CHAPTER XIV.

REGULATION OF COMMERCE.

83. References.

IN GENERAL: J. Story, Constitution, §§ 259-263, 1054-1101; T. M. Cooley, Constitutional Limitations, ** 584-594; T. M. Cooley, Constitutional Law, ch. iv, § 2; H. C. Black, Constitutional Law (2d ed.), pp. 186– 207, 368-371; J. I. C. Hare, Constitutional Law, chs. xxxi-xxxiii; J. R. Tucker, Constitution, §§ 250-268; J. N. Pomeroy, Constitutional Law, $$ 321-384; The Federalist, Nos. 7, 11, 12, 22, 42; Prentice and Egan, Commerce Clause of the Federal Constitution; A. B. Hart, Actual Government (Amer. Citizen Series), chs. xxiv, xxvii; J. B. Thayer, Cases on Constitutional Law, pp. 2090, 2091; John Fiske, Critical Period in American History, ch. iv.

EXTENT OF FEDERAL POWER: Gibbons v. Ogden (1824, 9 Wheaton, 1; 6 Curtis' Decisions, 1; McClain's Cases, 235; Thayer's Cases, 1799, and notes, 1818-1823; Marshall's Decisions, Dillon's ed., 421); Henderson v. Mayor of New York (1875, 92 U. S. 259; McClain's Cases, 244; Thayer's Cases, 1961); The Passenger Cases (1848, 7 Howard, 283; 17 Curtis' Decisions, 122; Thayer's Cases, 1865); Pensacola Telegraph Co. v. Western Union Telegraph Co. (1877, 96 U. S. 1; McClain's Cases, 252; Thayer's Cases, 1985); Lord v. Steamship Co. (1880, 102 U. S. 541 ; McClain's Cases, 256); The Daniel Ball (1870, 10 Wallace, 557; McClain's Cases, 260; Thayer's Cases, 1930); Kidd v. Pearson (1883, 128 U. S. 1); United States v. E. C. Knight Co. (1895, 156 U. S. 1; McClain's Cases, 263; Thayer's Cases, 2185); Northern Securities Co. v. United States (1904, 24 Sup. Court Reporter, 436); In re Debs (1895, 158 U. S. 164); The Lottery Case (1903, 188 U. S. 321; 23 Sup. Court Reporter, 321).

VALIDITY OF STATE REGULATIONS: Willson v. Blackbird Creek Marsh Co. (1829, 2 Peters, 245; 8 Curtis' Decisions, 105; McClain's Cases, 273; Thayer's Cases, 1837); Cooley v. Board of Wardens (1851, 12 Howard, 299; 19 Curtis' Decisions, 143; McClain's Cases, 275; Thayer's Cases, 2191); Pennsylvania v. Wheeling & Belmont Bridge Co. (1855, 18 Howard, 421; McClain's Cases, 282; Thayer's Cases, 1889); Escanaba Co. v. Chicago (1882, 107 U. S. 678; McClain's Cases, 285; Thayer's Cases, 2002); Harman v. Chicago (1893, 147 U. S. 396; McClain's Cases, 290; Thayer's Cases, 2011); United States v. Rio Grande Dam & Irrigation Co. (1899, 174 U. S. 690; McClain's Cases, 297).

§ 83]

References.

149

STATE TAXATION OF COMMERCE: Brown v. Maryland (1827, 12 Wheaton, 419; 7 Curtis' Decisions, 262; McClain's Cases, 303; Thayer's Cases, 1826); Welton v. Missouri (1875, 91 U. S. 275; McClain's Cases, 313; Thayer's Cases, 1957); Robbins v. Shelby County Taxing District (1887, 120 U. S. 489; McClain's Cases, 317; Thayer's Cases, 2056); Ficklen v. Shelby County Taxing District (1892, 145 U. S. 1; McClain's Cases, 323; Thayer's Cases, 2143); Emert v. Missouri (1895, 156 U. S. 296; McClain's Cases, 324); Crutcher v. Kentucky (1891, 141 U. S. 47; McClain's Cases, 328; Thayer's Cases, 2135); Brown v. Huston (1885, 114 U. S. 622; McClain's Cases, 333; Thayer's Cases, 2022); Telegraph Co. v. Texas (1881, 105 U. S. 460; McClain's Cases, 338); Philadelphia & Southern Steamship Co. v. Pennsylvania (1887, 122 U. S. 326; McClain's Cases, 342; Thayer's Cases, 2063); Adams Express Co. v. Ohio State Auditor (1897, 165 U. S. 194; McClain's Cases, 349).

STATE POLICE POWER AS TO COMMERCE: Railroad Co. v. Fuller (1873, 17 Wallace, 560; McClain's Cases, 355); Wabash, etc., R. R. Co. v. Illinois (1886, 118 U. S. 557; Thayer's Cases, 2045); Lake Shore & Michigan Southern Railway Co. v. Ohio (1899, 173 U. S. 285; McClain's Cases, 357); Railroad Co. v. Husen (1877, 95 U. S. 465; McClain's Cases, 367; Thayer's Cases, 753); Kimmish v. Ball (1889, 129 U. S. 217; McClain's Cases, 371); Brimmer v. Rebman (1891, 138 U. S. 78; McClain's Cases, 373); Minnesota v. Barber (1890, 136 U. S. 313; Thayer's Cases, 2112); Morgan's Steamship Co. v. Louisiana Board of Health (1886, 118 U. S. 455; McClain's Cases, 376; Thayer's Cases, 2040); Bowman v. Railway Co. (1888, 125 U. S. 465; Thayer's Cases, 2080); Leisy v. Hardin (1890, 135 U. S. 100; McClain's Cases, 378; Thayer's Cases, 2104); Austin v. Tennessee (1900, 179 U. S. 343; 21 Sup. Court Reporter, 132); In re Rahrer (1891, 140 U. S. 545; Thayer's Cases, 2123); Rhodes v. Iowa (1898, 170 U. S. 414; McClain's Cases, 390); Schollenberger v. Pennsylvania (1898, 171 U. S. 1; McClain's Cases, 395); Powell v. Pennsylvania (1887, 127 U. S. 678; Thayer's Cases, 537); Capital City Dairy Co. v. Ohio (1902, 183 U. S. 238; 22 Sup. Court Reporter, 120).

FEDERAL OR STATE TAXES ON EXPORTS, IMPORTS, AND TONNAGE: Pace v. Burgess (1875, 92 U. S. 372; McClain's Cases, 402); Almy v. California (1860, 24 Howard, 169; McClain's Cases, 404); Woodruff v. Farham (1868, 8 Wallace, 123; Thayer's Cases, 1922); Turner v. Maryland (1882, 107 U. S. 38; McClain's Cases, 406; Thayer's Cases, 2120); Inman Steamship Co. v. Tinker (1876, 94 U. S. 238; McClain's Cases, 409); Packet Company v. Keokuk (1877, 95 U. S. So; McClain's Cases, 411); Transportation Co. v. Wheeling (1878, 99 U. S. 273; McClain's Cases, 416).

COMMERCE WITH INDIAN TRIBES: United States v. Holliday (1865, 3 Wallace, 407; McClain's Cases, 270; Thayer's Cases, 1909); Cherokee Nation v. Kansas Railway Co. (1890, 135 U. S. 641; McClain's Cases, 1063).

84. State Power over Commerce in General.

The general power to regulate commerce is in strict analysis a part of the police power, and, as has already been indicated in the discussion of the police power (see above, § 48), the states may regulate rates charged by common carriers for the transportation of persons or goods; and in some states boards of commissioners have been especially created to exercise a particular supervision over railroad, express, telegraph, and other kinds of corporations engaged in business affecting commerce. Indeed, regulations as to the use of highways, the construction of bridges, the navigation of public waters, and the like, are instances of police regulation principally affecting commerce. Were it not for the limitations upon state power, involved in the provisions in the clause of the federal constitution to be hereafter discussed, which gives Congress certain powers as to the regulation of commerce, there would be no necessity for any separate or particular treatment of this subject, but as the powers of the state are greatly restricted in this respect by that provision it is necessary that the division of powers between the federal government and the governments of the states be considered in some detail.

85. Necessity for Federal Regulation of Commerce.

Under the Articles of Confederation, Congress had no power to levy taxes or to regulate commerce; and, as a consequence, it could not adopt navigation laws, impose duties on imports, or prevent conflicting or retaliatory enactments by the legislatures of the different states with respect to trade between the states and foreign countries, or other states of the Union. Each state could, for itself, levy duties on exports or imports, and make such commercial regulations as it saw fit. This situation was inconsistent with any uniform or beneficial regulation of commercial intercourse with foreign countries, and because of division and animosity as between the people of the several states, tended to a disruption of the Confederation. So serious was the condition that the legislature of

§ 86]

State and Federal.

151 Virginia, in 1786, passed a resolution for the appointment of commissioners from that state to confer with like commissioners from other states with reference to the adoption of some more efficient and satisfactory system of commercial regulations. These commissioners were asked to meet at Annapolis, but at the time fixed there were commissioners present from only five states, and the so-called Annapolis convention was, therefore, unable to take any efficient action; but resolutions were adopted recommending action by Congress with a view of securing amendments or additions to the Articles of Confederation, and this convention was, therefore, the first formal step towards securing for the Union a better organization and a more practical constitutional system. When the constitutional convention, subsequently called, met to consider the revision of the Articles of Confederation, or the adoption of some better plan of federal government, one of the first objects which the members had in mind was a uniform system for the regulation of commerce; and the system adopted involved the grant to Congress of the power to impose duties on imports as a means of raising revenue, and the further power to regulate foreign and interstate commerce. The provision as to duties on imports has already been discussed under the chapter relating to taxation. The subject of regulation of commerce, as involving the exercise of that power by Congress and the corresponding limitations upon the power of the states, is for this chapter.

86. Provisions of the Federal Constitution on Commerce. The principal commerce clause of the federal constitution, (Art. I, § 8, 3), is as follows: The Congress shall have power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." (1) The necessity of such control with reference to foreign commerce is manifold and self-evident. It is essential in determining the relations of the general government to foreign countries, and in exercising supervision over navigation by vessels carrying the flag of the United States on the high seas and other

public waters. (2) The necessity for federal regulation of interstate commerce arises from the fact that without such regulation freedom of commercial intercourse between residents of the different states on an equal basis would be impossible. (3) Commerce with the Indian tribes should be under the control of Congress, because those tribes are recognized as to some extent independent and self-governing bodies, existing within the limits of the United States, over which the national government asserts a form of protection, although the members of such tribes are not, as individuals, subjects of the United States. As to any forms of commerce not coming within one of these three classifications, the states are allowed to retain the power of control and regulation as effectually as though independent of each other and not subject to federal authority.

87. Concurrent State Power over Commerce.

Even as to commerce belonging to any of the three classes specified by the federal constitution, the power of state regulation is not necessarily denied. It is to be noticed that Congress is not expressly given the exclusive power to regulate, and while the power of Congress is necessarily superior to that of the states, so that any regulations which Congress may adopt will supersede state laws on the same subject, it does not follow that state legislation affecting the three forms of commerce enumerated and not in conflict with any laws of Congress on the same subject is necessarily invalid. Thus harbor regulations, or rules as to the employment of pilots, may affect foreign or interstate commerce, but they are not on that account ineffectual if there are no statutes of Congress with which they are in conflict. Again, the erection of bridges over navigable streams within state limits, or the construction of dams in such streams, can be authorized by the state, although foreign or interstate commerce is thereby, to some extent, interrupted. There are many local regulations essential for the control of commerce under peculiar circumstances, which cannot very well be provided by general law, and so far as the state regu