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Volume II.



$ 287. The Commerce Clause: Its Importance.

In this chapter will be considered the respective powers of the Federal Government and of the States with reference to Interstate Commerce. The constitutional law governing this subject is very similar to, and its exposition will serve, in a very large measure, to explain, the law gorerning commerce with foreign nations, with the Indian tribes, with or between the Territories, and with the District of Columbia. In so far as there are differences these will be stated in the special paragraphs devoted to these classes of commerce.

By Clause 3 of Section 8 of Article I of the Constitution, known as the Commerce Clause, Congress is given the power to “ regulate commerce with foreign nations and among the sereral States, and with the Indian Tribes."

The full importance of the grant of authority contained in this clause did not appear for many years after the adoption of the Constitution. Vot until 1824 by the decision of the Supreme Court in Gibbons v. Ogden? was a clear indication given of the extent of the power granted, and not until the Constitution was nearly a hundred years old did Congress begin the exercise of the authority granted it to regulate, affirmatively, commerce between the States. In Prentice and Egan's able treatise it is observed that “ before the year 1810 the construction of this clause had been involved in but five cases submitted to the Supreme Court of the United States. In 1860 the number of cases in that court involving its construction had increased to twenty; in 1870 the number was thirty; by 1880 the number had increased to seventyseven; in 1890 it was one hundred and fifty-eight; while at present [1898] it is not less than two hundred and thirteen. In the state courts and United States Circuit and District courts the progress is not less significant. In 1810 this clause of the Constitution had been involved in those courts in fifty-eight cases only. In 1860 the number had increased to one hundred and sixty-four; in 1870 it was two hundred and thirty-eight; in 1880 it was four hundred and ninety-four; in 1890 it was eight hundred, while at the present time (1898] it is nearly fourteen hundred.” These figures fully justify the remark that “such a history as this can, it is believed, find its parallel in no other branch of constitutional law.”

1 See $$ 374-376. 29 Wh. 1; 6 L. ed. 23.

8 288. Purpose of the Commerce Clause.

There can be but little question that the chief and possibly the entire purpose of the Commerce Clause was, with reference to interstate commerce, to empower the federal authorities to prevent the States from interfering with the freedom of commercial intercourse between themselves; but, as the court observe in Addyston Pipe & Steel Co. v. United States,* “ The reasons which may have caused the framers of the Constitution to repose power to regulate interstate commerce in Congress do not affect or limit the extent of the power itself.” That is to say, the power being granted without qualification, except as to preference of the ports of one State over those of another, extrinsic evidence may not be resorted to in order to give to the grant a meaning narrower than that which its words convey.

3 The Commerce Clause of the Federal Constitution (1898), p. 14. 4 175 U. S. 211; 20 Sup. Ct. Rep. 96; 44 L. ed. 136.

$ 289. Commerce Defined: Transportation Essential.

Commerce has frequently been defined by the courts as intercourse. But not all intercourse is commerce. To render intercourse commerce there must be present the element of transportation, whether of persons or things. “ Transportation is essential to commerce, or rather is commerce itself.” 5

The commodities transported may be tangible and ponderable, or intangible and imponderable, as, for example, telegraphic or telephonic messages.

“ The powers

$ 290. The Instrumentalities of Commerce.

granted by (the commerce clause) are not confined to the instrumentalities of commerce, or the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of time and circumstances. They extend from the horse with its 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 the new agencies are successively brought into use to meet the demands of increasing population and wealth.” 7

The doctrine thus laid down in the Pensacola case has never

5 Railway Co. v. Husen, 95 U. S. 465 ; 24 L. ed. 527.

6 Pensacola Tel. Co. v. W. U. Tel. Co., 96 U. S. 1; 24 L. ed. 709; W. U. Tel. Co. v. Texas, 105 U. S. 460; 26 L, ed. 1067; Leloup v. Mobile, 127 U. S. 640; 8 Sup. Ct. Rep. 1383; 32 L. ed. 31; W. U. Tel. Co. v. Mass., 125 U. S. 530; 8 Sup. Ct. Rep. 961; 31 L. ed. 790.

The communications passing between a Correspondence School and its pupils are interstate commerce. International Text Book Co. v. Pigs, 217 U. S. 91; 30 Sup. Ct. Rep. 481.

7 Pensacola Tel. Co. v. W. U. Tel. Co., 96 U. S. 1; 24 L. ed. 708.

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