Sec. 8.-Powers of Congress Cl. 3.-Commerce-Interstate ucts of which were intended for transport and sale for human consumption in other States, is not interstate commerce. The Lottery Case, 188 U. S. 369. Smith v. Jackson, 103 Tenn. 673. Manufacture. The business of manufacturing is not commerce. The court said, in Kidd v. Pearson (128 U. S. 20): No distinction is more popular to the common mind or more clearly expressed in economic and political literature than that between manufactures 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. The legal definition of the term, as given by this court in County of Mobile v. Kimball (102 U. S. 671, 702), is as follows: "Commerce with foreign countries and among the States, strictly considered, consists in intercourse and traffic, including in these terms navigation, and the transportation and transit of persons and property, as well as the purchase, sale, and exchange of commodities." 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? 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. See also Crescent Oil Co. v. Mississippi, 257 U. S. 129. Manufacture of paper is not commerce though paper may become a subject of commerce. International Paper Co. v. Massachusetts, 246 U. S. 135. Mining. The mining of coal is not interstate commerce; and a conspiracy to obstruct mining at particular mines, though it may prevent coal from going into interstate commerce, is not a conspiracy to restrain that commerce, within the Sherman Act, unless an intention to restrain it be proved. United Mine Workers v. Coronado Co., 259 U. S. 344. The mining of ore, even when substantially all of the ore mined is immediately and continuously loaded on cars and shipped into other States to satisfy existing contracts, is not interstate commerce and is subject to local taxation. Oliver Iron Co. v. Lord, 262 U. S. 172. Sec. 8.-Powers of Congress Cl. 3-Commerce-Interstate Articles made by women and children.-Watson on the Constitution (p. 523) says: Closely akin to the question of regulating manufacturing is the question whether Congress can forbid the hauling of a commodity by a carrier of interstate commerce which was manufactured in a State, for instance, by women or children under a certain age, as has recently been maintained. This question is of far-reaching effect, and if such power exists in Congress it would result in the most complete invasion of the sovereignty of the States by the General Government which has ever been accomplished under the Federal Constitution. Kidd v. Pearson, 128 U. S. 20. In Hammer v. Dagenhart (247 U. S. 251) it was held that the child labor law can not be sustained on the theory that Congress has power to control interstate commerce in the shipment of child-made goods because of the effect of such goods in States where the evil of child labor has been recognized by local legislation and the right to employ child labor has been more rigorously restrained than in the State of production. See also Bailey v. Drexel Furn. Co., 259 U. S. 20, in which act imposing tax on child-labor-made goods was declared unconstitutional. Suppression of monopoly.-The argument in U. S. v. Knight Company (156 U. S. 1) was 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 the court said: This argument can not be confined to 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 is vital that the independence of the commercial power and of the police power, and the delimitation between them, however sometimes perplexing, should always be recognized and observed. Acquisition, control, and disposition of property.-Congress certainly has not the power or authority under the commerce clause, or any other provision of the Constitution, to limit and restrict the right of corporations created by the States, or the citizens of the States, in the acquisition, control, and the dispo Sec. 8.-Powers of Congress Cl. 3-Commerce-Interstate sition of property. Neither can Congress regulate or prescribe the price or prices at which such property, or the products thereof, shall be sold by the owner, or owners, whether corporations or individuals. It is equally clear that Congress has no jurisdiction over, and can not make criminal, the aims, purposes, and intentions of persons in the acquisition and control of property, which the States of their residence or creation sanction and permit. In re Greene, 52 Fed. 104. Weeds v. U. S., 255 U. S. 109. Delivery on agents' orders.-The business of taking orders on commission for the purchase and sale of grain and cotton for future delivery and transmitting them to other States is not interstate commerce. Ware & Leland v. Mobile County, 209 U. S. 405. Live-stock commission merchants.-A live-stock commission merchant whose place of business is at a certain stockyards in a city and who there buys and sells stock for others is not engaged in interstate commerce, within the meaning of the antitrust statute, although the stock may have been shipped from another State, consigned to him for sale, and may be sold for shipment to another State or a foreign country. Hopkins v. U. S., 171 U. S. 578. The delivery of coupons, etc., redeemable in premiums in connection with retail sales of merchandise held not interstate commerce, though coupons are inserted in the retail packages and are redeemable outside the State. Rast v. Van Deman, 240 U. S. 342. Foreign holding corporation whose local activities were confined to holding stockholders' and directors' meetings, keeping records, distributing dividends, etc., was not engaged in interstate commerce. Cheney Bros. Co. v. Massachusetts, 246 U. S. 147. Associated Press v. Commonwealth, 60 S. W. 295. A loan of money by a foreign corporation to a citizen of Alabama is not a matter of interstate commerce, but is subject to the restrictions imposed on foreign corporations by the laws of Alabama. Nelms v. Edinburgh-American, etc., Co., 9 So. 141. The retailing of liquors on a steamboat while at its landing, though the boat is engaged in interstate commerce, is not itself interstate commerce. Foppiano v. Speed, 82 S. W. 222 Sec. 8.-Powers of Congress Cl. 3.-Commerce-Intrastate Powers Remaining in the States-Intrastate Commerce The power which the Constitution bestows upon Congress over commerce does not exhaust the subject of the control of commerce, for there is a commerce which lies beyond the power of Congress to control. The States have a commerce of their own and they are as supreme in its control as Congress is supreme in the control of interstate and foreign commerce. This has never been disputed since the case of Gibbons v. Ogden (9 Wheat. 1). Lord v. Steamship Co., 102 U. S. 543. See also License Cases, 5 How. 574. Norris v. Boston, 7 How. 415. Sinnot v. Davenport, 22 How. 243. Hall v. De Cuir, 95 U. S. 488. Addyston Pipe, etc., Co. v. U. S., 175 U. S. 247. Houston, etc., R. Co. v. U. S., 234 U. S. 342. Concurrent Powers of Congress and the States In the Passenger Cases (7 How. 396) the court said that a concurrent power in the States to regulate commerce is an anomaly not found in the Constitution. If such power exist, it may be exercised independently of the Federal authority. A concurrent power excludes the idea of a dependent power. The General Government and the State exercise concurrent powers in taxing the people of the State. The objects of taxation may be the same, but the motives and policy of the tax are different and the powers are distinct and independent. The report continues: A concurrent power in two distinct sovereignties to regulate the same thing is as inconsistent in principle as it is impracticable in action. It involves a moral and physical impossibility. A joint action is not supposed, and two independent wills can not do the same thing. The action of one, unless there be an arrangement, must necessarily precede the action of the other; and that which is first, being competent, must establish the rule. If the powers be equal, as must be the case, both being sovereign, one may undo what the other does, and this must be the result of their action. But the argument is that a State acting in a subordinate capacity wholly inconsistent with its sovereignty may regulate foreign commerce until Congress shall act on the same subject, and that the State must then yield to the paramount authority. A jealousy of the Federal powers has often been expressed and an apprehension entertained that they would impair the sovereignty of the States. But this argument degrades the States by making their legislation, to the extent stated, subject to the will of Congress. See also Gulf, etc., R. Co. v. Hefley, 158 U. S. 98. Missouri, etc., R. Co. v. Harris, 234 U. S. 412. Sec. 8.-Powers of Congress When States May Exercise Power Cl. 3.-Commerce-Intrastate The power to regulate commerce among the States is a unit, but if particular subjects within its operation do not require the application of a general or uniform system, the States may legislate in regard to them with a view to local needs and circumstances until Congress otherwise directs; but the power thus exercised by the States is not identical in its extent with the power to regulate commerce among the States. The power to pass laws in respect to internal commerce, inspection laws, quarantine laws, health laws, and laws in relation to bridges, ferries, and highways belongs to the class of powers pertaining to locality, essential to local intercommunication, to the progress and development of local prosperity, and to the protection, the safety, and the welfare of society, originally necessarily belonging to, and upon the adoption of the Constitution reserved by, the States, except so far as falling within the scope of a power confided to the General Government. Where the subject matter requires a uniform system as between the States, the power controlling it is vested exclusively in Congress and can not be encroached upon by the States; but where in relation to the subject matter different rules may be suitable for different localities, the States may exercise powers which, though they may be said to partake of the nature of the power granted to the General Government, are strictly not such, but are simply local powers, which have full operation until or unless circumscribed by the action of Congress. Leisy v. Hardin, 135 U. S. 108. See also Minnesota Rate Cases, 230 U. S. 352. Southern R. Co. v. Reid, 222 U. S. 424. Escanaba, etc., Transp. Co. v. Chicago, 107 U. S. 683. County of Mobile v. Kimball, 102 U. S. 698. Gilman v. Philadelphia, 3 Wall. 726. Cardwell v. Bridge Company, 113 U. S. 210. Police Powers of the States In general.-Consistent with the power of Congress to regulate commerce, the States possess, because it was reserved, the power to protect the public health, the public morals, and the public safety by any legislation appropriate to that end which does not encroach upon rights guaranteed by the National Constitution nor come in conflict with acts of Congress. Missouri, etc., R. Co. v. Haber, 169 U. S. 628. See also Sioux Remedy Co. v. Cope, 235 U. S. 197. Houston, etc., R. Co. v. Mayes, 201 U. S. 321. Bowman v. Chicago, etc., R. Co., 125 U. S. 489. Robbins v. Shelby County, 120 U. S. 493. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 215. Railroad Co. v. Husen, 95 U. S. 470. |