CHAPTER X.

COMMERCE.

COMMERCE among the States is becoming a wide field for Congressional legislation.

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SCOPE OF THE GRANT OF POWER.

Congress shall have power," says the Constitution, "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." If the States had been left to protect themselves against the intrusion of unwelcome subjects and agencies of commerce from neighboring States, a fruitful source of controversies and disagreements would have been left unguarded. This subject is therefore fully intrusted to the sovereign power of Congress; with the practical result that, so long as Congress finds no necessity for action, the States are free to legislate as their differing interests dictate; but whenever, in the national judgment, occasion for the exercise of the national power occurs, its exercise abrogates all State laws within its

scope.

Every session of Congress presents new aspects of the question, What laws may Congress pass to regulate commerce? Congress has legislated to secure humane treatment of animals on long railroad journeys; can it preserve the rights and comfort of passengers as well? It has restricted the passage of nitro-glycerine from one State to another; can it do the same as to obscene books? Can it prescribe the charges of competing railroads? Can it define the just secrecy and proper disclosure of telegrams from State to State; or authorize laying a pipe line to run petroleum from Pennsylvania oil-wells to New York city;

or pass a trade-marks law; or enact a national factor's act, or a general commercial code? Or must all such matters be left to State legislatures? These are only a few of the practical inquiries of the time. When the commercial power was conferred on Congress, the States were few in number, limited in production, separated by difficult frontiers, and destitute of all the means of easy communication now in use. It is not easy to look back and discern how trivial an interest commerce among the States must have been in 1789. Now, for all purposes of wholesale distribution of products of industry, State lines have become practically obliterated. There is not one producer in a thousand, nor one wholesale dealer, who does not compete for the market of the whole region round about him, irrespective of State boundaries.

The decisions of the Supreme Court show that, under the Constitution, Congress must abstain from interference with a traffic which begins and ends within a State. Each State has, solely, the power to determine what merchandise shall be grown or manufactured, advertised or transported, sold or purchased, within her borders, and to regulate all internal commercial dealings. This right, so just, intrinsically, when the theory of our government as a union of States under one government for national purposes only is considered, and so important to the preservation of good feeling and contentment, has been sacredly respected.

TO WHAT AGENCIES OF COMMERCE IT EXTENDS.

But the course of decision has consistently and liberally sustained such expansion of this power as the wants of the country have demanded and the limits of the grant allow. In a limited sense, commerce means traffic, acts of buying and selling; but the court early overstepped any such limitation. More than half a century ago, in the famous case of Gibbons v. Ogden,* transportation as well as traffic was held included. The State of

*9 Wheat. 1.

New York had conferred on the inventors of the steamboat an exclusive privilege of steam navigation in New York waters. The Supreme Court adjudged this an unconstitutional invasion of the power of Congress, which, they said, comprehends navigation within the limits of every State, and extends to all descriptions of vessels, whether propelled by sails or by steam, and whether employed in carrying passengers or merchandise. A more recent occasion for asserting the power with respect to steamboat travel arose under a law enacted by the Legislature of Louisiana about ten years ago, forbidding carriers of passengers to make any discrimination on account of color, and charging any steamboat owner with damages who should exclude colored passengers from a cabin upon pretext that it was set apart for whites. The steamer Governor Allen, plying between New Orleans and Vicksburg, did, however, arrange two cabins (equally good) for the two races. A colored woman passenger, excluded from the whites' cabin, notwithstanding her demand for a place in it, sued under the State law, and her complaint went up to the Supreme Court upon the sole question whether the law was not void for infringing the power of Congress to regulate commerce. The court annulled the law, and said that if the public good requires such legislation, it must come from Congress, and not from the States; for how can commerce among the States flourish if each State is at liberty to prescribe its own rules for through carriers while they are within its jurisdiction? On one side of a river a vessel would have to observe one set of rules, on the other side another set. Each State would act regardless of the interests of the others. If Louisiana may forbid passengers to be assorted in two cabins, then Mississippi may enact that they shall be so assorted; and, under these opposing laws, a steamer must stop at the boundary and change her passengers from one arrangement to the other, or else be exposed to penalty and forfeiture, in one State or the other, at every trip.*

* Hall v. De Cuir, 95 U. S. 485. And see De Cuir v. Benson, 27 La. Ann. 1.

Railroads were wholly unknown when the commercial power was conferred, but decisions of later years have distinctly recognized that they are included, with this additional reason, that, independent of the commercial power, Congress has authority to keep the approach to the national capital free. As "all roads lead to Rome," so American railroads lead, many of them, to Washington. The power to maintain post-roads, taken in connection with the practice of contracting with the companies for transmission of the mails, and of declaring the roads and bridges post-roads, may also be an important auxiliary in some aspects of this question. Important regulations have been imposed by Congress upon matters of railway traffic; of which the law of 1866, punishing negligent transportation of nitroglycerine, and the law of 1873, punishing neglect and cruel treatment of live-stock while in course of transportation, are examples. Regulation of passenger travel might doubtless be assumed to a greater extent than has been done.

The same reasons which apply to railroads have led to a decision that telegraphic communication is one form of commerce. The doctrine of the court is that the powers of Congress are not confined to the instrumentalities known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and apply to new developments. They extend from the horse and his rider to the stage-coach, from the sailing-vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use. They were given to be exercised over the business to which they relate, at all times and under all circumstances. As they were intrusted to the general government for the good of the nation, it is not only the right, but the duty, of Congress to watch that intercourse among the States and the transmission of intelligence are not obstructed.*

*Pensacola Tel. Co. v. Western Union Tel. Co. 96 U. S. 1.