commerce and

§ 202. Same Same-Distinction between manufactures.-In cases where the commercial power of the United States is invoked, for the purpose of repressing monopolies in, and restraints upon, and conspiracy against trade and commerce, it is important to observe the distinction between commerce, and manufactures,65 and other local industries, in order to determine whether the transaction in question falls within the corrective jurisdiction of congress, or within the police power of the state. The fact that an article is manufactured for export to another state does not of itself make it an article of commerce; and the intent of the manufacturer does not determine the time when the article or product passes from the control of the state and becomes an article of commerce; and a combination within a state intended to secure a monopoly of the manufacture of sugar in that state relates to manufacture, and not to interstate or foreign commerce, although the commodity manufactured is intended for export to other states and foreign countries." But when a contract is made for the sale and delivery of an article in another state, the transaction is one of interstate commerce, although the vendor has also agreed to manufacture the article so sold, and a combination to control and monopolize such transactions is a restraint of interstate commerce, and obnoxious to the statute enacted by congress upon that subject.67

66

§ 203. Same-Growth and expansion of the police power since the adoption of the late amendments.-The discussion, in this connection, of the police power of the states, has been, in part at least, in support of the general proposition, that the adoption of the thirteenth, fourteenth and fifteenth amendments to the federal constitution has not had the effect to change our theory and system of government, nor to change

(49:689); United States v. E. C. Knight Co., 156 U. S. 1, 46 (39:325); United States v. Addyston Pipe & Steel Co., 85 Fed. Rep. 721.

64 United States v. E. C. Knight Co., 156 U. S. 1 (39:325).

65 Addyston Pipe & Steel Co. v. United States, 175 U. S. 211 (44:136).

66 United States v. E. C. Knight Co., 156 U. S. 1 (39:325); Kidd v. Pearson, 128 U. S. 1, 24 (32:346); Coe v. Errall, 116 U. S. 517 (29:715).

67 Addyston Pipe & Steel Co. v. United States, 175 U. S. 211 (44:136).

the relations of the state and federal governments to each other, nor the relations of those governments to the people, nor to dis-. turb the distribution of governmental powers between the state and federal governments, as they had previously existed; 68 and it is submitted that an examination of the decisions of the su preme court of the United States upon this subject will show that the police power of the states has grown, developed and expanded in its application more since the adoption of the late amendments, than in the whole of our constitutional history prior to that time. The expanding character of this power is recognized by the supreme court of the United States in an opinion by Mr. Justice Brown, in which he said: "The right of contract, however, is itself subject to certain limitations which the state may lawfully impose in the exercise of its police power. While this power is inherent in all governments, it has doubtless been greatly expanded in its application during the last century, owing to the enormous increase in the number of occupations which are dangerous, or so far detrimental to the health of employees as to demand special precaution for their well-being and protection, or the safety of adjacent property. While this court has held that the police power cannot be brought forward as an excuse for oppressive and unjust legislation, it may be lawfully resorted to for the purpose of preserving the public health, safety, or morals, or the abatement of public nuisances, and a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests." And after quoting from an opinion of Chief Justice Shaw upon the extent and limitations of the power, he added: "This power, legitimately exercised, can neither be limited by contract nor bartered away by legislation. While this power is necessarily inherent in every form of government, it was, prior to the adoption of the constitution, but sparingly used in this country. As we were then almost purely an agricultural people, the occasion for any special protection to a particular class did not exist. Certain profitable employments, such as lotteries and the sale of intoxicating liquors, which were then considered to be legitimate, have since fallen under the ban of public opinion, and are now either altogether pro

68 Ante, sec. 175.

hibited, or made the subject of stringent police regualtions. The power to do this has been repeatedly affirmed in this court.

97 69

§ 204. The power of the states to maintain their own internal polity and judicial systems not taken away by the fourteenth amendment. The fourteenth amendment did not deprive the states of their power, each, respectively, to divide its territory into appropriate and convenient political and judicial divisions, and to devise, determine, adapt, establish and maintain its own internal polity and judicial system, and to create, ordain, establish and maintain its own courts of judicature and distribute its judicial power, and prescribe its own judicial procedure, and to adjust the whole to the varied and varying necessities of its people, and to regulate, modify or change the same as the growth and changing conditions of society may require; the only limitation upon the power is, that no state can deprive particular persons or classes of persons of equal and impartial justice under the law, nor subject them to the partial and arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice.70

In the case first above cited, it was held that the clause of the fourteenth amendment, which prohibits a state from denying to any person the equal protection of the laws, did not. thereby prohibit the state from prescribing the jurisdiction of

69 Holden v. Hardy, 169 U. S. 366, 398 (42:780).

70 Bowman v. Lewis, 101 U. S. 22 (25:989); Leeper v. Texas, 139 U. S. 462, 467 (35:225); Caldwell v. Texas, 137 U. S. 692 (34: 816); Hurtado v. California, 110 U. S. 516 (28:232); Spies v. Illinois, 123 U. S. 131, 166 (31:80); Walker v. Sauvinet, 92 U. S. 90 (23:678); Gibson v. State of Mississippi, 162 U. S. 565, 592 (40: 1075); Ex parte Kemmler, 136 U. S. 436, 449 (34:519); Iowa Central Railway Company v. Iowa, 160 U. S. 389, 394 (40:467); McElvaine v. Brush, 142 U. S. 155, 160 (35: 971); Freeland v. Williams, 131 U.

S. 405 (33:193); Church v. Kelsey, 121 U. S. 282 (30:960); Robards v. Lamb, 127 U. S. 58 (32: 60); Kauffman v. Wooters, 138 U. S. 285); York v. Texas, 137 U. S. 15 (34:604); Johnson v. Chicago & Pac. Elev. Co., 119 U. S. 388 (30:447); Louisville & Nashville Railroad Co. v. Schmidt, 177 U. S. 230 (44:747); Simon v. Craft, 182 U. S. 427 (45:1165); McNulty v. California, 149 U. S. 645 (37: 882); Vincent v. California, 149 U. S. 648 (37:884); Brown v. New Jersey, 175 U. S. 175 (44:120); West v. Louisiana, 194 U. S. 258 (48:965); Maxwell v. Dow, 176 U. S. 581, 617 (44:597).

its several courts either as to their territorial limits or the subject-matter, or amount or finality of their respective judgments or decrees; that a state might establish one system of laws in one portion of its territory and another system in another, provided it did not encroach upon the proper jurisdiction of the United States, nor abridge the privileges or immunities of citizens of the United States, nor deny to any person within its jurisdiction the equal protection of the laws in the same district, nor deprive him of his rights without due process of law. In the course of the opinion, which was delivered by Mr. Justice Bradley, he said:

"We might go still further and say, with undoubted truth, that there is nothing in the constitution to prevent any state from adopting any system of laws or judicature it sees fit for all or any part of its territory. If the state of New York, for example, should see fit to adopt the civil law and its method of procedure for New York City and the surrounding counties, and the common law and its methods of procedure for the rest of the state, there is nothing in the constitution of the United States to prevent its doing so. This would not of itself, within the meaning of the fourteenth amendment, be a denial to any person of the equal protection of the laws. If every person residing or being in either portion of the state should be accorded the equal protection of the laws prevailing there, he could not justly complain of a violation of the clause referred to. For, as before said, it has respect to persons and classes of persons. It means that no person or classes of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes of persons in the same place and under like circumstances. The fourteenth amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversity in these respects may exist in two states separated only by an imaginary line. On one side of this line there may be a right of trial by a jury, and on the other side no such right. Each state prescribes its own modes of judicial proceedings. If diversities of laws and judicial proceedings may exist in the several states without violating the equality clause in the fourteenth amendment, there is no solid reason why there may not be such diversities in different parts of the same state. A uniformity which is not essential as regards different states cannot be es

sential as regards different parts of a state, provided that in each and all there is no infraction of the constitutional provision. Diversities which are allowable in different states are allowable in different parts of the same state. Where a part of a state is thickly settled, and another part has but few inhabitants, it may be desirable to have different systems of judicature for the two portions,-trial by jury in one, for example, and not in the other. Large cities may require a multiplication of courts and a peculiar arrangement of jurisdictions. It would be an unfortunate restriction of the powers of the state government if it could not, in its discretion, provide for these various exigencies. If a Mexican state should be acquired by treaty and added to an adjoining state or part of a state in the United States, and the two should be erected into a new state, it cannot be doubted that such new state might allow the Mexican laws and judicature to continue unchanged in the one portion, and the common law and its corresponding judicature in the other portion. Such an arrangement would not be prohibited by any fair construction of the fourteenth amendment. It would not be based on any respect of persons or classes, but on municipal considerations alone, and a regard for the welfare of all classes within the particular territory or jurisdiction." "1

§ 205. Same Sovereignty for protection of fundamental rights rests with the states-Not in the federal government.— Since the adoption of the fourteenth amendment, as anterior to that time, the states are charged with the sovereign duty of, and vested with the sovereign power for, the protection and vindication of the rights of life, liberty and property of their citizens, and may enact and enforce all laws, not inconsistent with the constitution of the United States, which they may deem appropriate to that end; the amendment furnishes an additional guaranty against any encroachment by the state upon the fundamental rights which belong to every citizen as a member of society, and authorizes congress to enforce its provisions by appropriate legislation, but it does not confer upon congress the power to enact a code of municipal laws, covering the domain of the rights of life, liberty and property, defining them, and providing for their protection and vindicaton. The pri

71 Bowman v. Lewis, 101 U. S. 22 (25:989).