMt«faetnre and prodnotlon — Continued. PMC Ongress, power of — Oontirmed. Prohibiting combination of manufacttirers to monopo- lize manufacture 113 Prohibiting combinations to restrain sales of products. . 113 Proposition stated in Northern Securities case 115 Begulations to serve distinctively federal purpose 117 Distinction between manufacture and domestic sales and in- terstate commerce 114 Fro{>osition stated in Northern Securities case respecting manufacture 115 States, power of — Exclusive control of Ill Foreign manufacturing corporation to comply with State law Ill Prohibiting manufacture for export Ill Meal- Original packages of 122 note Meat — Inspection charges 105 MeTchandise brokers ^ License tax on 304 Merchants — Difference between sales of goods within State and of goods not within State 30« License tax for privilege of selling goods 305 License tax on merchants in other States shipping goods C. O. D 308 Migration and importation — Clause quoted S Exclusive reference to persons of African race 267 If atnral gas ^ Prohibiting transportation of 148 note Prohibiting use of pressure in transportation 148 note Navigation — As element of commerce 20 Navigation and navigable waters — See Beidges; Canals; Febbies; Habbob Regulations; Pilots and Pilotage; Seamen; Ships and Ship- ping; Wharves, Piebs, and Docks. Between points in same State on high seas 149 Booms, State authorizing erection of 87 Bridges, as impeding 228 note Compact between States sanctioned by Congress 196 note 364 INDEX N»Tigation and navigable •arateia^Oontimied. paob Congress, power of — Affirmative exercise of power 196 Alterations in course and. width of navigable streams 197 note California Debris- Commission Act 197 note Control necessary to insure free navigation 195 Embargoes 196 note Exclusion of State authority over domestic waters not implied 198 Incidental power to regulate commerce 195 Line of navigability for erection of wharves 206 Obstruction of one of two channels 196 Improvements, tolls for use of 202 Individual ownership of shore and submerged soil 201 " Navigable waters of United States," what are 194 Not limited to tidal waters 194 Obstruction of one of two channels 178 On high seas between points in same State 149 Payment of tolls for improved waterways by vessels holding federal license 213 Piers, State authorizing erection of 87 States, power of — Construction of locks, dams, and booms 198 Deepening channels 197 Establishing lines of navigation 198 Exclusive navigation of domestic improved waters, grant of 200 Exclusive navigation of interstate route, grant of . . . . 199 Over domestic waters, not excluded by action of Con- gress by implication 198 Regulating waters within State limits 197 Removal of obstruction 197 Rights of new States 200 Subject to paramount authority of Congresa 197 To reclaim streams and overflowed lands 195 When remotely connected with other means of trans- portation 199 Streams declared navigable by State statutes 195 note Tolls for river improvements 202 Tolls for using improved waters as duty of tonnage 274 When navigable in fact 194 MegUgence — See CoNTBACTS LnuTmo Liabuitt fob Neolioence. Xetr States — Sights possessed by original States. 200 INDEX 365 Oecnpation taxes — PAO> See PsiviLEai! Tax. Oils — Federal regulations respecting mixing 119 Oleomargarine — Recognized article of commerce 136 States may prohibit imitation of butter 83 States cegulatiug or prohibiting sale of — Excluding when artificially colored 137 Prohibiting sale of 135 Requiring it to be colored pink 137 When colored in imitation of butter 138 Operation of railroads — See Police Poweb. Original packages — Cigarettes 123 Good faith in use of 125 Goods in packages too small to be considered as 89 Intoxicating liquors 123 Judicial dissent from doctrine 125 Motive of shipper 124, 125 Of dry goods 122 Of oleomargarine 124 Right to sell goods through agent 121 Sacks of flour, bran, or meal - . 122 note Size does not govern 122 Size is material 125 Size, materiality of, as to articles within scope of police power 126 Size of package in which iona fide transactions are carried out 132 Some suggestive rules 127 Source of doctrine 121 Transaction incomplete unless goods sampled 120 note What constitute 121-127 When sold or broken up, goods amenable to State law 156 Oysters — See Fish Laws. Packing houses — Not engaged in interstate commerce Ill note Passengers — Head money tax imposed by Congress 239 Limiting number of, on vessels 220 State capitation tax upon 267 note State quarantine laws 101 366 INDEX PatentB — paob Use by foreign vessels of patented articles 214 Pauperism, prevention of — State police power, under 84 Peace, good order, and public morale — See PoucE Poweb. Peddlers — Difference between sales of goods within State and of goods not within State 306 License tax for privilege of selling goods 305 Prohibiting peddling goods from other States 252 note State prohibition 120 note Tax discrimination in favor of articles produced in United States 319 Bote Piers — See Whabves, Piebs, and Docks. State authorizing erection of 87 Pilots and pilotage — Compensation of pilots 210 Discriminating State provisions, eliminating by construction. 253 Discrimination by exempting certain vessels from com- pulsory pilotage 259 Federal recognition of State laws 209 Federal statutes paramount 210 Half-pilotage on tender of services 211 Preference to ports of one State 212 Rules for qualification and licensing of pilots 219 State's power to regulate 209 Plants — Exempting from conditions of sale when grown in State . 253 note Police poiver — See different subjects of regulation generally; Inspec- tion AND QUABANTINE LAWS. Exdusiveness of State police power 51 Federal police power — See Pbohibit, Poweb of Conobesb to. Coincidence of federal and State powers 53 Local regulations applicable only to federal places. ... 119 Power of Congress to prohibit, as exertion of 51 Municipal police regulations 80 State police power — Absolute requirements 96 Adulteration of foods, preventing 83 Aid to commerce 93 As reserve sovereign power 81 INDEX 367 Police power — Conttttued. paos State police power — Continued. Booms, authorizing erection of 87 Bridges, regulating construction of 85, 87 Bridges, regulating opening and closing of 87 Cannot divest itself of the power 82 Coffee, prohibiting importation of adulterated 83 Conflict with Acts of Congress positive 91 Construction of railway bridges and trestles 85 Contagious diseases, preventing spread of 83 Convenience, public 86 Crime, prevention of 84 Direct conflict with Acts of Congress 90 Examination of railroad employees 85 Exclusion of criminals and poor and diseased persons. . 241 Exclusion of particular persons 84 Exclusive jurisdiction of Congress, direct interference with 87 Federal policy, on furtherance of 94 Foods, preventing adulteration of 83 Freight trains, prohibiting running on Sunday 85 General scope 82 Good faith, presumption of 97 Health, public 83 Heating passenger cars, mode of 85 How understood in constitutional sense 80 Inconveniences resulting from exercise of 85 Indirect interference with commerce 91 Instances of incidental interference 92 Instrumentalities of commerce 90 Limited by absolute necessity, when 83 Lottery tickets, prohibiting sale 84 Morals, public 84 Object, statute must have real relation to 95 Oleomargarine, prohibiting in imitation of butter 83 Original packages, materiality of size of 126 Pauperism, prevention of 84 Piers, authorizing erection of 87 Poles and wires, regulating erection of 87 Power to regulate as well as prohibit 82 Presumption of good faith 97 Prohibiting sale of cigarettes 88 Prohibition of or burden on commerce 88 Railroad rates, requiring rates to be fixed annually and posted 86 Railways, construction and operation of 85 368 IKDEX Police TpoxreT — Contimied. State police power — Continued. Bates of railroad within State limits 92 Beasonableness as the supreme teat 94-97 Beasonable regulations not affected by possible incon- veniences 85 Bemote interference with commerce 91 Bule of evidence 93 Bule of liability 93 Bule of liability for torts 93 Safety, public 85 Separate-coach law 169 Social evils, measures against 84 Stoppage of trains at certain stations 95 Sunday laws 84 Sunday laws incidentally interfering with commerce . . 93 Supply cars, requiring railroads to 95 Telegraph messages, regulating transmission and de- livery 87 Track connections, enforcing 94 Trains, regulating stoppage of 86 Trains, speed of 92 Unadulterated articles, absolute prohibition of 83 Validity determined by natural effect 97 Poor persons — Exclusion of, by States 241 Bequiring railroads to return any who should become desti- tute 243 Port charges — Sufficient to meet expenses 205 Port of entry — Bridge below, authorized by State 229 Posting rates — Bequired by Interstate Commerce Act of 1887 187 note States requiring railroads to post rates 186 Poiver to define commerce — Definition necessarily inclusive and exclusive 23 Proposition stated 23 Belative authority of Congress and courts 23 Preference to ports of one State — By declaring bridge to be lawful structure 178, 229 Clause quoted 6 Incidental preference not intended 177 Obstruction of one of two channels 178, 196 Pilots and pilotage 212 miDiEz M9 lK]»ferearae to ]ioxlbi«f lome Sts»itB<— GotsUtmed. sabb. Preference as between States and .not iietween ^orts 177 Regulation of xates 176 Restriction upon federal goveiaiineilt , 46 Press-dispatch business— ^ Not interstate conuaerce., ,,,... 249 not» Private siding — Requiring delivery of freight to 172 Privileges and immunities of citizens — Discrimination by taxation 31S Foreign corporations ndt citizens in several States 248 Privilege tax^ Construction of statute limiting tax to domestic business.. 299 On brokers dealing in foreign bills of exchange 310 On business of canning oysters 294 note On commission merchants 305 note On drummers land canvassers 304 On ferry keepers 297 On fishing in State waters 294 note On foreign corporations 309 On hiring laTrorers to "be ent{fl.uyed outside State 311 On insurance agents and bribers 311 On keeping office for transaction di interstaite business. . . . 29S On laundry business ...294 nota On maintaining agency to facilitate interstate btsiness 298 On merchandise brokers 304 On merchants, peddlers, and auctioneers 305 On owners of grain elevators and warehouses 310 On privilege of doing local business 295 On separate local independent service 295 On telegraph companies for privilege of doing domestic busi- ness 301 On telegraph companies for use of streets 301 On telegraph company as conditicm to doing ibusiness in State 3B0 On transportation of persons and property — 294 On vessel owners - ....... 296 Prodnetian — See Manufacjtubb and Kjoductioh. Prohibitions and limitations of Constitution — Aliens, rights of, under 240 Judicial power to define terms used 37 ITational government, upon 7 Power of Congress subject to 44 Power df judicial departmerit to define 24 370 INDEX ProUMtloBa amd limitations of CosstltntioB — Con. page Power of judiciary to define " direct " taxes 24 Regulation of rates .' 176 Seamen, when not applicable to 222 States, upon 7 Prohibit, po-nrer of Congreis to^ See Requiation of Commebce. Absolute power not possessed 52 As plenary sovereign power 49 Coincidence of federal and State police powers 53 Combined federal and State powers, exercise of 54 Food laws as illustrating 54 Introduction of goods from foreign countries 49 Lottery tickets 50 Police power as exertion of 51 Property rights, denial of 53 Subject to constitutional limitations 49, 51 Wilson Act as illustration of modified prohibition 50 Property actually in transit — Taxation by State of 291 Property nsed in interstate and f oreig:n eommeree ^ General power of State to tax 276 Value resulting from use in commerce 277 Pnblio convenienee — See Police Poweb. PnbUo healtb — See Police Poweb. PnbUo safety — See Police Poweb. Pnrebase of conunodities — See Sale, Pubchase, and Ezchakoe of Comiiodities. Qnarantine laws — See Inspection and Quabantine Laws. Bags- Disinfecting 103 note Railroads — See CoNNECiiNQ Cabbiebs; Pouce Poweb; Reoula- TioN OF Rates; Tbains. Congress, power of — Construction of railroads may be authorized 158 Employment of several agents in transportation.. .160 note May make grants for rights of way 158 Over railroad wholly intrastate 158 Paramount, when engaged in interstate commerce.... 158 Railroad existing under laws of two States 150 note INDEX 371 Bailroad* — Contimied. faob Foreign corporations to comply with local regulations 250 Foreign corporations subject to State police power 251 Several agencies employed in interstate transportation. .159 note States, power of — Attachment of loaded freight car, authorizing 160 Authorizing consolidation in adjoining States 161 Connecting carriers, regulating 161 Connecting carriers, tracing freight and evidence of loss. 161 Construction and operation, see Police Power. Crossings, lighting of 163 Delivery of cars beyond right of way 172 Delivery of goods on tender of freight charges 17.3 Employees, examination of 164 Engineers, requiring examination of 164 Equal accommodations to be given interstate passengers. 167 Failure to ship freight within prescribed time, penalty for 159 Freight cars, requiring furnishing of 160 Freight, prohibiting transportation on Sunday 171 Heating of passenger cars 85, 165 Prohibiting consolidation of competing roads 160 Baces, accommodations for different 167 Refusal of railroad to receive freight for transporta- tion, penalty for 159 Requiring facilities for interchange of trafiSc 161 Requiring fast train to turn aside from direct route. . 165 Requiring freight to be shipped over route designated by shipper 160 Requiring payment or refusal to pay claim within cer- tain time 180 Requiring rates to be fixed annually and posted 186 Rules for safety of persons and property 94 Separate-coach law • 167 Speed of trains, regulating 163 Stop-over privileges 172 Stoppage of trains at county seats 166 Stoppage of trains at towns over certain size 168 Stoppage of trains, regulating 165 Subordinate power to regulate, as instrumentalities of commerce 159 Sunday laws 171 Supply cars, requiring railroads to 95, 160 Ticket scalping or brokerage, prohibiting 171 Tickets, regulating sale of 171 Track connections, enforcing 94 Trains, posting time of arrival of 163 Trains, regulating operation of 163 372 iNOBX RaUcoads — Continued. fASB :State tasswbion — Applica^«m of ,u»it jiule. ., ..,.••• JS82 Franchise t»^ on separate local iodependfint aervice. . 295 Gross receipts, see Gross Receipts, TASAiiour xo'. Of corporate Iraochise ^..., 312 Of rolling stock and ©tier mpwaWe iwoperly 377 Of tolls received for use jof troad. 277 On privilege of keeping office in State , 298 Privilege and steeu'pa.tkm taxes 294 Unit rule, exceptional cases ,of vaJuable terwnal facilities i 286 Unit rule, mode 'Of «scerta,iniiig v»lue 282 Bates — See Regulation of Rates. Reason -for. adoption of Conjstitntiaii — Uniform system of regulating commerce, need for 3 Recording acts — Federal recording acts 217 State registration laws < 218 Refrigerator car companies — Taxation of rolling stock and other movable property 277 Registration lairs — See Recobotno Acre. Regnlation of cpnunerce ^ By any appropriate means 46 Clagsification as to federal and State powers 56 Constitutional prohibitions or limitations, power limited by. 37 Corporations, by creation pr use of ,. . 46 Criminal laws, by enactment of 47 Injunction, remedy by 47 What constitutes power to regulate 48 Regnlation of rates — Congress, power of^- LegislatiMi respecting discrimination :183 note Power respecting commerce between States 8a,Bie as that oC Sta^s respecting local traffic 176 Prohibiting combinations to control rates.. 174 To directly control rates ^ 175 Within constitutional restrictions 176 Discrimination in use of commutation tickets S52 note Incidental preference to ports of one State , 177 Requiring -ates to be Sxed auaually and posted 88 INDEX 373 Regulation of rates — Continued. page States, power of — As to transportation from and into State 181 Between places in same State passing, outside 179 note Cannot affect interstate trafiae 179 Discrimination prohibited 182 Distinction as to power to tax 151 Early cases overruled 182 General statute applied to domestic transportation. . . . 185 Interference With interstate "proportional tariffs ".179 Hote Interstate long haul and domestic short haul 185 Joint through domestic rates 184 Local business done by federal railroad 180 Of domestic transportation 179 Of express companies 179 note Of railroad within State limits 92 On long and short hauls 185 Prescribing different classification from that estab- lished 180 note Begulating domestic part of interstate rate 180 Eeqalring rates to be fixed annually and posted 186 Right to apportion among several railroads 184 Telephone rentals 189 note Revovated butter — See BCTISB. Riparian' riglrts — Compensation for logs drifted on shore 203 note Of access to navigable waters 201 note Rnles hy xirhicli commerce goTerned — As applied to sales by manufacturers 116 Collisions, for prevention of 219 Congress may prescribe 42 Free competition 42 Eules of navigation 42 Rlllea of decision — See Common Law, Appuoation of PEiNCiPiiBS of. Common law, principles and definitions 15 Modifications of general jurisprudence by State constitution or statute 16 State decisions on questions of general jurisprudence-. 16 State laws applicable to liability for marine torts 221 State laws as 1^ Rules of evidence ^ See EviDENOE. 374 INDEX Knles of Uability— FAOB Application to persona engaged in interstate commerce .... 93 By State, in aid of federal policy 94 State quarantine regulations 104 Sale of tickets — Prohibiting ticket brokerage or scalping 171 Regulating stop-over privileges 172 Sale, purchase, and exchange of commodities — Agents, interstate sales by 121 As element of commerce 20 Cigarettes , 134, 135 C. O. D. shipments, status of 129-131 Congress, power of — Interstate sales within exclusive power of Congress... 118 Stockyards 141 Exclusive power of Congress respecting 58 Intoxicating liquors 131-133 Local federal police regulations 119 Prohibiting sale of perishable articles at certain places. . 120 note Shipment of goods upon telegraph order 120 note States, power of — Cigarettes, prohibiting sales in original packages ..... 135 Coffee, exclusion of, when artificially colored 139 General prohibitory law limited by construction 120 Intoxicating liquors, manufactured in, sent out of, shipped back to. State 133 note Intoxicating liquors, prohibiting sale of imported 132 Intoxicating liquors, prohibiting transportation of.... 132 Intrastate sales within exclusive power of State 118 Newly discovered article of food, prohibiting introduc- tion of 136 Oleomargarine 135 Oleomargarine, requiring to be colored pink 137 Oleomargarine, to exclude artificially colored 137 Prohibiting delivery of goods purchased in another State 120 note Prohibiting peddling goods 120 Prohibiting soliciting orders for delivery without State 120 note Prohibitory law limited to local property 120 Bight to sample goods before purchase 120 note Seamen — Congress, power of 214 Constitutional guaranties of liberty, when not applicable to . 222 INDEX 375 Seamen -• Continued. Contracts, requiring seamen to carry out 223 Federal regulation for protection of 222 Harboring and aiding to desert [ 223 Seeds — Exempting farmers from dating of seed packets 253 note Separability of interstate and domestic oonuneroe — Regulation of rates and power of taxation distinguished. . . 151 Taxation of receipts 289 Taxation on privilege of doing local business 295 Separate-coach lair — Construed as applying to domestic commerce 168 Held by State court applicable to interstate passengers 169 Rights under Fourteenth Amendment 169 note State laws jgy Seventh Amendment^ Jury, trial by 30, Sherman Act— > See Anti-Tbust Law. Ships and shipping — See Inspection and Licensing of Vessels; Liuita- TiON OF Vessel Ownebs' Liabilitt; Recobdino Acts; Seamen. Congress, power of — Over vessels and crews 214 Display of lights while at anchor in harbor 20"4 Engineers, Tules for qualification and licensing of 219 Fire, precautions against 220 Gaugers of coal boats, appointment of 99 Improvements patented in this country, use by foreign vessels 214 Liens for supplies or labor. State statutory 221 Marine torts. State laws applicable to 221 Passengers, limiting niunber of 220 Places for landing at wharves 206 Regulating place of anchorage 204 note Relation of regulations to admiralty jurisdiction 219 Rules of highway 219 Rule to determine capacity 100 State police regulations 215 State regulations while in harbor 203 State taxation — Dredges 281 Gross receipts, see Gboss Receipts, Taxation or. Of money or capital invested in shipping 279 note- 376 mom. Skips and ahippine — Contitmed. RMHS State taxation — dontmued. Of vessels as property, as duty of tonnage 270 On agency maintained within State 298 On privilege of navigating navigable streams 296 Ship as personal property 279 Situs, actual 281 Situs, artificial 280 Sturvey of hatches 204 Skmbs — Exempting from conditions of sale, when grown in State 253 note Sitns — Of vessel, actual 281 Of vessel, artificial 280 Sixth Amendment — Aliens, application to 240 Sleeping-car companies — State taxation — Application of unit rule 282 Of rollings stock and other movable property 277 On privilege of' doing- local business 295 Privilege and occupation taxes 294 Unit rule, mode of ascertaining value 283 Social evils — Precautionary measures by States against 241 State police power, under 84 South Carolina Dispensary Lanr — discrimination, by action of State officers 254 Wilson Act, operation under 145 SoTereign powers — Ko abeyance without constitutional limitation 48 Sovereignty — Bests in the people 80 Speed of trains — Regulating 163 State Dispensary Tjbl-w — See South Cakolina' Dispensabt Law. State lairs as rules of decision^ See Rules of Decision. State police' purcr 'v — See PoLiCKi Power. INBBX 377; States, ezclnsiTe poorer of— FAfiB Domestie commerce ....»••.,,,, 75 Instruments of eommerce wholly within juTiBdiction. ...... 75 States, general pcwer of — See under diflFerent subjects of regulation and generally throughout this index; Police Poweb. Classification of national and State powers ,. 55 Domestic commerce 75 Domestic instruments of commerce employed in interstate commerce 75 Exercise construed as aid to commerce 77 Local matters as to 57 Local regulations which are incidental obstructions 77 Powers not granted to national government and not pro- hibited 58 To meet varying circumstances of different localities 76 Statutory definition of commerce, Tveight given to — See Definition oi' Commebce. Stock yards — ' Business carried on by members of exchange , 141 Combination of meat dealer^.. ^ 141 Stoppage of trains^— < See Tbains. Sunday lairs — Freight trains, prohibiting running of 84 Incidental interference with commerce ......,., 93 Transportation of freight... , 171 Taxation — See under the different subjects of regulation; DuBA- TION OF FEDEBAI, PBOTECTION. Concurrent federal and State powers 56 Tea — Prohibiting importation of certain kinds 49 note Telegraph — Authorized to construct lines over post roads 190 Communications as commerce 188 Diligence in. transmission and delivery of messages 87 Establishing on railroad by eminent domain 63 note Exclusive, franchise, grant, by State of 191 Foreign corporations subject to State police power 251 Gambling operations prohibited 191 ncrte Invalidating stipulation in contract requiring certain notice of claim 191 note Penalizing negligence within State 193 Poles and wires, regulkting erection of 87, 378 INDEX Telegrapli — Continued. paob Regulating buildings, poles, and wires 191 Kegulating delivery of messages in other States 192 Regulating order of transmission 193 Requiring offices to be established at places designated by State commission 191 note Requiring prompt delivery of messages within State 192 Requiring removal of poles and wires to another State 192 Requiring wires and cables to be placed under ground 192 State regulation of local matters 191 State taxation — Application of unit rule 282 Charge on poles and wires for use of streets 301 Gross receipts, see GrBoss Receipts, Taxation of. Injunction to restrain business until tax is paid. . . .279 note License tax as condition to doing business in State. . . . 300 Mode of estimating value of property 278 Of corporate franchise 313 On messages 300 On privilege of doing domestic business 300 Privilege and occupation taxes 294 Reasonable fee for supervision of poles and wire 302 Unit rule, effect of Act of Congress authorizing oc- cupancy of post roads 284 Unit rule, mode of ascertaining value 283 Telepbone — As instrument of commerce 189 Federal control of telephone companies 189 Grant of exclusive right to operate telephone lines 189 note Prohibiting discrimination between patrons 189 note Temporary detention in transit — Goods under federal protection 1S5 Territories — Constitution applicable to, when 12 Not States within judicial clause of Constitution 11 Not States within meaning of statutes 11 Power of Congress over, as incident of sovereignty 10 Power of Congress to make rules and regulations respecting. 10 State as word is used in treaties 12 State regulation of rates on goods passing through 13 Ticket scalping — See Railboaos. Trade marks — As subject of commerce 128 Original trade mark act held invalid , 127 INDEX 379 *»•*■■- PAGE Heating of passenger cars 85, 165 Kegulating speed of 92, 163 Requiring fast train to turn aside from direct route 165 Stoppage at county seats Igg Stoppage at towns over certain size 166 Stoppage of, at certain stations 95 Stoppage of, regulating gg Transportation between placei in lame State — Distinction between power to tax and to regulate rates .... 150 Inspection and licensing of vessels 216 Navigating high seas 149 Navigating on boundary river 151 Regulating rate when part of route is outside State 179 note When part of route is outside State 149 Kamiportation of persona and property — See Duration of Fedebax Pbotection; Eeouxation of Rates. As constituting commerce 147 As element of commerce 20 Between points in same State when part of route outside . . 149 Congress, paramount power of 148 Denial by Congress of transportation facilities as to certain goods 115 Exclusive power of Congress respecting 58 Natural gas, prohibiting use of pressure in transporta- . . tion 148 note State taxation — Franchise tax on separate local independent service . . . 295 On privilege of engaging in 294 Transportation from and into State 181 Within exclusive power of Congress 88 Vreea — Exempting from conditions of sale when grown in State 253 note Trial by jnry — Necessity to preserve in defining jurisdiction at law and in equity 30 Tvgboats — Inspection and licensing of 218 UBlform ayatem of regnlating commerce—' Need for, as cause of adoption of Constitution 3 380 usfimx JSaU mle of taxation^ baob Application of, see Ezpbess Gomfaniis; Raujwads; Sleefikq-cab Oomfakies; Teleobaph. Exceptional^ cases of valuable terminal facilities >.. 286 Mode of ascertaining value 282 Valuation as unit defined >. 285 iVines — Exempting fiom conditions of sale whea grown in State 253 note Warebonses and elevators — License tax on owners of 310 Subject to local regulations 232 Wben nondomestic transactions not subject to State laws . . 233 Wharfage — Discrimination 207 Discrimination in, for using municipal wharves 259 Duty of tonnage 272 Municipal whairfage- as duty of tonnage 273 Must be reasonable 206 Not imposts or duties on imports or exports 206 note When governed by local laws ....r... 206 iWIiar-vvs, piev», and docks-— See Whabfage. Below low-water mark, regulation authorized by State 206 Construction, States may authorize 205 Defining lines of navigability 206 Designating place for landing of vessels 206 Federal regulations paramount 205 Bight of State to authorize construction of Wharf in do- mestic waters 198 Kisk of congressional interference assumed 206 States may regulate use-. 205 Wlieeling Bridge cases — Discussed 224 Wilson Act — Action on contract for liquors denied by State law 147 note C. O. D. shipments, status of 129 Discrimination by act of State officer 25i5 Illustrating exercise of ' combined' federal and State powers. . 54 Individual' consumption, right to import for 146 Judicial review of cases under 144 Making importations subject to State laws 143-147 Not applicable to liquor while in transit 145 Power of State, to • prohibit soliciting, of orders-. . r , .- . . . . 147 note Scope of statute!. 144 South Carolina Dispensary Law, operation of 145 State inspection law 146 illlllllllll' jl lllr'l-'i- iHiiiii|ii;;:n:l'i''':;' 'i'-,':M>i;f'>''i^i;*',\li'