merce.

46

held that a common carrier engaged in transporting goods or passengers between two or more states was engaged in interstate comThe soundness of this conclusion has never been doubted by any subsequent member of the court. A difference of opinion, however, has always existed in regard to the correct meaning of the word commerce." Without violating the habits of English speech, the phrase "commerce among the states " may be understood as including every form of lawful intercourse between the peoples of the states. Again, it may be regarded as including only every form of intercourse for business purposes. Lastly, it may be interpreted as including the buying and selling of commodities, but nothing more. The case of Gibbons v. Ogden put at rest, apparently forever, the idea that the framers of the Constitution intended to confine the meaning of the word "commerce" to the third and most restricted sense in which the word is employed in common speech. Since that decision the differences among the members of the Supreme Court have been confined to the other possible meanings of the word.

In view of the differences still existing among the members of the Supreme Court as to whether the first or the second view of the word "commerce" is the one intended by the framers of the Constitution, it is possible that under some circumstances even the act of transporting goods from one state to another might not be regarded by all the members of the court as interstate commerce.3 The act of transporting goods between the states may be undertaken in different ways and with different objects. The transportation may be by a common carrier. Here the contract of carriage for hire is a business contract, whether the shipper intends to use the goods himself on their arrival at their destination, or whether he intends to sell them. The act of carrying out this contract is interstate commerce. This was what was decided in Gibbons v. Ogden. But the owner of goods desiring to ship them to another state is not obliged to employ the services of a common carrier. He may himself transport them in his own wagon, intending either to use them himself on arriving at his destination, or to sell them.

2 The writer has discussed the possible meanings of the word "commerce" and the decision in Gibbons v. Ogden in his essay on Marshall. See 2 Great Am. Lawyers, 369 et seq.

3 For a full statement of the conception that "commerce among the states " means only commercial intercourse, see the dissenting opinion of Chief Justice Fuller in the Lottery Case, 188 U. S. 321, 366.

commerce.

Where the goods are transported in the wagon of the owner for the purpose of sale after their arrival in the other state, whether we adopt the narrowest view now possible of the meaning of the word "commerce" or not, the act of transporting is interstate It is part of the business intercourse between the states. The only case on which there can be any doubt is the case where A, owning goods in one state, for the purpose of his own use of these goods in another state, transports the goods to that other state in his own wagon. The Supreme Court has decided that goods transported from one state are subjects of interstate commerce until sold, or otherwise incorporated into the mass of property in the state of importation. The almost inevitable inference from this decision is that both the method and object of transportation are immaterial. If both the method and object of transportation are immaterial, even in our third case, the man who, changing his home, carries his household goods from one state to another, while engaged in their transportation, is engaged in interstate commerce. For our present purposes, however, a determination of this "neat point" is unimportant. The Act of Congress under discussion expressly allows the carrier to transport "such articles or commodities as may be necessary and intended for its use in the conduct of its business as a common carrier." In effect, the Act prohibits only transportation, for the purpose of sale, of goods owned directly or indirectly by the carrier. Therefore, even though we adopt the narrowest possible construction of the word " commerce," in view of the universally admitted soundness of the decision in Gibbons v. Ogden, the Commodity Clause directly affects commerce among the states.

The Constitution, however, does not read "Congress shall have power to prohibit in whole or in part interstate commerce." The power which is given to Congress is a power to " regulate." There has been and is considerable difference of opinion in respect to the extent of the power thus conferred. Three views are possible. The first is that the power given in the first article is an absolute power; that standing alone the article vests in Congress a power over interstate commerce as absolute as the power of one of the thirteen states over its foreign commerce prior to the adoption of the Constitution; that the power necessarily includes a power to license and a power to destroy. This view of course admits that

4 Brown v. Maryland, 12 Wheat. (U. S.) 419.

Congress is limited in the means which it may adopt to execute the power, but claims these limitations are not found in the first article, but in other parts of the Constitution, as in the first amendments.

The second view is that, while the power, being a power given to a sovereign government created for the very purpose of exercising the power, must be regarded as absolute, where not expressly limited, the power to regulate is from the very nature of the word itself a power which falls short, on the one hand, of the power to destroy, and, on the other, of the power to conduct. Under this view the federal government, without an amendment to the Constitution, could not arbitrarily prohibit interstate or foreign commerce in a recognized article of commerce, nor could it, without an amendment, operate the railroads of the country.

The third view is that, while the power given to Congress to regulate commerce may, on its face, be fairly construed to include both the power to conduct and the power to destroy, the power, like all other powers conferred in the Constitution on the federal government, is limited, not merely by the express limitations contained in the first amendments to the Constitution, but by "the nature of our federal state." One who adopts this last view will probably sanction the federal ownership and operation of the railroads; but would deny the right of the federal government to destroy interstate commerce in a recognized article of commerce, unless, perhaps, such destruction was fairly calculated to increase and benefit interstate commerce in other branches of trade, or protect the morals, health, or safety of the people.5

It cannot be said that the Supreme Court has ever definitely adopted any one of these three possible views. As a result no question, not decided, involving the meaning of the word “regulate" is free from doubt, unless the proposed regulation is clearly within all three possible views of the meaning of the word. The Commodity Clause meets this requirement. Irrespective of which of the three possible views of the meaning of the word "regulate" and the extent of the power conferred on Congress finds most support in the decisions of the Supreme Court, under any view Congress has in the first article power to pass a law which pre

5 The writer has discussed the value of the conception that there exist limitations on federal power arising from the nature of our federal state, in an article on "Can the United States by Treaty Confer on Japanese Residents in California the Right to Attend the Public Schools?" 55 Am. L. Reg. (N. s.) (now U. P. L. Rev.) 73.

vents a common carrier engaged in interstate commerce from carrying between the states commodities in which it is directly or indirectly interested. Under the view that Congress under the

6 A passage from the opinion of Chief Justice Marshall in Gibbons v. Ogden may be quoted in support of the first view; he says: "We are now arrived at the inquiry, What is this power? It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution. . . . If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several states, 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 are found in the Constitution of the United States." 9 Wheat. (U. S.) 196.

...

This assertion by the great Chief Justice has been often repeated. It has only recently been made the basis for the opinions of Mr. Justice White and of Mr. Justice Moody in Employers' Liability Cases (Howard v. Illinois Central R. R. Co.), 207 U. S. 463. And yet, though the spirit of the quoted passage from Marshall's opinion unquestionably tends toward the first view, it will be noticed that he did not say that the power to regulate was the power to destroy. He merely forcibly pointed out that under this article Congress has the absolute untrammeled choice of the means of regulation which it chooses to adopt. This untrammeled choice of the means of regulation does not necessarily involve the conception that absolute prohibition is regulation. For instance, Mr. Justice Harlan, in giving the opinion of the court in the Lottery Case, 188 U. S. 321, 356, which upheld the power of Congress to prohibit persons in one state sending lottery tickets into another state, said: "In this connection it must not be forgotten that the power of Congress to regulate commerce among the states is plenary, is complete in itself, and is subject to no limitations except such as may be found in the Constitution." But even the learned Justice just quoted is at pains to point out, later in the same opinion, that it will be time enough to consider the full extent of the power of prohibition possessed by Congress when Congress arbitrarily excludes from commerce among the states a useful article of commerce. P. 362. The power to regulate interstate commerce for the promotion of such commerce has never been questioned; and it has been decided that where the act as a whole was fairly designed to protect or promote commerce a particular regulation, though it takes the form of a prohibition, is within the power of Congress. Thus the constitutionality of an Act of Congress prohibiting interstate railways from carrying cattle infected with a contagious disease has been assumed, Reid v. Colorado, 187 U. S. 137 (1902), and the Sherman Anti-Trust Act, prohibiting all contracts designed to restrain interstate commerce, has been repeatedly sustained. United States v. Trans-Missouri Freight Ass'n, 166 U. S. 290 (1896); United States v. Joint Traffic Ass'n, 171 U. S. 505 (1898); Addyston Pipe & Steel Co. v. United States, 175 U. S. 211 (1899); Northern Securities Co. v. United States, 193 U. S. 197 (1904). The Supreme Court, though by divided vote, has gone further and upheld an act of Congress which, not for the benefit of interstate commerce, but for the benefit of the morals of the people of the United States, prohibited persons in one state sending lottery tickets to another state: Lottery Case, 188 U. S. 321 (1903). See also In re Rahrer, 140 U. S. 545 (1891). The act upheld in this last case was one passed to permit the states to prohibit the sale, by the importer, of liquor imported from another state, though the liquor was sold in the package in which it had been imported. The act was the result of the decision of the Supreme Court in Leisy v. Hardin, 135 U. S. 100 (1889), in which the court held

first article has absolute power to encourage or to destroy interstate commerce, the fact that the Act is within the power is manifest. The two other views merely limit the power conferred by requiring that the regulation shall stop short of arbitrary prohibition. Under any view, therefore, a law which is passed for the purpose of regulating interstate commerce which does regulate The Act under dis

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and does not destroy-is within the power. cussion does not prohibit interstate commerce in any particular commodity or commodities. It applies only to the transportation of commodities. Here again, it does not prohibit the transportation between the states of any commodities, not even of commodities owned by the common carrier. The Act merely prohibits the transportation by the carrier of commodities in which it has an interest direct or indirect. In those cases in which the commodities have been manufactured, mined, or produced by a common carrier, or under its authority, the Act goes somewhat further and prohibits their transportation by the carrier, manufacturing, mining, or producing them, even though at the time of transportation it has no longer any interest in them. This is not a regulation of commodities, it is a regulation of the transportation of commodities by a common carrier. As it has been decided that the act of carrying goods for hire between two states is interstate commerce, any regulation of an interstate carrier which bears a reasonable. relation to its duties as a common carrier of commodities between the states is a regulation of interstate commerce. The duties of a common carrier which has announced that it will carry commodities are to carry as safely and expeditiously as possible all commodities given it to carry by members of the public; charge reasonable rates of carriage; and treat all persons alike. That the ownership by a common carrier of some of the commodities it

that in the absence of any congressional legislation it was to be presumed that Con. gress desired interstate commerce in liquor to be free from state interference. The act upheld in the Rahrer case was merely an act declaring that Congress was willing that the states acting under the police power should prohibit the first sale. It may he questioned whether this case may be regarded as a regulation of interstate commerce in a recognized article of commerce for the purpose of promoting the morals of the people of the United States. For such use of the case see Mr. Justice Harlan's opin ion in the Lottery Case, 188 U. S. 321, 358. Of course, if the power to regulate commerce extends to a power to prohibit any commodity from entering interstate commerce, then Congress may prohibit interstate commerce in liquor. For a government, having a power to legislate in re a particular subject, does not lose that power because the real motive behind the legislation is the accomplishment of a purpose on which no direct power of legislation exists.