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effect of the action is that which will control the courts, and in construing such provisions, 275 it is the well established principle followed without question that the Federal courts have the sole power and right of ultimately passing upon or determining questions arising under these clauses as well as other provisions that are found in the Federal constitution or Federal laws276 and which may be suggested in succeeding sections and paragraphs. The power of Congress over interstate commerce may arise through the direct application of the particular clause referred to,277 through grants of power to Congress in the Constitution to legislate upon commerce and its related subjects278 and through the Fourteenth amendment which, by decisions of the courts includes as one of the privileges and immunities to citizens which cannot be abridged by any state, the fundamental right to engage in commerce and the right to travel and transportation.279

§ 539. Definition of "commerce."

The right or power of the Federal Government under this clause is a most substantial one and far reaching in its effects. In the leading and earliest case construing the interstate commerce provision,280 defining the term "commerce" and the extent and nature of the right, in the opinion by Chief Justice Marshall, the court said: "The subject to be regulated is commerce; and our constitution being, as was aptly said at the bar, one of enum

sylvania, 97 U. S. 566; Tiernan v. Rinker, 102 U. S. 123; Metcalf v. City of St. Louis, 11 Mo. 103; City of St. Louis v. McCoy, 18 Mo. 238. See, also, Prentice & E., Commerce Clause.

275 Cannon v. City of New Orleans, 87 U. S. (20 Wall.) 577; Henderson v. City of New York, 92 U. S. 259; Morgan v. City of New Orleans, 112 U. S. 69; Mobile Bay Pilotage Com'rs v. Steamboat Cuba, 28 Ala. 185.

276 Mobile County V. Kimball, 102 U. S. 691; Robbins v. Shelby County Taxing Dist., 120 U. S. 489; Western Union Tel. Co. v. State Board of Assessment, 132 U. S. 472;

Pacific Coast S. S. Co. v. Board of
Railroad Com'rs, 18 Fed. 10;
Myers v. Baltimore County Com'rs,
83 Md. 385, 55 Am. St. Rep. 349, 34
L. R. A. 309; Foster v. Blue Earth
County Com'rs, 7 Minn. 140 (Gil.

84).

277 Houston Dist. Nav. Co. v. Insurance Co. of North America, 89 Tex. 1, 30 L. R. A. 713.

278 United States v. Kagama, 118 U. S. 375; In re City of Salem, 37 Fed. 846, 2 L. R. A. 380.

279 Robbins v. Shelby County Taxing Dist., 120 U. S. 489.

280 Gibbons v. Ogden, 9 Wheat, (U. S.) 1.

eration, 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 selling, 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, undoubtedly, is traffic, but it is something more; it is intercourse. 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 genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the state generally; but not to those which are completely within a particular state, which do not affect other states, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. The completely internal commerce of a state, then, may be considered as reserved for the state itself.

"But in regulating commerce with foreign nations, the power of congress does not stop at the jurisdictional lines of the several states. It would be a very useless power if it could not pass those lines. The commerce of the United States with foreign nations is that of the whole United States. Every district has a right to participate in it. The deep streams which penetrate our country in every direction, pass through the interior of almost every state in the Union, and furnish the means of exercising this right. If Congress has the power to regulate it, that power must be exercised whenever the subjects exists." And further in discussing the power, he said: "It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution. These are expressed in plain terms, and do not effect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several states, is vested in Congress as absolutely as it would be in a single government having in its constitution the same restrictions on the exer

cise of the power as are found in the constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied to secure them from its abuse." This decision has since been followed consistently by all courts and many municipal ordinances and regulations as well as state laws have been held invalid as violating the constitutional provision281 although apparently based upon rights proceeding from a legal exercise of either the taxing or police power of the state. In the absence of action by the Federal Government in respect to the question involved, other action by a state and its subordinate agencies has been sustained as legal. The power of Congress is exclusive unless by its consent or assent a state is permitted to act.2

$540. Definition of "to regulate."

282

In defining the word regulate in the Gibbons v. Ogden case, it was said: "It has been contended by the counsel for the appellant that as the word 'to regulate' implies in its nature, full power over the thing to be regulated, it excludes necessarily, the action. of all others that would perform the same operation on the same thing. That regulation is designed for the entire result, applying to those parts which remain as they were as well as to those which are altered. It produces a uniform whole which is as much disturbed and deranged by changing what the regulating power designs to leave untouched as that on which it has operated." And again, in the opinion of Mr. Justice Johnson, it was said: "The power to regulate foreign commerce is necessarily exclusive.

But the language which grants the power as to one description of commerce, grants it as to all and in fact if ever the exercise of a right or acquiescence in a construction could be inferred from contemporaneous and continued assent, it is that of the exclusive effect of this grant.' The word "commerce" as

281 Meyers v. Chicago, R. I. &. P. R. Co., 57 Iowa, 555; State v. Indiana Oil, G. & M. Co., 120 Ind. 575, 6 L. R. A. 579.

282 Osborne v. City of Mobile, 83 U. S. (16 Wall.) 482; People v. ColeAbb. Corp. Vol. II — 25.

17283

man, 4 Cal. 46; City of Newport v. Taylor's Ex'rs, 55 Ky. (16 B. Mon.) 699; Thomas v. Greenwood, 6 Ohio Dec. 639; State v. Pinckney, 10 Rich. Law (S. C.) 474.

283 Moor v. Veazie, 32 Me. 343.

used in the Constitution has been defined in the broadest way "it is a term of the largest import," it includes not only traffic but every species of commercial intercourse among the states and the agencies employed in the carrying on of that commercial intercourse.284 Justice Johnson in the Gibbons v. Ogden case defined it as "Commerce in its simplest signification means an exchange of goods; but in the advancement of society, labor, transportation, intelligence, care and various mediums of exchange become commodies and enter into commerce; the subject, the vehicle, the agent and their various operations become the objects of commercial regulations."

§ 541. The taxing power of the state in connection with interstate commerce.

In the apparently legitimate exercise of the taxing or licensing power of a state and its delegated agencies, the effect has been a regulation of interstate or foreign commerce and held to be in contravention of the commerce clause. It has been difficult at times to determine the line between a valid and an invalid exercise of the power by the state.285 It is clear that by the taxation of certain agencies of interstate commerce or the exercise itself, a regulation is clearly effected and yet the Federal Constitution necessarily does not deprive the states of the right to exercise the taxing power.286 The principle is well established, however, that where the effect or imposition of a tax or license amounts to a regulation of commerce in its broadest sense, the state is restrained from acting,287 and it is also well established

284 Chicago & N. W. R. Co. v. Fuller, 84 U. S. (17 Wall.) 568; Groves V. Slaughter, 15 Pet. (U. S.) 511; Mobile County v. Kimball, 102 U. S. 691; In re Greene, 52 Fed. 113; Crow v. State, 14 Mo. 237; State v. Delaware, L. & W. R. Co., 30 N. J. Law, 478; Ex parte Crandall, 1 Nev. 312; State v. Morgan, 2 S. D. 50.

285 Western Union Tel. Co. V. Texas, 105 U. S. 460; Leloup v. Port of Mobile, 127 U. S. 640; Postal Tel. Cable Co. v. City of Charleston, 153 U. S. 692.

286 Western Union Tel. Co. v. At

torney General, 125 U. S. 530; Leloup v. Port of Mobile, 127 U. S. 640; City of St. Louis v. Western Union Tel. Co., 148 U. S. 92.

287 McCulloch V. Maryland, 4 Wheat. (U. S.) 316. The conclusive argument by Chief Justice Marshall in this case is too familiar to jus tify a reproduction of more than a brief extract. "That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repug nance in conferring on one govern

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that a state has the right to exercise its sovereign power upon property within its jurisdiction when that power in good faith is exercised for the purpose of raising revenue and not that of regulating commerce,288 and works no discrimination against interstate commerce.

§ 542. Commerce clause and the police power as exercised by the states.

The states are recognized as independent sovereignties and possess with other powers the right to legislate or take action in respect to the protection of the lives, the good health and the good morals of the people within their jurisdiction.289 It has been claimed that the police power rests primarily in the states and that it is not only their privilege but their duty to exercise it in a proper manner except as such exercise may interfere with some one or more of the powers given to the Federal Government by

ment a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be su preme over that which exerts the control, are propositions not to be denied. *

If the states may tax one instrument employed by the government in the execution of its powers, they may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax patent rights; they may tax the papers of the customhouse; they may tax judicial process; they may tax all the means employed by the government to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the states."

Crandall v. Nevada, 73 U. S. (6 Wall.) 35. In the opinion of Mr. Justice Miller it is said: "The views here advanced are neither novel nor unsupported by authority. The question of the taxing

power of the states as its exercise has affected the functions of the Federal Government has been repeatedly considered by this court and the right of the states in this mode to impede or embarrass the constitutional operations of that government or the rights which its citizens hold under it, has been uniformly denied." And further in the decision, reference is made to McCulloch v. Maryland, 4 Wheat. (U. S.) 316, and the quotation given above from that case is cited with approval.

288 City of St. Louis v. Western Union Tel. Co., 148 U. S. 92; Western Union Tel. Co. v. Mississippi R. Co., 74 Miss. 80; City of Philadelphia v. American Union Tel. Co., 167 Pa. 406.

289 In re Rahrer, 140 U. S. 545; United States v. Knight Co., 156 U. S. 13; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211; United States v. Popper, 98 Fed. 423.

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