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§ 163. “With Other Countries and Among the States.”

LIMITS OF THE COMMERCE POWER.—The power of the Federal Parliament to legislate concerning trade and commerce, whilst unbounded as regards the subject matter, is limited as regards its area and operation. Unlike the Parliament of Canada, whose commercial power is expressed by the words “trade and commerce,” without qualification, the Parliament of the Commonwealth, like the Congress of the United States, can only deal with trade and commerce “with other countries and among the States.” It therefore embraces inter-state trade and commerce, and foreign trade and commerce, but it cannot invade the domain occupied by the internal trade and commerce of a State. Commerce among the States is traffic, transportation and intercourse, between two points situated in different States. (Wabash, St. Louis and Pacific R. Co. v. Illinois, 118 U.S. 557.) Commerce among the States is commerce which begins in one State and ends in other, and it may pass through one or many States in its operation. (Gibbons v. Ogden, 9 Wheat. 1.) Freight carried from points without a State to points within


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that State, or vice versa, is as much commerce among the several States as is freight taken up at points without the State and carried across it to points in other States. (Fargo v. Michigan, 121 U.S. 230.) The regulation of inter-state and foreign commerce is vested in the Federal Parliament, both as against the States and as against the other departments of the Federal Government. (Robbins v. Shelby Taxing District, 120 U.S. 489. See also Notes, § 427, infra.)

In addition to the constitutional limitations of the Federal power over commerce, expressed by the words “with other countries and among the States,” the Federal power is subject to several other limitations and prohibitions. By section 92, trade, commerce, and intercourse among the States become absolutely free on the imposition of uniform duties of customs; so that the Federal Parliament, whilst it may assist and facilitate inter-state freetrade, is disabled from interfering with, or impairing the rule of, inter-state commercial freedom: By section 99 the Commonwealth is prohibited from giving preference to one State over another State, by any regulation of trade, commerce, or revenue.

CONTROL OF DOMESTIC COMMERCE OF STATES.—The control of the internal trade and commerce, which begins and ends in a State, and which does not cross its limits, is reserved exclusively to the State; it is beyond Federal control, and the right of regulating it, in each State, belongs to the State alone. (License Cases, 5 How. 504.) To this exclusive reservation of power over domestic trade and commerce of the States there is one notable exception; they cannot impose duties of excise on commodities produced or manufactured within their borders; the right of imposing duties of excise is exclusively vested in the Federal Parliament. (See sec. 90.)

COMMERCE FURTHER DISCUSSED.—Commerce is said to be the interchange of goods between nations or individuals, and transportation is the means by which it is carried on. There could be no commerce without transportation. (Philadelphia Steamship Co. v. Pennsylvania, 122 U.S. 326.) Actual transportation is the characteristic of inter-state and foreign commerce. The Federal authority over commerce extends to places, such as ports and harbours, in which vessels receive and discharge their frieght; to means and instrumentalities by which commerce is transported, such as ships and railways, and to the subjects of commercial intercourse such as commodities. (Von Holst, Const. Law, pp. 144-146.)

TRANSPORTATION.—Federal control over the transportation of commerce embraces every agency employed in the movement of commerce, by land or by water, such as roads, stage coaches, railways, bridges, ships, navigable waters, ports and harbours. All these are means or instruments by or through which the subjects of commerce are transferred, in order to facilitate exchange and intercourse. A ship is not commerce, but it is one of the chief means by which commerce is conducted. A railroad is not commerce, but it is one of the most important agencies by which commerce is transported. Telegraphs and telephones are instruments of commerce. Foreign or inter-state bills of exchange are instruments of commerce. (Nathan v. Louisiana, 8 How. 73.) The Federal control over commerce necessarily implies control of the means and instrumentalities of commerce. Accordingly it has been decided in the United States that the Federal power over commerce give the Federal legislature authority—

  • To establish or authorize the establishment of a bridge which obstructs the navigation of a river, or to order the removal of such a bridge, if its removal is necessary for the preservation of freedom of commerce. (Pennsylvania v. Wheeling Bridge Co., 18 How. 421; The Clinton Bridge, 10 Wall. 454; Miller v. Mayor of New York, 109 U.S. 385; Bridge Co. v. United States, 105 U.S. 470.)
  • To regulate boats carrying inter-state freight and passengers between two points within the same State. (The Daniel Ball, 10 Wall. 557.)



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  • To regulate the liability, or immunity from liability, for accidents, of the owners of boats, plying the high seas between two points in the same State. (Lord v. Steamship Co., 102 U.S. 541.)
  • To improve the navigation of ports, harbours, and rivers. (Wisconsin v. Duluth, 96 U.S. 379.)
  • To establish railroads in order to promote inter-state commerce. (California v. Central Pacific R. Co., 127 U.S. 1.)
  • To establish telegraph companies authorized to carry on inter-state telegraphic business. (Pensacola Telegraph Co. v. Western Union Tel. Co., 96 U.S. 1; Western Union Telegraph Co. v. Alabama, 132 U.S. 472.)
  • To regulate liens on vessels. (White's Bank v. Smith, 7 Wall. 646.)
  • To grant corporations carrying on inter-state trade the right of eminent domain through a State. (Winconsin v. Duluth, 96 U.S. 379.)

TRAVEL.—The movement and personal intercourse of individuals engaged in commerce, or entitled to be so engaged, is a branch of commerce. The arrival and departure of passengers from one State to another, and the embarkation and disembarkation of passengers by sea, is also a branch of commerce. (Passenger Cases, 7 How. 283; Welton v. Missouri, 91 U.S. 275; Mobile v. Kimball, 102 U.S. 691.)

THE SUBJECTS OF COMMERCE.—Commodities, ordinarily intended and fit to be exchanged, are the usual subjects of commerce. The question whether an article is or is not a subject of commerce has to be determined by the usages of the commercial world; it does not depend upon the declaration of any State. (Bowman v. Chicago, &c., R. Co. 125 U S. 465; Leisy v. Hardin, 135 U.S. 100.) Passengers from one State to another, or from foreign States to federal jurisdiction, are subjects of the commerce power.

WHAT ARE NOT SUBJECTS OF COMMERCE.—All commodities are not always the subjects of commerce; they, at certain stages, may lose that quality. Of course land, not being transportable, could never become the subject of commerce. At the same time certain things, though capable of being transported and exchanged, do not come within the true definition of commerce. Thus meat, at one time, may be a fit article of commerce; if it becomes putrid it ceases to be merchantable; it loses its commercial quality and passes beyond the domain of the commercial power. Obscene books and noxious drugs, though capable of being exchanged, are not subjects of commerce. (Preston v. Finley, 72 Fed Rep. 850.) Indecent publications and articles may be excluded from Federal mails by Federal authority, and their transportation may be forbidden either by Federal or State authority. The maxim is that there can be no commerce in disease, pestilence, crime, pauperism and immorality. (Per Chief Justice Taney in License Cases [liquor], 5 How. 585; Railroad Co. v. Husen, 95 U.S. 465.) Passengers, goods, or animals infected with disease, and passengers who are known to be criminals, paupers, idiots, lunatics, or persons likely to become a public charge on a State, are not subjects of commerce; hence they may be excluded from a State by State legislation in the exercise of its reserved police power. (See authorities collected, Prentice and Egan, Commerce Clause, p. 56.) As a further illustration, it may be mentioned that a corpse is not property, and is not capable of being a legitimate subject of commerce. (Re Wong Yung Quy, 6 Sawy. 442.) Banks and insurance companies are not commercial institutions. (See Federal Commerce.)

PRODUCTION AND MANUFACTURE.—The growth, production and manufacture of commodities, and their preparation for transit, do not constitute commerce. Commerce only begins where manufacture and production end. (Kidd v. Pearson, 128 U.S. 1.) The mere fact that commodities have been manufactured, and are intended for other States or countries, does not bring them within federal protection and control. (Prentice and Egan, Commerce Clause, p. 55.) Hence a State may forbid the manufacture of commodities such as intoxicating liquors and oleomargarine, provided that such prohibition is not in conflict with the exercise of any other federal power, such as a law offering bounties for production or export. (See note, § 456.)




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OCCUPATIONS NOT WITHIN FEDERAL CONTROL.—It has been decided in the United States that the following occupations do not come within federal commerce: the business of a building and loan association, loaning money, dealing in foreign lands, conducting a manufacturing establishment in another State, mining, practicing medicine in connection with the sale of imported drugs.

WHEN FEDERAL CONTROL OVER COMMERCE BEGINS.—Commerce does not come within Federal protection or control until its transportation from one State to another, or from a State to a foreign country, has begun. Even preparation for exportation is not sufficient. The deposit of logs in a river running within one State, in order to ship them into another State, does not mark the beginning of Federal jurisdiction. (Coe v. Errol, 116 U.S. 517; Pace v. Burgess, 92 U.S. 372.) Other cases seem to suggest that inter-state commerce begins with negotiations and contracts looking to transportation among the States (Walling v. Michigan, 116 U.S. 446; Robbins v. Shelby Taxing District, 120 U.S. 489.) When the products of the farm or the forest are collected and brought in from the surrounding country to a town or station serving as an entrepot for that particular region, whether on a river or a line of railroad, such products are not yet exports, nor are they in process of exportation, nor is exportation begun until they are committed to the common carrier for transportation out of the State to the State of their destination, or have started on their ultimate passage to that State. (Per Mr. Justice Bradley in Coe v. Errol, 116 U.S. 517; see, however, note, § 427 infra.)

DURATION OF FEDERAL CONTROL.—As long as the goods are in transitu they remain the subjects of Federal commerce. (The Daniel Ball, 10 Wall. 557.) A transhipment of freight which has once started upon its passage to another State does not break up the carriage so as to bring it within the control of a single State.

INTERRUPTION OF TRANSIT.—Goods and passengers in course of transportation from one State to another do not lose their inter-state character by a temporary stoppage in an intermediate State. Having once started on their passage from a State to a State, they do not break their carriage by a transhipment in an intermediate State, so as to bring them within the taxing power of that State. (The Daniel Ball, 10 Wall. 557.) Where coal was shipped in Pennsylvania by a company to its agents in New Jersey, in which State it was assorted and reshipped to New York as advice of sales was received, it was held that the temporary delay in New Jersey had not terminated its transit so as to subject it to State taxation in New Jersey. (State v. Engle, 34 New Jers. L. 435.) In Kelley v. Rhoads (51 Pac. Rep. [Wyo.] 593), the validity of a tax collected by the State of Wyoming, on a flock of sheep which was being driven from Utah through Wyoming to Nebraska, was questioned. The court recognized the principle that “no tax could be laid upon property in transit from one State to another, but, if the sheep were brought into the State to find grazing grounds, inter-state transportation ceased when the grazing grounds were found. The question upon which the validity of the tax depended was, therefore, a question of purpose—whether the grazing was incidental to the transportation, or whether the transportation was incidental to the grazing. It is not true that every time a person drives his herds into a State, intending, at some future period, to pass from it into another State, his cattle are wholly beyond State jurisdiction. It would be possible under such a rule, by selecting a circuitous route, to avoid taxation upon grazing animals.” (Prentice and Egan, Commerce Clause, p. 64.) “In considering the question of situs in such cases, it is necessary to look to the course and method of travel, the character of the live-stock and of the territory grazed upon, the time employed, possibly the time of year, and all other considerations which would throw light upon the purpose of the owner; and where, upon such examination, it is found that property is kept within the State for some other purpose than that of transportation, the original movement must be considered as abandoned.” (Id.)

THE END OF TRANSIT.—Goods and passengers, subjects of Federal commerce, having once started on their passage, remain subject to Federal control and entitled to Federal protection until the end of the transit, and until they are lost and intermingled in the


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general mass of property and people of the State in which they arrive. (Passenger Cases, 7 How. 405; Head Money Cases, 112 U.S. 580.) Some embarrassment has been experienced in determining the exact point of time and place at which this commingling is accomplished, when Federal control ends and when municipal control begins. In the great case of Brown v. Maryland, the Court referred to the difficulty of distinguishing between the restriction placed upon the power of the States to lay taxes on imports, and their acknowledged power to tax persons and property within their jurisdiction. It was observed that the two, “though quite distinguishable when they do not approach each other, may yet, like the intervening colours between white and black, approach so nearly as to perplex the understanding, as colours perplex the vision in marking the distinction between them; yet the distinction exists, and it must be marked as the cases arise.” The Court, after observing that it might be premature to state any rule as being universal in its application, held that “when the importer has so acted upon the thing imported that it has become incorporated and mixed up with the mass of property in the country, it has perhaps lost its distinctive character as an import, and has become subject to the taxing power of the State; but, while remaining the property of the importer in his warehouse, in the original form and package in which it was imported, the tax upon it is too plainly a duty on imports to escape the prohibition in the Constitution.” (Per Marshall, C.J., in Brown v. Maryland, 12 Wheat. 419, Boyd Const. Cases, p. 197.)

In delivering the judgment of the Court in Welton v. Missouri, 91 U.S. 275, Mr. Justice Field, referring to this judgment, said:—

“Following the guarded language of the Court in that case, we observe here, as was observed there, that it would be premature to state any rule which would be universal in its application to determine when the commercial power of the Federal Government over a commodity has ceased, and the power of the State has commenced. It is sufficient to hold now that the commercial power continues until the commodity has ceased to be the subject of discriminating legislation by reason of its foreign character. That power protects it, even after it has entered the State, from any burdens imposed by reason of its foreign origin.”

NAVIGATION, SHIPPING AND RAILWAYS.—The power of the Federal Parliament to make laws with respect to trade and commerce extends to navigation and shipping and to railways, the property of any State. See section 98.

INTERNAL IMPROVEMENTS.—The power over commerce carries with it the power to authorize internal improvements necessary for the promotion and advancement of commerce. For this purpose the Federal legislature may make surveys of coasts, rivers, harbours, and highways, and may construct works tending to increase the facilities for transportation by sea and by land; may construct bridges over navigable waters; may clear and keep clear navigable streams; may remove wrecks from rivers and harbours. So liberal a construction has this power received in the United States, that it has been held sufficient to authorize the incorporation of railway and highway companies, having a right to engage in inter-state commerce, and to compulsorily acquire private property within the States for that purpose. (Cherokee Nation v. South Kansas Railway Co., 135 U.S. 641; California v. Central Pacific R. Co., 127 U.S. 1.)

FREIGHTS AND FARES.—The States may regulate freights and fares charged for domestic transportation, but they cannot regulate inter-state freights and fares. (Wabash Railway Co. v. Illinois, 118 U.S. 557; Smyth v. Ames, 169 U.S. 466.) The question was for a considerable time discussed in America, whether the mere grant of power to regulate commerce conferred on the Federal legislature authority to fix the rates for inter-state carriage. It was admitted that Congress had power to prevent unjust discriminations in inter-state transportation, and that it could make legislative provision enabling those having just cause of complaint to bring actions at law to recover unreasonable charges. Hence it was argued that, if Congress could prohibit unreasonable charges, it impliedly had the power to determine what charges should be deemed reasonable. (Prentice and Egan, Commerce Clause, p. 287.) If the States were deprived of jurisdiction to settle freights and fares in inter-state traffic, it was


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reasoned that the power must be lodged in the Federal legislature. It is now admitted that Congress has plenary power to regulate the rates of inter-state and foreign commerce. (Covington and Cincinnati Bridge Co. v. Kentucky, 154 U.S. 204; New York Board of Trade v. Pennsylvania R. Co., 3 Inter-State Com. Rep. 417; Kauffman Milling Co. v. Missouri Pacific Railroad Co., 3 Inter-State Com. Rep. 400.)

INTER-STATE COMMERCE COMMISSION.—The Constitution of the United States contains no clause authorizing Congress to appoint an Inter-State Commerce Commission; but such a Commission has been authorized and appointed under and by virtue of the power vested in Congress to regulate commerce. This is a striking illustration of the vastness and elasticity of the commerce power. The first Inter-State Commerce Act was passed on 4th Feb., 1887; it was amended on 2nd March, 1889; again amended on 10th Feb., 1891, and finally on 11th Feb., 1893. The general outlines of this legislation and the principles deducible therefrom will be found discussed in Inter-State Com. Commission v. Baltimore and Ohio Railroad Co., 1892, 145 U.S. 263; Inter-State C. C. v. Brimson, 1894, 154 U.S. 447; Inter-State C. C. v. Alabama Midland Railway Co., 1896, 5 Inter-State Com. Rep. 685; Inter-State C. C. v. Alabama Midland Railway Co., 1897, 168 U.S. 144. (See Notes, secs. 101, 102.)

LEADING AMERICAN COMMERCE CASES.—A review in their chronological sequence of some of the leading cases decided by the Supreme Court of the United States, under the Commerce Clause of that Constitution, and a reference to the dominating principles which run through them, will serve as an introduction to the study of the Commerce Clause of the Constitution of the Commonwealth. Among those decisions some will appear to be inconsistent with others. The explanation is that the current of legal construction has not been, at all times, along and within the same lines of progress; its course has been, at certain stages, influenced by different principles of interpretation. Changes in the personnel of the Court, the growth of new commercial interests conflicting with old ones, the expansion of commerce simultaneously with the growth of the nation, the determination of the State rights party, at the period of Federal history preceding the Civil War, to enforce their views in favour of State sovereignty, the ultimate over-throw of that party and its dangerous doctrines, the progress of the nation and the national idea gradually overshadowing the idea of State supremacy, were circumstances which occasionally and naturally found expression in the, at times, varying and apparently irreconcilable judgments of the Supreme tribunal.

Gibbons v. Ogden, 9 Wheat 1 (1824).—This was the first great case decided under the Commerce Clause of the United States. It stands like a high land-mark in the constitutional history of that country. The facts were few and brief. The legislature of the State of New York gave to Robert Livingstone and Robert Fulton the exclusive right to navigate all waters within the jurisdiction of the State with vessels propelled by steam. Ogden acquired the rights of Livingstone and Fulton. Gibbons, having obtained a license to run a steam-boat under the Acts of Congress regulating the coasting trade, navigated the Bay of New York with a steamer between New York city and Elizabeth Port in New Jersey. Ogden commenced a suit against Gibbons in the New York Courts in order to restrain him from navigating those waters, in breach of his exclusive right under the laws of the State. The State Courts held that the statute of New York was valid, and granted an injunction restraining Gibbons. Gibbons then appealed to the Supreme Court of the United States, his contention, as presented by his counsel, Daniel Webster, being that the New York statute contravened the clause of the Constitution conferring upon Congress the power to regulate commerce among the States, and that it was therefore void.

The judgment of the Court was delivered by Chief Justice Marshall, the first great champion and interpreter of the Constitution. That judgment has been described by competent authorities as a master-piece of reasoning and a monument of learning, well worthy of the momentous issue involved. The following passages from this historical judgment will be read with interest:—




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“The subject to be regulated is commerce; and our Constitution being, as was aptly said at the bar, one of enumeration and not of definition, to ascertain the extent of the power it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations, which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals, in the actual employment of buying and selling or of barter.

“If commerce does not include navigation, the government of the Union has no direct power over that subject, and can make no law prescribing what shall constitute American vessels, or requiring that they shall be navigated by American seamen. Yet this power has been exercised from the commencement of the government, has been exercised with the consent of all, and has been understood by all to be a commercial regulation. All America understands, and has uniformly understood, the word ‘commerce’ to comprehend navigation. It was so understood and must have been so understood when the Constitution was framed. The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government, and must have been contemplated in forming it. The Convention must have used the word in that sense, because all have understood it in that sense, and the attempt to restrict it comes too late.

“If the opinion that ‘commerce,’ as the word is used in the Constitution, comprehends navigation also, requires any additional confirmation, that additional confirmation is, we think, furnished by the words of the instrument itself. It is a rule of construction acknowledged by all, that the exceptions from a power mark its extent; for it would be absurd, as well as useless, to except from a granted power that which was not granted— that which the words of the grant could not comprehend. If, then, there are in the constitution plain exceptions from the power over navigation, plain inhibitions to the exercise of that power in a particular way, it is a proof that those who made these exceptions, and prescribed these inhibitions, understood the power to which they applied as being granted.” (9 Wheat. pp. 189–191.)

“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 this 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.” Id., p. 193.

“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. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. 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,


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having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments.

“The power of Congress, then, comprehends navigation within the limits of every State in the Union, so far as that navigation may be, in any manner, connected with ‘commerce with foreign nations, or among the several States, or with the Indian tribes.’ It may, of consequence, pass the jurisdictional line of New York, and act upon the very waters to which the prohibition now under consideration applies.” (Id. pp. 196–7.)

Applying the principles here discussed to the facts of the case, the Chief Justice decided the following propositions:—

1. That the law of New York giving the exclusive right of navigation to Livingstone and Fulton and their assigns was in collision with the Federal law regulating the coastal trade; that the Federal law on this subject was the supreme law; that the State laws must yield to that supremacy, even though enacted in pursuance of powers reserved to the State. (9 Wheat. 210.)

2. That a coasting license under an Act of Congress passed for the regulation of the coasting trade gave a legal permission to carry on that trade. (9 Wheat. 212.)

3. That the Act of Congress regulating the coasting trade applied to steamers as well as to sailing ships. (9 Wheat. 219.)

This case did not decide that the mere grant to Congress, by the Constitution, of the power to regulate foreign and inter-state commerce excluded ipso facto the States from the exercise of a similar power. At the same time some of the reasoning of the Chief Justice evidently led to that conclusion, while Mr. Justice Johnson was distinctly of that opinion. It did, however, expressly decide that the grant in the Constitution, coupled with Federal legislation in pursuance thereof, removed the subject matter absolutely from the jurisdiction of the States. (Pomeroy, Constitutional Law, 10th ed. p. 284.)

We have now to consider how far the principles affirmed in Gibbons v. Ogden would be applicable to the interpretation of the Australian Constitution. In order to determine this question, the power granted by sec. 51—i. must be read in conjunction with secs. 108–109, which, shortly summarized, provide that a State law, relating to any matter within the powers of the Federal Parliament, shall continue in force in the State; that until provision is made in that behalf by the Federal Parliament the Parliament of the State may alter or repeal any such laws; that when a law of a State is inconsistent with a law of the Commonwealth the latter prevails, and the former, to the extent of the inconsistency, becomes invalid. These clauses may be compared with Art. VI. sec. 2 of the Constitution of the United States, which declares that the Constitution, and the laws of the United States made in pursuance thereof, shall be the supreme law of the land. It seems clear, therefore, that should a similar conflict arise in the Commonwealth between rights claimed under a State law and rights claimed under a Federal law, the High Court would give a decision similar to that rendered in Gibbons v. Ogden. This statement leaves out of consideration the question discussed by Chief Justice Marshall, but not necessarily decided, whether the mere grant of power to Congress to regulate foreign and inter-state commerce ipso facto excluded the State legislatures from the exercise of a concurrent power, even in the absence Federal legislation. This point pervades the argument in most of American commerce cases, and it was not finally settled until the case of Cooley v. Port Wardens, 12 How. 299, see infra. On account of the special provisions of secs. 90 and


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108 the question of exclusiveness or concurrency of the commerce power will not prove such an embarrassing and perplexing problem, in the interpretation of the Constitution of the Commonwealth, as it has been in the interpretation of the Constitution of the United States. Section 108 is intended to confer on the Parliaments of the States the right known in Federal jurisprudence as that of concurrent legislation; that is, the right to legislate on subjects transferred to the Federal Parliament, until the Federal Parliament interferes, and deals with those subjects in a manner inconsistent with State laws. That right of concurrent legislation, however, is expressly limited by sec. 90. By that section the power of the Federal Parliament to impose duties of customs and of excise, and to grant bounties, becomes exclusive on and after a certain event; with reference therefore to customs, excise, and bounties, State laws will be null and void absolutely on and after the given event, irrespective of the question of consistency or inconsistency. But other State laws relating to commerce will only be void to the extent of their inconsistency either with the Constitution or with Federal laws made in pursuance thereof.

But sec. 108 will only enable the State Parliaments to deal with such a question as was involved in Gibbons v. Ogden, until the Federal Parliament has legislated and authorized others to use the navigable waters; then the Federal license will override the previously granted State monopoly.

Brown v. Maryland, 12 Wheat. 419 (1827).—The State of Maryland passed a statute requiring every importer of foreign goods by bale or package, and every person selling the same by the wholesale bale or package, to take out a license, for which a fee was required; in default of a license he was liable to a penalty. One Brown violated the statute by importing foreign goods and selling them without a license. He was indicted in the State courts, and he demurred to the indictment, contending that the State law was contrary to the Constitution, and therefore null and void. The courts of Maryland gave judgment against him, and he then appealed to the Supreme Court of the United States. The constitutionality of the State law was assailed on the grounds:—(1.) That it contravened the clause in the Constitution forbidding States to lay duties on imports, and (2) that it contravened the laws granting to Congress power of regulating foreign and inter-state commerce. The judgment of the court was delivered by Chief Justice Marshall. It was held that the State law was void on both grounds. The right to import had already been granted by Congress, and that right, the Court said, involved a right on the part of the importer to sell; and any State law which imposed a tax upon the exercise of that right was in collision with the Federal law, and therefore invalid. It was also held that the State law was repugnant to that clause of the Constitution which empowered Congress to regulate foreign and inter-state commerce. The judgment then proceeded:—

“If this power reaches the interior of a State, and may be there exercised, it must be capable of authorizing the sale of those articles which it introduces. Commerce is intercourse; one of its most ordinary ingredients is traffic. It is inconceivable that the power to authorize this traffic, when given in the most comprehensive terms, with the intent that its efficacy should be complete, should cease at the point where its continuance is indispensable to its value. To what purpose should the power to allow importation be given, unaccompanied with the power to authorize a sale of the thing imported? Sale is the object of importation, and is an essential ingredient of that intercourse, of which importation constitutes a part. It is as essential an ingredient, as indispensable to the existence of the entire thing, then, as importation itself. It must be considered as a component part of the power to regulate commerce. Congress has a right, not only to authorize importation, but to authorize the importer to sell. . . What would be the language of a foreign government, which should be informed that its merchants, after importing according to law, were forbidden to sell the merchandise imported? What answer would the United States give to the complaints and just reproaches to which such an extraordinary circumstance would expose them? No apology could be received or even offered. Such a state of things would break up commerce. It will not meet this argument to say that this state of things will never be produced, that the good sense of the States is a sufficient security against it. The Constitution has not confided this subject to that good sense. It is placed elsewhere. The question is, Where does the power reside? not, how far will it probably be abused? The power


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claimed by the State is, in its nature, in conflict with that given to Congress; and the greater or less extent in which it may be exercised does not enter into the inquiry concerning its existence. We think, then, that if the power to authorize a sale exists in Congress, the conclusion that the right to sell is connected with the law permitting importation, as an inseparable incident, is inevitable. If the principles we have stated be correct, the result to which they conduct us cannot be mistaken. Any penalty inflicted on the importer for selling the article, in his character of importer, must be in opposition to the act of Congress which authorizes importation. Any charge on the introduction and incorporation of the articles into and with the mass of property in the country, must be hostile to the power given to Congress to regulate commerce, since an essential part of that regulation, and principal object of it, is to prescribe the regular means for accomplishing that introduction and incorporation.” (Per Chief Justice Marshall in Brown v. Maryland, 12 Wheat. pp. 446–7.)

The principles affirmed in Brown v. Maryland would be sustained by the High Court in a similar case arising under the Constitution of the Commonwealth, by virtue of the provision of sec. 90, subject, however, to sec. 113.

Willson v. Blackbird Creek Marsh Co., 2 Pet. 242 (1829).—The Blackbird Creek Marsh Co. was incorporated by a statute of Delaware, and it owned certain marsh land bordering on the Blackbird Creek, a small stream in which the tide ebbed and flowed from the ocean. The company was authorized by the State to make a dam across the creek and to embank the marsh, the object being to reclaim and improve the adjacent land. The company constructed the dam, owing to which the navigation of the stream was obstructed. Willson was the owner of a sloop licensed to trade by the law of the United States. In order to navigate the stream he broke the dam, and the company sued him to recover compensation for the destruction of the dam. The defendant justified the trespass, contending that he had a right to navigate the creek, by virtue of his Federal license and enrolment; that, the dam being an unlawful obstruction to his right, he was entitled to remove it. The company demurred to this defence, and the question was then raised as to the validity of the State statute. The courts of Delaware sustained the statute and gave judgment against Willson, who then appealed to the Supreme Court of the United States. The appeal was dismissed, the State statute being held valid. The judgment of the Court was delivered by Chief Justice Marshall. In the course of the judgment he said:—

“The act of assembly, by which the plaintiffs were authorized to construct their dam, shows plainly that this is one of those many creeks passing through a deep, level marsh adjoining the Delaware, up which the tide flows for some distance. The value of the property on its banks must be enhanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce these objects, provided they do not come into collision with the powers of the general government, are undoubtedly within those which are reserved to the States. But the measure authorized by this act stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgment, unless it comes in conflict with the Constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which the Court can take no cognizance. The counsel for the plaintiff in error insist that it comes in conflict with the power of the United States ‘to regulate commerce with foreign nations and among the several States.’ If Congress had passed any act which bore upon the case; any act in execution of the power to regulate commerce, the object of which was to control State legislation over those small navigable creeks into which the tide flows, we should not feel much difficulty in saying that a State law coming in conflict with such act would be void. But Congress has passed no such act. The repugnancy of the law of Delaware to the Constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several States; a power which has not been so exercised as to affect the question. We do not think that the act empowering the Blackbird Creek Marsh Company to place a dam across the creek can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject.” (2 Pet. pp. 251–3.)

The decision of the Court in the Blackbird Creek case, though often criticized as being inconsistent with Gibbons v. Ogden and Brown v. Maryland, has never been overruled, but has always been sustained. (Pound v. Turck, 95 U.S. 459; Hatch v. Willamette Iron Bridge Co., 6 Fed. Rep. 326.) It is now considered that the true principle,


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by which the Blackbird Creek case can be reconciled with its two memorable predecessors, is that the Delaware statute, by which the dam was authorized, was purely a police regulation for the reclamation of the adjacent marshes, in the interests of public health. This at any rate was the solution of the apparent conflict suggested in Pennsylvania v. The Wheeling Bridge Company (13 How. 566). A similar decision would, no doubt, be given under the Constitution of the Commonwealth, especially in view of sections 108 and 109.

New York v. Miln, 11 Pet. 102 (1837).—The State of New York passed a statute providing that every master of a vessel arriving in the port of New York from another State, or from a foreign country, should, within twenty-four hours, report to the local authorities the name, age, and last place of settlement of every passenger; in default thereof he was liable to a penalty. Miln, the master of the ship Emily, omitted to give the required report and was sued for the penalty; his defence was that the statute of New York assumed to regulate commerce between New York and foreign countries, and was therefore unconstitutional and void. The case came before the Supreme Court of the United States. It was twice argued; after the first argument, and before judgment was given, Chief Justice Marshall died, and was succeeded by Chief Justice Taney. The case was then re-argued, and the judgment of the Court was delivered by Mr. Justice Barbour. It was held that the New York statute was valid; that it was not a regulation of commerce, but merely a police regulation. Mr. Justice Story dissented from the judgment. He was of opinion that, though the New York statute might be a police regulation, it was certainly also a regulation of commerce; that the power to regulate commerce was exclusively vested in Congress; that full power to regulate a particular subject implied the whole power and left no residuum; that a grant of the whole to one was incompatible with a grant of a part to the other; and that the police powers of the States could not be enforced by laws which trenched upon the exclusive powers of Congress. This case is interesting as containing an authoritative definition of the police powers of a State, as will be seen from the following extracts:—

“We shall not enter into any examination of the question whether the power to regulate commerce be or be not exclusive of the States, because the opinion we have formed renders it unnecessary. In other words, we are of opinion that the Act is not a regulation of commerce, but of police; and that, being thus considered, it was passed in the exercise of a power which rightfully belonged to the States. … If, as we think, it be a regulation, not of commerce, but police, then it is not taken from the States. To decide this, let us examine its purpose, the end to be attained, and the means of its attainment. It is apparent, from the whole scope of the law, that the object of the legislature was to prevent New York from being burdened by an influx of persons brought thither in ships, either from foreign countries or from any other of the States; and for that purpose a report was required of the names, places of birth, &c., of all passengers, that the necessary steps might be taken by the city authorities to prevent them from becoming chargeable as paupers. Now, we hold that both the end and the means here used are within the competency of the States. … We choose rather to plant ourselves on what we consider impregnable positions. They are these: That a State has the same undeniable, unlimited jurisdiction over all persons and things within its territorial limits, as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States. That, by virtue of this, it is not only the right, but the bounden and solemn duty of a State, to advance the safety, happiness, and prosperity of its people, and to provide for its general welfare, by any and every act of legislation which it may deem to be conducive to these ends, where the power over the particular subject, or the manner of its exercise, is not surrendered or restrained in the manner just stated. That all those powers which relate to merely municipal legislation or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these, the authority of a State is complete, unqualified, and exclusive.” (11 Pet. pp. 132–139.)

The case of New York v. Miln was the first one in which an important judicial decision was given in the direction of the recognition of State rights. It is said that the judgment went far beyond the point which it was necessary to decide. Mr. Justice Barbour enunciated, for the first time, the doctrine that the police power reserved to the States was in itself a “complete, unqualified, and exclusive power,” a doctrine


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which was afterwards elaborated with dangerous persistency until it was finally destroyed by the Civil War.

It is quite probable, however, that whilst neither the extreme doctrine of the Federal exclusiveness of the commercial power contended for by Mr. Justice Story, nor the extreme doctrine of the exclusiveness of the police power of the State advocated by Mr. Justice Barbour, could be applied to the construction of the Constitution of the Commonwealth, the decision itself in New York v. Miln would be followed by the High Court on the ground that the demand of information by the State authorities, as to the name, age, and last place of settlement of those about to land and to become added to the population of the State, would not interfere with that freedom of commerce and intercourse required by sec. 92.

The License Cases, 5 How. 504 (1847).—These were three cases known as Thurlow v. Massachusetts, Fletcher v. Rhode Island, and Peirce v. New Hampshire. In each of these cases a private individual was prosecuted by a State for selling spirituous liquors within the State without having a license as required by the law of the State. In each case the validity of the law of the State was called in question, on the ground that it was repugnant to the Commerce Clause of the Federal Constitution. In the Massachusetts and Rhode Island cases the liquor sold was not imported by the defendant, but had been bought by him from the original importer. The Supreme Court had no difficulty in holding that those cases were distinguishable from Brown v. Maryland inasmuch as the liquor had passed beyond the hands of the original importer, had become a part of the general property of the State, and was therefore subject to the power of the State to regulate purely internal commerce and to pass police laws. In the New Hampshire case, however, the defendant had bought a barrel of gin in Boston, in the State of Massachusetts, and carried it coastwise to a port in New Hampshire, where he sold it in its original package. A strong attempt was made to commit the court to the theory that jurisdiction over commerce was, in all cases, concurrent in the nation and in the States. It is absolutely impossible, however, to say what the court decided. Although all the judges came to the same conclusion—that the State laws were valid— hardly two, much less a majority, agreed in the reasons for their judgment, and the rules of law applicable to the cases. (Pomeroy's Constitutional Law, 10th ed. pp. 293–4.) Chief Justice Taney was of opinion that even in the New Hampshire case the facts were different from those in Brown v. Maryland, the State statute in the latter case applying to foreign goods, in respect to the importation of which Congress had fully legislated. But Congress had not legislated in regard to goods carried from one State to another; the navigation laws did not apply to the goods which are transported, but only to the vessels which transport; the foreign importation statutes covered the introduction of articles from abroad, but no corresponding statute applied to traffic among the States. In the opinion of the Chief Justice, the question was therefore directly presented, whether the mere grant to Congress of power to regulate commerce was exclusive and prohibitory upon the States, or whether it required a statute of the national legislature, passed in pursuance to such grant, to oust the States of jurisdiction. He adopted the latter of these views, and therefore held the law of New Hampshire valid. The case which he principally relied upon, as confirmatory of his doctrines, was Willson v. Blackbird Creek Marsh Co. (Pomeroy's Constitutional Law, 10th ed. pp. 294–5)

Mr. Justice Woodbury took a middle course, and, for the first time in the history of the court, formulated the modern rule. In several respects, he said, the power granted is not in its nature more exclusive of action on the part of the States than are other powers granted to Congress. So far as regards the uniformity of a regulation reaching to all the States, the commercial power “must of course be exclusive,” but in many local matters it not only permits but requires the concurrent and auxiliary action of the States. “There is much in connection with foreign commerce which is local within each State, convenient for its regulation and useful to the public, to be acted on by each till the power is abused or some course is taken by Congress conflicting with it.


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Such are the deposit of ballast in harbours, the extension of wharves into tide water, the supervision of the anchorage of ships, the removal of obstructions, the allowance of bridges with suitable draws, and various other matters that need not be enumerated, beside the exercise of numerous police and health powers, which are also by many claimed upon different grounds.” (Prentice and Egan, Commerce Clause, p. 24.)

Referring to this decision, Dr. Pomeroy says:—“In reviewing these extraordinary License Cases, it is plain that the court did not overrule the former decisions of Gibbons v. Ogden and Brown v. Maryland. On the other hand, it would appear that five of the justices, Taney, Catron, Daniel, Nelson, and Woodbury, concurred in the proposition that it requires, at least, a statute of Congress, passed in pursuance of the general grant of power in the Constitution, to inhibit the State legislatures from enacting laws which regulate commerce; while two of the justices, McLean and Grier, did not adopt this view. Two, Daniel and Woodbury, pushed their conclusions much further; and two, Wayne and McKinley, were absent, or took no part in the decision. Whatever rule, however, was established by this judgment, was entirely unsettled by the next cases which came before the same high tribunal for adjudication.” (Constitutional Law, 10th ed. pp. 296–7.)

How far are these cases applicable to the Constitution of the Commonwealth? It appears that in the Massachusetts and Rhode Island cases the liquor had passed out of the hands of the original importer; it had consequently ceased to form a part of interstate commerce; it had merged into and become a constituent of the general mass of the internal commerce of a State. It was therefore liable to the local licensing laws of the State; and this would be so held under our Constitution. Such licensing laws would not be contrary to section 92, which provides that commerce and intercourse among the States shall be “absolutely free,” because the liquor had passed beyond the stage of inter-state commerce; it had passed beyond Federal protection and control. In point of fact it ceased to be a part of inter-state commerce immediately after the first sale within the State. In the New Hampshire case, however, the facts were different. There Peirce had bought a barrel of gin in one State, Massachusetts, and imported it into another State, New Hampshire, where he sold it in its original package without a license, for which he was convicted. Now according to sec. 92 of our Constitution, Peirce would have been entitled to demand the free admission of the barrel of gin from one State into another, but the question then arises, what effect has sec. 113, if any, in modifying sec. 92? Section 113 is as follows:—

“All fermented, distilled, or other intoxicating liquids passing into any State or remaining therein for use, consumption, sale, or storage, shall be subject to the laws of the State as if such liquids had been produced in the State.”

These two sections 92 and 113 have to be read together. What is the meaning of “passing into a State?” Will the doctrine of Peirce v. New Hampshire apply so as to prohibit the first sale in the original package except in accordance with the licensing laws of the State? If that be so, and the goods cannot be sold without a license, how will the commerce be “absolutely free” under sec. 92? These points require careful consideration. Meanwhile we may add to this note respecting Peirce v. New Hampshire, that it was subsequently overruled in the case of Bowman v. Chicago R. Co., 125 U.S. 465; Leisy v. Hardin, 135 U.S. 100. (See Note, § 456, infra.)

The Passenger Cases, 7 How. 283 (1849).—In these cases, Smith v. Turner from New York, and Norris v. Boston from Massachusetts, the defendants were prosecuted for breach of State laws. A statute of New York provided that the health officer of the port should he entitled to receive from the master of every vessel arriving in port a certain sum for each steerage passenger brought to the port from another State, or from a foreign country. This money, when collected, was applied to the support of a marine hospital. Masters neglecting to pay the sum demanded in respect to each passenger were liable to be prosecuted and fined. A similar statute was passed in Massachusetts. The defence raised in each case was that the State statute was unconstitutional; in


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reply to which it was contended that the provisions of the Acts were merely rules of internal police, and that the cases were identical in principle with New York v. Miln. The Court distinguished the principles at issue from that affirmed in New York v. Miln. The police regulation in that case did not interfere with commerce in any way. No duty was laid, either upon the vessel or passengers; nothing but a report was required from the master of each vessel, and the decision was that every State had an unquestionable right to keep a register of the names of persons who came within to reside there temporarily or permanently. But in these cases the regulations imposed a tax or duty on the passengers, officers, and sailors, holding the master responsible for payment of the amount at the end of the voyage, and necessarily before the passengers had set their feet on land. The tax on each passenger, if in the discretion of the State legislature, might have been 5 dollars, or 10 dollars, or any other sum, amounting even to a prohibition of the transportation of passengers. There was no doubt that the transportation of passengers was a branch of commerce, and that the duties charged by the local regulations amounted to a tax on commercial intercourse. Except to guard its citizens against diseases and paupers the Court held that the municipal power of the State could not be exercised to prohibit the introduction of foreigners permitted to enter under the authority of Congress. But in guarding the safety, the health, and the morals of its citizens, a State was restricted to appropriate and constitutional means. The principles affirmed in this case were (1) That when the Federal authority has, in the exercise of its general power, passed a statute to regulate commerce, the States are absolutely prohibited from making any laws which will interfere with the legislation of the Federal authority. (2) That persons, as well as goods, are subject to commercial laws. (3) That the States, in adopting regulations of internal police, are not entitled to include in them provisions conflicting with the commercial power. (4) That the commercial power and the police power are not to be regarded as two equal and competing forces, but that in case of conflict the commercial power prevails. The dissenting judges were of opinion that the State laws could be sustained on the grounds of—(1) The general concurrent power of the States; (2) The authority to pass police regulations; (3) A denial that persons can be the objects of commerce; (4) The consequent result that Congress has no authority to legislate respecting the importation of persons, that matter being left exclusively to the States. (Pomeroy, Const. Law, 10th ed. p. 299.)

“This,” says Dr. Pomeroy, “was the last great contest in the Supreme Court between the forces of national and of state sovereignty. The national idea was triumphant through the steadiness of two southern members of the Court, Wayne of Georgia, and Catron of Tennessee.” (Constitutional Law. 10th ed. p. 299. See also Crandall v. Nevada, 6 Wall. 35.)

Cooley v. Port Wardens, 12 How. 299 (1851)—The question raised in this case was whether the States may pass laws establishing pilots, and prescribing the duties of masters of vessels arriving in ports in respect to such pilots. This was an action to recover half-pilotage fees, which the defendants had forced the plaintiff to pay. In March, 1803, the legislature of Pennsylvania passed an Act to establish a Board of Wardens for the Port of Philadelphia, and for the regulation of pilots and pilotages. The scope of the Act was, as indicated by its title, to deal with the whole subject of the pilotage of the port. The plaintiff claimed to be exempted from payment of the sums of money demanded under the State law, because the law contravened several provisions of the Federal Constitution. In this celebrated case the question was again discussed as to whether the Federal power over commerce was exclusively vested in Congress, or concurrently in Congress and in the States. The constitutionality of the State pilot regulations had been previously argued, but not decided. They could only be sustained on the ground that the power to regulate commerce was concurrent. But in the Passenger Cases it had been shown to what a dangerous and chaotic state a concurrent system of commercial control would lead; whilst on the other hand, to sustain the theory of exclusiveness would involve the declaration of the invalidity of pilot laws which had


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remained unquestioned for over fifty years. A solution of the problem was found in the dictum first laid down by Mr. Justice Woodbury, in the License Cases, to the effect that the commercial power was partly exclusive and partly concurrent; that in matters admitting of uniformity of regulation and requiring national action the commercial power was exclusive, but that in many local matters, admitting of a variety of treatment, the concurrent action of the States was admissible. This principle was authoritatively adopted as the judgment of the Court in Cooley v. Port Wardens, and has now become the well established rule of the Federal Courts. In delivering the judgment of the Court, Mr. Justice Curtis said:—

“The diversities of opinion, therefore, which have existed on this subject, have arisen from the different views taken of the nature of this power. But when the nature of a power like this is spoken of, when it is said that the nature of the power requires that it should be exercised exclusively by Congress, it must be intended to refer to the subjects of that power, and to say they are of such a nature as to require exclusive legislation by Congress. Now, the power to regulate commerce embraces a vast field, containing not only many, but exceedingly various subjects, quite unlike in their nature; some imperatively demanding a single uniform rule, operating equally on the commerce of the United States in every port; and some, like the subject now in question, as imperatively demanding that diversity which alone can meet the local necessities of navigation. Either absolutely to affirm, or deny that the nature of this power requires exclusive legislation by Congress, is to lose sight of the nature of the subjects of this power, and to assert concerning all of them what is really applicable but to a part.” (12 How. p. 319.)

“The States may establish port regulations, regulations of pilotage, may improve their harbours and rivers, erect bridges and dams, and exercise many other local powers. In the exercise of its proper authority, a State may enact laws providing for the inspection of goods, to determine whether they are fit for commerce, and to protect the citizens and the market from fraud. But in all such cases, as was said in Leisy v. Hardin, though the States may exercise powers which may be said to partake of the nature of the power granted to the general government, they are strictly not such, but are merely local powers, which have full operation until circumscribed by the action of Congress in effectuation of the general power. In matters admitting uniform regulation throughout the country and affecting all the States, the inaction of Congress is to be taken as a declaration of its will that commerce shall be ‘free and unrestricted,’ so far only as concerns any general regulation by the States. It can hardly be considered that this phrase means more than freedom from such regulations as admit of uniformity, for it is only to this extent that the jurisdiction of Congress over inter-state commerce is exclusive of State regulation. On the other hand, in matters of local nature, such as are auxiliary to commerce rather than a part of it, the inaction of Congress is to be taken as an indication that for the time being, and until it sees fit to act, they may be regulated by State authority. Since the decision of Cooley v. Port Wardens, the rule therein laid down has, with one important exception which will be hereafter noticed, been followed in every case in the Supreme Court upon this subject. It is perhaps the most satisfactory solution which has ever been given of this vexed question, and may be considered as expressing the final judgment of the Court. It is not easy at this time to exaggerate the importance of the case by which this rule was established. It offered a logical principle for the construction of the constitutional provision, such as no previous case had offered. More than this, it marked, in 1851, the end of the struggle, lasting more than thirty years, and which had been begun in Ogden v. Gibbons, in the New York courts.” (Prentice and Egan, Commerce Clause, pp. 27-9.)

The problem which caused such a long controversy in the Supreme Court of the United States, as to whether the power over commerce was exclusive or concurrent, or partly exclusive and partly concurrent, should never arise or occasion any trouble in the interpretation of the Constitution of the Commonwealth, in which two principles are clearly and unmistakably established: that on and after the imposition of uniform duties of customs, the power of the Federal Parliament to impose duties of customs and excise, and to grant bounties, becomes absolutely and irrevocably exclusive, and this is the limits of its exclusive power; that as to other matters relating to commerce, the States will continue to exercise concurrent authority, and the State laws in respect to such matters will be perfectly valid, until laws inconsistent therewith are passed by the Federal Parliament.

Pennsylvania v. Wheeling Bridge Co., 13 How. 518 (1851).—The defendant company was incorporated by an Act of the legislature of Virginia, which authorized them to


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construct a suspension bridge across the river Ohio, at Wheeling. The bridge was constructed, and hindered the passage of boats ascending and descending the river at that point. Prior to this Congress had recognized the Ohio as a navigable stream, and a channel of commerce, but it had never authorized the erection of bridges at that part of its course. The State of Pennsylvania brought a suit in the Supreme Court against the company, praying that the bridge might be removed as a public nuisance. On behalf of Pennsylvania it was argued that the legislature of Virginia could not constitutionally authorize the erection of a bridge which obstructed free commerce on the Ohio. The Court sustained this contention; it was held that the power to regulate commerce among the States extends to the navigable streams whereon that commerce is carried; that commerce includes navigation; that Congress had recognized the Ohio as a great navigable river, and the highway of an immense commerce; that the bridge interfered with such navigation; that the Virginian statute authorizing the bridge was therefore in conflict with the power granted to and exercised by Congress. (Pomeroy, Const. Law, 10th ed. pp. 301-2.)

This case is especially interesting, owing to the development which followed. After the judgment was given declaring the bridge a nuisance and ordering its removal, Congress passed an Act legalizing the bridge as it then stood, and authorizing it to be allowed to remain. Another suit was then brought by Pennsylvania against the Bridge Company (18 How. 421), in which the question was raised whether this Act was within the constitutional authority of Congress. The Supreme Court ruled that Congress, having power to regulate commerce, could as legally obstruct commerce as free it from obstruction—could as legally fetter it as liberate it; and therefore that the Act was within the Constitution. (See Miller v. Mayor of New York, 109 U.S. 385; Escanaba Co. v. Chicago, 107 U.S. 678.)

Gilman v. Philadelphia, 3 Wall 713 (1865).—This was another bridge case, which is apparently inconsistent with Pennsylvania v. Wheeling Bridge Co. The Schuylkill River flows through the city of Philadelphia and empties into the Delaware; it is a tidal river for seven miles from its mouth. It is navigable for vessels drawing about 20 feet of water. A considerable trade is done upon it by barges and small steamers, licensed under the laws of the United States. Gilman was the owner of coal wharves on the river, below any bridge, but he was not the owner of any licensed vessels. The legislature of Pennsylvania authorized the city of Philadelphia to erect a new bridge across the river, below the plaintiff's wharves. The plaintiff feared that the bridge would prevent masted vessels from passing it, would greatly interrupt the navigation of the river, and would so injure his business. Congress had made the city of Philadelphia a port of commercial entry. Gilman brought a suit against the city corporation to restrain it from building the proposed bridge. The judgment of the Court was delivered by Mr. Justice Swayne; who said that the power to regulate commerce covered a wide field, and embraced a great variety of subjects. Some of these subjects called for uniform rules and national legislation; others could be best regulated by rules and provisions suggested by the varying circumstances of different localities, and limited in their operation to such localities. To this extent the power to regulate commerce might be exercised by the States. But even in respect to this latter class of rules and provisions, Congress could interpose, whenever it should be deemed necessary, by general or special laws; and their interposition would sweep away the local State legislation. Within the sphere of their authority, both the legislative and the judicial powers of the nation were supreme. Mr. Justice Clifford dissented, on the ground that Congress had already sufficiently legislated to cover the subject-matter and to deprive the State of power to build the bridge in question. This legislation consisted in the navigation laws, which, as had been repeatedly held, enabled vessels registered or enrolled and licensed to enter all navigable waters free from State interference; but especially in the statute declaring Philadelphia to be a port of entry. He asserted that Willson v. Blackbird Creek Marsh Co. had no application; because


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the statute of Delaware was upheld in that case as a measure of police, a means to reclaim marsh lands and improve the health of the neighbourhood.

Referring to this decision, Dr. Pomeroy says: “I cannot refrain from saying that the dissenting opinion of Judge Clifford is a most overwhelming answer to the positions taken by the Court. Leaving out of view the Blackbird Creek case, the judgment in Gilman v. Philadelphia is opposed to the whole scope and tenor of all prior decisions, and is in direct conflict with Pennsylvania v. Wheeling Bridge Company. Indeed, these two cases are absolutely identical in their facts; in each case the plaintiff sought to protect his rights as proprietor on the banks of the river above the bridge; in each a State, by its statute authorizing a permanent bridge, had interfered with those rights; in neither had Congress directly legislated upon the subject of bridges. Yet the Court overthrew the statute of Virginia and upheld that of Pennsylvania; they deliberately adopted, in the Philadelphia case, the position of Chief Justice Taney in the dissenting opinion which he delivered in the Wheeling case, although in the latter Congress had only acted by recognizing Ohio as a navigable stream, while in the former, Congress had directly legislated by declaring Philadelphia to be a port of entry. I repeat that, while it cannot be supposed the Court intended to overrule the long series of great and most ably considered cases which have been referred to, they have placed themselves in antagonism to many of those decisions.” (Const. Law, 10th ed. pp. 305-6.)

It seems to be now well settled that in the absence of Federal legislation a State may authorize a navigable stream within its limits to be obstructed by a dam, bridge, or highway (Pound v. Turck, 95 U.S. 459); that in the improvement of her waterways a State may alter the course of a river (Withers v. Buckley, 20 How. 84); that a State may practically turn a river into a canal and charge vessels for its use to pay for such improvement (Sands v. Manistee River Improvement Co., 123 U.S. 288; Ruggles v. Manistee River Improvement Co., 123 U.S. 297); that a State may improve her harbours (Mobile v. Kimball, 102 U.S 691); that a State may build and own wharves (Ouachita Packet Co. v. Aiken, 121 U.S. 444). A State, however, cannot use such improvements, or any other public property, as a means of regulating commerce. Though a State can charge rent for the use of a wharf, based on the tonnage of the vessel, or for its occupation by imported goods, which she could not do as a tax, or in the exercise of any reserved power, she cannot discriminate in her charges against vessels loaded with the products of other States. (Guy v. Baltimore, 100 U.S. 434.)

Case of the State Freight Tax, 15 Wall. 232 (1872).—In the Reading Railroad Co. v. Pennsylvania, generally known as the State Freight Tax Case, the State of Pennsylvania had imposed a tax on every ton of freight carried within the limits of the State; no distinction or discrimination was made between domestic and inter-state traffic. The tax was justified by the State, as made in the exercise of its right of taxation. It was claimed that the State had a right to tax all property within its jurisdiction, and that it was entitled to do so as long as it abstained from discrimination. The Supreme Court, however, declared the State law void on the ground that it was a regulation of commerce among the States. This judgment is valuable as affirming (1) That freight, the reward for the transportation of the subjects of commerce, whether by land or water, is a constituent of commerce; (2) That the bringing of goods from the seller to the buyer is commerce; (3) That a tax upon freight, transported from State to State, is a regulation of commerce.

Welton v. Missouri, 91 U.S. 275 (1875).—In this case Welton sold, in the State of Missouri, certain sewing machines which had been manufactured outside the State. He sold without having a State license, as required by a State Act. The Act in question provided that whoever should sell goods, wares, or merchandise “which are not the growth, produce, or manufacture of this State.” by going from place to place to sell the same, was “declared to be a peddler.” Other sections of the Act prohibited peddling in the State without a license, and provided a penalty for breach of the prohibition. No license was required to peddle goods the growth, produce or manufacture of the


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State. Welton was arrested and fined. The Supreme Court of the State declared that the State law was valid. Welton appealed to the Supreme Court of the United States, which held that the Missouri law was unconstitutional. In giving the judgment of the Court Mr. Justice Field said that the license tax was sought to be maintained as a tax upon a calling. The general power of a State to impose license taxes on businesses within its limits was admitted, but must be exercised subject to the Constitution. Where the business consisted in the sale of goods, a tax upon the business was in effect a tax upon the goods themselves. “It would be premature to state any rule which would be universal in its application to determine when the commercial power of the Federal Government over a commodity has ceased, and the power of the State has commenced. It is sufficient now to hold that the commercial power continues until the commodity has ceased to be the subject of discriminating legislation by reason of its foreign character.”

Munn v. Illinois, 94 U.S. 113 (1876).—In this case the question raised was whether the General Assembly of Illinois could legally fix by law the maximum charges for the storage of grain in warehouses, in Chicago and other places in the State, in which grain was stored in bulk, and in which the grain of different owners was mixed together. The Supreme Court of the United States upheld the validity of the law. It was not everything which affected commerce that amounted to a regulation of commerce. The warehouses referred to were situated, and their business conducted exclusively, within the limits of the State of Illinois. They were used as instruments by those engaged in State as well as by those engaged in inter-state commerce; but they were no more necessarily a part of the commerce itself than a dray or cart by which grain could be transferred from one railway station to another. Incidentally they might become connected with inter-state commerce, but not necessarily so. Their regulation was a thing of domestic concern, and certainly, until Congress acted in reference to their inter-state relations, the State might exercise all the powers of government over them, even though in so doing it indirectly operated upon commerce outside its immediate jurisdiction. “We do not say,” continued Chief Justice Waite, “that a case may not arise in which it will be found that a State, under the form of regulating its own affairs, has encroached upon the exclusive domain of Congress, in respect to inter-state commerce, but we do say that, upon the facts as they are represented to us in this record, that has not been done.” (94 U.S. 135.)

Railroad Co. v. Husen, 95 U.S. 465 (1877).—In this case a statute of Missouri prohibited the driving or conveying of any Texas, Mexican, or Indian cattle into the State during certain periods of the year. It was held that this law was a regulation of commerce, and therefore contrary to the Constitution. Mr. Justice Strong said that the transportation of property from one State to another was a branch of inter-state commerce, and that though a State had full power over commerce which was completely internal, it could no more prohibit or regulate inter-state commerce than commerce with foreign nations. In reference to the argument that the statute called into question was a lawful exercise of the police power, he said:—

“What that power is, it is difficult to define with sharp precision. It is generally said to extend to making regulations promotive of domestic order, morals, health and safety.… The police power of a State justifies the adoption of precautionary measures against social evils. Under it a State may legislate to prevent the spread of crime or pauperism, or disturbance of the peace. It may exclude from its limits convicts, paupers, idiots and lunatics, and persons likely to become a public charge, as well as persons afflicted by contagious or infectious diseases.… The same principle … would justify the exclusion of property dangerous to the property of citizens of the State; for example, animals having contagious or infectious diseases. All these exertions of power … are self-defensive.… While for the purpose of self-protection it (i.e., a State) may establish quarantine and reasonable inspection laws, it may not interfere with transportation into or through the State, beyond what is absolutely necessary for its self-protection. It may not, under the cover of exerting its police powers, substantially prohibit or burden either foreign or interstate commerce.” (95 U.S. pp. 470-2.)




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Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U.S. 1 (1877).—The State of Florida granted to the Pensacola Telegraph Company the exclusive right to establish and maintain telegraph lines in certain counties of that State. Prior to this, Congress had passed a law providing that telegraph lines might be established over any portion of the public domain of the United States, along military and post roads, and across navigable streams and waters. The Western Union Company filed with the Postmaster-General its acceptance of the terms of the Act. The Pensacola Company thereupon instituted a suit to restrain the Western Union Company from constructing lines in derogation of its exclusive rights. In the judgment of the Supreme Court it was stated that the commercial powers granted to Congress were not confined to the instrumentalities of commerce, or the postal system, as known and used when the Constitution was adopted, but that they kept pace with the progress of the country and adapted themselves to the new developments of times and circumstances. They extended 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 these new agencies were successfully brought into use to meet the demands of increasing population and wealth. These commercial powers were intended for the government of the business to which they related. They were entrusted to the Government for the good of the nation; it was not only the right but the duty of the Federal legislature to see that intercourse among the States and the transmission of intelligence were not obstructed or unnecessarily impeded by State legislation. The Court held that the electric telegraph had become an indispensable means of inter-communication, especially in commercial transactions. It could not for a moment be doubted that this powerful agency of commerce and inter-communication came within the controlling power of Congress, certainly as against hostile State legislation. It was therefore held that the State of Florida, in attempting to confer on a single corporation the exclusive right of transmitting news by telegraph over part of its territory, had encroached upon the domain of commercial power vested in Congress, and the claim of the Pensacola Company to restrain the Western Union Company was not sustained.

Escanaba Co. v. Chicago, 107 U.S. 678 (1882).—The Escanaba Company, created by the law of Michigan, was the owner of three steam vessels engaged in the carrying trade between ports in different States, on Lake Michigan and on the navigable waters connecting it. Its vessels were enrolled and licensed for the coastal trade under the laws of the United States. They did a large business in carrying iron ore from Escanaba to the south branch of the Chicago River in the city of Chicago. In their course up the river they were required to pass through draws of several bridges, constructed over the stream by the city of Chicago. By an ordinance of the city the draws were closed for an appointed hour of the morning and evening during week days, and the time during which a draw might be left open for the passage of a vessel was limited to ten minutes. The Company complained of these obstructions and limitations, and applied for an injunction to restrain the city from enforcing the ordinance. The Court upheld the validity of the State law, on the ground that it came within the rule of matters of internal police—including in that general designation whatever would promote the peace, comfort, and convenience, of the people of the State, and embracing the construction and control of roads, canals, bridges, and other means of internal communication. Such power the State could exercise, so long as it did not unnecessarily obstruct the navigation of the river or its branches; when that occurred Congress could interfere and remove the obstruction.

Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196 (1885).—The Gloucester Ferry Company was incorporated under the law of New Jersey, and established a ferry between Gloucester, in the State of New Jersey, and Philadelphia, in the State of Pennsylvania. At its landing place in each State it had a dock; the one in Gloucester it owned, the one in Philadelphia it leased. The entire business of the Company consisted in ferrying passengers and freight across the river; its boats were registered


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in New Jersey, where it was domiciled and held all its property, except the lease of its dock in Pennsylvania; its boats remained in Pennsylvania only long enough to discharge and receive passengers and freight. In 1879 the legislature of Pennsylvania passed an Act imposing taxes on corporations, domestic or foreign, doing business or employing capital in Pennsylvania. The State sued the Company to recover taxes on its business done between the two States. The Supreme Court of the State sustained the tax. The Company appealed to the Supreme Court of the United States. In support of the tax, it was argued that the Company did business within the State of Pennsylvania, because it landed and received passengers and freight at its wharf in Philadelphia; that its whole income was derived from the transportation of freight and passengers between Gloucester and Philadelphia; that at each of these points its main business was transacted; that for such business it was as much dependent upon the laws and protection of one State as of the other; that as it could only purchase its wharf at Gloucester by the will of the legislature of New Jersey, so it could only lease the one in Philadelphia with the consent of the legislature of Pennsylvania. It was therefore contended that the Company was dependent equally, not only for its business, but for its power to do that business, upon both States, and consequently it might be taxed by both. The Supreme Court had no difficulty of disposing of these arguments. Mr. Justice Field, in delivering the judgment of the Court, said:—

“The business of landing and receiving passengers and freight at the wharf in Philadelphia is a necessary incident to, indeed is part of, their transportation across the Delaware River from New Jersey. Without it that transportation would be impossible. Transportation implies the taking up of persons or property at some point and putting them down at another. A tax, therefore, upon such receiving and landing of passengers and freight is a tax upon their transportation; that is, upon the commerce between the two States involved in such transportation.… According to the decision in the Standard Oil Company case, and by the general law on the subject, the company has no domicile in Pennsylvania, and its capital stock representing its property is held outside of its limits It is solely, therefore, for the business of the company in landing and receiving passengers at the wharf in Philadelphia that the tax is laid, and that business, as already said, is an essential part of the transportation between the States of New Jersey and Pennsylvania, which is itself inter-state commerce. While it is conceded that the property in a State belonging to a foreign corporation engaged in foreign or inter-state commerce may be taxed equally with like property of a domestic corporation engaged in that business. we are clear that a tax or other burden imposed on the property of either corporation because it is used to carry on that commerce, or upon the transportation of persons or property, or for the navigation of the public waters over which the transportation is made, is invalid and void as an interference with, and an obstruction of, the power of Congress in the regulation of such commerce.… The cases where a tax or toll upon vessels is allowed to meet the expenses incurred in improving the navigation of waters traversed by them, as by the removal of rocks, the construction of dams and locks to increase the depth of water and thus extend the line of navigation, or the construction of canals around falls, rest upon a different principle. The tax in such cases is considered merely as compensation for the additional facilities thus provided in the navigation of the waters.… Upon similar grounds, what are termed harbour dues or port charges, exacted by the State from vessels in its harbours, or from their owners, for other than sanitary purposes, are sustained. We say for other than sanitary purposes, for the power to prescribe regulations to protect the health of the community, and prevent the spread of disease, is incident to all local municipal authority, however much such regulations may interfere with the movements of commerce. But, independently of such measures the State may prescribe regulations for the government of vessels whilst in its harbours; it may provide for their anchorage or mooring, so as to prevent confusion and collision; it may designate the wharves at which they shall discharge and receive their passengers and cargoes, and require their removal from the wharves when not thus engaged, so as to make room for other vessels. It may appoint officers to see that the regulations are carried out, and impose penalties for refusing to obey the directions of such officers; and it may impose a tax upon vessels sufficient to meet the expenses attendant upon the execution of the regulations. The authority for establishing regulations of this character is found in the right and duty of the supreme power of the State to provide for the safety, convenient use, and undisturbed enjoyment of property within its limits; and charges incurred in enforcing the regulations may properly be considered as compensation for the facilities thus furnished to the vessels.… The power of the States to regulate matters of internal police includes the establishment of ferries as well as the


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construction of roads and bridges. In Gibbons v. Ogden, Chief Justice Marshall said that laws respecting ferries, as well as inspection laws, quarantine laws, health laws, and laws regulating the internal commerce of the States, are component parts of an immense mass of legislation, embracing everything within the limits of a State not surrendered to the general government; but in this language he plainly refers to ferries entirely within the State, and not to ferries transporting passengers and freight between the States and a foreign country.… Such a ferry is a means, and a necessary means, of commercial intercourse between the States bordering on their dividing waters, and it must, therefore, be conducted without the imposition by the States of taxes or other burdens upon the commerce between them. Freedom from such imposition does not, of course, imply exemption from reasonable charges, as compensation for the carriage of persons, in the way of tolls or fares, or from the ordinary taxation to which other property is subjected, any more than like freedom of transportation on land implies such exemption. Reasonable charges for the use of property, either on water or land, are not an interference with the freedom of transportation between the States secured under the commercial power of Congress.” (114 U.S., pp. 210–217.)

The judgment of the Supreme Court of Pennsylvania was, therefore, reversed. It must be noted, however, that this judgment does not impugn the right of States, or of towns and cities acting under State authority, to regulate the use of wharves on navigable rivers and to impose charges for such use. In the case of the Packet Co. v. Keokuk, 95 U.S. 80, it was said by Mr. Justice Strong:—

“The principal question presented by the record of this case is, whether a municipal corporation of a State, having by the law of its organization an exclusive right to make wharves, collect wharfage, and regulate wharfage rates, can, consistently with the Constitution of the United States, charge and collect wharfage proportionate to the tonnage of the vessels from the owners of enrolled and licensed steamboats mooring and landing at the wharves constructed on the banks of a navigable river. If the charge is clearly a duty, a tax, or burden, which in its essence is a contribution claimed for the privilege of entering the port of Keokuk, or remaining in it, or departing from it, imposed, as it is, by authority of the State, and measured by the capacity of the vessel, it is doubtless embraced by the constitutional prohibition of such a duty. But a charge for services rendered or for conveniences provided is in no sense a tax or a duty.… It is a tax or a duty that is prohibited; something imposed by virtue of sovereignty, not claimed in right of proprietorship. Wharfage is of the latter character.… A passing vessel may use the wharf or not, at its election, and thus may incur liability for wharfage or not, at the choice of the master or owner.… It has always been held that wharfage dues may be exacted.” (95 U.S. pp. 84–5. See Cannon v. New Orleans, 20 Wall. 577.)

In the later case of Transportation Co. v. Parkersburg, 107 U.S. 691, the question raised was whether an ordinance of the city of Parkersburg, imposing a wharfage due upon all vessels discharging or receiving freight at the city wharves on the Ohio River, was valid. The plaintiff alleged that the charge demanded was not one of wharfage, but of tonnage. The court held that wharfage was a charge against a vessel for using or lying at a wharf or landing, such charge being collected by the owner of the wharf, or landing, as a rent for the temporary use of the property. On the other hand, a duty of tonnage was a charge imposed and collected by the government for the privilege of entering, trading, or lying in a port or harbour.

Bowman v. Chicago and North-western Railway Co., 125 U.S. 465 (1888).—A law of the State of Iowa prohibited common carriers from bringing intoxicating liquors into the State from any other State, without first being furnished with a certificate as prescribed. This law was declared by the Supreme Court of the United States to be invalid, as being a regulation of commerce among the States. The Court did not determine the question whether the right of transportation of an article of commerce from one State to another included, by necessary implication, the right of the consignee to sell it, in unbroken packages, at the place where transportation terminated; that point was in terms reserved, yet the argument of the majority led irresistibly to that conclusion.

Minnesota v. Barber, 136 U.S. 313 (1890).—A law of the State of Minnesota, entitled an “Act for the protection of the public health, by providing for inspection, before slaughter, of cattle, sheep, and swine, designed for slaughter for human food” required that animals thus described should be inspected by State officers within twenty-four


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hours before they were slaughtered. If found fit for slaughter it was provided that certificates to that effect should be given; if not found fit they had to be removed and destroyed. Barber was convicted before a Justice of the Peace of Minnesota, of having wrongly sold, for human food, part of an animal slaughtered in the State of Illinois, but which had not been inspected in Minnesota. The State Courts held that the Act was repugnant to the Constitution, and void, and annulled the conviction.

The State authorities appealed to the Supreme Court of the United States. It was argued that the statute was passed in good faith for the purpose expressed in its title—to protect the health of the people of Minnesota. Mr. Justice Harland, in delivering the opinion of the court, said that the good faith of the State was to be presumed, but that presumption could not control the final determination of the question whether the State law was unconstitutional or not. There might be no purpose on the part of a State legislature to violate the provisions of the great instrument of government, and yet a statute enacted by it under the forms of law might be destructive of rights intended to be secured by the Constitution. Dealing with the arguments on behalf of the State, the Court said that the enactment of a similar statute by each one of the States composing the Union would result in the destruction of commerce among the several States, so far as such commerce involved the transportation from one part of the country to another of animal meat designed for food. If the object of the statute had been to deny altogether to the citizens of other States the privilege of selling, within the limits of Minnesota, any fresh meat from animals slaughtered outside of that State, and to compel the people of Minnesota either to purchase meat taken from animals inspected and slaughtered in the State, or to incur the cost of purchasing meat, when desired for their own domestic use, at points beyond the State, that object was attained by the Act in question. The duty of the Government, to maintain the Constitution, would not permit it to shut its eyes to these obvious and necessary results of the Minnesota statute. If this legislation did not make such discrimination against the products and business of other States, in favour of the products and business of Minnesota, as interfered with and burdened commerce among the several States, it would be difficult to enact legislation that would have that result. In the opinion of the Court, the statute in question was in violation of the Constitution and void.

Leisy v. Hardin, 135 U.S. 100 (1890).—The plaintiffs were brewers doing business in the State of Illinois, and they shipped beer in sealed packages to Keokuk, in the State of Iowa, where it was offered for sale. By the law of Iowa, the manufacture or sale of intoxicating liquors, or the keeping of them with the intent to sell, except for medicinal, chemical, and sacramental purposes, was prohibited. A quantity of the beer imported by the plaintiffs was seized by Hardin, the city marshal of Keokuk, purporting to act under the authority of the law of the State, and the plaintiffs sued Hardin to recover the value of the beer seized. The local court gave judgment for the plaintiff, but the Supreme Court of Iowa reversed that decision. The plaintiffs then appealed to the Supreme Court of the United States. The sole question involved was the validity of the State prohibition law. Chief Justice Fuller delivered the judgment of the Court, which applied the principles established in Bowman v. Chicago to the sale of liquor imported from another State, in the package in which it was imported. This was no new principle; it had been decided by Chief Justice Marshall, in Brown v. Maryland, that a package remained the subject of inter-State commerce until the importer sold it, or broke the package in which it was imported. The Court therefore held that the law of Iowa, so far as it prohibited the sale by the importer, in the packages of importation, of liquor brought from other States, was invalid, because it was in conflict with the will of Congress. The Court interpreted the silence of Congress, in not passing any law to regulate the sale of imported liquors and in not allowing the States to do so, to indicate its will that such commerce should be free and untrammelled. Referring to the Federal law at the time of the adoption of prohibition in Iowa, Chief Justice Fuller said:—




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“Up to that point of time, we hold that in the absence of congressional permission to do so, the State had no power to interfere by seizure, or any other action, in prohibition of importation and sale by the foreign or non-resident importer. Whatever our individual views may be as to the deleterious or dangerous qualities of particular articles, we cannot hold that any articles which Congress recognizes as subjects of inter-state commerce are not such, or that whatever are thus recognized can be controlled by State laws amounting to regulations, while they retain that character; although, at the same time, if directly dangerous in themselves, the State may take appropriate measures to guard against injury before it obtains complete jurisdiction over them. To concede to a State the power to exclude, directly or indirectly, articles so situated, without congressional permission, is to concede to a majority of the people of a State, represented in the State legislature, the power to regulate commercial intercourse between the States, by determining what shall be its subjects, when that power was distinctly granted to be exercised by the people of the United States, represented in Congress, and its possession by the latter was considered essential to that more perfect union which the Constitution was adopted to create Undoubtedly, there is difficulty in drawing the line between the municipal powers of the one government and the commercial powers of the other, but when that line is determined, in the particular instance, accommodation to it, without serious inconvenience, may readily be found, to use the language of Mr. Justice Johnson in Gibbons v. Ogden, 9 Wheat. 1,238, in ‘a frank and candid co-operation for the general good.”’ (135 U.S. pp. 124-5.)

Referring to the case of Peirce v. New Hampshire (5 How. 504), Chief Justice Fuller said that, in so far as it rested on the view that the law of New Hampshire was valid because Congress had made no regulation on the subject, it must be regarded as having been distinctly overthrown by numerous cases. In consequence of the decision in Leisy v. Hardin, Congress on 8th Aug., 1890, passed a measure, now known as the Wilson Act, the text of which is as follows:—

“That all fermented, distilled, or other intoxicating liquors or liquids transported into any State or Territory, or remaining therein for use, consumption, sale or storage therein, shall, upon arrival in such State or Territory, be subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquors or liquids had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.”

A section containing provisions similar in substance to that of the Wilson Act has been embodied in the Constitution of the Commonwealth. (See sec. 113.)

Addyston Pipe and Steel Co. v. United States, 175 U.S 211 (1899).—In this, the most recent case on the meaning of the commerce clause, it was decided that Congress, under its power to regulate commerce, may forbid contracts and combinations between private individuals which operate directly and substantially in restraint of trade. Six companies, situated in four different States, entered in 1894 into a combination, agreeing that there should be no competition between them, in certain States and Territories, in regard to the manufacture and sale of cast-iron pipes. The object and effect of the combination was to enhance the prices of their goods. The United States took proceedings against them, under the Federal Act of 1890, entitled “an Act to protect trade and commerce against unlawful restraints and monopolies,” and prayed for a perpetual injunction against the defendants working under the combination agreement, as being in restraint of trade. The Trial Court dismissed the case, but the Circuit Court reversed this decision, and ordered the injunction to be granted. The defendants then appealed to the Supreme Court of the United States.

On behalf of the appellants it was argued that the power of Congress was limited to preventing interference by the State legislatures, or by regulations made under the authority of a State by some political department thereof—including congressional power over common carriers, and elevator, gas, and water companies, for reasons stated to be peculiar to such carriers and companies—but that it did not include the general power to interfere with or prohibit private contracts between citizens, even though such contracts had inter-state commerce for their object, and resulted in a direct and substantial obstruction to or regulation of that commerce. The whole purpose of the commerce clause, it was urged, was to guard against discriminating legislation by


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the States. The clause which forbade Congress to pass any law impairing the obligation of contracts was also relied on.

The judgment of the Court was delivered by Mr. Justice Peckham. He maintained the absolute and unlimited power of Congress to regulate inter-state trade and commerce, and declined to recognize the suggested limitation. The opinion of the Court is clearly expressed in the following extract:—

“If certain kinds of private contracts do directly, as already stated, limit or restrain, and hence regulate, inter-state commerce, why should not the power of Congress reach those contracts just the same as if the legislation of some State had enacted the provisions contained in them ? The private contracts may indeed be as far-reaching in their effect upon inter-state commerce as would the legislation of a single State of the same character. … What sound reason can be given why Congress should have the power to interfere in the case of the State, and yet have none in the case of the individual? Commerce is the important subject of consideration, and anything which directly obstructs and thus regulates that commerce which is carried on among the States, whether it is State legislation or private contracts between individuals or corporations, should be subject to the power of Congress in the regulation of that commerce.” (175 U.S. pp. 229-30.)

The Court held that under the commerce power Congress may legislate to declare void and prohibit the performance of any contract between individuals or corporations, where the natural and direct effect of such a contract is, when carried out, to directly, and not as a mere incident to other and innocent purposes, regulate to any extent inter-state or foreign commerce; that the provision in the Constitution regarding the liberty of the citizen is to some extent limited by the commerce clause, and the power of Congress to regulate inter-state commerce comprises the right to enact a law prohibiting a citizen from entering into those private contracts which directly and substantially, and not merely indirectly, remotely, incidentally, and collaterally, regulate to a greater or less extent commerce among the States; and that, since the Anti-Trust Act of 1890, any agreement or combination which directly operates, not alone upon the manufacture, but upon the sale, transportation, and delivery of an article of inter-state commerce, by preventing or restricting its sale, thereby regulates inter-state commerce to that extent, and thus trenches upon the powers of the national legislature, and violates the statute. The contracts in this case were held to have this effect, and to violate the Anti-Trust Act; and the judgment of the Circuit Court, though held to be too wide so far as it extended to internal commerce, was affirmed so far as inter-state commerce was concerned.

BEGINNING AND END OF FEDERAL CONTROL.—“Any article of foreign commerce is protected against the power of the States from the moment, in the case of an export, that this quality attaches to it, and to the moment, in the case of an import, when it is divested of the same; i.e., from the moment, in the first case, when it is delivered to the first common carrier for exportation, and to the moment, in the second case, when it has passed into the hands of the purchaser of the unbroken package from the original importer, or has been broken up for retail by the original importer.” (Coe v. Errol, 116 U.S. 517; Turpin v. Burgess, 117 U.S. 504; Brown v. Maryland, 12 Wheat. 419. Burgess, Political Sc. ii. 135.)

EXTENT OF THE COMMERCIAL POWER.—“The commercial system of the United States has also been employed for the purpose of revenue; sometimes for the purpose of prohibition, sometimes for the purpose of retaliation and commercial reciprocity; sometimes to lay embargoes; sometimes to encourage domestic navigation and the shipping and mercantile interests by bounties, by discriminating duties, and by special preferences and privileges, and sometimes to regulate intercourse with a view to mere political objects, such as to repel aggressions, increase the pressure of war, or vindicate the rights of neutral sovereignty.” (Story, Comm. § 1076.)

TRAFFIC AND INTERCOURSE.—“Commerce undoubtedly is traffic, but it is something more. It is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches; and is regulated by prescribed rules for carrying on that intercourse.” (Story, Comm. § 1061.)

“It may, therefore, be safely affirmed that the terms of the Constitution have at all times been understood to include a power over navigation, as well as trade; over intercourse, as well as traffic, and that, in the practice of other countries, and especially in


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our own, there has been no diversity of judgment or opinion. During our whole colonial history, this was acted upon by the British Parliament as an uncontestable doctrine. That Government regulated not only our traffic with foreign nations, but our navigation and intercourse as unquestioned functions of the power to regulate commerce.” (Story, Comm. § 1064.)

“This power of the Constitution extends to commerce with foreign nations, and among the several States, and with the Indian tribes. In regard to foreign nations, it is universally admitted that the words comprehend every species of commercial intercourse. No sort of trade or intercourse can be carried on between this country and another to which they do not extend. Commerce as used in the Constitution is a unit, every part of which is indicated by the term.” (Id. § 1065.)

NAVIGATION AND SHIPPING (see Notes, § 410, infra).—The power to regulate commerce includes the regulation of navigation. (Cooley v. Port Wardens, 12 How. 299, 315; the Barque Chusan, 2 Story, 455.) A bill providing for the recording of mortgage, hypothecation, or conveyance of any vessel, is a regulation of commerce, and is consequently within the power over commerce. (White's Bank v. Smith, 7 Wall. 646.) Under its power to regulate commerce the Federal Legislature has authority to establish a lien on vessels of the Union in favour of material-men, uniform throughout the whole country. In particular cases, until the Federal Legislature acts, the States may continue to legislate. Hence, a lien granted by State law to material-men who furnish necessaries to a vessel in its home port in such State is valid. (The Lottawanna, 21 Wall. 588.) The power over vessels is co-extensive with the power over the cargo. (The Brig Wilson, 1 Brock. 423.) Condensed from Baker, Annot. Const. p. 21 and 34.

DAMS AND BRIDGES ACROSS NAVIGABLE WATERS (see Notes, § 417, infra).—A bridge erected across a navigable river so as to obstruct navigation is a nuisance, and an Act of a State Legislature authorizing its construction affords no justification to the person erecting it. (Pennsylvania v. Wheeling Bridge Co., 13 How. 518.) The power to regulate commerce comprehends the control for that purpose of all the navigable waters of the Union which are accessible from a State other than that in which they lie. It is for the Federal Legislature to determine when its full powers will be exercised, and what regulations it will make. (Gilman v. Philadelphia, 3 Wall. 713.) A bridge constructed in accordance with Federal and State legislation is a lawful structure; and it cannot thereafter be treated as a public nuisance. (Miller v. Mayor of New York, 109 U.S. 385.) Condensed from Baker, Annot. Const. p. 21.

RIVER WITHIN A STATE (see Notes, § 417, infra).—If a river is not of itself a highway for commerce with other States or foreign countries, or does not form such highway by its connection with other waters, and is only navigable between different places within the State, it is not a navigable water of the Union, and a federal law for the enrolment and license of vessels does not apply. (The Montello, 11 Wall. 411.) Where a river is wholly within the limits of a State, the State can authorize any improvement which, in its judgment, will enhance its value as a means of transportation from part of the State to another. The internal commerce of a State—that is, commerce which is wholly confined within its limits—is as much under its control as foreign or inter-state commerce is under the control of the general government. (Mobile v. Kimball, 102 U.S. 691; Huse v. Glover, 119 U.S. 543; Sands v. Manistee Riv. Imp. Co., 123 U.S. 288.) Until the Federal Legislature acts respecting navigable streams entirely within a State, the State has plenary powers; but it is not concluded by anything that the State may have done, from abating any erections that may have been made, and preventing any other from being made, except in conformity with such regulations as it may impose. (Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1.) Condensed from Baker, Annot. Const. p. 23.

The Penobscot River is wholly within the State of Maine. The lower eight miles is crossed by several dams, and is not navigable. Above that there is imperfect navigation. A law of the State providing for the improvement of this upper navigation, and granting exclusive privileges to the company improving the same, is constitutional. (Veazie v. Moor, 14 How. 568. Baker, Annot. Const. p. 21.)

IMPROVEMENT OF NAVIGATION AND REMOVAL OF OBSTRUCTIONS. (See Notes, § 417 infra.)—The right to regulate commerce includes the right to regulate and improve navigable waters and ports, and the Federal legislature may for that purpose close to navigation one of several channels in a navigable stream. (South Carolina v. Georgia, 93 U.S. 4. Baker, Annot. Const. p. 22.)

The Federal Legislature has the control of all navigable rivers between the States, or connecting with the ocean, so as to preserve and protect free navigation. As a corollary of this, it has the paramount right to determine what shall be deemed an obstruction to commerce. (Miller v. Mayor of N.Y., 109 U.S. 385. Baker, Annot. Const. p. 22.)




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A federal act appropriating money for the improvement of navigation of Willamette River, a stream wholly within the State of Oregon, was no assumption of police power. Nor does it, by conferring the privilege of a port of entry on a town, conflict with the police power of the State, exercised in bridging a navigable stream of the State at that point. (Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1. Baker, Annot. Const. p. 23.)

The Federal Legislature may authorize the erection of railroad bridges across navigable waters to facilitate commerce among the States. (Railroad Co. v. Richmond, 19 Wall. 584. Baker, Annot. Const. p. 23.)

The Federal Legislature has power to prevent the obstruction of any navigable river which is a means of commerce between any two or more States. The exercise of this great public right is not incompatible with the enjoyment of local rights. The public right consists in an unobstructed use of a navigable water connecting two or more States. The local right is to cross such water. The general commercial right is paramount to the State authority. (Works v. Junction R.R. Co., 5 McLean, 426. Baker. Annot. Const. p. 24.)

No State can obstruct a navigable stream which extends to other States or is connected with a river or lake which falls into the sea. (Palmer v. Cuyahoga Co., 3 McLean, 226. Baker, Annot. Const. p. 24.)

A steam boat enrolled and licensed under a federal act is entitled to the protection of the general government while engaged in carrying on commerce between different States; her owners have a right to use the navigable streams of the country free from all material obstructions to navigation. (Jolly v. Terre Haute Draw-bridge Co., 6 McLean, 237. Baker, Annot. Const. p. 24.)

Commerce embraces navigation; and the improvements of the harbours and bays along our coasts, and of navigable rivers within the States connecting with such bays and coasts, falls within the commercial power. (Mobile v. Kimball, 102 U.S. 691. Baker, Annot. Const. p. 26.)

RAILWAYS, FEDERAL CONTROL OF.—The Federal Legislature has authority, in the exercise of its power to regulate commerce among the States, to either construct, or authorize persons to construct, railroads across the States and territories of the Union. (California v. Pac. R.R. Co., 127 U.S. 1; Cherokee Nation v. South Kansas, 135 U.S. 641. Baker, Annot. Const. p. 41. See note, § 221, infra.)

TELEGRAPHS.—Communications by telegraph are in their nature both postal and commercial, and when passing between different States of the Union such communications are “commerce among the several States,” and subject to federal regulation. A general license tax imposed by State law upon such company, doing inter-state as well as domestic business, is unconstitutional. The property of such company situated within a State may be taxed by the State, not its inter-state business. (Leloup v. Port of Mobile, 127 U.S. 640. Baker, Annot Const. p. 31.)

The telegraph is an instrument of commerce, and when used between different States is an instrument of inter-state commerce and subject to federal control. A State cannot tax on messages sent out of the State. A tax on messages between private parties sent from point to point wholly within the State is not repugnant to this clause. (Telegraph Co. v. Texas, 105 U.S. 460; Pensacola Tel. Co. v. Western Union Tel. Co., 96 U.S. 1. Baker, Annot. Const. pp. 31, 33.)

Whatever authority a State may possess over the transmission and delivery of messages by telegraph companies within her limits, it does not extend to the delivery of messages in other States. (W.U. Tel. Co. v. Pendleton, 122 U.S. 347. Baker, Annot. Const. p. 40.)

No tax can be imposed by a State upon telegraphic messages sent into the State from without, or out of the State from within. Sending a telegraphic message is commerce, and when the same passes from point to point in different States it is commerce among the several States. (West. Union Tel. Co. v. Alabama, 132 U.S. 472. Baker, Annot. Const. p. 20.)

PILOTAGE.—The power to regulate commerce, as conferred on the Federal Legislature, does not exclude the exercise of authority by the States to regulate pilots. (Steamship Co. v. Joliffe, 2 Wall. 450. Baker, Annot. Const. p 24.)

Pilot regulations are regulations of commerce. State pilotage laws, however, are valid, but are subject to the power of the Federal Legislature over the matter. (Ex parte McNiel, 13 Wall. 236.) A statute of Louisiana authorizing the port officers of New Orleans to demand, in addition to other fees, the sum of five cents whether called upon to perform any service or not, for every vessel arriving in port, is in violation of this clause. (Steamship Co. v. Port Wardens, 6 Wall. 31; Spraigue v. Thompson, 118 U.S. 90. Baker, Annot. Const. pp. 24, 25.)




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COMMERCIAL MARINE.—The whole commercial marine of the country is placed by the Constitution under Federal regulation, and all Federal laws on that subject, whether in relation to foreign or coastwise trade, are supreme; and where a State law contravenes such Federal laws it must give way. (Sinnot v. Davenport, 22 How. 227; Foster v. Davenport, id 244. Baker, Annot. Const. p. 25.)

ROADS, BRIDGES, AND CANALS.—The Federal Legislature has power to regulate commerce, but this has never been construed to include the means whereby commerce is carried on within a State. It has never attempted to regulate canals, turnpikes, and bridges, which do not interfere with Federal commerce. The establishment of post-offices and post-roads does not affect or control the absolute power of the State over its highways and bridges. The police power to make bridges is as absolutely vested in a State as is the commercial power in Congress. (Milnor v. New Jersey R.R., cited Baker, Annot. Const. p. 25.)

FEDERAL TAX ON PASSENGERS.—A Federal Act imposing upon the owners of steam sailing vessels a tax of fifty cents for every passenger, not a citizen of the Union, who is brought from a foreign port, is a valid exercise of the power to regulate commerce. The right to make such regulation is exclusively in the Federal Legislature, and any such regulation when imposed by a State is invalid. (Edye v. Robertson, 112 U.S. 580. Baker, Annot. Const. p. 28.)

TORTS IN CONNECTION WITH COMMERCE.—Until the Federal Legislature has made some regulation upon the subject of the liability of parties for marine torts resulting in death of the person injured, a State law giving to the representatives of such person a right of action where his death was caused by the negligence of another, within the limits of such State, is not void as an interference with the commerce clause. (Sherlock v. Alling, 93 U.S. 99. Baker, Annot. Const. p. 34.)

A State law which imposes no tax, but simply declares a general principle respecting liability of all persons within the State for torts resulting in the death of the party injured, and applicable alike to all persons, whether engaged in navigation or not, is not repugnant to the commerce clause. (Sherlock v. Alling, 93 U.S. 99. Id.)

STATE LEGISLATION AFFECTING COMMERCE.—It may be said generally that, until the Federal Legislature has dealt with the subject, the legislation of a State, not directed against commerce, but relating to the rights, duties, and liabilities of citizens, and only indirectly affecting the operations of commerce, is binding upon citizens within its jurisdiction, whether on land or water, or engaged in commerce, foreign or inter-state, or in any other pursuit. Legislation may in a great variety of ways affect commerce and persons engaged in it without constituting a regulation of it within the meaning of the Constitution. (Sherlock v. Alling, 93 U.S. 99; State Tax on Gross Receipts Case, 15 Wall. 284. Baker, Annot. Const. p. 35.)

AMERICAN AND CANADIAN POWERS CONTRASTED.—In the case of Thurlow v. Massachusetts, 1847, 5 How. 586, Chief Justice Taney said that although Congress had, under the Constitution, power to regulate the importation of goods, yet where Congress had made no regulation on the subject, traffic in unregulated articles became subject to State laws as soon as they were introduced into the territory of a State, and a tax could be imposed upon them, or a license required, according to the discretion of the State Legislature. This doctrine was cited in several leading Canadian cases with a view to applying it to the interpretation of the Canadian Constitution. Referring to the suggested analogy of the two Constitutions, Chief Justice Richie, in Regina v. Justices of King's County, said:—“Cases from the United States Courts were cited as bearing on this question, but there is a very clear distinction between the powers of Congress and the powers of the Dominion Parliament. In the United States, Congress has not the same full power of regulating trade and commerce that belong to the Dominion Parliament. The power of Congress, as we understand it, is confined to ‘regulating commerce with foreign nations and among the several States,’ giving no right to interfere with the internal commerce of an individual State; that it does not extend to that commerce which was completely internal, carried on within the particular State, and which did not extend to, or affect, other States, but is restricted to that commerce which concerns more States than one, reserving the completely internal commerce of a State for the State itself, and, therefore, State license laws have been held constitutional and valid.” (Per Ritchie, C.J., in Reg. v. Justices of King's County, 1875, 15 N. Bruns. [2 Pugs.] 535. Wheeler, C.C. 59. In another case the same learned judge


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said:—“Much has been said as to the analogy of the Dominion Parliament and local Legislatures with the Congress of the Federal Government and the State Legislatures of the United States; but the Constitution of the United States and the Constitution of the States, as regards the powers which each may exercise, are so different from the relative powers of the Dominion Parliament and the Provincial Legislatures that the cases to be found in the American books with regard to the State Legislatures, in regard to prohibiting the sale of intoxicating liquors, afford no guide whatever in the determination of the powers of the local Legislatures and the Dominion of Canada. The Government of the United States is one of enumerated powers, and the Governments of the States possess all the general powers of legislation. Here we have the exact opposite. The powers of the Provincial Governments are enumerated, and the Dominion Government possess the general powers of legislation.” (Per Ritchie, C.J., in City of Fredericton v. Reg., 1880, 3 S.C.R. [Can.] 505. Wheeler, C.C. pp. 60–1.)

COMMERCIAL CONTRACTS.—The legislature of the province of Ontario passed an Act 39 Vic. c. 24, intituled an Act to secure uniform conditions in policies of Fire Insurance. It provides that the conditions set forth in the schedule to the Act should be deemed to be part of every policy of fire insurance in force in Ontario, unless expressly varied by the policy itself. This Act was impeached by an Insurance Company, as being in excess of the legislative power of the Parliament of the Province. On appeal to the Privy Council it was held valid. Sir Montague E. Smith; in delivering the judgment of the Judicial Committee, said:—

“A question was raised, which led to much discussion in the Courts below, and at this bar, viz., whether the business of insuring buildings against fire was a trade. This business, when carried on for the sake of profit, may, no doubt, in some sense of the word, be called a trade. But contracts of indemnity, made by insurers, can scarcely be considered trading contracts, nor were insurers who made them held to be ‘traders’ under the English bankruptcy laws; they have been made subject to those laws by special description. Whether the business of fire-insurance properly falls within the description of ‘a trade’ must, in their Lordships' view, depend upon the sense in which that word is used in the particular statute to be construed; but in the present case their Lordships do not find it necessary to rest their decision on the narrow ground that the business of insurance is not trade. The words ‘regulation of trade and commerce,’ in their unlimited sense, are sufficiently wide, if uncontrolled by the context and other parts of the Act, to include every regulation of trade, ranging from political arrangements in regard to trade with foreign governments, requiring the sanction of Parliament, down to minute rules for regulating particular trades. But a consideration of the Act shows that the words were not used in this unlimited sense. In the first place, the collocation of No. 2 with classes of subjects of national and general concern affords an indication that regulations relating to general trade and commerce were in the mind of the legislature when conferring this power on the Dominion Parliament. If the words had been intended to have the full scope of which, in their literal meaning, they are susceptible, the specific mention of several of the other classes of subjects enumerated in sec. 91 would have been unnecessary; as, 15, banking; 17, weights and measures; 18, bills of exchange and promissory notes; 19, interest; and even 21, bankruptcy and insolvency. ‘Regulation of trade and commerce’ may have been used in some such sense as the words ‘regulations of trade’ in the Act of Union between England and Scotland (6 Anne, c. 11), and as these words have been used in other Acts of State. Article V. of the Act of Union enacted that all the subjects of the United Kingdom should have ‘full freedom and intercourse of trade and navigation’ to and from all places in the United Kingdom and the colonies, and Article VI. enacted that all parts of the United Kingdom from and after the Union should be under the same ‘prohibitions, restrictions, and regulations of trade.’ Parliament has, at various times since the Union, passed laws affecting and regulating specific trades in one part of the United Kingdom only, without it being supposed that it thereby infringed the Articles of Union. Thus the Acts for regulating the sale of intoxicating liquors notoriously vary in the two kingdoms. So with regard to Acts relating to bankruptcy and various other matters. Construing therefore the words ‘regulation of trade and commerce’ by the various aids to their interpretation above suggested, they would include political arrangements in regard to trade, requiring the sanction of Parliament, regulation of trade in matters of interprovincial concern, and it may be that they would include general regulation of trade affecting the whole Dominion. Their Lordships abstain, on the present occasion, from any attempt to define the limits of the authority of the


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Dominion Parliament in this direction. It is enough for the decision of the present case to say that, in their view, its authority to legislate for the regulation of trade and commerce does not comprehend the power to regulate by legislation the contracts of a particular business or trade, such as the business of fire insurance, in a single Province.” (Citizens Insurance Co. v. Parsons, 7 App. Ca. pp. 111–3.)

COMMERCIAL POWER OF THE DOMINION.—In considering the Canadian Constitutional Cases, and in comparing them with those of the United States, attention must be paid to the fact that the Dominion has by express words in the Constitution exclusive legislative authority over “the regulation of trade and commerce,” whilst the Provinces have exclusive legislative authority to make laws in relation to—(1) Direct taxation within the Province in order to the raising of a revenue for provincial purposes. (2) Municipal Institutions. (3) Shop, saloon, auctioneer, and other licenses in order to the raising of a revenue for provincial, local, or municipal purposes. (4) Property and civil rights. (5) Matters of a merely local, private, or provincial nature. In the interpretation of the Canadian Constitution the great problem has been to reconcile the operation of the legislative power of the Dominion, within the exclusive area assigned to the Dominion, with the operation of the legislative power of the Provinces within the exclusive area assigned to the Provinces. In some legislation of the Dominion, under the trade and commerce section, there has been a tendency to encroach upon the local, private, and municipal authority of the Provinces and their power to deal with civil rights and property. The occasional conflict and overlapping of these two powers will be seen illustrated in a few of the leading cases which have arisen under the Constitution of the Dominion.

In 1877 a brewer named John Severn was prosecuted by the provincial authorities in Ontario for selling liquor by retail without having a provincial license, as required by the local Act 37 Vic. c. 32. The Supreme Court of Canada held that the provincial Act was ultra vires, being in conflict with the power of the Federal Parliament to regulate commerce. (Severn v. The Queen [1877], 2 S.C.R. [Can.] 70.) It will be seen that the accuracy of this decision was subsequently doubted. In the case of Reg. v. The Justices of King's County, 15 N. Bruns. (2 Pugs.) 535, the facts were that in February, 1875, one McManus applied to the Justices in session for a tavern license. In the exercise of the discretion conferred upon them by the New Brunswick Act, 36 Vic. c. 10, the Justices refused to grant the license. McManus was shortly afterwards fined for selling without a license. He then applied for a mandamus to compel the Justices to grant him a license. The provincial authorities opposed the application and contended—(1) That the power given to the Parliament of Canada by the B.N.A. Act, 1867, sec. 91, sub-sec. 2, meant trade and commerce with foreign countries; and that the power to make laws respecting tavern licenses belonged exclusively to the provincial legislatures by sec. 92; (2) that by the Act of Assembly, 36 Vic. c. 10, s. 2, it was entirely in the discretion of sessions whether they granted licenses or not; that it was an arbitrary discretion, which could not be questioned. In delivering the judgment of the Court, Ritchie, C.J., said:—

“To the Dominion of Canada is given the power to legislate on the ‘regulation of trade and commerce,’ and the power of ‘raising money by any mode or system of taxation.’ The regulation of trade and commerce must involve full power over the matter to be regulated, and must necessarily exclude the interference of all other bodies that would attempt to intermeddle with the same thing. The power thus given to the Dominion Parliament is general, without limitation or restriction, and therefore must include traffic in articles of merchandise, not only in connection with foreign countries, but also that which is internal between different Provinces of the Dominion as well as that which is carried on within the limits of an individual Province. As a matter of trade and commerce, the right to sell is inseparably connected with the law permitting importation. If, then, the Dominion Parliament authorize the importation of any article of merchandise into the Dominion, and places no restriction on its being dealt with in the due course of trade and commerce, or on its consumption, but exacts and receives duties thereon on such importation, it would be in direct conflict with such legislation, and with such right to raise money by any mode or system of taxation, if the local legislature of the Province into which the article was so legally imported, and


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on which a revenue was sought to be raised, could so legislate as to prohibit its being bought and sold and to prevent trade or traffic therein, and thus destroy its commercial value and with it all trade and commerce in the article so prohibited, and thus render it practically valueless as an article of commerce on which a revenue could be levied. Again, how can the local legislature prohibit or authorize the sessions to prohibit (by arbitrarily refusing to grant any license) the sale of spirituous liquors of all kinds without coming into direct conflict with the Dominion Legislature on the subject of Inland Revenue, involving the right of manufacturing and distilling, or making of spirits, &c., as regulated by the Act 31 Vic. c 8, and the subsequent Acts in amendment thereof, and the excise duties leviable thereby, and the licenses authorized to be granted there-under?” Rule absolute for a mandamus. (Wheeler, C.C. 59.)

In 1878 the Dominion Parliament passed the Canada Temperance Act, 1878, which was intended to enable the people of cities and counties, throughout Canada, to prohibit the sale of intoxicating liquors therein, subject to certain exceptions where they might be required for medicinal or sacramental purposes. The substantial principle of the Act was the suppression of the liquor traffic in municipal districts, severally, by a separate vote in each. What was intended to be effected was local prohibition by local option. The prohibitions of the Act were to be brought into force in each district by the determination of the persons entitled to vote at the election of members of Parliament. A bare majority was to decide in each voting district. If upon a poll being taken the majority of electors were against the adoption of the prohibitions of the Act, the question could not be re-opened for a period of three years.

In the case of the Queen v. the City of Fredericton (1879), 19 N. Bruns. (3 Pugs. and Burb.) 139, the question was raised as the validity of the Canada Temperance Act of 1878. The Supreme Court of New Brunswick held that the Act was beyond the power of the Dominion Parliament to pass. It was admitted that the Dominion Parliament could pass an Act to prohibit the sale of liquor. What was denied was the power to authorize the inhabitants of each town or parish to regulate or prohibit the sale of liquor within its limits. On appeal to the Supreme Court of Canada this decision was reversed and the validity of the Canada Temperance Act was confirmed.

“With us the Government of the Provinces is one of enumerated powers, which are specified in the B.N.A. Act, and in this respect differs from the Constitution of the Dominion Parliament, which, as has been stated, is authorized ‘to make laws for the peace, order, and good government of Canada in relation to all matters not coming within the classes of subjects by the Act assigned exclusively to the Legislatures of the Provinces;’ and that ‘any matter coming within any of the classes of subjects enumerated shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects assigned exclusively to the Legislatures of the Provinces.’ Therefore ‘the regulation of trade and commerce’ being one of the classes of subjects enumerated in sec. 91, is not to be deemed to come within any of the classes of a local or private nature assigned to the Legislatures of the Provinces. To my mind it seems very clear that the general jurisdiction or sovereignty which is thus conferred emphatically negatives the idea that there is not within the Dominion Legislature power or authority to deal with the question of prohibition in respect to the sale or traffic in intoxicating liquors or any other article of trade or commerce. It is said a power to regulate does not include a power to prohibit. Apart from the general legislative power which I think belongs to the Dominion Parliament, I do not entertain the slightest doubt that the power to prohibit is within the power to regulate. It would be strange indeed that, having the sole legislative power over trade and commerce, the Dominion Parliament could not prohibit the sale and traffic if they deemed such prohibition conducive to the peace, order, and good government of Canada. There seems to be no doubt on this point in the United States.” (Per Chief Justice Ritchie, in City of Fredericton Case, 3 S.C.R. (Can.) 505; Wheeler, C.C. 61.)

In the case of Russell v. The Queen (1882) 7 App. Cas. 829, the appellant had been convicted by the Police Magistrate of Fredericton, New Brunswick, for unlawfully selling liquor contrary to the provisions of the Canada Temperance Act, 1878. It was contended that it was not competent for the Parliament of Canada to pass such Act on the ground that it involved an invasion of jurisdiction exclusively belonging to the Provincial Legislatures. In deference to the judgment of the Supreme Court of Canada in the City of Fredericton case, the Supreme Court of New Brunswick refused to quash


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the conviction. Russell then appealed to the Privy Council, which sustained the validity of the Act.

“The declared object of Parliament in passing the Act is that there should be uniform legislation in all the Provinces respecting the traffic in intoxicating liquors, with a view to promote temperance in the Dominion. Parliament does not treat the promotion of temperance as desirable in one Province more than another, but as desirable everywhere throughout the Dominion. The Act as soon as it was passed became a law for the whole Dominion, and the enactments of the first part relating to the machinery for bringing the second part into force, took effect and might be put in motion at once and everywhere within it. It is true that the prohibitory and penal parts of the Acts are only to come into force in any county or city upon the adoption of a petition to that effect by a majority of electors, but this conditional application of these parts of the Act does not convert the Act itself into legislation in relation to a merely local matter. The objects and scope of the legislation are still general, viz., to promote temperance by means of a uniform law throughout the Dominion. The manner of bringing the prohibition and penalties of the Act into force, which Parliament has thought fit to adopt. does not alter its general and uniform character. Parliament deals with the subject as one of general concern to the Dominion, upon which uniformity of legislation is desirable, and the Parliament alone can so deal with it. There is no ground or pretence for saying that the evil or vice struck at by the Act in question is local or exists only in one Province, and that Parliament, under colour of general legislation, is dealing with a provincial matter only. It is therefore unnecessary to discuss the considerations which a state of circumstances of this kind might present. The present legislation is clearly meant to apply a remedy to an evil which is assumed to exist throughout the Dominion, and the local option, as it is called, no more localizes the subject and scope of the Act than a provision in an Act for the prevention of contagious diseases in cattle that a public officer should proclaim in what district it should come into effect, would make the statute itself a mere local law for each of these districts. In statutes of this kind the legislation is general, and the provision for the special application of it to particular places does not alter its character. Their Lordships having come to the conclusion that the Act in question does not fall within any of the classes of subjects assigned exclusively to the provincial Legislatures, it becomes unnecessary to discuss the further question whether its provisions also fall within any of the classes of subjects enumerated in sec. 91. In abstaining from this discussion, they must not be understood as intimating any dissent from the opinion of the Chief Justice of the Supreme Court of Canada and the other judges, who held that the Act, as a general regulation of the traffic in intoxicating liquors throughout the Dominion, fell within the class of subject, ‘the regulation of trade and commerce,’ enumerated in that section, and was, on that ground, a valid exercise of the legislative power of the Parliament of Canada.” (Per Sir Montague E. Smith, in Russell v. The Queen, 7 App. Ca. 841–2.)

The next important case involving the interpretation of the Canadian Constitution was that of Hodge v. The Queen (1883) 9 App. Ca. 117. The appellant had been convicted for unlawfully keeping open a billiard-room in connection with a tavern in Toronto, Ontario, during the time prohibited by the Ontario Liquor License Act, and contrary to the resolutions of the License Commissioners. The operation of this Act was confined to municipalities within the Province of Ontario. License Commissioners were appointed to meet in each municipality, and were empowered to pass, under the name of “resolutions,” by-laws or rules defining the conditions and qualifications requisite for obtaining licenses for the sale by retail of intoxicating liquors and for limiting the number of licenses, and to impose penalties for the infraction of their resolutions. The appellant challenged the validity of the Provincial law. The Privy Council sustained the validity of the law, on the grounds that the powers conferred by the Act in question were in the nature of police or municipal regulations of a local character for the good government of taverns, and calculated to preserve public decency and to repress drunkenness and disorderly conduct. As such they could not be said to interfere with the general regulation of trade and commerce which exclusively belonged to the Dominion Parliament, and they did not conflict with the provisions of the Canada Temperance Act, which had not yet been locally adopted. There was therefore no repugnancy between the Provincial law and the Dominion law.

In 1883–4 the Dominion Parliament passed amending Liquor License Acts designed to supplement and enforce the Canada Temperance Act, 1878. The Government of the Dominion was authorized to issue licenses, and no person who was not the holder of a


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license was to be allowed to deal in intoxicating liquors. Various classes of licenses were provided for; such as wholesale licenses, saloon licenses, hotel licenses and vessel licenses. Provision was made for limiting the number of licenses to be issued in the various licensing districts. In those parts of Canada where the Temperance Act had not been adopted by local option, it was intended to regulate the traffic by reducing the number of licenses. In the case of the Governor-General of the Dominion v. the Four Provinces, 1885 (Wheeler, C.C. 144), the Privy Council was called upon to consider the constitutionality of the amending Acts of 1883–4. Their Lordships decided that both the amending Acts were not within the legislative authority of the Parliament of Canada.

The latest and most important Canadian case dealing with the constitutional power of the Dominion and the Provinces, is that of the Att.-Gen. of Ontario v. the Att -Gen. of the Dominion (1896), App. Cas. 348. The principal question raised in that case was whether the Legislature of Ontario had jurisdiction to pass the Act 53 Vic. No. 56, as explained by Act 54 Vic. No. 46, intituled “An Act Respecting Local Option in the Matter of Liquor Selling.” This law gave the Council of every city, town, or village, authority to prohibit the sale by retail of intoxicating liquors, provided that by-laws intended to prohibit the sale should be submitted to and approved by the electors of the municipality. The Supreme Court of Canada held that the Act was invalid. (24 S.C.R. Can. 170.) Leave to appeal to the Privy Council was granted. Their Lordships held that the liquor law prohibitions authorized by the Legislature of Ontario were within the powers of a Provincial Legislature, but such prohibitions would be inoperative in any locality which had adopted or might hereafter adopt the local option provisions of the Canada Temperance Act.

“If the prohibitions of the Canada Temperance Act had been made imperative throughout the Dominion, their Lordships might have been constrained by previous authority to hold that the jurisdiction of the Legislature of Ontario to pass sec. 18, or any similar law, had been superseded. In that case, no Provincial prohibitions, such as are sanctioned by sec. 18, could have been enforced by a municipality, without coming into conflict with the paramount law of Canada. For the same reason Provincial prohibitions in force within a particular district will necessarily become inoperative, whenever the prohibitory clauses of the Act of 1886 have been adopted by that district. But their Lordships can discover no adequate grounds for holding that there exists repugnancy between the two laws in the districts of the Province of Ontario where the prohibitions of the Canadian Act are not, and may never be, in force. In a district which has, by the votes of its electors, rejected the second part of the Canadian Act, the option is abolished for three years from the date of the poll; and it hardly admits of doubt, that there could be no repugnancy whilst the option given by the Canadian Act was suspended. The Parliament of Canada has not, either expressly or by implication, enacted, that so long as any district delays or refuses to accept the prohibitions which it has authorized, the Provincial Parliament is to be debarred from exercising the legislative authority given by sec. 92, for the suppression of the drink traffic as a local evil. Any such legislation would be unexampled; and it is a grave question whether it would be lawful. Even if the provisions of sec. 18 had been imperative, they would not have taken away or impaired the right of any district in Ontario to adopt, and thereby bring into force, the prohibitions of the Canadian Act. Their Lordships, for these reasons, give a general answer to the seventh question in the affirmative. They are of opinion that the Ontario Legislature had jurisdiction to enact sec. 18, subject to this necessary qualification, that its provisions are or will become inoperative in any district of the Province, which has already adopted, or may subsequently adopt, the second part of the Canada Temperance Act of 1886” (Per Lord Watson, 1896, Appeal Cases 348.)

“Severn's case was reviewed by the Privy Council, in 1885, in the Bank of Toronto v. Lambe (12 App. Cas. 575, 586). In that case the Judicial Committee decided that a Province could impose direct taxation on commercial corporations carrying on their business in the Province. Lord Hobhouse said: ‘Since the Severn case was decided the question has been more carefully sifted.’ The words ‘regulation of trade and commerce’ are indeed very wide, and in Severn's case it was the view of the Supreme Court that they operated to invalidate the license duty which was there in question. But since that case was decided the question has been more completely sifted before the Committee in Citizens Insurance Co. v. Parsons.” (Wheeler, C.C. p. 54.)

DOES REGULATION INCLUDE PROHIBITION?—“It is said a power to regulate does not include a power to prohibit. Apart from the general legislative power which I


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think belongs to the Dominion Parliament, I do not entertain the slightest doubt that the power to prohibit is within the power to regulate. It would be strange indeed that, having the sole legislative power over trade and commerce, the Dominion Parliament could not prohibit the importation or exportation of any article of trade and commerce, or, having that power, could not prohibit the sale and traffic if they deemed such prohibition conducive to the peace, order and good government of Canada. There seems to be no doubt on this point in the United States.” (Per Ritchie, C.J., Wheeler, C.C. p. 61.)

“The object of the Canada Temperance Act of 1886 is not to regulate retail transactions between those who trade in liquor and their customers, but to abolish all such transactions within every provincial area in which its enactments have been adopted by a majority of the local electors. A power to regulate naturally if not necessarily assumes, unless it is enlarged by the context, the conservation of the thing which is to be made the subject of regulation. In that view, their lordships are unable to regard the prohibitive enactments of the Canadian statute of 1886 as regulations of trade and commerce. They see no reason to modify the opinion which was recently expressed on their behalf by Lord Davey in Municipal Corporation of the City of Toronto v. Virgo, 7 App. Ca. 93.” (Per Lord Watson in Att.-Gen. of Ontario v. Att.-Gen. of the Dominion, 1896, App. Ca. p. 363.)

“Their lordships think there is marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or governance of it, and indeed a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed.” (Per Lord Davey in the Municipal Corporation of the City of Toronto v. Virgo, 1896, App. Ca. 93.)

“It is not impossible that the vice of intemperance may prevail in particular localities within a Province to such an extent as to constitute its own cure by restricting or prohibiting the sale of liquor a matter of a merely local or private nature, and therefore failing prima facie within No. 16. In that state of matters, it is conceded that the Parliament of Canada should not imperatively enact a prohibitory law adapted and confined to the requirements of localities within the Province where prohibition was urgently needed.” (Per Lord Watson in the Att.-Gen. of Ontario v. Att.-Gen. of the Dominion, 1896, App. Ca. p. 365.)

It is to be noticed that the legislative power given to the Parliament of the Commonwealth is not a power to make laws with respect to “the regulation of” trade and commerce, but a power to make laws “with respect to trade and commerce.” (See Historical Note, p. 515, and Note, § 162, supra.)

LIQUOR LAWS UNDER THIS CONSTITUTION.—The Federal Parliament is not equipped with the same general control over the liquor traffic as that exercised by the Parliament of Canada in passing the Canada Temperance Act, 1878. The Parliament of Canada has power to regulate trade and commerce generally; it is not confined to inter-state and external commerce. The Parliament of the Commonwealth has power to deal only with trade and commerce (1) with other countries and (2) among the States. This excludes the trade and commerce which begins and ends in a State. A federal law authorizing the establishment of a system of local option, under which the sale of liquor could be prohibited in defined localities, would not be a law relating to trade and commerce “among the States,” but a law relating to trade and commerce in those defined localities “within the States.” In addition to this the power to legislate concerning the liquor traffic is expressly reserved to the States as a State right by section 113 of the Constitution, which provides that “all intoxicating liquids passing into a State or remaining there for use, consumption, sale or storage, shall be subject to the laws of the State, as if such liquids had been produced in the State.” (See Notes, § 456, infra.)

Whilst the Federal Parliament has no power to directly prohibit the manufacture of intoxicants or to establish the local option system in any State, it has the exclusive power to impose duties of customs and excise, which will enable it to tax heavily or lightly all intoxicating liquids imported into the Commonwealth or produced in any State. This power may be exercised in a manner calculated to influence the liquor traffic in a material degree (sec. 90). It has also the exclusive authority to grant bounties on the production or import of goods (sec. 90). This will enable it, if thought necessary, to directly encourage the manufacture of intoxicants by a pecuniary subsidy. The Parliament of a State would probably be enabled, under sec. 113, to prohibit the


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production or sale of intoxicants within the State limits, but should the Federal Parliament pass a law offering bounties for the production or export of those intoxicants, an inconsistency would arise, and the State law in that case would be invalid to the extent of the inconsistency. (See sec. 110 and Note, § 456, infra.)

51. (ii.) Taxation164; but so as not to discriminate between States or parts of States:

HISTORICAL NOTE.—The Constitution of the United States empowers Congress “to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States.” (Art. I., sec. 8, subs. 1.) It also provides that “direct taxes shall be apportioned among the several States which may be included within this Union according to their respective numbers.” (Art I., sec. 2, subs. 3.) Sec. 91 of the British North America Act gives the Parliament of Canada exclusive power in respect of “the raising of money by any mode or system of taxation” (subs. 3); whilst sec. 92 gives to the Provincial Legislatures exclusive power in respect of “direct taxation within the Province in order to the raising of a revenue for provincial purposes” (subs. 2).

Earl Grey's Committee of the Privy Council, in 1849, recommended that the General Assembly should have power to make laws with respect to “the imposition of duties upon imports and exports” (p. 85, supra). Wentworth's Committee in 1853 specified “Intercolonial tariffs” as a federal subject (p. 91, supra).

In the Commonwealth Bill of 1891, the taxation power was contained in two sub-clauses:—“(2) Customs and excise [and bounties], but so that duties of customs and excise [and bounties] shall be uniform throughout the Commonwealth, and that no tax or duty shall be imposed on any goods exported from one State to another. (3) Raising money by any other mode or system of taxation; but so that all such taxation shall be uniform throughout the Commonwealth.” In Committee, some members doubted the wisdom of giving the Federal Government general powers of direct taxation; but the danger of limiting the taxing powers was apparent, and the sub-clause was agreed to. (Conv. Deb., Syd., 1891, pp. 670–9.)

At the Adelaide session both these sub-clauses were adopted. In Committee, there was some discussion about the words prohibiting a tax on goods exported from one State to another. (Conv. Deb., Adel., pp. 761–7.)

At the Sydney session, amendments by the Legislative Council of New South Wales, to omit the taxing powers, were negatived. There were some discussion as to export duties, and the meaning of the word “excise.” (Conv. Deb., Syd., 1897, pp. 1065–8.)

At the Melbourne session, before the first report, the taxation power was thrown into one sub-clause thus:—“Taxation, but so that all taxation shall be uniform throughout the Commonwealth, and that no tax or duty shall be imposed on any goods passing from one State to another.” Subsequently, however, it was thought that a doubt might arise as to the meaning of “uniform,” in view of Mr. Justice Field's judgment in the Income Tax cases” (Pollock v. Farmers' Loan and Trust Co., 157 U.S. 586), and the sub-clause was amended to read:—“Taxation, but not so as to discriminate between States or parts of States, or between persons or things passing from one State to another.” (Conv. Deb., Melb., pp. 1990, 2397.) After the fourth report, verbal amendments were made—the last words being omitted as superfluous.




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