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§ 427. “By Any Law with Respect to Trade and Commerce.”

The power defined by this section is a part of the general power to make laws with respect to trade and commerce, and is therefore restricted to “trade and commerce with other countries, and among the States.” With rates or the purely internal traffic of a State the Federal Parliament has nothing to do.




  ― 904 ―

A number of American authorities defining inter-state commerce have already been cited (Note, § 163, supra); but in none of the American cases did the distinction between inter-state and internal commerce arise in precisely the same way as it is likely to arise under this section; and it would seem that some of the definitions may have to be modified to carry out the true principle of the distinction. It will be convenient to repeat here a few of the leading definitions.

“Comprehensive as the word ‘among’ is, it may very properly be restricted to that commerce which concerns more States than one.” (Per Marshall, C.J., Gibbons v. Ogden, 9 Wheat. 1.)

“When goods, the product of a State, have begun to be transported from that State to another State, and not till then, they have become the subjects of inter-state commerce, and, as such, are subject to national regulation, and cease to be taxable by the State of their origin.” (Coe v. Errol, 116 U.S. 517.)

“Transportation of goods under one control and by one voyage from a point in one State to a point in another is inter-state commerce, and subject to the exclusive regulation of Congress. A statute of a State, intended to regulate or to tax or to restrict such traffic, cannot be enacted by a State, even in the absence of legislation by Congress; and such statutes are void even as to that part of the transmission which may be within the State.” (Wabash, &c., R. Co., v. Illinois, 118 U.S. 557.)

One of the mischiefs which this section is intended to meet is undue competition, by means of discriminating rates on State railways, for the traffic of particular localities. Now, when the effect of such a rate, made upon railways of any State, is to secure the traffic for the ports of that State, and thus prevent its flowing to the ports of another State, it may be argued, from such dicta as those above quoted from Coe v. Errol, and Wabash R. Co. v. Illinois, that the trade thus retained within the limits of a State is not inter-state trade at all, because it has not “begun to be transported from that State to another State.” It was clearly, however, the intention of the Convention that trade which by a discriminating rate was prevented from flowing to the ports of another State should be considered as inter-state trade; and it is equally clear that it comes within Chief Justice Marshall's broad definition, “commerce which concerns more States than one.” The State which is discriminated against is concerned because the discriminating rate prevents transportation to that State from the other; and the State which prevents that transportation cannot be heard to say that the discrimination does not affect inter-state trade. Traffic which would, but for an undue discrimination, flow from one State to another, is clearly inter-state trade within the contemplation of this section. It is to be noticed that in none of the American decisions does the question arise whether the discriminating rate prevents the traffic from crossing a State boundary; the question in every case was whether the particular commerce in question was or was not subject to State taxation or State regulation.

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