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§ 162 “Trade and Commerce.”

PRELIMINARY DEFINITION.—Trade means the act or business of exchanging commodities by barter, or by buying and selling for money; commerce; traffic; barter. It comprehends every species of exchange or dealing, either in the produce of land, in manufactures, in bills, or in money, but it is chiefly used to denote the barter or purchase and sale of goods, wares, and merchandise, either by wholesale or retail. (Webster's Internat. Dict.) Commerce means the exchange or buying and selling of commodities; especially the exchange of merchandise on a large scale between different places or communities; extended trade or traffic. (Webster's Internat. Dict.) The courts of the United States have, in a series of decisions, defined commerce to be both intercourse and traffic, and the regulation of commerce to be the prescribing of the rules by which intercourse and traffic shall be governed. (Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196.) The object of investing the Federal Parliament with the power to deal with trade and commerce, was to secure uniform legislation, where such uniformity is practicable, against conflicting State legislation. (Western Union Telegraph Co. v. Pendleton, 122 U.S. 347.) The object is to secure uniformity against discriminating State legislation. (Welton v. Missouri, 91 U.S. 275.) Commerce includes all commercial traffic and intercourse. (Gibbons v. Ogden, 9 Wheat. 1; The Daniel Ball, 10 Wall. 557.) Sale is an ingredient of Commerce. (Brown v. Maryland, 12 Wheat. 419; Leisy v. Hardin, 135 U.S. 100.) It means intercourse for the purpose of trade of all descriptions. (Corfield v. Coryell, 4 Wash. 371.) It comprehends everything that is grown, produced, or manufactured. (Welton v. Missouri, supra.) It extends to persons who conduct it as well as the means and instrumentalities used. (Cooley v. Port Wardens, 12 How. 299.) It includes vessels, railways, and other conveyances used in the transport of merchantable goods, as well as the goods themselves. (The Brig Wilson v. United States, 1 Brock. 423.) It embraces navigation and shipping.


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(Cooley v. Port Wardens, supra); including free navigation of the navigable waters of the several States. (Corfield v. Coryell, supra.) It covers the right to improve navigable waters (South Carolina v. Georgia, 93 U.S. 4); and to remove nuisances and obstructions interfering with navigation. (Miller v. Mayor of New York, 109 U.S. 385.) It embraces railways, highways, and navigable waters along and over which commerce flows. (Willson v. Blackbird Creek Marsh Co., 2 Pet. 245.) It includes the freights and fares charged for transport. (State Freight Tax Cases, 15 Wall 232.) It includes passengers. (Passenger Cases, 7 How. 283.) Bills of exchange are instruments of commerce. (Nathan v. Louisiana, 8 How. 73.) Sending a telegraph message is commerce. (Western Union Telegraph Co. v. Alabama, 132 U.S. 472.) The power to regulate commerce is held in the United States to imply the power to construct railways, to promote and carry commerce. (California v. Central Pacific R. Co., 127 U.S. 1. See cases collected, Prentice and Egan's Commerce Clause of the Federal Constitution, U.S. [1898], p. 43.)

The power of the Congress of the United States is “to regulate trade and commerce.” The power of the Parliament of Canada extends to “the regulation of trade and commerce.” In this Constitution the words “the regulation of” have been omitted, and the Federal Parliament has been given power to make laws “in respect of trade and commerce.” It has been held by the Privy Council that the power of the Parliament of Canada to regulate trade does not imply the power to prohibit trade. (Att.-Gen. for Ontario v. Att.-Gen. for Canada [1896], App. Ca. 363; and see note, § 163 infra, “Does Regulation Include Prohibition?”) The omission of the words “the regulation of” can certainly not be held to narrow the scope of the power, and may perhaps in some degree extend it.

AIDS TO THE COMMERCE POWER.—There are several important sections in Chapter IV. of this Constitution, which strongly re-enforce the grant of power over commerce contained in this sub-section. By section 98 the power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of any State. By section 101 the Federal Parliament is authorized to appoint an Inter-State Commission, with such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder. By section 102 the Parliament may, by any law with respect to trade or commerce, forbid, as to railways, any preference or discrimination by any State, or by any authority constituted under a State, if such preference or discrimination is undue and unreasonable, or unjust to any State.

LIMITS OF THE COMMERCE POWER.—The Federal power over commerce is not absolute or universal or unrestricted; it is subject to certain limitations and prohibitions, which will be found enumerated in the next note.)

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