105

commerce in those cases where ample provisions are already made by the roads for the traveling public.1 State regulation requiring carriers to supply cars to shippers on demand for the purpose of moving interstate shipments, which interferes with the rules and regulations of the American Railway Association for interchange of cars, has been held to be unconstitutional; 106 but a state regulation prescribing a minimum of three brakemen for freight trains of more than twenty-five cars, operating within the state, is not an unconstitutional regulation of interstate commerce when applied to a foreign railroad company engaged in such commerce within the state.107

§ 68. Subjects of Interstate Commerce Regulation. We have already seen that interstate commerce is subject entirely to regulation by Congress, to the exclusion of the powers of the state acting under its police power, where Congress has acted upon the subject matter.108 "Interstate" and "intrastate" commerce are defined as above pointed out.109 "Commerce" denotes and means merely a mutual selling or traffic, but is a term of the largest import, including intercourse for the purpose of trade in any and all its forms.110

105 Herndon v. Chicago, R. I. & P. R. Co., 218 U. S. 135, 30 Sup. Ct. 633, 54 L. ed. 633.

106 St. Louis & S. W. R. Co. v. Arkansas, 217 U. S. 136, 30 Sup. Ct. 476, 54 L. ed. 698.

107 Chicago, R. I. & P. Co. v. Arkansas, 219 U. S. 453, 31 Sup. Ct. 275, 55 L. ed. 290. See Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96, 9 Sup. Ct. 28, 32 L. ed. 352, 2 Inters. Com. Rep. 238; New York, N. H. & H. R. Co. v. New York, 165 U. S. 628, 17 Sup. Ct. 418, 41 L. ed. 853.

108 See § 65, this chapter.

109 See footnote 99, this chapter.

110 Gibbons v. Ogden, 22 U. S. (9 Wheat.) 1, 194, 240, 6 L. ed. 23; Welton v. Missouri, 91 U. S. 281, 23 L. ed. 347.

Shipment of bottles of medicine from one state to another is interstate commerce. See United States v. Tucker, 188 Fed. 741. As to canvassers and solicitors, see § 69, this chapter.

But all things incident to commerce are not included in it." Thus, it has been held that the following things are not included in "commerce," to wit: (1) Bills of exchange; 112 (2) insurance; (3) trademarks; 11 (4) manufacturing,115 and the like. But the transportation of persons and goods is "com

As to hawkers and peddlers, see § 76, this chapter.

113

As to intoxicating liquors, see §§ 71, 73, 80, this chapter.

As to traveling salesmen and sales made by them, see §§ 69 and 75, this chapter.

As to what constitutes "commerce," see 2 Dig. U. S. Reps. (Co-op. ed.), p. 1383, pars. 37-51, and cases there cited.

Interstate commerce consists in the transportation from a point in one state to a point in another state. Oregon R. & Nav. Co. v. Campbell, 180 Fed. 253.

111 As to right of state by statute to prevent waste of subterranean waters, natural gas, and oil, which are the subject of interstate commerce, see note, 23 L. R. A., N. S., 436.

112 Nathan v. Louisiana, 49 U. S. (8 How.) 73, 12 L. ed. 992.

See Williams v. Fears, 179 U. S. 277, 21 Sup. Ct. 131, 45 L. ed. 189. See, also, note, 12 Am. St. Rep. 561.

113 Paul v. Virginia, 75 U. S. (8 Wall.) 168, 19 L. ed. 357; Insurance Company v. State, 86 Tex. 265, 24 S. W. 401, 22 L. R. A. 491; distinguished in Aetna Ins. Co. v. Commonwealth, 106 Ky. 879, 51 S. W. 627, in which it is held that combination by insurance companies for the purpose of maintaining rates is not in violation of the anti-trust law (Ky. Stats., § 3915).

Life insurance business conducted within a state by a foreign corporation is not commerce within the meaning of the federal constitution, article I, section 8. New York Life Ins. Co. v. Deerlodge County (Mont.), 115 Pac. 911.

114 Trademark Cases (United States v. Steffens), 100 U. S. 82, 25 L. ed. 550.

115 United States v. E. C. Knight Co., 156 U. S. 1, 15 Sup. Ct. 249, 39 L. ed. 325.

Commerce succeeds manufacturing and is not a part of it; and the relation of manufacturing to interstate commerce is only incidental and not direct. United States v. E. C. Knight Co., 156 U. S. 1, 15 Sup. Ct. 249, 39 L. ed. 325.

116 Passenger Cases (Smith v. Turner), 48 U. S. (7 How.) 283, 12 L. ed. 702; Crandall v. Nevada, 73 U. S. (6 Wall.) 35, 18 L. ed. 744, 745; Henderson v. Wickham, Mayor of New York, 92 U. S. 259, 23 L. ed.

"Interstate commerce, as used in the United States, denotes a commerce between the states or between persons of different states of the Union. The phrase in the federal constitution is "commerce among the states," which has been interpreted to be "very properly restricted to the commerce which concerns more than one" state, or persons situated in more than one state." It has been said that commerce between two persons within the same state is not "interstate commerce, even in those cases where there is a temporary deviation to the soil of another state in the course of the transportation between two points within the state; 118 but the better view is thought to

117 Mr. Chief Justice Marshall, in Gibbons v. Ogden, 22 U. S. (9 Wheat.) 194, 6 L. ed. 23.

As to interstate commerce, see an interesting collection of authorities not found elsewhere in 2 Obliter Dig. 1-42.

118 See Lehigh Valley R. Co. v. Pennsylvania, 145 U. S. 192, 12 Sup. Ct. 806, 36 L. ed. 672, approved in Seawell v. Kansas City, Ft. S. & M. R. Co., 119 Mo. 235, 238, 24 S. W. 1004, 1006 (upholding penalties for "long and short haul regulations"); Campbell v. Chicago, M. & St. P. R. Co., 86 Iowa, 587, 53 N. W. 351, 17 L. R. A. 444; State v. Western Union Tel. Co., 113 N. C. 223, 18 S. E. 391, 22 L. R. A. 571; Leavell v. Western Union Tel. Co., 116 N. C. 220, 21 S. E. 391, 47 Am. St. Rep. 798, 27 L. R. A. 843 (upholding state tariff on telegrams); Western Union Tel. Co. v. Hughes, 104 Va. 241, 51 S. E. 225 (both ends of telegraph line being within state, but passing without the state and returning in its course between the points, held company not exempt from state penalties for delay); United States v. Lehigh Valley R. Co., 115 Fed. 374 (upholding federal courts cannot mandamus railroads as to rates for same commodity between two points within a state, because the road extends beyond the boundaries of the state); People v. Knight, 171 N. Y. 363, 64 N. E. 155 (cab service maintained in New York City but interstate railroad is no part of their interstate commerce); Western Union Tel. Co. v. Reynolds, 100 Va. 465, 41 S. E. 857, 93 Am. St. Rep. 973 (enforcing penalties for failure to forward message from relay office, where the message in its course passed a part of the way over the line in another state, both terminals being within the state of Virginia).

See note, 27 Am. St. Rep. 560.

The Lehigh Valley case above referred to has been distinguished by the supreme court, holding that where a railroad with its termini within the state passes during a portion of its course over the territory

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be that wherever goods or passengers transported from one point to another point within the same state, during the course of the journey, pass into and over the soil of another state, then the carriage becomes interstate commerce within the definition above given.119

§ 69.

Canvassers and Solicitors engaged in securing orders for goods manufactured out of the state and to be shipped into the state are engaged in interstate commerce, and are not subject to regulation by the state.120

§ 70.

Carriage of Expressage from one point in the state to another point in the state does not constitute interstate commerce.12

§ 71. Intoxicating Liquors.-Importing beer into the state and selling it in the original packages constitutes interstate commerce,122 and liquors shipped

of another state, the first state cannot regulate the charge for carriage of goods between the two termini, where such goods in the course of their transportation must of necessity be hauled through the territory of another state. Hanley v. Kansas City S. R. Co., 187 U. S. 617, 23 Sup. Ct. 215, 47 L. ed. 333, affirming 106 Fed. 259.

119 Frayham v. Charleston & N. C. R. Co. (S. C.), 71 S. E. 813; Sternberger v. Cape Fear & Y. V. R. Co., 29 S. C. 510, 7 S. E. 836, 2 L. R. A. 105; State v. Haleyman, 55 S. C. 207, 31 S. E. 362, 33 S. E. 366, 45 L. R. A. 567; Frasier v. Charleston & W. C. R. Co., 81 S. C. 162, 62 S. E. 14; Hunter v. Charleston & W. C. R. Co., 81 S. C. 169, 62 S. E. 13; Hanley v. Kansas City St. R. Co., 187 U. S. 617, 23 Sup. Ct. 214, 47 L. ed. 333.

120 Wilcox v. People, 46 Colo. 382, 104 Pac. 408.

See, also, post, § 75, this chapter.

121 See State v. United States Express Co. (Minn.), 131 N. W. 489. As to hawkers and peddlers and "itinerant venders," see post, § 76,

this chapter.

As to restriction by correspondence school being interstate commerce, see International Text-book Co. v. Pigg, 217 U. S. 91, 30 Sup. Ct. 481, 54 L. ed. 678.

122 State v. Pabst Brewing Co. (La.), 55 So. 349.

As to original packages, see §§ 73 and 80, this chapter.

by carriers from one state to another are not subject to regulation by the state law governing intoxicating liquors until after they have been delivered to the consignor and cease to be subjects of interstate commerce.123 State courts cannot enjoin carriers from receiving intoxicating liquors at a point without the state consigned to a person within the state, even where the consignee intends to sell such liquor in violation of the state law.124

125

Prohibition laws passed by a state are a valid exercise of the police power of the state, and do not relate to or in any way conflict with interstate commerce." Such laws, however, cannot prevent a resident of such state passing prohibitory laws from ordering intoxicating liquors in another state and having them sent to him by an interstate carrier for consumption by himself and family.126

123 St. Louis & S. F. R. Co. v. State, 26 Okl. 300, 109 Pac. 230.

But a brewer or owner of intoxicating liquors in one state cannot send an agent or canvasser into a prohibition state to solicit orders for the purchase of such liquors in violation of the laws of the latter state. See post, footnotes 126, 131, this chapter, and text going therewith. 124 Gulf, C. & S. F. R. Co. v. State (Okl.), 116 Pac. 176. 125 McCord v. State, 2 Okl. Cr. 214, 101 Pac. 280.

126 Schwedes v. State, 1 Okl. Cr. 660, 104 Pac. 765; High v. State, 2 Okl. Cr. 161, 101 Pac. 115; Hudson v. State, 2 Okl. Cr. 176, 101 Pac. 275; McCord v. State, 2 Okl. Cr. 214, 101 Pac. 280; Moreland v. State, 2 Okl. Cr. 237, 101 Pac. 138.

Regulation of the taking of orders for intoxicating liquors within the state, though such liquor is situated in another state, is a valid exercise of the police power of the state, and not repugnant to the commerce clause of the federal constitution. State v. Lemp Brewing Co., 79 Kan. 705, 102 Pac. 504.

Advertisement for sale of liquors sold or kept for sale without the state may be prohibited within the state, and such prohibition in no way interferes with the commerce clause of the federal constitution since the passage of the Wilson Act, withdrawing, to a certain extent, intoxicating liquors from the protection of that clause of the constitution. State v. State Capital Co., 24 Okl. 252, 103 Pac. 1021.

Brewer, distiller, or owner of intoxicating liquors cannot send an agent or canvasser into another state, in which state a prohibitory liquor law is in force, to solicit orders for the purchase of intoxicating liquors