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enumerated powers, that of coining money and thereby establishing a national currency, and also upon the commerce power. It was also declared to be a power inherent in sovereignty, as exercised by other sovereignties at the time of the adoption of the constitution, and not expressly withheld by the constitution from congress.
As a political sovereignty the government of the United States may by physical force, through its official agents, in the enforcement of its powers, exercise complete sovereignty over every part of American soil which belongs to it. There is a "Peace of the United States," and this Peace can be enforced by the executive in the protection of the judicial officers of the United States throughout the United States and within the limits of any State. These fundamental principles were very strongly asserted in the Debs case, where the court said that the government of the United States, in the exercise of its power over the mails and in protecting interstate commerce, had jurisdiction over every foot of soil in its territory and acted directly upon every citizen. The decision was expressly based upon the sovereign power of the United States within the limits of its enumerated powers, and on the power of the government to enforce that sovereignty through the executive or through the courts, acting directly through the citizens and not through the agencies of a state, when the federal authority is resisted.
The complexity of our federal governmental system includes this distinct sovereign power in the federal government with sovereign powers in the states. In the language of Chief Justice Marshall, the powers of a sovereign are divided between the government officers of the Union and those of the states. They are each sovereign with respect to the rights committed to it, and neither sovereign with respect to the rights committed to the other. The supreme court of Massachusetts said that it was a bold, wise and successful attempt to place the people under two distinct governments, each sovereign and independent within its own sphere of action, dividing the jurisdiction between them, not by territorial limits nor by the relation of
1 In re Nagel, 135 U. S. 1 (1890), 34 L. Ed. 55.
2 Supra, § 1.
3 McCulloch v. Maryland, supra. ◄ Opinion of Justices, 14 Gray, 615.
superior or subordinate, but classifying the subjects of jurisdiction and designating those over which each had entire and independent jurisdiction.
The federal government therefore, though sovereign within the sphere of its enumerated powers, has not what has been termed inherent sovereignty, nor has it any general police powers; but with its wide scope of selection of the means for the execution of its enumerated powers the distinction is hardly a practical one in the actual working of our dual political system.
§ 6 (5). Gibbons v. Ogden.-The judicial construction of the commerce clause begins in 1824 with the great opinion of Chief Justice Marshall in Gibbons v. Ogden,' wherein a grant of the state of New York for the exclusive right to navigate the waters of New York with boats propelled by fire or steam was held void as repugnant to the commerce clause of the constitution, so far as the act prohibited vessels licensed by the laws of the United States for carrying on the coast trade from navigating the said waters by fire or steam.
The broad and comprehensive construction of the term "commerce" in this opinion is the basis of all subsequent decisions construing the commerce clause, and is the recognized source of authority. Commerce is more than traffic; it includes intercourse. The power to regulate is the power to prescribe the rules by which commerce is to be governed. This power like all others vested in congress is complete in itself, and may be exercised to its utmost extent, and acknowledges no limitations other than as prescribed in the constitution. The power over commerce with foreign nations and among the several states, said the court, is vested in congress as absolutely as it would be in a single government having in its constitution the same. restrictions on the exercise of the power as is found in the constitution of the United States. The power comprehended navigation within the limits of every state, so far as navigation may be in any manner connected with commerce with foreign nations or among the several states, or with the Indian tribes,
19 Wheat. 1, 6 L. Ed. 23, reversing 17 Johns. 488 (1820), and Kent, J., in 4 Johns. Ch. 150
(1819), and also in Livingston v. Van Ingen, 9 Johns. 507 (1812.)
and therefore it passed beyond the jurisdictional line of New York and included the public waters of the state which were connected with such foreign or interstate commerce.
The most important and far-reaching declaration in the opinion was that of the supremacy of the federal power, so that in any case of conflict the act of congress was supreme, and state laws must yield thereto, though enacted in the exercise of powers which are not controverted.
§ 7 (6). What is commerce.-The term "commerce" is not defined in the constitution, but its meaning has been determined by the process of judicial inclusion and exclusion on the broad and comprehensive basis laid down in Gibbons v. Ogden. Commerce, it was there said, is not traffic alone, it is intercourse. "It described the commercial intercourse between nations, and parts of nations in all its branches, and is regulated by prescribing rules for carrying on that intercourse."
In the Passenger Cases1 the rule declared in Gibbons v. Ogden was applied in holding invalid certain state statutes imposing taxes upon alien passengers. It was said that commerce included navigation and intercourse and the transportation of passengers.
In the Pensacola Telegraph Company case the court said that since the case of Gibbons v. Ogden it had never been doubted that commercial intercourse was an element which comes within the power of regulation by congress, and that the power thus granted was not confined to the instrumentalities of commerce known or in use when the constitution was adopted, but kept pace with the progress of the country, adapting themselves to the new developments of time and circumstances. In the language of the court:
"They extend from the horse with its rider to the stage coach, from the sailing vessel to the steamboat, from the coach and steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They were intended for the government of the business to which they relate at all times and under all circumstances."
17 How. 283 (1849), 12 L. Ed. 702.
296 U. S. 1 (1877), 24 L. Ed. 708, 711. Construing act of July
24, 1866, as a prohibition of all state monopolies in interstate telegraph business.
In a later case it was said that the commerce which congress could regulate included not only the interchange and transportation of commodities or visible and tangible things, but the carriage of persons and the transmission by telegraph of ideas, orders and intelligence.
Importation into one state from another is the indispensable element, the test of interstate commerce; and every negotiation, contract, trade and dealing between citizens of different states which contemplates and uses such importation, whether it be of goods, persons or information, is a transaction of interstate commerce.2 Such commerce, therefore, includes not only communication by telephone between points in different states, but also communication through a correspondence school, where the intercourse and communication relates to matters of regular and continuous business and the conduct of such business, therefore, through local agencies is exempt from state control or interference.*
While a bridge is not a common carrier, it affords a highway
1 W. U. Tel. Co. v. Pendleton, 122 U. S. 347 (1887), 30 L. Ed. 1187.
From opinion of Sanborn, J., in Butler Brothers Shoe Co. V. United States Rubber Co., 156 Fed. 1, C. C. A. 8th Cir., quoted by the Supreme Court, in International Text Book Co. v. Pigg, 217 U. S. 91, 54 L. Ed. 678 (1910).
Richmond v. Southern Bell Tel. Co., 174 U. S. 761, 43 L. Ed. 1162 (1899); Sunset Telephone & Telegraph Co. v. Ureka, 172 Fed. 755, Cir. Ct. of Northern Dist. of Cal. (1902). In United States v. Westman, 182 Fed. 1017 (Ore. 1910), the Act of June 25, 1910, known as the "White Slave Traffic Act," making it a criminal offense to knowingly transport, or to procure the transportation of women for immoral purposes, was sustained as within the commerce power of Congress. The case was distinguished from Keller V.
United States, 213 U. S. 138, 53 L. Ed. 737, where the court held in valid the statute of 1907 which made criminal the harboring for immoral purposes alien women within three years after entrance into the United States.
The White Slave Tramc Act was also sustained by the District Court, E. D. of Texas, in April 1911, 187 Fed. 992, the court holding that the transportation of persons was commerce and that Congress, under its regulatory power, as declared in the Lottery cases, could prohibit a class of commerce in the interest of public morals. The validity of this statute is now (1911) pending before the Supreme Court.
4 International Text Book Co. v. Pigg, supra, reversing 76 Kan. 328. In U. S. Fidelity & Guarantee Co. ,v. Commonwealth, Ct. Apps. of Ky. 139 Ky. 27, the case of a corporation operating a scheme of
for such carriage, and a state enactment prescribing the rate of toll on an interstate bridge is an unauthorized regulation of interstate commerce.1 Commerce among the states, therefore, embraces navigation, transportation of passengers and freight traffic and the communication of messages by telegraph and by telephone and by correspondence schools.
The carrying of lottery tickets from one state to another by corporations or companies whose business it is to carry tangible property from one state to another, constitutes interstate commerce which may be properly prohibited by congress under its power of regulation.*
Interstate commerce, as distinguished from domestic commerce, includes traffic between points in the same state, but which in transit is carried through another state." It follows that the railroad commission of a state cannot, without violating the commerce clause, fix and enforce rates for the continuous transportation of goods between such terminal points. A tax on an interstate railroad can be apportioned ac cording to mileage in a state (see § 21, infra), but when a freight rate is established it must be established as a whole. (See § 141, infra.)
Commerce includes navigation, and the power to regulate commerce comprehends the control, for that purpose, and to the extent necessary, of all the rivers of the United States which are accessible from a state other than those in which they lie. The right to regulate navigation carries with it the recommending commercial credits through a list of attorneys of different states, was distinguished from the above case and held liable to a state license tax.
1 Covington, etc. Bridge Co. v. Kentucky, 154 U. S. 204 (1894), 38 L. Ed. 962. As to taxation of an interstate bridge, see Henderson Bridge Co. v. Kentucky, 166 U. S. 150 (1897), 41 L. Ed. 953, and Henderson Bridge Co. v. Henderson, 173 U. S. 592, 48 L. Ed. 823 (1899).
2 Pensacola Telegraph Co. case, supra.
8 Central Union Tel. Co. V.
State, 118 Ind. 194, and In re Penn.
4 Lottery Cases, 188 U. S. 321
5 Hanley v. K. C. So. R. Co., 187 U. S. 617 (1903), 47 L. Ed. 333.
• Delivery of packages from interstate trains to addresses in a city is a part of interstate commerce. Burnett v. City of New York, C. C. S. D. of N. Y., 189 Fed. 268 (1911). See also Jewel Tea Co. v. Lee's Summit, W. D. of Mo. et al., 189 Fed. 280 (1911).
7 Gilman v. Philadelphia, 3 Wallace, 724, 18 L. Ed. 96.