The Constitution of the United States of America as Amended to December 1, 1924

Sec. 8.-Powers of Congress

Cl. 3.-Commerce-Interstate

Oil and gas.—Act of Congress of March 2, 1917 (sec. 29), declaring "that no person shall mix for sale naphtha and illuminating oils, or shall knowingly sell or keep for sale, or offer for sale such mixture, or shall sell or offer for sale oil made from petroleum for illuminating purposes," and that any person so doing shall be held to be guilty of a misdemeanor, etc., was held to be a police regulation relating exclusively to the internal trade of the State, and to have effect only where the legislative authority of Congress excludes, territorially, all State legislation, as, for example, in the District of Columbia. Within State limits, it can have no constitutional operation. U. S. v. Dewitt, 9 Wall. 41.

While the transportation of natural gas is expressly excepted from the provisions of the act to regulate commerce (sec. 1), yet there have been some cases carried to the Supreme Court of the United States in which State laws attempting to regulate the subject have been held to be unconstitutional as interfering with interstate commerce.

Oklahoma v. Kansas Natural Gas Co., 221 U. S. 229.
Haskell v. Kansas Natural Gas Co., 224 U. S. 217.
Pennsylvania v. West Va., 262 U. S. 553

See also

Haskell v. Cowham, 187 Fed. 403.

Manufacturers' Light & Heat Co. v. Ott, 215 Fed. 940.

Fidelity, etc., Co. v. Kansas, etc., Gas Co., 219 Fed. 614.

The business of piping natural gas from one State to another and selling it, not to consumers, but to independent distributing companies which sell it locally to the consumers, is interstate commerce free from State interference. Pennsylvania Gas Co. v. Public Service Comm., 252 U. S. 23, distinguished. An attempt of a State to fix the rates chargeable in this interstate business is a direct burden on interstate commerce, even in the absence of any regulation of it by Congress.

Missouri v. Kansas Gas Co., 265 U. S. 298.

Sponges. The act of Congress of June 20, 1906, making it unlawful to land, deliver, cure, or offer for sale at any port or place in the United States, any sponges taken by means of diving or diving apparatus from the waters of the Gulf of Mexico or Straits of Florida, can not be applied to sponges taken from the territorial waters of a State, but must be construed as confined to sponges taken outside of such waters.

The Abby Dodge, 223 U. S. 166.

Transportation of women for immoral purposes.-The act of Congress of June 25, 1910, known as the white slave traffic act, is a valid exercise of the power of Congress.

Hoke v. U. S., 227 U. S. 308.

Athanasaw v. U. S., 227 U. S. 326.

Bennett v. U. S., 227 U. S. 333.

Harris v. U. S., 227 U. S. 340.

Wilson v. U. S., 232 U. S. 563.

Caminetti v. U. S., 242 U. S. 470.

Sec. 8.-Powers of Congress

Cl. 3.-Commerce-Interstate

Obscene publications.-The act of Congress (sec. 245 of the Penal Code) declaring it an offense knowingly to deposit with an express company an obscene, lewd, lascivious, or filthy book, for carriage from one State to another, is valid.

Clark v. U. S., 211 Fed. 916.

Importation of prize-fight films.-The act of Congress of July 31, 1912, prohibiting the importation and the interstate transportation of prize-fight films or pictorial representations of prize fights held valid.

Weber v. Freed, 239 U. S. 325.

U. S. v. Johnston, 232 Fed. 970.

Trade-marks.-Legislation respecting trade-marks, which is not confined to the case of a trade-mark used in foreign or interstate commerce, but which has the broad purpose of establishing a universal system of trade-mark registration for the benefit of all who had already used a trade-mark, or who wished to adopt one for the future, without regard to the character of the trade to which it was to be applied or the residence of the owner, is not within the power of Congress under this clause.

Trade-mark Cases, 100 U. S. 82.

In U. S. v. Koch (40 Fed. 250), the court said:

the Supreme

In what are known as the Trade-mark cases
Court decided that the act of 1870 was beyond the power of Congress. It
suggested in the opinion that under the commerce clause, perhaps, Con-
gress had the power to legislate with reference to trade-marks used in
commerce between this country and foreign nations, between the States,
and with the Indian tribes. Immediately thereafter the act of 1881 was
passed by Congress, providing for the registration of trade-marks which
might be used in foreign commerce and commerce with the Indian tribes.
See also-

Leschen Rope Co. v. Broderick, 201 U. S. 166.
Rossman v. Garnier, 211 Fed. 401.

In Elgin, etc., Co. v. Illinois, etc., Co. (179 U. S. 677), the court refrained from discussing the constitutionality of the act of Congress of March 3, 1881, on affirming a decree of dismissal in 94 Fed. 667, for want of jurisdiction, the constitutional question not having been raised in the lower court.

Lottery tickets. The power to prohibit the carriage of lottery tickets is included in the plenary power of Congress to regulate

commerce.

Lottery case, 188 U. S. 321.

Reilley v. U. S. 106 Fed. 896.

See also In re Rapier, 143 U. S. 110; and Horner v. U. S., 147 U. S. 449, as to exclusion of lottery tickets from the mails. Embargo. Every subject falling within the legitimate sphere of commercial regulation may be partially or wholly excluded when either measure shall be demanded by the safety or by the

Sec. 8.-Powers of Congress

Cl. 3.-Commerce-Interstate

important interests of the entire Nation. Such exclusion can not be limited to particular classes or descriptions of commercial subjects; it may embrace manufactures, bullion, coin, or any other thing. The power once conceded, it may operate on any and every subject of commerce to which the legislative discretion may apply it.

U. S. v. Marigold, 9 How. 506.

In Gibbons v. Ogden (9 Wheat. 191), the court said: "The universally acknowledged power of the Government to impose embargoes must also be considered as showing that all America is united in that construction which comprehends navigation in the word 'commerce."

Original packages.-In McDermott v. Wisconsin (228 U. S. 136), the court said: "The doctrine of original packages had its origin in the opinion of Chief Justice Marshall in Brown v. Maryland." (12 Wheat. 419.)

In May v. New Orleans (178 U. S. 496), it was held (p. 508) that where goods were imported from foreign countries and were put up for sale in packages and a number of such packages were enclosed in boxes or cases for purposes of transportation, the box or case in which the packages were shipped, and not the packages themselves, constituted the original package. In this case four of the justices dissented from the judgement of the court.

In Austin v. Tennessee (179 U. S. 343), Mr. Justice Brown, in delivering the opinion of the majority of the court, referred to the case of Brown v. Maryland, supra, as the source of the doctrine of original packages, and in the course of his opinion intimated that it was doubtful whether the decision would have been the same if the orginal package considered in that case had been minute in size instead of consisting of hogsheads and bales of dry goods, and that it was obvious that the doctrine of that case was directed only to those large packages in which, from time to time, it had been customary to import goods from foreign countries.

The conclusion of the court is (p. 360) that original packages are those used in good faith in transactions carried on between the manufacturer and wholesale dealers residing in different States. But where the size of the package indicates that it was gotten up to evade the law of the State to which it is shipped, it will not be protected as an original package. Cigarettes imported in paper packages holding ten cigarettes and without being boxed but thrown loosely into baskets, the court held not to be original packages, but if there be an original package in the case, "it was the basket and not the paper box."

To this decision Mr. Justice Brewer delivered a most vigorous dissent. (See p. 382.)

Sec. 8.-Powers of Congress

Cl. 3.-Commerce-Interstate

In Leisy v. Hardin (135 U. S. 100), the court held that beer in quarter barrels, one-eighth barrels, and cases of beer constituted original packages.

In Cook v. Marshall County (196 U. S. 270), the court said:

The term 'original package' is not defined by any statute, and is simply a convenient form of expression adopted by Chief Justice Marshall in Brown v. Maryland, to indicate that a license tax could not be exacted of an importer of goods from a foreign country who disposes of such goods in the form in which they were imported.

In In re Harmon (43 Fed. 372), an express company transported boxes containing different sized bottles, some holding a quart, and some a pint. Each bottle was wrapped in a paper wrapper, or placed in a paper box and then sealed. The bottles were then placed in wooden boxes, without a cover and packed closely together. These boxes were labeled "to be returned." It was held that the boxes and not the bottles were the original packages.

In Guckenheimer v. Sellers (81 Fed. 1000), it was held "that an original package is a package delivered by the importer to the carrier at the initial point of shipment, in the exact condition in which it was shipped."

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