21 § 30. The power to regulate commerce is vested in the legislative branch of the government.-The power to regulate commerce is by the constitution vested solely in the legislative branch of the national government, and can be exercised by it alone; but, as shown by the practice of the government from its earliest history, and the adjudications of the supreme court, it is within the legal competency of congress to enact laws for the regulation of commerce, and to provide that they shall become operative, or that their operation shall be suspended, upon the ascertainment of a particular fact or the happening of a future event defined and specified in the statute, and to vest in the president or other excutive officer the power and authority to ascertain and declare the fact or that the event has happened, and thus put into operation or suspend the operation of such commercial regulations in accordance with the terms of the statute.22 And the same principle has been applied to revenue legislation intended to secure commercial reciprocity with foreign nations.23 31. The commercial power and the taxing power are distinct. The power to tax and the power to regulate commerce are given to congress in separate clauses of the constitution, and are separate, distinct and independent substantive powers; and congress derives its power to regulate commerce solely and alone from that provision of the constitution which declares that "Congress shall have power to regulate com merce with foreign nations, and among the several states, and with the Indian tribes.'' 24 § 32. Limitations upon the commercial power of congress.The power vested in congress "to regulate commerce with foreign nations, and among the federal states, and with the Indian tribes," is a power complete in itself, is co-extensive with the subject embraced within the grant, and may be exer 21 U. S. Const. art. I, sec. 8, cls. 3, 18. 22 The Brig Aurora, 7 Cranch, 382 (3:378); Buttfield v. Stranahan, 192 U. S. 470, 498 (48:525); 2 U. S. Stat. at L. ch. 24, 528; 2 U. S. Stat. at L. ch. 39, 605; 1 U. S. Stat. at L. ch. 53, 565; 2 U. S. Stat. at L. ch. 29, 379; 2 U. S. Stat. at L. ch. 1, 411; Field v. Clark, 143 U. S. 649, 700 (36:294), collecting precedents of the practice of the government. 23 Field v. Clark, 143 U. S. 649, 700 (36:294). 24 Gibbons v. Ogden, 9 Wheat. 1 (6:23); Ferry Co. v. East St. Louis, 107 U. S. 365, 378 (27:419). cised to its utmost extent, and is subject to no limitations except those prescribed in the constitution.25 The only constitutional limitation upon the power of congress to regulate commerce is that: "No prefrence shall be given by any regulation of commerce or revenue to the ports of one state over those of another; nor shall vessels bound to or from one state be obliged to enter, clear, or pay duties in another." 26 This provision is a limitation upon the revenue power as well as upon the commercial power; and it has been held that the preference or discrimination prohibited is not a preference or discrimination between individual ports within the same or different states, but a preference or discrimination between states.27 § 33. Constitutional provisions correlated to the commerce clause. Whilst it is true that the taxing power and the commerce power of congress are separate, distinct and independent substantive powers, 28 yet it is also true that taxation is one of the means and methods of regulating commerce, and many state statutes imposing taxes have been held unconstitutional because they were regulations of commerce;29 and, accordingly, the framers of the constitution inserted in that instrument provisions, which are correlated to the provision giving congress power to regulate commerce, and are in aid of and auxiliary to it,30 limiting the power of the states to lay taxes, upon 25 Gibbons v. Ogden, 9 Wheat. 1, (6:23); Leisy v. Harden, 135 U. S. 100, 160, (34:128). 26 U. S. Const. Art. 1, sec. 9, cl. 6. 27 Pennsylvania v. The Wheeling and Belmont Bridge Co., 18 How. 421, 459 (15:435). 28 Gibbons v. Ogden, 9 Wheat. 1 (6:23); Ferry Co. v. East St. Louis, 107 U. S. 356, 378 (27:419). 29 Brown v. Maryland, 12 Wheat. 419 (6:678); Philadelphia & Reading Railroad Co. v. Pennsylvania, 15 Wall. 284, 299 (21:164); Western Union Telegraph Co. v. Texas, 105 U. S. 460, 464 (26:1067); Robbins v. Taxing District of Shelby County, 120 U. S. 489, 502 (30:694); Philadelphia & Southern Mail Steam Ship Co. v. Pennsylvania, 122 U. S. 326, 347 (30:1200); Wel- 30 Brown v. Maryland, 12 Wheat. 419 (6:678); Cook v. Pennsylvania, 97 U. S. 566 (24:1015). 31 imports and exports and tonnage. This limitation of the taxing power of the states was necessary to secure the freedom of commerce, and to give complete efficacy to the commerce power vested by the constitution in the national government.32 No state has the right to lay a tax on interstate or foreign commerce in any form, whether by way of duties laid on the transportation of the subjects of that commerce, or on the receipts derived from that transportation, or on the occupation or business of carrying it on, for the reason that such taxation is a burden on that commerce, and amounts to a regulation of it, which belongs solely to congress.33 § 34. Commerce within the meaning of the constitution is a unit. Although commerce is infinitely complex in its nature, and the subjects embraced by it are as varied and multifarious. as the national life itself, yet, within the meaning of the constitution it is a unit; that is to say, commerce, when considered in its relation to the power of the federal government, is one indivisible subject of governmental power and regulation, and comprehends every species of commercial intercourse and transaction between the United States and foreign nations, and among the several states and with the Indian tribes, and the different branches of this commerce cannot be separated and distinguished for the purpose of excluding either or any of them from the operation of the regulating power of congress.3+ 31 U. S. Const. art. I, sec. 10, cls. 2 and 3. 32 Cook v. Pennsylvania, 97 U. S. 566, 575 (24:1015); Brown V. Maryland, 12 Wheat. 419 (6:678). 33 Leloup v. Port of Mobile, 127 U. S. 640, 649 (32:311); Lyng v. Michigan, 135 U. S. 161 (34:150); Cook v. Pennsylvania, 97 U. S. 566, 575 (24:1015); Philadelphia & Reading R. Co. v. Pennsylvania, 15 Wall. 232, 282 (21:146); Pensacola Tel. Co. v. West. U. Tel. Co., 96 U. S. 1 (24:708); Mobile County v. Kimball, 102 U. S. 691 (26:238); West. U. Tel. Co. v. Texas, 105 U. S. 460 (26:1067); Moran v. New Orleans, 112 U. S. 69 (28:653); Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196 (29:158); Brown v. Houston, 114 U. S. 622 (29:257); Walling v. Michigan, 116 U. S. 446 (29:691); Pickard v. Pullman Southern Car Co., 117 U. S. 34 (29:785); Wabash St. L. & P. R. R. Co. v. Illinois, 118 U. S. 557 (30:244); Robbins v. Shelby County Taxing District, 120 U. S. 489 (30:694); Philadelphia & S. M. Steamship Co. v. Pennsylvania, 122 U. S. 326 (30:1200); West. U. Tel. Co. v. Pendleton, 122 U. S. 347 (30:1187); Ratterman v. West. U. Tel. Co., 127 U. S. 411 (32:229); Brown v. Maryland, 12 Wheat. 419 (6:678). 34 Gibbons v. Ogden, 9 Wheat. 1 (6:23, 69). In this case, the great chief justice, while demonstrating the § 35. The commercial power of congress does not extend to state commerce.-There is a commerce wholly within the state, conducted exclusively within its jurisdiction and territory, and which does not affect other nations or states or the Indian tribes; and to this purely internal commerce of the state, the power of congress does not extend, but its regulation and control belong exclusively to the state.35 Transportation of property for others, as an independent business, is commerce, irrespective of the purpose of the owner of the goods to sell or retain them after they have reached the point of destination; and where goods are shipped from one place to another in the same state, but the transportation is over a route which extends out of the state and then back into it, the transaction is one of interstate commerce and subject to the control of congress.36 The transportation of goods by navigation upon the high seas between ports of the same state is commerce with foreign na proposition that the word "commerce" as used in the clause giving to congress the power to regulate commerce, comprehends navigation within the limits of every state in the Union, in so far as that navigation may be connected with interstate commerce, said: "The word used in the constitution, then comprehends, and has always been understood to comprehend, navigation within its meaning; and a power to regulate navigation is as expressly granted as if that term had been added to the word 'commerce.' "To what commerce does this power extend? The constitution informs us, to commerce 'with foreign nations, and among the several states, and with the Indian tribes.' "It has, we believe, been universally admitted that these words comprehend every species of commercial intercourse between the United States and foreign nations. No sort of trade can be carried on between this country and any other, to which the power does not extend. It has been truly said, that commerce, as the word is used in the constitution, is a unit, every part of which is indicated by the term. If this be the admitted meaning of the word, in its application to foreign nations, it must carry the same meaning throughout the sentence, and remain a unit, unless there be some plain intelligible cause which alters it." 9 Wheat. 191, 194. 35 Gibbons v. Ogden, 9 Wheat. 1, 194 (6:69); The Daniel Ball, 10 Wall. 557 (19:999); Hall v. De Cuir, 95 U. S. 485 (24:574); Telegraph Co. v. Texas, 105 U. S. 460 (26;1067); Wabash St. L. & Pac. R. Co. v. Illinois, 118 U. S. 557 (30:244); Stone v. Farmers' Loan & Trust Co., 116 U. S. 307, 347 (29:636); Louisville, New Orleans & Texas Ry. Co. v. Mississippi, 133 U. S. 587, 595 (33:784); Greer v. Connecticut, 161 U. S. 519 (40: 793). 36 Hanley v. Kansas City S. R. Co., 187 U. S. 617, 621 (47:333). tions, and subject to regulation by congress,37 and is not subject to regulation by the state, because to bring the transportation within the control of the state, as part of its domestic commerce, the subject transported must be during the entire voyage under the exclusive jurisdiction of the state.38 § 36. Commerce defined. Within the meaning of the constitution, commerce with foreign nations and among the several states and with the Indian tribes, consists of intercourse and traffic, including in these terms the purchase, sale and exchange of commodities, navigation, the transportation and transit of persons and property, communication, and the transmission of intelligence.39 § 37. When the commercial power of congress is exclusive, and when paramount only.-The subjects upon which congress may act in the exercise of its commercial power are of two classes namely: (1) Those subjects which are national in their nature, character and sphere of operation, such as foreign and interstate commerce, which demand a single, uniform system, plan or rule of regulation for the whole country, operating alike and equally in all the states of the union, and in regard to such subjects the commercial power of congress is exclusive,40 and (2) those subjects which are local in their nature, 37 Lord v. Goodall N. & P. S. S. Co., 102 U. S. 541 (26:224). 38 Pacific Coast S. S. Co. v. Railroad Commissioners, 18 Fed. R. 10. 39 Gibbons v. Ogden, 9 Wheat. 1, 194 (6:23); Brown v. Maryland, 12 Wheat. 419 (6:678); Woodruff v. Parham, 8 Wall. 123 (19:382); Crandall v. Navada, 6 Wall. 35 (18:744); United States v. Halliday, 3 Wall. 418 (18:185); Mobile County v. Kimball, 102 U. S. 691 (26:238); Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196 (29:158); The Pensacola Telegraph Co. v. The Western Union Telegraph Co., 96 U. S. 1, 24 (24:708); Western Union Telegraph Co. v. Texas, 460 (26:1067); Western Union Telegraph Co. v. Pendleton, 122 U. S. 347 (30:1187); Ratterman v. Western Union Telegraph Co., 127 U. S. 411 (32:229); Leloup v. Mobile, 127 U. S. 640 (32:311); Wabash St. L. & Pac. R. Co. v. Illinois, 118 U. S. 557 (30:244); Pickard V. Pullman Southern Car Co., 117 U. S. 34 (29:785); Hanley v. Kansas City Southern R. Co., 187 U. S. 617 (47:333); Champion v. Ames, 188 U. S. 321, 375 (47:492). 40 Leisy v. Hardin, 135 U. S. 100, 160 (34:128); Gibbons v. Ogden, 9 Wheat. 1 (6:23); Brown v. Maryland, 12 Wheat. 419 (6:678); Bowman v. Chicago & Northwestern Ry. Co., 125 U. S. 465, 524 (31:700); Wilkerson v. Rahrer, 140 U. S. 545, 565 (35:572); Lyng v. Michigan, 135 U. S. 161, 167 (34:150). |