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lated the navigation of the Ohio River, and had thereby secured to the public, by virtue of 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.

This being the view of the case taken by a majority of the court, they found no difficulty in arriving at the conclusion, that the obstruction of the navigation of the river, by the bridge, was a violation of the right secured to the public by the Constitution and laws of Congress, nor in applying the appropriate remedy in behalf of the plaintiff. The ground and principles upon which the court proceeded will be found reported in 13 How. 518.

Since, however, the rendition of this decree, the acts of Congress already referred to, have been passed, by which the bridge is made a post-road for the passage of the mails of the United States, and the defendants are authorized to have and maintain it at its present site and elevation, and requiring all persons navigating the river to regulate such navigation so as not to interfere with it.

So far, therefore, as this bridge created an obstruction to the free navigation of the river, in view of the previous acts of Congress, they are to be regarded as modified by this subsequent legislation; and, although it still may be an obstruction in fact, it is not so in the contemplation of law. We have already said, and the principle is undoubted, that the act of the Legislature of Virginia conferred full authority to erect and maintain the bridge, subject to the exercise of the power of Congress to regulate the navigation of the river. That body having in the exercise of its power, regulated the navigation consistent with its preservation and continuation, the authority to maintain it would seem to be complete. That authority combines the concurrent powers of both governments, State and Federal, which, if not sufficient, certainly none can be found in our system of government

Upon the whole, without pursuing the examination further, our conclusion is, that, so far as respects that portion of the decree which directs the alteration or abatement of the bridge, it cannot be carried into execution since the Act of Congress which regulates the navigation of the Ohio River, consistent with the existence and continuance of the bridge; and that this part of the motion in behalf of the plaintiff must be denied. But that, so far as respects that portion of the decree which directs the costs to be paid by the defendants, the motion must be granted.

Note.-On April 6th, 1914, in the case of Kansas City Southern Railway Company v. Kaw Valley Drainage District of Wyandotte, Kansas, 233 U. S. 75, the Supreme Court ruled that a State could not order the removal of an interstate railway bridge. The railway company was the owner of bridges across the Kansas River. It was alleged by the State that the bridges were so low they caused the river to overflow its banks and flood a large section of Kansas City, Kansas. The State ordered the elevation of the bridges or their removal altogether. The company contended that its railway tracks across the bridge were used in commerce among the States, and that such commerce would be cut off and destroyed by the enforcement of the order. Wherefore, the company claimed the protection of the commerce clause of the Constitution. The Supreme Court of Kansas sustained the order of the State. The Supreme Court of the United States decided that the removal of the bridges, which formed necessary parts of lines of interstate commerce, could not be ordered by a State court, even in the avowed expectation that such order would lead to the desired elevation of the bridges, which the State could not order directly without the authority of the Secretary of War

2. The Meaning of Commerce


94 U. S., 391. 1876. One James W. McCready, a citizen of Maryland, was convicted and fined $500 in the Circuit Court of Gloucester County, Va., for planting oysters in Ware River, a stream in which the tide ebbs and flows. The conviction was under the provisions of a statute of Virginia, of April 18, 1874, which was as follows:

"If any person other than a citizen of this State shall take or catch oysters, or any shell fish in any manner, or plant oysters in the waters thereof, or in the Rivers Potomac or Pocomoke, he shall forfeit $500, and the vessel, tackle and appurtenances."

It was contended that the statute was in violation of the clause of the Constitution giving Congress the power to regulate commerce. The Supreme Court of the State sustained the lower court, whereupon an appeal was taken to the Supreme Court of the United States. MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

* * * * Neither do we think this case is affected by the clause of the Constitution which confers power on Congress to regulate commerce, Art. 1., Sec. 8. There is here no question of transportation 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. Virginia, owning land under water adapted to the propagation and improvement of oysters, has seen fit to grant the exclusive use of it for that purpose to the citizens of the State. In this way, the people of Virginia may be enabled to produce what the people of other States cannot; but that is because they own property which the others do not. Their productions do not spring from commerce, but commerce to some extent from them. Judgment affirmed.

Note.-Compare this case with the earlier decision of the Supreme Court in Corfield vs. Coryell, in fra, page 310.


156 U. S., 1. 1895.

The American Sugar Refining Co., a New Jersey corporation, being in control of a large majority of the manufactories of refined sugar in the United States, acquired through the purchase of stock in four Philadelphia refineries,* such control over those manufactories that it obtained thereby a practical monopoly of the refining of sugar throughout the United States.

The United States government filed a bill in equity in the Circuit Court of the United States for the Eastern District of Pennsylvania against the American Sugar Refining Company and four other corporations, among which was the E. C. Knight Company, charging that these corporations had violated the Act of Congress of July 2, 1890 (Sherman Anti-Trust Act), entitled “An act to protect trad and commerce against unlawful restraints and monopolies, which provided, that every contract, combination in the form of trust, or otherwise, or conspiracy in restraint of trade and commerce among the several States is illegal, and that persons who shall monopolize or shall attempt to monopolize or combine or conspire with other persons to monopolize trade and commerce among the several States shall be guilty of a misdemeanor.” The government asked that the agreements for the purchase of the capital stock of the four refineries be cancelled and declared void, and that the defendants be enjoined from carrying them out and violating said act. The Circuit Court dismissed the bill, whereupon an appeal was taken to the Supreme Court.

MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

By the purchase of the stock of the four Philadelphia refineries, with shares of its own stock, the American Sugar Refining Company acquired nearly complete control of the manufacture of refined sugar within the United States. The bill charged that the contracts under which these purchases were made constituted combinations in restraint of trade, and that in entering into them the defendants combined and conspired to restrain the trade and commerce in refined sugar among the several States and with foreign nations, contrary to the act of Congress of July 2, 1890.

The relief sought was the cancellation of the agreements under which the stock was transferred; the redelivery of the stock to the parties respectively; and an injunction against the further performance of the agreements and further violations of the act. As usual, there was a prayer for general relief, but only such relief could be afforded under that prayer as would be agreeable to the case made

Note.—The four Philadelphia Refineries were the E. C. Knight Company, the Franklin Sugar Company, the Spreckels Sugar Refining Company and the Delaware Sugar House.


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by the bill and consistent with that specifically prayed. And as to the injunction asked, that relief was ancillary to and in aid of the primary equity, or ground of suit, and, if that failed, would fall with it. The ground here was the existence of contracts to monopolize interstate or international trade or commerce, and to restrain such trade or commerce, which, by the provisions of the act, could be rescinded, or operations thereunder arrested.

The fundamental question is, whether conceding that the existence of a monopoly in manufacture is established by the evidence, that monopoly can be directly suppressed under the act of Congress in the mode attempted by this bill.

The argument is that the power to control the manufacture of refined sugar is a monopoly over a necessary of life, to the enjoyment of which by a large part of the population of the United States interstate commerce is indispensable, and that, therefore, the general government in the exercise of the power to regulate commerce may repress such monopoly directly and set aside the instruments which have created it. But this argument cannot be confined to the necessaries of life merely, and must include all articles of general consumption. Doubtless the power to control the manufacture of a given thing involves in a certain sense the control of its disposition, but this is a secondary and not the primary sense; and although the exercise of that power may result in bringing the operation of commerce into play, it does not control it, and affects it only incidentally and indirectly. Commerce succeeds to manufacture, and is not a part of it. The power to regulate commerce is the power to prescribe the rule by which commerce shall be governed, and is a power independent of the power to suppress monopoly. But it may operate in repression of monopoly whenever that comes within the rules by which commerce is governed or whenever the transaction is itself a monopoly of commerce.

It will be perceived how far-reaching the proposition is that the power of dealing with a monopoly directly may be exercised by the general government whenever interstate or international commerce may be ultimately affected. The regulation of commerce applies to the subjects of commerce, and not to matters of internal policy. Contracts to buy, sell, or exchange goods to be transported among the several States, the transportation and its instrumentalities, and articles bought, sold or exchanged for the purpose of such transit among the States, or put in the way of transit, may be regulated, but this is because they form part of interstate trade or commerce. The fact that an article is manufactured for export to another State does not of itself make it an article of interstate commerce, and the intent of the manufacturer does not determine the time when the article or product passes from the control of the State and belongs to commerce. This was so ruled in Coe v. Errol, 116 U. S., 517, 525. In Kidd v. Pearson, 128 U. S., 20, 21, 24,

where the question was discussed whether the right of a State to enact a statute





prohibiting within its limits the manufacture of intoxicating liquors, except for certain 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 manufacturer did not determine 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 unauthorized interference with the right of Congress to regulate commerce. And Mr. Justice Lamar remarked :

"No distinction is more popular to the common mind, or more clearly expressed in economic and political literature, than that between manufacture and commerce. Manufacture is transformation —the fashioning of raw materials into a change of form for use. The functions of commerce are different. The buying and selling and the transportation incidental thereto constitute commerce; and the regulation of commerce in the constitutional sense embraces the regulation at least of such transportation. **** If it be held that the term includes the regulation of all such manufactures as are intended to be the subject of commercial transactions in the future, it is impossible to deny that it would also include all productive industries that contemplate the same thing. The result would be that Congress would be invested, to the exclusion of the States, with the power to regulate, not only manufactures, but also agriculture, horticulture, stock raising, domestic fisheries, mining-in short, every branch of human industry. For is there one of them that does not contemplate, more or less clearly, an interstate or foreign market? Does not the wheat grower of the Northwest or the cotton planter of the South, plant, cultivate, and harvest his crop with an eye on the prices at Liverpool, New York, and Chicago ? The power being vested in Congress and denied to the States, it would follow as an inevitable result that the duty would devolve on Congress to regulate all of these delicate, multiform and vital interests—interests which in their nature are and must be local in all the details of their successful management. * * * * The demands of such a supervision would require, not uniform legislation generally applicable throughout the United States, but a swarm of statutes only locally applicable and utterly inconsistent. Any movement toward the establishment of rules of production in this vast country, with its many different climates and opportunities, could only be at the sacrifice of the peculiar advantages of a large part of the localties in it, if not of every one of them. On the other hand, any movement toward the local, detailed and incongruous legislation required by such interpretation would be about the widest possible departure from the declared object of the clause in question. Nor this alone. Even in the exercise of the power contended for, 'Congress would be confined to the regulation, not of certain branches of industry, however numerous, but to those instances in each and every branch where the producer contem

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