So, in an early case we find a State recording act upheld as applying to

deeds dated before the passage of the act.[1714] Later cases have

brought the police power in its more customary phases into contact with

private, as well as with public contracts. Lottery tickets, valid when

issued, were necessarily invalidated by legislation prohibiting the

lottery business;[1715] contracts for the sale of beer, valid when

entered into, were similarly nullified by a State prohibition law;[1716]

and contracts of employment were modified by later laws regarding the

liability of employers and workmen's compensation.[1717] Likewise a

contract between plaintiff and defendant did not prevent the State from

making the latter a concession which rendered the contract

worthless;[1718] nor did a contract as to rates between two railway

companies prevent the State from imposing different rates;[1719] nor did

a contract between a public utility company and a customer protect the

rates agreed upon from being superseded by those fixed by the

State.[1720] Similarly, a contract for the conveyance of water beyond

the limits of a State did not prevent the State from prohibiting such

conveyance.[1721]

Emergency Legislation.--But the most striking exertions of the

police power touching private contracts, as well as other private

interests, within recent years have been evoked by war and economic

depression. Thus in World War I the State of New York enacted a statute

which, declaring that a public emergency existed, forbade the

enforcement of covenants for the surrender of the possession of premises

on the expiration of leases, and wholly deprived for a period owners of

dwellings, including apartment and tenement houses, within the City of

New York and contiguous counties of possessory remedies for the eviction

from their premises of tenants in possession when the law took effect,

providing the latter were able and willing to pay a reasonable rent. In

answer to objections leveled against this legislation on the basis of

the obligation of contracts clause, the Court said: "But contracts are

made subject to this exercise of the power of the State when otherwise

justified, as we have held this to be."[1722] In a subsequent case,

however, the Court added that, while the declaration by the legislature

of a justifying emergency was entitled to great respect, it was not

conclusive; that a law "depending upon the existence of an emergency or

other certain state of facts to uphold it may cease to operate if the

emergency ceases or the facts change," and that whether they have

changed was always open to judicial inquiry.[1723]

Individual Rights Versus Public Welfare.--Summing up the result

of the cases above referred to, Chief Justice Hughes, speaking for the

Court in Home Building and Loan Association _v._ Blaisdell,[1724]

remarked in 1934: "It is manifest from this review of our decisions that

there has been a growing appreciation of public needs and of the

necessity of finding ground for a rational compromise between individual

rights and public welfare. The settlement and consequent contraction of

the public domain, the pressure of a constantly increasing density of

population, the interrelation of the activities of our people and the

complexity of our economic interests, have inevitably led to an

increased use of the organization of society in order to protect the

very bases of individual opportunity. Where, in earlier days, it was

thought that only the concerns of individuals or of classes were

involved, and that those of the State itself were touched only remotely,

it has later been found that the fundamental interests of the State are

directly affected; and that the question is no longer merely that of one

party to a contract as against another, but of the use of reasonable

means to safeguard the economic structure upon which the good of all

depends. * * * The principle of this development is, * * * [he added]

that the reservation of the reasonable exercise of the protective power

of the States is read into all contracts * * *."[1725]

Evaluation of the Clause Today

Yet it should not be inferred that the obligation of contracts clause is

today totally moribund even in times of stress. As we have just seen it

still furnishes the basis for some degree of judicial review as to the

substantiality of the factual justification of a professed exercise by a

State legislature of its police power; and in the case of legislation

affecting the remedial rights of creditors, it still affords a solid and

palpable barrier against legislative erosion. Nor is this surprising in

view of the fact that, as we have seen, such rights were foremost in

the minds of the framers of the clause. The court's attitude toward

insolvency laws, redemption laws, exemption laws, appraisement laws and

the like has always been that they may not be given retroactive

operation;[1726] and the general lesson of these earlier cases is

confirmed by the court's decisions between 1934 and 1945 in certain

cases involving State moratorium statutes. In Home Building and Loan

Association _v._ Blaisdell,[1727] the leading case, a closely divided

Court sustained the Minnesota Moratorium Act of April 18, 1933, which,

reciting the existence of a severe financial and economic depression for

several years and the frequent occurrence of mortgage foreclosure sales

for inadequate prices, and asserting that these conditions had created

an economic emergency calling for the exercise of the State's police

power, authorized its courts to extend the period for redemption from

foreclosure sales for such additional time as they might deem just and

equitable, although in no event beyond May 1, 1935. The act also left

the mortgagor in possession during the period of extension, subject to

the requirement that he pay a reasonable rental for the property as

fixed by the Court, at such time and in such manner as should be

determined by the Court. Contemporaneously, however, less carefully

drawn statutes from Missouri and Arkansas, acts which were less

considerate of creditor's rights, were set aside as violative of the

contracts clause.[1728] "A State is free to regulate the procedure in

its courts even with reference to contracts already made," said Justice

Cardozo for the Court, "and moderate extensions of the time for pleading

or for trial will ordinarily fall within the power so reserved. A

different situation is presented when extensions are so piled up as to

make the remedy a shadow. * * * What controls our judgment at such times

is the underlying reality rather than the form or label. The changes of

remedy now challenged as invalid are to be viewed in combination, with

the cumulative significance that each imparts to all. So viewed they are

seen to be an oppressive and unnecessary destruction of nearly all the

incidents that give attractiveness and value to collateral

security."[1729] On the other hand, in the most recent of this category

of cases, the Court gave its approval to an extension by the State of

New York of its moratorium legislation. While recognizing that business

conditions had improved, the Court was of the opinion that there was

reason to believe that "'the sudden termination of the legislation which

has damned up normal liquidation of these mortgages for more than eight

years might well result in an emergency more acute than that which the

original legislation was intended to alleviate.'"[1730]

And meantime the Court had sustained legislation of the State of New

York under which a mortgagee of real property was denied a deficiency

judgment in a foreclosure suit where the State court found that the

value of the property purchased by the mortgagee at the foreclosure sale

was equal to the debt secured by the mortgage.[1731] "Mortgagees," the

Court said, "are constitutionally entitled to no more than payment in

full. * * * To hold that mortgagees are entitled under the contract

clause to retain the advantages of a forced sale would be to dignify

into a constitutionally protected property right their chance to get

more than the amount of their contracts. * * * The contract clause does

not protect such a strategical, procedural advantage."[1732]

Statistical Data Pertinent to the Clause

The obligation of contracts clause attained the high point of its

importance in our Constitutional Law in the years immediately following

the Civil War.[1733] Between 1865 and 1873 there were twenty cases in

which State acts were held invalid under the clause, of which twelve

involved public contracts. During the next fifteen years, which was the

period of Waite's chief justiceship, twenty-nine cases reached the Court

in which State legislation was set aside under the clause. Twenty-four

of these involved public contracts. The decline of the importance of the

clause as a title in Constitutional Law began under Chief Justice Fuller

(1888 to 1910). During this period less than 25% of the cases involving

the validity of State legislation involved this rubric. In twenty-eight

of these cases, of which only two involved private contracts, the

statute involved was set aside. During Chief Justice White's term (1910

to 1921) the proportion of contract cases shrank to 15%, and in that of

Chief Justice Taft, to 9%.[1734]

In recent years the clause has appeared to undergo something of a

revival, not however as a protection of public grants, but as a

protection of private credits. During the Depression, which began in

1929 and deepened in 1932, State legislatures enacted numerous

moratorium statutes, and beginning with Home Loan Association _v._

Blaisdell, which was decided in 1934, the Court was required to pass

upon several of these. At the same time the clause was, in effect,

treated by the Court in two important cases as interpretive of the due

process clause, Amendment V, and thus applied indirectly as a

restriction on the power of Congress.[1735] But this emergence of the

clause into prominence was a flash in the pan. During the last decade

hardly a case a term involving the clause has reached the Court,

counting even those in which it is treated as a tail to the due process

of law kite.[1736] The reason for this declension has been twofold:

first, the subordination of public grants to the police power; secondly,

the expansion of the due process clause, which has largely rendered it a

fifth wheel to the Constitutional Law coach.

Clause 2. No State shall, without the Consent of the Congress, lay any

Imposts or Duties on Imports or Exports, except what may be absolutely

necessary for executing it's inspection Laws: and the net Produce of all

Duties and Imposts, laid by any State on Imports or Exports, shall be

for the Use of the Treasury of the United States; and all such Laws

shall be subject to the Revision and Controul of the Congress.

DUTIES ON EXPORTS AND IMPORTS

Scope

Only articles imported from or exported to a foreign country, or "a

place over which the Constitution has not extended its commands with

respect to imports and their taxation," e.g., the Philippine Islands,

are comprehended by the terms "imports" and "exports,"[1737] goods

brought from another State are not affected by this section.[1738] To

determine how long imported wares remain under the protection of this

clause, the Supreme Court enunciated the original package doctrine in

the leading case of Brown _v._ Maryland.[1739] "When the importer has so

acted upon the thing imported," wrote Chief Justice Marshall, "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 or package in which it was imported, a tax upon it is too

plainly a duty on imports, to escape the prohibition in the

Constitution."[1740] A box, case or bale in which separate parcels of

goods have been placed by the foreign seller is regarded as the original

package, and upon the opening of such container for the purpose of using

the separate parcels, or of exposing them for sale, each parcel loses

its character as an import and becomes subject to taxation as a part of

the general mass of property in the State.[1741] Imports for manufacture

cease to be such when the intended processing takes place,[1742] or when

the original packages are broken.[1743] Where a manufacturer imports

merchandise and stores it in his warehouse in the original packages,

that merchandise does not lose its quality as an import, at least so

long as it is not required to meet such immediate needs.[1744] The

purchaser of imported goods is deemed to be the importer if he was the

efficient cause of the importation, whether the title to the goods

vested in him at the time of shipment, or after its arrival in this

country.[1745] A State franchise tax measured by properly apportioned

gross receipts may be imposed upon a railroad company in respect of the

company's receipts for services in handling imports and exports at its

marine terminal.[1746]

Privilege Taxes

A State law requiring importers to take out a license to sell imported

goods amounts to an indirect tax on imports and hence is

unconstitutional.[1747] Likewise, a franchise tax upon foreign

corporations engaged in importing nitrate and selling it in the original

packages,[1748] a tax on sales by brokers[1749] and auctioneers[1750]

of imported merchandise in original packages, and a tax on the sale of

goods in foreign commerce consisting of an annual license fee plus a

percentage of gross sales,[1751] have been held invalid. On the other

hand, pilotage fees,[1752] a tax upon the gross sales of a purchaser

from the importer,[1753] a license tax upon dealing in fish which,

through processing, handling, and sale, have lost their distinctive

character as imports,[1754] an annual license fee imposed on persons

engaged in buying and selling foreign bills of exchange,[1755] and a tax

upon the right of an alien to receive property as heir, legatee, or

donee of a deceased person[1756] have been held not to be duties on

imports or exports.

Property Taxes

Property brought into the United States from without is immune from _ad

valorem_ taxation so long as it retains its character as an

import,[1757] but the proceeds of the sale of imports, whether in the

form of money or notes, may be taxed by a State.[1758] A property tax

levied on warehouse receipts for whiskey exported to Germany was held

unconstitutional as a tax on exports.[1759]

Inspection Laws

Inspection laws "are confined to such particulars as, in the estimation

of the legislature and according to the customs of trade, are deemed

necessary to fit the inspected article for the market, by giving the

purchaser public assurance that the article is in that condition, and of

that quality, which makes it merchantable and fit for use or

consumption."[1760] In Turner _v._ Maryland[1761] the Supreme Court

listed as recognized elements of inspection laws, the "quality of the

article, form, capacity, dimensions, and weight of package, mode of

putting up, and marking and branding of various kinds, * * *" .[1762] It

sustained as an inspection law a charge for storage and inspection

imposed upon every hogshead of tobacco grown in the State and intended

for export, which the law required to be brought to a State warehouse

to be inspected and branded. The Court has cited this section as a

recognition of a general right of the States to pass inspection laws,

and to bring, within their reach articles of interstate, as well as of

foreign, commerce.[1763] But on the ground that, "it has never been

regarded as within the legitimate scope of inspection laws to forbid

trade in respect to any known article of commerce, irrespective of its

condition and quality, merely on account of its intrinsic nature and the

injurious consequences of its use or abuse," it held that a State law

forbidding the importation of intoxicating liquors into the State could

not be sustained as an inspection law.[1764] Since the adoption of the

Twenty-first Amendment, such State legislation is valid whether

classified as an inspection law or not.

Clause 3. No State shall, without the Consent of Congress, lay any Duty

of Tonnage, keep Troops, or Ships of War in time of Peace, enter into

any Agreement or Compact with another State, or with a foreign Power, or

engage in War, unless actually invaded, or in such imminent Danger as

will not admit of delay.

TONNAGE DUTIES

The prohibition against tonnage duties embraces all taxes and duties,

regardless of their name or form, whether measured by the tonnage of the

vessel or not, which are in effect charges for the privilege of

entering, trading in, or lying in a port.[1765] But it does not extend

to charges made by State authority, even if graduated according to

tonnage,[1766] for services rendered to the vessel, such as pilotage,

towage, charges for loading and unloading cargoes, wharfage, or

storage.[1767] For the purpose of determining wharfage charges, it is

immaterial whether the wharf was built by the State, a municipal

corporation or an individual; where the wharf is owned by a city, the

fact that the city realized a profit beyond the amount expended does not

render the toll objectionable.[1768] The services of harbor masters for

which fees are allowed must be actually rendered, and a law permitting

harbor masters or port wardens to impose a fee in all cases is

void.[1769] A State may not levy a tonnage duty to defray the expenses

of its quarantine system,[1770] but it may exact a fixed fee for

examination of all vessels passing quarantine.[1771] A State license fee

for ferrying on a navigable river is not a tonnage tax, but rather is a

proper exercise of the police power, and the fact that a vessel is

enrolled under federal law does not exempt it.[1772] In the State

Tonnage Tax Cases,[1773] an annual tax on steamboats measured by their

registered tonnage was held invalid despite the contention that it was a

valid tax on the steamboat as property.

KEEPING TROOPS

This provision contemplates the use of the State's military power to put

down an armed insurrection too strong to be controlled by civil

authority;[1774] and the organization and maintenance of an active State

militia is not a keeping of troops in time of peace within the

prohibition of this clause.[1775]

INTERSTATE COMPACTS

Background of Clause

Except for the single limitation that the consent of Congress must be

obtained, the original inherent sovereign rights of the States to make

compacts with each other was not surrendered under the

Constitution.[1776] "The compact," as the Supreme Court has put it,

"adapts to our Union of sovereign States the age-old treaty-making power

of independent sovereign nations."[1777] In American history the compact

technique can be traced back to the numerous controversies which arose

over the ill-defined boundaries of the original colonies. These disputes

were usually resolved by negotiation, with the resulting agreement

subject to approval by the Crown.[1778] When the political ties with

Britain were broken the Articles of Confederation provided for appeal

to Congress in all disputes between two or more States over boundaries

or "any cause whatever"[1779] and required the approval of Congress for

any "treaty confederation or alliance" to which a State should be a

party.[1780] The framers of the Constitution went further. By the first

clause of this section they laid down an unqualified prohibition against

"any treaty, alliance or confederation"; and by the third clause they

required the consent of Congress for "any agreement or compact." The

significance of this distinction was pointed out by Chief Justice Taney

in Holmes _v._ Jennison.[1781] "As these words ('agreement or compact')

could not have been idly or superfluously used by the framers of the

Constitution, they cannot be construed to mean the same thing with the

word treaty. They evidently mean something more, and were designed to

make the prohibition more comprehensive. * * * The word 'agreement,'

does not necessarily import and direct any express stipulation; nor is

it necessary that it should be in writing. If there is a verbal

understanding, to which both parties have assented, and upon which both

are acting, it is an 'agreement.' And the use of all of these terms,

'treaty,' 'agreement,' 'compact,' show that it was the intention of the

framers of the Constitution to use the broadest and most comprehensive

terms; and that they anxiously desired to cut off all connection or

communication between a State and a foreign power; and we shall fail to

execute that evident intention, unless we give to the word 'agreement'

its most extended signification; and so apply it as to prohibit every

agreement, written or verbal, formal or informal, positive or implied,

by the mutual understanding of the parties."[1782] But in Virginia _v._

Tennessee,[1783] decided more than a half century later, the Court

shifted position, holding that the unqualified prohibition of compacts

and agreements between States without the consent of Congress did not

apply to agreements concerning such minor matters as adjustments of

boundaries, which have no tendency to increase the political powers of

the contractant States or to encroach upon the just supremacy of the

United States. This divergence of doctrine may conceivably have

interesting consequences.[1784]

Subject Matter of Interstate Compacts

For many years after the Constitution was adopted, boundary disputes

continued to predominate as the subject matter of agreements among the

States. Since the turn of the twentieth century, however, the interstate

compact has been used to an increasing extent as an instrument for State

cooperation in carrying out affirmative programs for solving common

problems. The execution of vast public undertakings, such as the

development of the Port of New York by the Port Authority created by

compact between New York and New Jersey, flood control, the prevention

of pollution, and the conservation and allocation of water supplied by

interstate streams, are among the objectives accomplished by this

means.[1785] Another important use of this device was recognized by

Congress in the act of June 6, 1934,[1786] whereby it consented in

advance to agreements for the control of crime. The first response to

this stimulus was the Crime Compact of 1934, providing for the

supervision of parolees and probationers, to which forty-five States had

given adherence by 1949.[1787] Subsequently Congress has authorized, on

varying conditions, compacts touching the production of tobacco, the

conservation of natural gas, the regulation of fishing in inland waters,

the furtherance of flood and pollution control, and other matters.

Moreover, since 1935 at least thirty-six States, beginning with New

Jersey, have set up permanent commissions for interstate cooperation,

which have led to the formation of a Council of State Governments

("Cosgo" for short), the creation of special commissions for the study

of the crime problem, the problem of highway safety, the trailer

problem, problems created by social security legislation, etc., and the

framing of uniform State legislation for dealing with some of

these.[1788]

Consent of Congress

The Constitution makes no provision as to the time when the consent of

Congress shall be given or the mode or form by which it shall be

signified.[1789] While the consent will usually precede the compact or

agreement, it may be given subsequently where the agreement relates to a

matter which could not be well considered until its nature is fully

developed.[1790] The required consent is not necessarily an expressed

consent; it may be inferred from circumstances.[1791] It is sufficiently

indicated, when not necessary to be made in advance, by the approval of

proceedings taken under it.[1792] The consent of Congress may be

granted conditionally "upon terms appropriate to the subject and

transgressing no constitutional limitations."[1793] And in a recent

instance it has not been forthcoming at all. In Sipuel _v._ Board of

Regents,[1794] decided in 1948, the Supreme Court ruled that the equal

protection clause of Amendment XIV requires a State maintaining a law

school for white students to provide legal education for a Negro

applicant, and to do so as soon as it does for applicants of any other

group. Shortly thereafter the governors of 12 Southern States convened

to canvass methods for meeting the demands of the Court. There resulted

a compact to which 13 State legislatures have consented and by which a

Board of Control for Southern Regional Education is set up. Although

some early steps were taken toward obtaining Congress's consent to the

agreement, the effort was soon abandoned, but without affecting the

cooperative educational program, which to date has not been extended to

the question of racial segregation.[1795] Finally, Congress does not, by

giving its consent to a compact, relinquish or restrict its own powers,

as for example, its power to regulate interstate commerce.[1796]

Grants of Franchise to Corporation by Two States

It is competent for a railroad corporation organized under the laws of

one State, when authorized so to do by the consent of the State which

created it, to accept authority from another State to extend its

railroad into such State and to receive a grant of powers to own and

control, by lease or purchase, railroads therein, and to subject itself

to such rules and regulations as may be prescribed by the second State.

Such legislation on the part of two or more States is not, in the

absence of inhibitory legislation by Congress, regarded as within the

constitutional prohibition of agreements or compacts between

States.[1797]

Legal Effect of Interstate Compacts

Whenever, by the agreement of the States concerned and the consent of

Congress, an interstate compact comes into operation, it has the same

effect as a treaty between sovereign powers. Boundaries established by

such compacts become binding upon all citizens of the signatory States

and are conclusive as to their rights.[1798] Private rights may be

affected by agreements for the equitable apportionment of the water of

an interstate stream, without a judicial determination of existing

rights.[1799] Valid interstate compacts are within the protection of the

obligation of contracts clause and specific enforcement of them is

within the original jurisdiction of the Supreme Court.[1800] Congress

also has authority to compel compliance with such a compact.[1801]

ADDENDUM

Nor may a State read herself out of a compact which she has ratified and

to which Congress has consented by pleading that under the State's

constitution as interpreted by the highest State court she had lacked

power to enter into such an agreement and was without power to meet

certain obligations thereunder. The final construction of the State

constitution in such a case rests with the Supreme Court.[1802]

Notes

[1] 4 Wheat. 316, 405 (1819).

[2] _See_ pp. 378-379.

[3] 206 U.S. 46, 82 (1907).

[4] 4 Wheat. at 407.

[5] Ibid. 411.

[6] Ibid. 421.

[7] 2 Story, Commentaries, Sec. 1256. _See also_ ibid. Sec. 1286 and 1330.

[8] 1 Pet. 511 (1828).

[9] Ibid. at 542.

[10] Ibid. 543.

[11] Prigg _v._ Pennsylvania, 16 Pet. 539, 616, 618-619 (1842).

[12] Juilliard _v._ Greenman, 110 U.S. 421, 449-450 (1884). _See also_

Justice Bradley's concurring opinion in Knox _v._ Lee, 12 Wall. 457, 565

(1871).

[13] United States _v._ Jones, 109 U.S. 513 (1883).

[14] United States _v._ Kagama, 118 U.S. 375 (1886).

[15] Fong Yue Ting _v._ United States, 149 U.S. 698 (1893).

[16] Hines _v._ Davidowitz et al., 312 U.S. 52 (1941).

[17] 299 U.S. 304 (1936).

[18] Ibid. 315, 316-317, 318 _passim_. For anticipations of this

conception of the powers of the National Government in the field of

foreign relations, _see_ Penhallow _v._ Doane, 3 Dall. 54, 80, 81

(1795); _also_ ibid. 74 and 76 (argument of counsel); _also_ Chief

Justice Taney's opinion in Holmes _v._ Jennison, 14 Pet. 540, 575-576

(1840).

[19] Locke, Second Treatise on Government, Chapter XI Sec. 141 (1691).

[20] 276 U.S. 394 (1928).

[21] Ibid. 405, 406.

[22] Wayman _v._ Southard, 10 Wheat. 1 (1825).

[23] The Brig Aurora, 7 Cr. 382 (1813).

[24] Wayman _v._ Southard, 10 Wheat. 1, 42 (1825).

[25] Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381, 398 (1940);

United States _v._ Rock Royal Co-operative, 307 U.S. 533, 577 (1939).

[26] United States _v._ Rock Royal Co-operative, 307 U.S. 533, 576

(1939).

[27] Schechter Poultry Corp. _v._ United States, 295 U.S. 495, 539

(1935); Opp Cotton Mills _v._ Administrator, 312 U.S. 126, 144 (1941);

American Power & Light Co. _v._ Securities & Exchange Comm., 329 U.S.

90, 107, 108 (1946). _Cf._ Wichita R. & L. Co. _v._ Public Utilities

Comm., 260 U.S. 48, 59 (1922).

[28] New York Cent. Securities Corp. _v._ United States, 287 U.S. 12, 24

(1932).

[29] Federal Radio Commission _v._ Nelson Bros. Bond & Mortgage Co., 289

U.S. 266, 285 (1933); National Broadcasting Co. _v._ United States, 319

U.S. 190, 225 (1943); Federal Communications Commission _v._ Pottsville

Broadcasting Co., 309 U.S. 134, 138 (1940).

[30] Lichter _v._ United States, 334 U.S. 742, 783 (1948).

[31] Panama Refining Co. _v._ Ryan, 293 U.S. 388 (1935); Schechter

Poultry Corp. _v._ United States, 295 U.S. 495 (1985).

[32] United States _v._ Rock Royal Co-operative, 307 U.S. 533 (1939);

Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381 (1940); Bowles

_v._ Willingham, 321 U.S. 503, 514 (1944); Yakus _v._ United States, 321

U.S. 414, 424 (1944).

[33] Fahey _v._ Mallonee, 332 U.S. 245 (1947).

[34] Ibid. 250.

[35] Ex parte Kollock, 165 U.S. 526 (1897).

[36] Buttfield _v._ Stranahan, 192 U.S. 470 (1904).

[37] United States _v._ Grimaud, 220 U.S. 506 (1911).

[38] United States _v._ Shreveport Grain & Elevator Co., 287 U.S. 77, 85

(1932).

[39] Currin _v._ Wallace, 306 U.S. 1 (1939).

[40] Avent _v._ United States, 266 U.S. 127 (1924).

[41] United States _v._ Rock Royal Co-operative, 307 U.S. 533 (1939).

[42] Yakus _v._ United States, 321 U.S. 414 (1944).

[43] Bowles _v._ Willingham, 321 U.S. 503 (1944).

[44] Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381, 397 (1940).

[45] Hirabayashi _v._ United States, 320 U.S. 81, 104 (1943); Korematsu

_v._ United States, 323 U.S. 214 (1944).

[46] Fahey _v._ Mallonee, 332 U.S. 245 (1947).

[47] Mulford _v._ Smith, 307 U.S. 38 (1939).

[48] Interstate Commerce Comm'n. _v._ Goodrich Transit Co., 224 U.S.

194, 214 (1912).

[49] Although reversing the decision of the State supreme court that

rates fixed by the commission were not subject to judicial review, the

Supreme Court implicitly sanctioned the exercise of rate-making power by

such bodies. Chicago, M. & St. P.R. Co. _v._ Minnesota, 134 U.S. 418

(1890).

[50] Hampton & Co. _v._ United States, 276 U.S. 394, 408 (1928).

[51] State of Minnesota _v._ Chicago, M. & St. P.R. Co. 38 Minn. 281,

301 (1888).

[52] Interstate Commerce Commission _v._ Louisville & N.R. Co., 227 U.S.

88 (1913); New York _v._ United States, 331 U.S. 284, 340-350 (1947) and

cases cited therein. _See also_ New York et al. _v._ United States, 342

U.S. 882 (1951).

[53] Union Bridge Co. _v._ United States, 204 U.S. 364 (1907).

[54] First Nat. Bank _v._ Fellows, ex rel. Union Trust Co., 244 U.S. 416

(1917).

[55] Mahler _v._ Eby, 264 U.S. 32 (1924); United States ex rel. Tisi

_v._ Tod, 264 U.S. 131 (1924).

[56] New York Central Securities Corp. _v._ United States, 287 U.S. 12,

25 (1932).

[57] Federal Radio Comm'n. _v._ Nelson Bros. Bond & Mortgage Co., 289

U.S. 266 (1933).

[58] National Broadcasting Co. _v._ United States, 319 U.S. 190 (1943).

[59] 50 Stat. 246, as amended, 7 U.S.C. Sec. 601 _et seq._

[60] Brannan _v._ Stark, 342 U.S. 451 (1952). Justice Black, with whom

Justices Reed and Douglas concurred, dissented, saying: "In striking

down these provisions of the Secretary's order, the Court has departed

from many principles it has previously announced in connection with its

supervision over administrative agents. Under these principles, the

Court would refrain from setting aside administrative findings of fact

when supported by substantial evidence; we would give weight to the

interpretation of a statute by its administrators; when, administrators

have interpreted broad statutory terms, such, as here involved, we would

recognize that it is our duty to accept this interpretation even though

it was not 'the only reasonable one' or the one 'we would have reached

had the question arisen in the first instance in judicial proceedings.'

Unemployment Comm'n _v._ Aragon, 329 U.S. 143, 153 (1946)." Ibid. 484.

[61] Jackson _v._ Roby, 109 U.S. 440 (1883); Erhardt _v._ Boaro, 113

U.S. 527 (1885); Butte City Water Co. _v._ Baker, 196 U.S. 119 (1905).

[62] St. Louis, I.M. & S.R. Co. _v._ Taylor, 210 U.S. 281, 286 (1908).

[63] 295 U.S. 495, 537 (1935).

[64] 298 U.S. 238, 311 (1936).

[65] Currin _v._ Wallace, 306 U.S. 1 (1939); United States _v._ Rock

Royal Co-operative, 307 U.S. 533, 577 (1939).

[66] Currin _v._ Wallace, 306 U.S. 1, 15, 16 (1939).

[67] 7 Cr. 382 (1813).

[68] Ibid. 388.

[69] 143 U.S. 649 (1892).

[70] Ibid. 691.

[71] Ibid. 692, 693.

[72] Hampton Jr. & Co. _v._ United States, 276 U.S. 394 (1928).

[73] 299 U.S. 304, 312 (1936).

[74] Ibid. 319-322.--United States _v._ Chemical Foundation, 272 U.S. 1

(1926) presented the anomalous situation of the United States suing to

set aside a sale of alien property sold by one of its agents, the Alien

Property Custodian, by authority of the President. The government

contended that statute under which the sale was made was

unconstitutional because, in giving the President full power of

disposition of the property, it delegated legislative power to the

President. Declaring that "It was peculiarly within the province of the

Commander-in-Chief to know the facts and to determine what disposition

should be made of enemy properties in order effectively to carry on the

war," the Court affirmed a decree dismissing the suit. Ibid. 12.

[75] 293 U.S. 388 (1935).

[76] 312 U.S. 126 (1941).

[77] Ibid. 144, 145.

[78] White House Digest of Provisions of Law Which Would Become

Operative upon Proclamation of a National Emergency by the President.

The Digest is dated December 11, 1950. It was released to the press on

December 16th. 15 F.R. 9029.

[79] United States _v._ Grimaud, 220 U.S. 506 (1911).

[80] Steuart & Bros. Inc. _v._ Bowles, 322 U.S. 398, 404 (1944).

[81] United States _v._ Eaton, 144 U.S. 677 (1892).

[82] Steuart & Bros. Inc. _v._ Bowles, 322 U.S. 398 (1944).

[83] Kraus & Bros. _v._ United States, 327 U.S. 614 (1946).

[84] Landis, Constitutional Limitations on the Congressional Power of

Investigation, 40 Harvard Law Review, 153, 159-166 (1926).

[85] 3 Annals of Congress, 493 (1792).

[86] In 1800, Secretary of the Treasury, Oliver Wolcott, Jr., addressed

a letter to the House of Representatives advising them of his

resignation from office and inviting an investigation of his office.

Such an inquiry was made. 10 Annals of Congress 786-788 (1800).

[87] 8 Cong. Deb. 2160 (1832).

[88] 13 Cong. Deb. 1057 (1836).

[89] H.R. Rep. No. 194, 24th Cong., 2d sess., Ser. No. 307, 1, 12, 31

(1837).

[90] Cong. Globe, 36th Cong. 1st sess. 1100-1109 (1860).

[91] 103 U.S. 168 (1881).

[92] 273 U.S. 135, 177, 178 (1927).

[93] 4 Cong. Deb. 862, 868, 888, 889 (1827).

[94] 103 U.S. 168 (1881).

[95] 154 U.S. 447 (1894).

[96] Ibid. 478. _See also_ Harriman _v._ Interstate Commerce Commission,

211 U.S. 407 (1908); Smith _v._ Interstate Commerce Commission, 245 U.S.

33 (1917).

[97] 273 U.S. 135 (1927).

[98] Ibid. 154, 175.

[99] 103 U.S. 168, 192-196 (1881).

[100] 166 U.S. 661 (1897).

[101] Ibid. 670.

[102] 273 U.S. 135, 178 (1927).

[103] 279 U.S. 263 (1929).

[104] Ibid. 295.

[105] In re Chapman, 166 U.S. 661 (1897).

[106] 279 U.S. 597 (1929).

[107] 6 Wheat. 204 (1821).

[108] 243 U.S. 521 (1917).

[109] Ibid. 542.

[110] 294 U.S. 125 (1935).

[111] Ibid. 147, 150.

[112] 6 Wheat. 204, 231 (1821).

[113] In re Chapman, 166 U.S. 661, 671-672 (1897).

[114] United States _v._ Bryan, 339 U.S. 323, 330 (1950); United States

_v._ Fleischman, 339 U.S. 349 (1950).

[115] Christoffel _v._ United States, 338 U.S. 84, 89, 90 (1949).

[116] Minor _v._ Happersett, 21 Wall. 162, 171 (1875); Breedlove _v._

Suttles, 302 U.S. 277 (1937).

[117] Ex parte Yarbrough, 110 U.S. 651 (1884); Wiley _v._ Sinkler, 179

U.S. 58, 62 (1900); Swafford _v._ Templeton, 185 U.S. 487 (1902); United

States _v._ Classic, 313 U.S. 299 (1941).

[118] United States _v._ Classic, 313 U.S. 299, 315 (1941).

[119] United States _v._ Mosley, 238 U.S. 383 (1915); United States _v._

Saylor, 322 U.S. 385, 387 (1944).

[120] United States _v._ Classic, 313 U.S. 299 (1941).

[121] United States _v._ Mosley, 238 U.S. 383 (1915).

[122] 35 Stat. 1092 (1909); 18 U.S.C. Sec. 51 (1946), superseded by 62

Stat. 696 (1948); 18 U.S.C. Sec. 241 (Supp. II, 1946 ed.).

[123] United States _v._ Mosley, 238 U.S. 383 (1915).

[124] United States _v._ Saylor, 322 U.S. 385 (1944).

[125] United States _v._ Bathgate, 246 U.S. 220 (1918). _See also_

United States _v._ Gradwell, 243 U.S. 476 (1917).

[126] Sen. Rep. 904, 74th Cong., 1st sess. (1935); 79 Cong. Rec.

9651-9653 (1935).

[127] No. LX.

[128] Hinds' Precedents of the House of Representatives,

I: Sec. 443, 448-458 (1907).

[129] 202 U.S. 344 (1906).

[130] Ibid. 369-370.

[131] Hinds' Precedents of the House of Representatives,

I: Sec. 474-477 (1907).

[132] 69 Cong. Rec. 1718 (1928).

[133] Hinds' Precedents of the House of Representatives, I: Sec. 414

(1907).

[134] Ibid. Sec. 415-417.

[135] The part of this clause relating to the mode of apportionment of

Representative among the several States, was changed by the Fourteenth

Amendment, Sec. 2 (p. 1170) and as to taxes on incomes without

apportionment, by the Sixteenth Amendment (p. 1191).

[136] Legal Tender Cases, 12 Wall. 457, 536 (1871).

[137] 46 Stat. 21 (1929). This same act penalizes refusal to cooperate

properly with the census taker by answering his questions and in other

ways. 13 U.S.C. 209.

[138] The Senate is a "continuing body"--McGrain _v._ Daugherty, 273

U.S. 135, 181-182 (1927).

[139] 5 Stat. 491 (1842). This requirement was dropped in 1850 (9 Stat.

428, 432-433) but was renewed in 1862 (12 Stat. 572). _See also_ Joel

Francis Paschal, The House of Representatives "Grand Depository of the

Democratic Principle", Spring 1952 Issue of Law and Contemporary

Problems (Duke University School of Law), 276-289.

[140] 14 Stat. 243 (1866).

[141] 16 Stat. 144 (1870); 16 Stat. 254 (1870); 17 Stat. 347-349 (1872).

[142] 28 Stat. 36 (1894).

[143] United States _v._ Reese, 92 U.S. 214 (1876).

[144] Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Clarke, 100 U.S.

399 (1880); United States _v._ Gale, 109 U.S. 65 (1883).

[145] 241 U.S. 565 (1916).

[146] Smiley _v._ Holm, 285 U.S. 355 (1932); Koenig _v._ Flynn, 285 U.S.

375 (1932); Carroll _v._ Becker, 285 U.S. 380 (1932).

[147] 46 Stat. 21 (1929).

[148] 37 Stat. 13, 14 (1911).

[149] Wood _v._ Broom, 287 U.S. 1 (1932).

[150] 328 U.S. 549 (1946).

[151] Ibid. 556, 566.

[152] Ibid. 570-571.

[153] Ex parte Yarbrough, 110 U.S. 651, 661 (1884); United States _v._

Mosley, 238 U.S. 383 (1915); United States _v._ Saylor, 322 U.S. 385

(1944).

[154] In re Coy, 127 U.S. 731, 752 (1888).

[155] Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Clarke, 100 U.S.

309 (1880); United States _v._ Gale, 109 U.S. 65 (1883).

[156] United States _v._ Wurzbach, 280 U.S. 396 (1930).

[157] Newberry _v._ United States, 256 U.S. 232 (1921).

[158] United States _v._ Classic, 313 U.S. 299, 318 (1941).

[159] Barry _v._ United States ex rel. Cunningham, 279 U.S. 597, 616

(1929).

[160] In re Loney, 134 U.S. 372 (1890).

[161] Cannon's Precedents of the House of Representatives, VI: Sec. 72-74,

180 (1936). _Cf._ Newberry _v._ United States, 256 U.S. 232, 258 (1921).

[162] Barry _v._ United States ex rel. Cunningham, 279 U.S. 597, 614

(1929).

[163] Ibid. 615.

[164] Hinds' Precedents of the House of Representatives,

IV: Sec. 2895-2905 (1907).

[165] 144 U.S. 1 (1892).

[166] Ibid. 5-6.

[167] Rule V.

[168] Hinds' Precedents of the House of Representatives, IV: Sec.

2910-2915 (1907); Cannon's Precedents of the House of Representatives,

VI: Sec. 645, 646 (1936).

[169] United States _v._ Ballin, 144 U.S. 1, 5 (1892). It is, of course,

by virtue of its power to determine "rules of its proceedings" that the

Senate enables its members to prevent the transaction of business by

what are termed "filibusters". The question has been raised whether the

rules which support a filibuster are constitutionally compatible with

the clause in the preceding section: "A majority of each [House] shall

constitute a quorum to do business". _See_ Franklin Burdette,

Filibustering in the Senate (Princeton University Press, 1940), 6, 61,

111-112, 227-229, 232-233, 237-238. The Senate is "a continuing body".

McGrain _v._ Daugherty, 273 U.S. 139, 181-182 (1927). Hence its rules

remain in force from Congress to Congress except as they are changed

from time to time, whereas those of the House are readopted at the

outset of each new Congress.

[170] 286 U.S. 6 (1932).

[171] 338 U.S. 84 (1949).

[172] Title 22, Sec. 2501.

[173] 338 U.S. at 93-95, citing Field _v._ Clark, 143 U.S. 649, 669-673

(1892); United States _v._ Ballin, 144 U.S. 1, 5 (1892); and other

cases.

[174] Burton _v._ United States, 202 U.S. 344, 356 (1906).

[175] In re Chapman, 166 U.S. 661, 669, 670 (1897).

[176] I Story, Constitution, Sec. 840, quoted with approval in Field _v._

Clark, 143 U.S. 649, 670 (1892).

[177] United States _v._ Ballin, 144 U.S. 1, 4 (1892).

[178] Field _v._ Clark, 143 U.S. 649 (1892); Flint _v._ Stone Tracy Co.,

220 U.S. 107, 143 (1911). A parallel rule holds in the case of a duly

authenticated official notice to the Secretary of State that a State

legislature has ratified a proposed amendment to the Constitution. Leser

_v._ Garnett, 258 U.S. 130, 137 (1922); _see also_ Coleman _v._ Miller,

307 U.S. 433 (1939). In Christoffel _v._ United States, 338 U.S. 84

(1949), a sharply divided Court ruled that, in a case brought under the

Perjury Statute of the District of Columbia (Sec. 22-2501 of the D.C.

Code) for alleged perjurious testimony before a Committee of the House of

Representatives, the trial Court erred in charging the jury that it was

free to ignore testimony that less than a quorum of the Committee was in

attendance when the alleged perjury was committed. Four Justices

dissented; and curiously enough only four of the majority were present

when the opinion was delivered, the fifth being indisposed. Remarks

Justice Jackson in his concurring opinion in United States _v._ Bryan

(339 U.S. 323 (1950)), in which the ruling in Christoffel was held to be

inapplicable: "It is ironic that this interference with legislative

procedures was promulgated by exercise within the Court of the very

right of absentee participation denied to Congressmen." Ibid. 344. It

seems unlikely that the Christoffel decision seriously undermines Field

_v._ Clark.

[179] Page _v._ United States, 127 U.S. 67 (1888).

[180] Long _v._ Ansell, 293 U.S. 76 (1934).

[181] Ibid. 83.

[182] United States _v._ Cooper, 4 Dall. 341 (1800).

[183] Williamson _v._ United States, 207 U.S. 425, 446 (1908).

[184] Kilbourn _v._ Thompson, 103 U.S. 168 (1881).

[185] Ibid.

[186] 4 Mass. 1 (1808).

[187] Kilbourn _v._ Thompson, 103 U.S. 168, 203, 204 (1881).

[188] Ibid. 205.

[189] Justice Frankfurter for the Court in Tenney _v._ Brandhove, 341

U.S. 367, 377 (1951). Justice Douglas dissented: "* * * I do not agree

that all abuses of legislative committees are solely for the legislative

body to police. We are dealing here with a right protected by the

Constitution--the right of free speech. The charge * * * is that a

legislative committee brought the weight of its authority down on

respondent for exercising his right of free speech. Reprisal for

speaking is as much an abridgment as a prior restraint. If a committee

departs so far from its domain [as?] to deprive a citizen of a right

protected by the Constitution, I can think of no reason why it should be

immune". Ibid. 382. _See also_ Barsky _v._ United States, 167 F. (2d)

241 (1948); certiorari denied, 334 U.S. 843 (1948).

[190] Hinds' Precedents of the House of Representatives, I: Sec. 493

(1907); Cannon's Precedents of the House of Representatives, VI: Sec. 63,

64 (1936).

[191] Hinds' Precedents of the House of Representatives, I: Sec. 496-499

(1907).

[192] 34 Stat. 948 (1907).

[193] 35 Stat. 626 (1909).

[194] The situation gave rise to the case of Ex parte Albert Levitt,

Petitioner, 302 U.S. 633 (1937). This was the case in which the Court

declined to pass upon the validity of Justice Black's appointment. It

seems curious that the Court, in rejecting petitioner's application, did

not point out that it was being asked to assume original jurisdiction

contrary to the decision in Marbury _v._ Madison, 1 Cr. 137 (1803).

[195] I Story, Constitution, Sec. 880.

[196] Twin City Nat. Bank _v._ Nebeker, 167 U.S. 196 (1897).

[197] Millard _v._ Roberts, 202 U.S. 429 (1906).

[198] Flint _v._ Stone Tracy Co., 220 U.S. 107, 143 (1911).

[199] Rainey _v._ United States, 232 U.S. 310 (1914).

[200] La Abra Silver Mining Co. _v._ United States, 175 U.S. 423, 453

(1899).

[201] Edwards _v._ United States, 286 U.S. 482 (1932). On one occasion

in 1936, delay in presentation of a bill enabled the President to sign

it 23 days after the adjournment of Congress. Schmeckebier, Approval of

Bills After Adjournment of Congress, 33 American Political Science

Review 52 (1939).

[202] Gardner _v._ Collector, 6 Wall. 499 (1868).

[203] Ibid. 504. _See also_ Burgess _v._ Salmon, 97 U.S. 381, 383

(1878).

[204] Matthews _v._ Zane, 7 Wheat. 164, 211 (1822).

[205] Lapeyre _v._ United States, 17 Wall. 191, 198 (1873).

[206] Okanogan Indians _v._ United States, 279 U.S. 655 (1929).

[207] Wright _v._ United States, 302 U.S. 583 (1938).

[208] Missouri P.R. Co. _v._ Kansas, 248 U.S. 276 (1919).

[209] 20 Wall. 92, 112, 113 (1874).

[210] 12 Stat. 589 (1862).

[211] 54th Cong., 2d sess., S. Doc. 1335; Hinds' Precedents of the House

of Representatives, IV: Sec. 3483 (1907).

[212] _See e.g._, Lend Lease Act of March 11, 1941 (55 Stat. 31); First

War Powers Act of December 18, 1941 (55 Stat. 838); Emergency Price

Control Act of January 30, 1942 (56 Stat. 23); Stabilization Act of

October 2, 1942 (56 Stat. 765); War Labor Disputes Act of June 25, 1943

(57 Stat. 163).

[213] Reorganization Act of June 20, 1949 (63 Stat. 203).

[214] Reorganization Act of April 3, 1939 (53 Stat. 561).

[215] Hollingsworth _v._ Virginia, 3 Dall. 378 (1798).

[216] License Tax Cases, 5 Wall. 462, 471 (1867).

[217] Brushaber _v._ Union Pac. R.R., 240 U.S. 1 (1916).

[218] Ibid. 12.

[219] 253 U.S. 245 (1920).

[220] 268 U.S. 501 (1925).

[221] 307 U.S. 277 (1939).

[222] 11 Wall. 113 (1871).

[223] Graves _v._ O'Keefe, 306 U.S. 466 (1939).

[224] 304 U.S. 405, 414 (1938).

[225] Veazie Bank _v._ Fenno, 8 Wall. 533 (1869).

[226] United States _v._ Baltimore & O.R. Co., 17 Wall. 322 (1873).

[227] 157 U.S. 429 (1895).

[228] 4 Wheat. 316 (1819).

[229] Indian Motorcycle Co. _v._ United States, 283 U.S. 570 (1931).

[230] 12 Wheat. 419, 444 (1827).

[231] Snyder _v._ Bettman, 190 U.S. 249, 254 (1903).

[232] South Carolina _v._ United States, 199 U.S. 437 (1905). _See also_

Ohio _v._ Helvering, 292 U.S. 360 (1934).

[233] 220 U.S. 107 (1911).

[234] Greiner _v._ Lewellyn, 258 U.S. 384 (1922).

[235] Wheeler Lumber Bridge & Supply Co. _v._ United States, 281 U.S.

572 (1930).

[236] University of Illinois _v._ United States, 289 U.S. 48 (1933).

[237] Allen _v._ Regents, 304 U.S. 439 (1938).

[238] Wilmette Park District _v._ Campbell, 338 U.S. 411 (1949).

[239] Metcalf _v._ Mitchell, 269 U.S. 514 (1926).

[240] Helvering _v._ Powers, 293 U.S. 214 (1934).

[241] Willcutts _v._ Bunn, 282 U.S. 216 (1931).

[242] Helvering _v._ Mountain Producers Corp., 303 U.S. 376 (1938),

overruling Burnet _v._ Coronado Oil & Gas Co., 285 U.S. 393 (1932).

[243] New York _v._ United States, 326 U.S. 572, 584 (1946), (concurring

opinion of Justice Rutledge).

[244] 304 U.S. 405 (1938).

[245] Ibid. 419-420.

[246] 326 U.S. 572 (1946).

[247] Ibid. 584.

[248] Ibid. 589-590.

[249] Ibid. 596.

[250] Wilmette Park District _v._ Campbell, 338 U.S. 411 (1949).

[251] _See also_ article I, section 9, clause 4.

[252] LaBelle Iron Works _v._ United States, 256 U.S. 377 (1921);

Brushaber _v._ Union P.R. Co., 240 U.S. 1 (1916); Head Money Cases, 112

U.S. 580 (1884).

[253] Knowlton _v._ Moore, 178 U.S. 41 (1900).

[254] Fernandez _v._ Wiener, 326 U.S. 340 (1945); Riggs _v._ Del Drago,

317 U.S. 95 (1942); Phillips _v._ Commissioner of Internal Revenue, 283

U.S. 589 (1931); Poe _v._ Seaborn, 282 U.S. 101, 117 (1930).

[255] Florida _v._ Mellon, 273 U.S. 12 (1927).

[256] Downes _v._ Bidwell, 182 U.S. 244 (1901).

[257] 194 U.S. 486 (1904). The Court recognized that Alaska was an

incorporated territory but took the position that the situation in

substance was the same as if the taxes had been directly imposed by a

territorial legislature for the support of the local government.

[258] License Tax Cases, 5 Wall. 462, 471 (1867).

[259] United States _v._ Yuginovich, 256 U.S. 450 (1921).

[260] United States _v._ Constantine, 296 U.S. 287, 293 (1935).

[261] License Tax Cases, 5 Wall. 462, 471 (1867).

[262] Felsenheld _v._ United States, 186 U.S. 126 (1902).

[263] In re Kollock, 105 U.S. 526 (1897).

[264] United States _v._ Doremus, 249 U.S. 86 (1919). _Cf._ Nigro _v._

United States, 276 U.S. 332 (1928).

[265] Sonzinsky _v._ United States, 300 U.S. 506 (1937).

[266] McCray _v._ United States, 195 U.S. 27 (1904).

[267] Justice Clark speaking for the Court in United States _v._

Sanchez, 340 U.S. 42, 44 (1950). _See also_ Sonzinsky _v._ United

States, 300 U.S. 506, 513-514 (1937).

[268] Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381, 383

(1940). _See also_ Head Money Cases, 112 U.S. 580, 596 (1884).

[269] Bailey _v._ Drexel Furniture Co., 259 U.S. 20 (1922); Hill _v._

Wallace, 259 U.S. 44 (1922); Helwig _v._ United States, 188 U.S. 605

(1903).

[270] 296 U.S. 287 (1935).

[271] 1 Stat. 24 (1789).

[272] 276 U.S. 394 (1928).

[273] Ibid. 411-412.

[274] III Writings of Thomas Jefferson, 147-149 (Library Edition, 1904).

[275] James Francis Lawson, The General Welfare Clause (1926).

[276] The Federalist Nos. 30 and 34.

[277] Ibid. No. 41.

[278] 1 Stat. 229 (1792).

[279] 2 Stat. 357 (1806).

[280] In an advisory opinion which it rendered for President Monroe at

his request on the power of Congress to appropriate funds for public

improvements, the Court answered that such appropriations might be

properly made under the war and postal powers. _See_ E.F. Albertsworth,

"Advisory Functions in the Supreme Court," 23 Georgetown L.J. 643,

644-647 (1935). Monroe himself ultimately adopted the broadest view of

the spending power, from which, however, he carefully excluded any

element of regulatory or police power. _See_ his "Views of the President

of the United States on the Subject of Internal Improvements," of May 4,

1822, 2 Richardson, Messages and Papers of the Presidents, 713-752.

[281] The Council of State Governments, Federal Grants-in-Aid, 6-14

(1949).

[282] 127 U.S. 1 (1888).

[283] 255 U.S. 180 (1921).

[284] 262 U.S. 447 (1923). _See also_ Alabama Power Co. _v._ Ickes, 302

U.S. 464 (1938).

[285] 160 U.S. 668 (1896).

[286] Ibid. 681.

[287] 297 U.S. 1 (1936). _See also_ Cleveland _v._ United States, 323

U.S. 329 (1945).

[288] 297 U.S. 1, 65, 66 (1936).

[289] Justice Stone, speaking for himself and two other Justices,

dissented on the ground that Congress was entitled when spending the

national revenues for the "general welfare" to see to it that the

country got its money's worth thereof, and that the condemned provisions

were "necessary and proper" to that end. United States _v._ Butler, 297

U.S. 1, 84-86 (1936).

[290] 301 U.S. 548 (1937).

[291] Ibid. 591.

[292] Ibid. 590.

[293] Cincinnati Soap Co. _v._ United States, 301 U.S. 308 (1937).

[294] 301 U.S. 619 (1937).

[295] 301 U.S. 548, 589, 590 (1937).

[296] 330 U.S. 127 (1947).

[297] 54 Stat. 767 (1940).

[298] 330 U.S. 127, 143.

[299] United States _v._ Realty Co., 163 U.S. 427 (1896); Pope _v._

United States, 323 U.S. 1, 9 (1944).

[300] Cincinnati Soap Co. _v._ United States, 301 U.S. 308 (1937).

[301] Cr. 358 (1805).

[302] Ibid. 396.

[303] 2 Madison, Notes on the Constitutional Convention, 81 (Hunt's ed.

1908).

[304] Ibid. 181.

[305] Legal Tender Cases, 12 Wall. 457 (1871), overruling Hepburn _v._

Griswold, 8 Wall. 603 (1870).

[306] Perry _v._ United States, 294 U.S. 330, 351 (1935). _See also_

Lynch _v._ United States, 292 U.S. 571 (1934).

[307] Prentice and Egan, The Commerce Clause of the Federal Constitution

(1898) 14. The balance began inclining the other way with the enactment

of the Interstate Commerce Act in 1887.

[308] 9 Wheat. 1, 189-192 (1824). _Cf._ Webster for the appellant:

"Nothing was more complex than commerce; and in such an age as this, no

words embraced a wider field than _commercial_ regulation. Almost all

the business and intercourse of life may be connected, incidently, more

or less, with commercial regulations." (ibid. 9-10); also Justice

Johnson, in his concurring opinion: "Commerce, in its simplest

signification, means an exchange of goods; but in the advancement of

society, labor, transportation, intelligence, care, and various mediums

of exchange, become commodities, and enter into commerce; the subject,

the vehicle, the agent, and their various operations, become the objects

of commercial regulation. Shipbuilding, the carrying trade, and

propagation of seamen, are such vital agents of commercial prosperity,

that the nation which could not legislate over these subjects, would not

possess power to regulate commerce." (ibid. 229-230). "It is all but

impossible in our own age to sense fully its eighteenth-century meaning

(i.e., the meaning of commerce). The Eighteenth Century did not separate

by artificial lines aspects of a culture which are inseparable. It had

no lexicon of legalisms extracted from the law reports in which judicial

usage lies in a world apart from the ordinary affairs of life. Commerce

was then more than we imply now by business or industry. It was a name

for the economic order, the domain of political economy, the realm of a

comprehensive public policy. It is a word which makes trades, activities

and interests an instrument in the culture of a people. If trust was to

be reposed in parchment, it was the only word which could catch up into

a single comprehensive term all activities directly affecting the wealth

of the nation," Walton H. Hamilton and Douglass Adair, The Power to

Govern, 62-63 (New York: 1937).

[309] Ibid. 191.

[310] 9 Wheat. 1, 193 (1824).

[311] _See_ Pennsylvania _v._ Wheeling & Belmont Bridge Co., 18 How. 421

(1856); Mobile _v._ Kimball, 102 U.S. 691 (1881); Covington Bridge Co.

_v._ Kentucky, 154 U.S. 204 (1894); Kelley _v._ Rhoads, 188 U.S. 1

(1903); United States _v._ Hill, 248 U.S. 420 (1919); Edwards _v._

California, 314 U.S. 160 (1941).

[312] Pensacola Tel. Co. _v._ Western Union Tel. Co., 96 U.S. 1, 9

(1878); International Text Book Co. _v._ Pigg, 217 U.S. 91, 106-107

(1910); Western Union Tel. Co. _v._ Foster, 247 U.S. 105 (1918); Federal

Radio Com. _v._ Nelson Bros., 289 U.S. 266 (1933).

[313] Swift & Co. _v._ United States, 196 U.S. 375, 398-399 (1905);

Dahnke-Walker Milling Co. _v._ Bondurant, 257 U.S. 282, 290-291 (1921);

Stafford _v._ Wallace, 258 U.S. 495 (1922); Federal Trade Com. _v._

Pacific States Paper Trade Assoc., 273 U.S. 52, 64-65 (1927).

[314] Kidd _v._ Pearson, 128 U.S. 1 (1888); Oliver Iron Co. _v._ Lord,

262 U.S. 172 (1923).

[315] Paul _v._ Virginia, 8 Wall. 168 (1869). _See also_ New York L.

Ins. Co. _v._ Deer Lodge County, 231 U.S. 495 (1913); New York L. Ins.

Co. _v._ Cravens, 178 U.S. 389, 401 (1900); Fire Assoc. of Philadelphia

_v._ New York, 119 U.S. 110 (1886); Bothwell _v._ Buckbee-Mears Co., 275

U.S. 274 (1927); Metropolitan Casualty Ins. Co. _v._ Brownell, 294 U.S.

580 (1935).

[316] Federal Baseball Club _v._ National League, 259 U.S. 200 (1922).

[317] Blumenstock Bros. _v._ Curtis Pub. Co., 252 U.S. 436 (1920).

[318] Williams _v._ Fears, 179 U.S. 270 (1900).

A contract entered into for the erection of a factory which was to be

supervised and operated by the officers of a foreign corporation was

held not a transaction of interstate commerce in the constitutional

sense merely because of the fact that the products of the factory are

largely to be sold and shipped to other factories. Diamond Glue Co. _v._

United States Glue Co., 187 U.S. 611, 616 (1903). In Browning _v._

Waycross, 233 U.S. 16 (1914), it was held that the installation of

lightning rods sold by a foreign corporation was not interstate

commerce, although provided for in the contract of purchase. Similarly

in General Railway Signal Co. _v._ Virginia, 246 U.S. 500 (1918), where

a foreign corporation installed signals in Virginia, bringing in

materials, supplies, and machinery from without the State, the Court

held that local business was involved, separate and distinct from

interstate commerce, and subject to the licensing power of the State.

However, in an interstate contract for the sale of a complicated

ice-making plant, where it was stipulated that the parts should be

shipped into the purchaser's State and the plant there assembled and

tested under the supervision of an expert to be sent by the seller, it

was held that services of the expert did not constitute the doing of a

local business subjecting the seller to regulations of Texas concerning

foreign corporations. York Mfg. Co. _v._ Colley, 247 U.S. 21 (1918).

_See also_ Kansas City Structural Steel Co. _v._ Arkansas, 269 U.S. 148

(1925).

[319] Associated Press _v._ United States, 326 U.S. 1 (1945).

[320] American Medical Association _v._ United States, 317 U.S. 519

(1943). _Cf._ United States _v._ Oregon State Medical Society, 343 U.S.

326 (1952).

[321] United States _v._ South-Eastern Underwriters Assoc, 322 U.S. 533

(1944). The interstate character of the insurance business as today

organized and carried on is stressed, although its intrastate elements

are not overlooked. The Court's business is to determine in each case

whether "the competing * * * State and national interests * * * can be

accommodated." Ibid. 541 and 548.

[322] Article I, Sec. 8, cl. 18.

[323] _See infra_ CONGRESSIONAL REGULATIONS OF PRODUCTION AND INDUSTRIAL

RELATIONS.

[324] 6 Wheat. 264, 413 (1821).

[325] 9 Wheat. 1, 195 (1824).

[326] New York _v._ Miln, 11 Pet. 102 (1837), overturned in Henderson

_v._ New York, 92 U.S. 259 (1876); License Cases, 5 How. 504, 573-574,

588, 613 (1847); Passenger Cases, 7 How. 283, 399-400, 465-470 (1849);

The Passaic Bridges, 3 Wall. 782 (Appendix), 793 (1866); United States

_v._ Dewitt, 9 Wall. 41, 44 (1870); Patterson _v._ Kentucky, 97 U.S.

501, 503 (1879); Trade-Mark Cases, 100 U.S. 82 (1879); Kidd _v._

Pearson, 128 U.S. 1 (1888); Illinois Central R. Co. _v._ McKendree, 203

U.S. 514 (1906); Keller _v._ United States, 213 U.S. 138, 144-149

(1909); Hammer _v._ Dagenhart, 247 U.S. 251 (1918). _See also infra._

[327] United States _v._ Wrightwood Dairy Co., 315 U.S. 110, 119 (1942).

[328] Gibbons _v._ Ogden, 9 Wheat. 1, 196. Commerce "among the several

States" does not comprise commerce of the District of Columbia nor the

territories of the United States. Congress's power over their commerce

is an incident of its general power over them. Stoutenburgh _v._

Hennick, 129 U.S. 141 (1889); Atlantic Cleaners and Dyers, Inc. _v._

United States, 286 U.S. 427 (1932); In re Bryant, 4 Fed. Cas. No. 2067

(1865). Transportation between two points in the same State, when a

large part of the route is a loop outside the State, is "commerce among

the several States." Hanley _v._ Kansas City Southern R. Co., 187 U.S.

617 (1903); followed in Western Union Telegraph Co. _v._ Speight, 254

U.S. 17 (1920), as to a message sent from one point to another in North

Carolina via a point in Virginia.

[329] 9 Wheat. 1, 196-197.

[330] Champion _v._ Ames (Lottery Case), 188 U.S. 321, 373-374.

[331] Brolan _v._ United States, 236 U.S. 216, 222 (1915).

[332] Thurlow _v._ Massachusetts (License Cases), 5 How. 504, 578

(1847).

[333] Pittsburgh & S. Coal Co. _v._ Bates, 156 U.S. 577, 587 (1895).

[334] United States _v._ Carolene Products Co., 304 U.S. 144, 147-148

(1938). _See also infra._

[335] The "Daniel Ball," 10 Wall. 557, 564 (1871).

[336] Mobile County _v._ Kimball, 102 U.S. 691, 696, 697 (1881).

[337] Second Employers' Liability Cases, 223 U.S. 1, 47, 53-54 (1912).

[338] The above case. And _see infra_.

[339] 9 Wheat. 1, 217, 221 (1824).

[340] Pensacola Teleg. Co. _v._ Western Union Teleg. Co., 96 U.S. 1

(1878). _See also_ Western Union Teleg. Co. _v._ Texas, 105 U.S. 460

(1882).

[341] Ibid. 9. "Commerce embraces appliances necessarily employed in

carrying on transportation by land and water."--Chicago & N.W.R. Co.

_v._ Fuller, 17 Wall. 560, 568 (1873).

[342] "No question is presented as to the power of the Congress, in its

regulation of interstate commerce, to regulate radio communications."

Chief Justice Hughes speaking for the Court in Federal Radio Com _v._

Nelson Bros. B. & M. Co., 289 U.S. 266, 279 (1933). _Said_ Justice

Stone, speaking for the Court in 1936: "Appellant is thus engaged in the

business of transmitting advertising programs from its stations in

Washington to those persons in other States who 'listen in' through the

use of receiving sets. In all essentials its procedure does not differ

from that employed in sending telegraph or telephone messages across

State lines, which is interstate commerce. Western Union Teleg. Co. _v._

Speight, 254 U.S. 17 (1920); New Jersey Bell Teleph. Co. _v._ State Bd.

of Taxes & Assessments, 280 U.S. 338 (1930); Cooney _v._ Mountain States

Teleph. & Teleg. Co., 294 U.S. 384 (1935); Pacific Teleph. & Teleg. Co.

_v._ Tax Commission, 297 U.S. 403 (1936). In each, transmission is

effected by means of energy manifestations produced at the point of

reception in one State which are generated and controlled at the sending

point in another. Whether the transmission is effected by the aid of

wires, or through a perhaps less well understood medium, 'the ether,' is

immaterial, in the light of those practical considerations which have

dictated the conclusion that the transmission of information interstate

is a form of 'intercourse,' which is commerce. _See_ Gibbons _v._ Ogden,

9 Wheat. 1, 189." Fisher's Blend Station _v._ Tax Commission, 297 U.S.

650, 654-655 (1936).

[343] 13 How. 518.

[344] 10 Stat. 112 (1852).

[345] Pennsylvania _v._ Wheeling & Belmont Bridge Co., 18 How. 421, 430

(1856). "It is Congress, and not the Judicial Department, to which the

Constitution has given the power to regulate commerce with foreign

nations and among the several States. The courts can never take the

initiative on this subject." Parkersburg & O. River Transportation Co.

_v._ Parkersburg, 107 U.S. 691, 701 (1883). _See also_ Prudential

Insurance Co. _v._ Benjamin, 328 U.S. 408 (1946); and Robertson _v._

California, 328 U.S. 440 (1946).

[346] 3 Wall. 713.

[347] Ibid. 724-725.

[348] Union Bridge Co. _v._ United States, 204 U.S. 364 (1907). _See

also_ Monongahela Bridge Co. _v._ United States, 216 U.S. 177 (1910);

and Wisconsin _v._ Illinois, 278 U.S. 367 (1929). Of collateral interest

are the following: South Carolina _v._ Georgia, 93 U.S. 4, 13 (1876);

Bedford _v._ United States, 192 U.S. 217 (1904); Jackson _v._ United

States, 230 U.S. 1 (1913); United States _v._ Arizona, 295 U.S. 174

(1935).

[349] Gibson _v._ United States, 166 U.S. 269 (1897). _See also_ Newport

& Cincinnati Bridge Co. _v._ United States, 105 U.S. 470 (1882); United

States _v._ Rio Grande Dam & Irrig. Co., 174 U.S. 690 (1899); United

States _v._ Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913); Seattle

_v._ Oregon & W.R. Co., 255 U.S. 56, 63 (1921); Economy Light & Power

Co. _v._ United States, 256 U.S. 113 (1921); United States _v._ River

Rouge Improv. Co., 269 U.S. 411, 419 (1926); Henry Ford & Son _v._

Little Falls Fibre Co., 280 U.S. 369 (1930); United States _v._

Commodore Park, 324 U.S. 386 (1945).

[350] United States _v._ Cress, 243 U.S. 316 (1917).

[351] United States _v._ Chicago, M., St. P. & P.R. Co., 312 U.S. 592,

597 (1941); United States _v._ Willow River Power Co., 324 U.S. 499

(1945).

[352] United States _v._ Rio Grande Dam & Irrig. Co., 174 U.S. 690

(1899); and _cf._ below the discussion of United States _v._ Appalachian

Electric P. Co., 311 U.S. 377 (1940).

[353] The "Daniel Ball" _v._ United States, 10 Wall. 557 (1871).

[354] Ibid. 560.

[355] Ibid. 565.

[356] Ibid. 566. "The regulation of commerce implies as much control, as

far-reaching power, over an artificial as over a natural highway."

Justice Brewer for the Court in Monongahela Navigation Co. _v._ United

States, 148 U.S. 312, 342 (1893).

[357] Congress had the right to confer upon the Interstate Commerce

Commission the power to regulate interstate ferry rates. (New York C. &

H.R.R. Co. _v._ Board of Chosen Freeholders, 227 U.S. 248 (1913)); and

to authorize the Commission to govern the towing of vessels between

points in the same State but partly through waters of an adjoining State

(Cornell Steamboat Co. _v._ United States, 321 U.S. 634 (1944)). _Also_

Congress's power over navigation extends to persons furnishing wharfage,

dock, warehouse, and other terminal facilities to a common carrier by

water. Hence an order of the United States Maritime Commission banning

certain allegedly "unreasonable practices" by terminals in the Port of

San Francisco, and prescribing schedules of maximum free time periods

and of minimum charges was constitutional. (California _v._ United

States, 320 U.S. 577 (1944)). The same power also comprises regulation

of the registry, enrollment, license, and nationality of ships and

vessels; the method of recording bills of sale and mortgages thereon;

the rights and duties of seamen; the limitations of the responsibility

of shipowners for the negligence and misconduct of their captains and

crews; and many other things of a character truly maritime. _See_ Rodd

_v._ Heartt (The "Lottawanna"), 21 Wall. 558, 577 (1875); Providence &

N.Y.S.S. Co. _v._ Hill Mfg. Co., 109 U.S. 578, 589 (1883); Old Dominion

S.S. Co. _v._ Gilmore, 207 U.S. 398 (1907); O'Donnell _v._ Great Lakes

Dredge & Dock Co., 318 U.S. 36 (1943). _See also_ below article III,

Sec. 2, (Admiralty and Maritime clause).

[358] Pollard _v._ Hagan, 3 How. 212 (1845); Shively _v._ Bowlby, 152

U.S. 1 (1894). "The shores of navigable waters, and the soils under

them, were not granted by the Constitution to the United States, but

were reserved to the States respectively; and the new States have the

same rights, sovereignty, and jurisdiction over this subject as the

original States." 3 How. 212, headnote 3.

[359] Green Bay & M. Canal Co. _v._ Patten Paper Co., 172 U.S. 58, 80

(1898).

[360] 229 U.S. 53 (1913).

[361] Ibid. 72-73, citing Kaukauna Water Power Co. _v._ Green Bay & M.

Canal Co., 142 U.S. 254 (1891).

[362] 283 U.S. 423.

[363] 311 U.S. 377.

[364] 283 U.S. at 455, 456.

[365] 311 U.S. at 407, 409-410.

[366] 311 U.S. at 426.

[367] Oklahoma ex rel. Phillips _v._ Atkinson Co., 313 U.S. 508, 523-534

_passim_ (1941).

[368] Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288 (1936).

_See infra._

[369] 12 Stat. 489 (1862).

[370] Thomson _v._ Pacific Railroad, 9 Wall. 579, 589 (1870); California

_v._ Central Pacific Railroad, 127 U.S. 1, 39 (1888); Cherokee Nation

_v._ Southern Kansas R. Co., 135 U.S. 641 (1890); Luxton _v._ North

River Bridge Co., 153 U.S. 525, 530 (1894).

[371] 14 Stat. 66 (1866). In his first annual message (December 4,

1865), President Johnson had asked Congress "to prevent any selfish

impediment [by the States] to the free circulation of men and

merchandise." 6 Richardson, Messages and Papers of the Presidents, 362.

[372] 14 Stat. 221; Pensacola Teleg. Co. _v._ Western Union Teleg. Co.,

96 U.S. 1, 3-4, 11 (1878).

[373] R.S. Secs. 4386-4390; replaced today by the Live Stock

Transportation Act of 1906 (34 Stat. 607).

[374] 94 U.S. 113 (1877).

[375] 118 U.S. 557.

[376] 24 Stat. 379 (1887).

[377] 154 U.S. 447.

[378] Interstate Commerce Com. _v._ Alabama Midland R. Co., 168 U.S.

144, 176 (1897). _See also_ Cincinnati, N.O. & T.P.R. Co. _v._

Interstate Commerce Commission, 162 U.S. 184 (1896).

[379] 34 Stat. 584.

[380] 36 Stat. 539 (1910).

[381] By the Federal Communications Act of 1934 (48 Stat. 1081), this

jurisdiction was handed over to the Federal Communications Commission,

created by the act.

[382] 41 Stat. 474 Sec. 400; 488 Sec. 422. The act must today be read in

conjunction with the Transportation Act of 1940 (54 Stat. 898), which

"was intended, together with the old law, to provide a completely

integrated interstate regulatory system over motor, railroad, and water

carriers." United States _v._ Pennsylvania R. Co., 323 U.S. 612, 618-619

(1945).

[383] Houston E. & W.T.R. Co. _v._ United States (Shreveport Case), 234

U.S. 342 (1914). Forty States, through their Attorneys General,

intervened in the case against the Commission's order.

[384] Ibid. 351-352.

[385] Ibid. 353. _See_ to the same effect American Express Co. _v._

Caldwell, 244 U.S. 617, 627 (1917); Pacific Teleph. & Teleg. Co. _v._

Tax Commission (Washington), 297 U.S. 403 (1936); Weiss _v._ United

States, 308 U.S. 321 (1939); Bethlehem Steel Co. _v._ New York Labor

Relations Bd., 330 U.S. 767, 772 (1947); and United States _v._ Walsh,

331 U.S. 432, 438 (1947).

[386] 257 U.S. 563 (1922).

[387] In North Carolina _v._ United States, 325 U.S. 507 (1945), the

Court disallowed as _ultra vires_ an order of the Interstate Commerce

Commission, setting aside State-prescribed intrastate passenger rates,

on the ground that it was unsupported by clear findings and evidence

sufficient to show its necessity.

Among the various provisions of the Interstate Commerce Commission Act

that have been sustained in specific decisions are the following: a

provision penalizing shippers for obtaining transportation at less than

published rates, Armour Packing Co. _v._ United States, 209 U.S. 56

(1908); the so-called "commodities clause" of the Hepburn Act of June

29, 1906, construed as prohibiting the hauling of commodities in which

the carrier had at the _time of haul_ a proprietary interest, United

States _v._ Delaware & H. Co., 213 U.S. 366 (1909); a provision of the

same act abrogating life passes, Louisville & N.R. Co. _v._ Mottley, 219

U.S. 467 (1911); a provision of the same act authorizing the Commission

to regulate the entire system of bookkeeping of interstate carriers,

including intrastate accounts, Interstate Commerce Commission _v._

Goodrich Transit Co., 224 U.S. 194 (1912); the "long and short haul"

clause of the Interstate Commerce Act, United States _v._ Atchison, T. &

S.F.R. Co. (Intermountain Rate Cases), 234 U.S. 476 (1914); an order of

the Commission establishing the so-called uniform zone or block system

of express rates, American Express Co. _v._ South Dakota ex rel.

Caldwell, 244 U.S. 617 (1917); an order of the Commission directing the

abandonment of an intrastate branch of an interstate railroad, Colorado

_v._ United States, 271 U.S. 153 (1926); an order of the Commission

fixing rates of a transportation company operating solely in the

District of Columbia, on the ground that its carriage of passengers

constituted part of an interstate movement, United States _v._ Capital

Transit Co., 338 U.S. 286 (1949).

[388] United States _v._ Ohio Oil Co. (Pipe Line Cases), 234 U.S. 548

(1914).

[389] _See also_ State Corp. Commission _v._ Wichita Gas Co., 290 U.S.

561 (1934); Eureka Pipe Line Co. _v._ Hallanan, 257 U.S. 265 (1921);

United Fuel Gas Co. _v._ Hallanan, 257 U.S. 277 (1921); Pennsylvania

_v._ West Virginia, 262 U.S. 553 (1923); Missouri ex rel. Barrett _v._

Kansas Natural Gas Co., 265 U.S. 298 (1924).

[390] Public Utilities Com. _v._ Attleboro Steam and Electric Co., 273

U.S. 83 (1927). _See also_ Utah Power & Light Co. _v._ Pfost, 286 U.S.

165 (1932).

[391] 49 Stat. 838.

[392] The Natural Gas Act of 1938, 52 Stat. 821.

[393] 315 U.S. 575 (1942).

[394] Ibid. 582. Sales to distributors by a wholesaler of natural gas

which is delivered to it from an out-of-State source are subject to the

rate-making powers of the Federal Power Commission. Colorado-Wyoming Co.

_v._ Comm'n., 324 U.S. 626 (1945). _See also_ Illinois Natural Gas Co.

_v._ Central Illinois Pub. Serv. Co., 314 U.S. 498 (1942); _also_

Federal Power Commission _v._ East Ohio Gas Co., 338 U.S. 464, decided

January 9, 1950, where it was held that a natural gas company which,

while operating exclusively in one State, sold there directly to

consumers gas transported into the State through the interstate lines of

other companies, "a natural gas company" within the meaning of the act

of 1938, and so could be required by the Commission to keep uniform

accounts and submit reports.

[395] 48 Stat. 1064.

[396] 49 Stat. 543; since amended in some respects in 1938 (52 Stat.

973) and 1940 (54 Stat. 735).

[397] 52 Stat. 973.

[398] 27 Stat. 531. As early as 1838 laws were passed requiring the

installation of safety devices on steam vessels. 5 Stat. 304 and 626.

Along with the Safety Appliance Acts mention should also be made of acts

requiring the use of ashpans on locomotives (35 Stat. 476 (1908)); the

inspection of boilers (36 Stat. 913 (1911) and 38 Stat. 1192 (1915));

the use of ladders, drawbars, etc., on cars (36 Stat. 298 (1910)); etc.

[399] 32 Stat. 943.

[400] 222 U.S. 20 (1911).

[401] Ibid. 26-27. _See also_ Texas & P.R. Co. _v._ Rigsby, 241 U.S. 33

(1916); and United States _v._ California, 297 U.S. 175 (1936). In the

latter case the intrastate railway involved was property of the State.

[402] 34 Stat. 1415.

[403] Baltimore & O.R. Co. _v._ Interstate Commerce Com., 221 U.S. 612,

618-619 (1911).

[404] 34 Stat. 232, disallowed in part in Howard _v._ Illinois Central

R. Co., 207 U.S. 463 (1908); 35 Stat. 65, sustained in the Second

Employers' Liability Cases (Mondou _v._ New York, N.H. & H.R. Co.), 223

U.S. 1 (1912).

[405] _See_ 223 U.S. at 19-22.

[406] Ibid. 48. Because the injured employee must, in order to benefit

from the act, be employed at the time of his injury "in interstate

commerce," the Court's application of it has given rise to some narrow

distinctions. _See_ Illinois Central R. Co. _v._ Peery, 242 U.S. 292

(1916); New York Central R. Co. _v._ White, 243 U.S. 188 (1917);

Chicago, B. & Q.R. Co. _v._ Harrington, 241 U.S. 177 (1916); Louisville

& N.R. Co. _v._ Parker, 242 U.S. 13 (1916); Illinois Central R. Co. _v._

Behrens, 233 U.S. 473 (1914); St. Louis, S.F. & T.R. Co. _v._ Seale, 229

U.S. 156 (1913); Pedersen _v._ Delaware, L. & W.R. Co., 229 U.S. 146

(1913); Shanks _v._ Delaware, L. & W.R. Co., 239 U.S. 556 (1916); Lehigh

Valley R. Co. _v._ Barlow, 244 U.S. 183 (1917); Southern R. Co. _v._

Puckett, 244 U.S. 571 (1917); Reed _v._ Director General of Railroads,

258 U.S. 92 (1922). That Congress might "legislate as to the

qualifications, duties, and liabilities of employes and others on

railway trains engaged in that [interstate] commerce," was stated by the

Court in Nashville, C. & St. L.R. Co. _v._ Alabama, 128 U.S. 96, 99

(1888).

[407] 208 U.S. 161 (1908).

[408] 30 Stat. 424.

[409] 44. Stat. 577.

[410] Texas & N.O.R. Co. _v._ Brotherhood of R. & S.S. Clerks, 281 U.S.

548 (1930). The provision of Railway Labor Act of 1926 (44 Stat. 577),

preventing interference by either party with organization or designation

of representatives by the other, is within the constitutional authority

of Congress. Similarly, "back shop" employees of an interstate carrier,

who engaged in making heavy repairs on locomotives and cars withdrawn

from service for that purpose for long periods (an average of 105 days

for locomotives and 109 days for cars), were held to be within the terms

of the act as amended in 1934 (48 Stat. 1185). "The activities in which

these employees are engaged have such a relation to the other

confessedly interstate activities of the * * * [carrier] that they are

to be regarded as a part of them. All taken together fall within the

power of Congress over interstate commerce." Virginian R. Co. _v._

System Federation No. 40, 300 U.S. 515, 556 (1937).

By the Adamson Act of 1916 a temporary increase in wages was imposed

upon the railways of the country in order to meet a sudden threat to

strike by important groups of their employees. The act was assailed on

the dual ground that it was not a regulation of commerce among the

States and that it was violative of the carriers' rights under the Fifth

Amendment. A closely divided Court, speaking through Chief Justice

White, answered both objections by pointing to the magnitude of the

emergency which had threatened the country with commercial paralysis and

grave loss and suffering. To the familiar argument that "emergency may

not create power" (Ex parte Milligan, 4 Wall. 2 (1806)), the Chief

Justice answered that "it may afford a reason for exerting a power

already enjoyed." A further answer to objections based on the rights of

carriers under the Fifth Amendment, particularly the right of "freedom

of contract," was that the situation met by the statute had arisen in

consequence of a failure to exercise these rights--a far from

satisfactory answer, as the dissent pointed out, since one element of a

right is freedom of choice regarding its use or nonuse. Wilson _v._ New,

243 U.S. 332, 387 (1917).

[411] 48 Stat. 1283.

[412] 295 U.S. 330 (1935).

[413] Ibid. 374.

[414] Ibid. 384.

[415] 326 U.S. 446 (1946). Indeed, in a case decided in June, 1948,

Justice Rutledge, speaking for a majority of the Court, listed the Alton

case as one "foredoomed to reversal," though the formal reversal has

never taken place. _See_ Mandeville Is. Farms _v._ American C.S. Co.,

334 U.S. 219, 230 (1948).

[416] 250 U.S. 199 (1919).

[417] Ibid. 203-204.

[418] 26 Stat. 209 (1890).

[419] 156 U.S. 1 (1895).

[420] Ibid. 13.

[421] 156 U.S. 1, 13-16 (1895). "Slight reflection will show that if the

national power extends to all contracts and combinations in manufacture,

agriculture, mining, and other productive industries, whose ultimate

result may effect external commerce, comparatively little of business

operations and affairs would be left for State control."

[422] Ibid. 17. The doctrine of the case simmered down to the

proposition that commerce was transportation only; a doctrine which

Justice Harlan undertook to refute in his notable dissenting opinion:

"Interstate commerce does not, therefore, consist in transportation

simply. It includes the purchase and sale of articles that are intended

to be transported from one State to another--every species of commercial

intercourse among the States and with foreign nations." (p. 22). "Any

combination, therefore, that disturbs or unreasonably obstructs freedom

in buying and selling articles manufactured to be sold to persons in

other States or to be carried to other States--a freedom that cannot

exist if the right to buy and sell is fettered by unlawful restraints

that crush out competition--affects, not incidentally, but directly, the

people of all the States; and the remedy for such an evil is found only

in the exercise of powers confided to a government which, this court has

said, was the government of all, exercising powers delegated by all,

representing all, acting for all. McCulloch _v._ Maryland, 4 Wheat. 316,

405." (p. 33). "It is said that manufacture precedes commerce and is not

a part of it. But it is equally true that when manufacture ends, that

which has been manufactured becomes a subject of commerce; that buying

and selling succeed manufacture, come into existence after the process

of manufacture is completed, precede transportation, and are as much

commercial intercourse, where articles are bought _to be_ carried from

one State to another, as is the manual transportation of such articles

after they have been so purchased. The distinction was recognized by

this court in Gibbons _v._ Ogden, where the principal question was

whether commerce included navigation. Both the Court and counsel

recognized buying and selling or barter _as included in commerce_. * * *

The power of Congress covers and protects the absolute freedom of such

intercourse and trade among the States as may or must succeed

manufacture and precede transportation from the place of purchase." (p.

35-36). "When I speak of trade I mean the buying and selling of articles

of every kind that are recognized articles of interstate commerce.

Whatever improperly obstructs the free course of interstate intercourse

and trade, as involved in the buying and selling of articles to be

carried from one State to another, may be reached by Congress, under its

authority to regulate commerce among the States." (p. 37). "If the

national power is competent to repress _State_ action in restraint of

interstate trade as it may be involved in purchases of refined sugar to

be transported from one State to another State, surely it ought to be

deemed sufficient to prevent unlawful restraints attempted to be imposed

by combinations of corporations or individuals upon those identical

purchases; otherwise, illegal combinations of corporations or

individuals may--so far as national power and interstate commerce are

concerned--do, with impunity, what no State can do." (p. 38). "Whatever

a State may do to protect its completely interior traffic or trade

against unlawful restraints, the general government is empowered to do

for the protection of the people of all the States--for this purpose one

people--against unlawful restraints imposed upon interstate traffic or

trade in articles that are to enter into commerce among the several

States." (p. 42).

[423] 175 U.S. 211 (1899).

[424] 196 U.S. 375.--The Sherman Act was applied to break up

combinations of interstate carriers in United States _v._ Trans-Missouri

Freight Asso., 166 U.S. 290 (1897); United States _v._ Joint-Traffic

Asso., 171 U.S. 505 (1898); and Northern Securities Co. _v._ United

States, 193 U.S. 197 (1904). In the first of these cases the Court was

confronted with the contention that the act had been intended only for

the industrial combinations, and hence was not designed to apply to the

railroads, for whose governance the Interstate Commerce Act had been

enacted three years prior. Justice Peckham answered the argument by

saying that "to exclude agreements as to rates by competing railroads *

* * would leave [very] little for the act to take effect upon,"

referring in this connection to the decision in the Sugar Trust Case,

166 U.S. at 313.

Alluding in his opinion for the Court in Mandeville Island Farms _v._

American C.S. Co., 334 U.S. 219 (1948) to the Sugar Trust Case, Justice

Rutledge said: "Like this one, that case involved the refining and

interstate distribution of sugar. But because the refining was done

wholly within a single state, the case was held to be one involving

'primarily' only 'production' or 'manufacturing,' although the vast part

of the sugar produced was sold and shipped interstate, and this was the

main end of the enterprise. The interstate distributing phase, however,

was regarded as being only 'incidentally,' 'indirectly,' or 'remotely'

involved; and to be 'incidental,' 'indirect,' or 'remote' was to be,

under the prevailing climate, beyond Congress' power to regulate, and

hence outside the scope of the Sherman Act. _See_ Wickard _v._ Filburn,

317 U.S. at 119 et seq. (1942).

"The _Knight_ decision made the statute a dead letter for more than a

decade and, had its full force remained unmodified, the Act today would

be a weak instrument, as would also the power of Congress, to reach

evils in all the vast operations of our gigantic national industrial

system antecedent to interstate sale and transportation of manufactured

products. Indeed, it and succeeding decisions, embracing the same

artificially drawn lines, produced a series of consequences for the

exercise of national power over industry conducted on a national scale

which the evolving nature of our industrialism foredoomed to reversal."

Ibid. 229-230.

[425] Swift & Co. _v._ United States, 196 U.S. 375, 396 (1905).

[426] 196 U.S. at 398-399.

[427] Ibid. 399-401.

[428] Ibid. 400.

[429] Loewe _v._ Lawlor, 208 U.S. 274 (1908); Duplex Printing Press Co.

_v._ Deering, 254 U.S. 443 (1921); Coronado Coal Co. _v._ United Mine

Workers of America, 268 U.S. 295 (1925); United States _v._ Brime, 272

U.S. 549 (1926); Bedford Co. _v._ Stone Cutters Assn., 274 U.S. 37

(1927); Local 167 _v._ United States, 291 U.S. 293 (1934); Allen Bradley

Co. _v._ Union, 325 U.S. 797 (1945).

[430] 42 Stat. 159.

[431] Ibid. 998 (1922).

[432] 258 U.S. 495 (1922).

[433] Ibid. 514.

[434] Ibid. 515-516. _See also_ Lemke _v._ Farmers' Grain Co., 258 U.S.

50 (1922); Minnesota _v._ Blasius, 290 U.S. 1 (1933).

[435] 262 U.S. 1 (1923).

[436] Ibid. 35.

[437] Ibid. 40.

[438] 258 U.S. at 521; 262 U.S. at 37.

[439] 48 Stat. 881.

[440] 49 Stat. 803.

[441] Electric Bond Co. _v._ Comm'n., 303 U.S. 419 (1938); North

American Co. _v._ S.E.C., 327 U.S. 686 (1946); American Power & Light

Co. _v._ S.E.C., 329 U.S. 90 (1946).

[442] "The Bond and Share system, including American and Electric,

possesses an undeniable interstate character which makes it properly

subject, from the statutory standpoint, to the provisions of Sec. 11 (b)

(2). This vast system embraces utility properties in no fewer than 32

States, from New Jersey to Oregon and from Minnesota to Florida, as well

as in 12 foreign countries. Bond and Share dominates and controls this

system from its headquarters in New York City. * * * the proper control

and functioning of such an extensive multi-state network of corporations

necessitates continuous and substantial use of the mails and the

instrumentalities of interstate commerce. Only in that way can Bond and

Share, or its subholding companies or service subsidiary, market and

distribute securities, control and influence the various operating

companies, negotiate inter-system loans, acquire or exchange property,

perform service contracts, or reap the benefits of stock ownership. * *

* Moreover, many of the operating companies on the lower echelon sell

and transmit electric energy or gas in interstate commerce to an extent

that cannot be described as spasmodic or insignificant. * * * Congress,

of course, has undoubted power under the commerce clause to impose

relevant conditions and requirements on those who use the channels of

interstate commerce so that those channels will not be conduits for

promoting or perpetuating economic evils. * * * Thus to the extent that

corporate business is transacted through such channels, affecting

commerce in more States than one, Congress may act directly with respect

to that business to protect what it conceives to be the national

welfare. * * * It may compel changes in the voting rights and other

privileges of stockholders. It may order the divestment or rearrangement

of properties. It may order the reorganization or dissolution of

corporations. In short, Congress is completely uninhibited by the

commerce clause in selecting the means considered necessary for bringing

about the desired conditions in the channels of interstate commerce. Any

limitations are to be found in other sections of the Constitution.

Gibbons _v._ Ogden, 9 Wheat. 1, 196." American Power & Light Co. _v._

S.E.C., 329 U.S. 90, 98-100 (1946).

[443] Appalachian Coals, Inc. _v._ United States, 288 U.S. 344, 372

(1933).

[444] 48 Stat. 195.

[445] 295 U.S. 495 (1935).

[446] Ibid. 548. _See also_ Ibid. 546.

[447] In United States _v._ Sullivan, 332 U.S. 689 (1948), the Court

interpreted the Federal Food, Drug, and Cosmetics Act of 1938 as

applying to the sale by a retailer of drugs purchased from his

wholesaler within the State nine months after their interstate shipment

had been completed. The Court, speaking by Justice Black, cited United

States _v._ Walsh, 331 U.S. 432 (1947); Wickard _v._ Filburn, 317 U.S.

111 (1942); United States _v._ Wrightwood Dairy Co., 315 U.S. 110

(1942); United States _v._ Darby, 312 U.S. 100 (1941). The last three of

these cases are discussed below. _See_ pp. 155, 159. Justice Frankfurter

dissented on the basis of Federal Trade Commission _v._ Bunte Bros., 312

U.S. 349 (1941). It is apparent that the Schechter case has been

thoroughly repudiated so far as the distinction "direct" and "indirect"

effects is concerned. _See also_ McDermott _v._ Wisconsin, 228 U.S. 115

(1913), which preceded the Schechter decision by more than two decades.

The N.I.R.A., however, was found to have several other constitutional

infirmities besides its disregard, as illustrated by the Live Poultry

Code, of the "fundamental" distinction between "direct" and "indirect"

effects, namely, the delegation of uncanalized legislative power; the

absence of any administrative procedural safeguards; the absence of

judicial review; and the dominant role played by private groups in the

general scheme of regulation. These objections are dealt with elsewhere

in this volume. _Supra_, pp. 75, 78, 80.

[448] 48 Stat 31 (1933).

[449] United States _v._ Butler, 297 U.S. 1, 63-64, 68 (1936).

[450] 49 Stat. 991.

[451] Carter _v._ Carter Coal Co., 298 U.S. 238 (1936).

[452] Ibid. 308-309.

[453] United States _v._ E.C. Knight Co., 156 U.S. 1 (1895).

[454] 301 U.S. 1 (1937).

[455] 49 Stat. 449.

[456] 301 U.S. at 38, 41-42 (1937).

[457] National Labor Relations Board _v._ Fruehauf Trailer Co., 301 U.S.

49 (1937); National Labor Relations Board _v._ Friedman-Harry Marks

Clothing Co., 301 U.S. 58 (1937).

[458] National Labor Relations Board _v._ Fainblatt, 306 U.S. 601, 606

(1939).

[459] _See_ Santa Cruz Fruit Packing Co. _v._ National Labor Relations

Board, 303 U.S. 453, 465 (1938).

[460] 52 Stat. 1060.

[461] United States _v._ Darby, 312 U.S. 100, 115 (1941).

[462] _See_ ibid. 113, 114, 118.

[463] Ibid. 123-124.

[464] Owen J. Roberts, The Court and the Constitution, The Oliver

Wendell Holmes Lectures 1951, (Harvard University Press 1951), 56.

[465] The Act provided originally that "for the purposes of this Act an

employee shall be deemed to have been engaged in the production of goods

if such employee was employed * * * in any process or occupation

necessary to the production thereof, in any State." By 63 Stat. 910

(1949), "necessary to the production thereof" becomes "directly

essential to the production thereof." The effect of this change, which

has not yet registered itself in judicial decision, seems likely to be

slight, in view of the power, which the act gives the Administrator to

lay down "such terms and conditions" as he "finds necessary to carry out

the purposes of" his orders to prevent their evasion or circumvention.

_See_ Gemsco, Inc. _v._ Walling, 324 U.S. 244 (1945). The employees

involved in the following cases have been held to be covered by the act:

(1) Operating and maintenance employees of the owner of a loft building,

space in which is rented to persons producing goods principally for

interstate commerce (Kirschbaum _v._ Walling, 316 U.S. 517 (1942));

(2) an employee of an interstate motor transportation company, who acted

as rate clerk and performed other incidental duties (Overnight Motor Co.

_v._ Missel, 316 U.S. 572 (1942));

(3) members of a rotary drilling crew, engaged within a State, as

employees of an independent contractor, in partially drilling oil wells,

a portion of the products from which later moved in interstate commerce

(Warren-Bradshaw Co. _v._ Hall, 317 U.S. 88 (1942));

(4) employees of a wholesale paper company who are engaged in the

delivery, from company warehouse within a State to customers within that

State, after a temporary pause at such warehouses, of goods procured

outside of the State upon prior orders from, or pursuant to contracts

with, such customers (Walling _v._ Jacksonville Paper Co., 317 U.S. 564

(1943));

(5) employees of a private corporation who are engaged in the operation

and maintenance of a drawbridge which is part of a toll road used

extensively by persons and vehicles traveling in interstate commerce,

and which spans an intercoastal waterway used in interstate commerce

(Overstreet _v._ North Shore Corp., 318 U.S. 125 (1943));

(6) a night watchman employed in a plant in which veneer was

manufactured from logs and from which a substantial portion of the

manufactured product was shipped in interstate commerce (Walton _v._

Southern Package Corp., 320 U.S. 540 (1944));

(7) employees putting in stand-by time in the auxiliary fire-fighting

service of an employer engaged in interstate commerce (Armour & Co. _v._

Wantock, 323 U.S. 126 (1944));

(8) warehouse and central office employees of an interstate retail chain

store system (Phillips Co. _v._ Walling, 324 U.S. 490 (1945));

(9) employees of an independent contractor engaged in repairing

abutments and substructures of bridges which were part of the line of an

interstate railroad (Fitzgerald Co. _v._ Pedersen, 324 U.S. 720 (1945));

(10) maintenance employees of an office building which was owned and

operated by a manufacturing corporation and in which 58 per cent of the

rental space was used for its central offices, where its production of

goods for interstate commerce was administered, managed and controlled,

although the goods were actually produced at plants located elsewhere

(Borden Company _v._ Borella, 325 U.S. 679 (1945));

(11) the employees of an electrical contractor, locally engaged in

commercial and industrial wiring and dealing in electrical motors and

generators for commercial and industrial uses, whose customers are

engaged in the production of goods for interstate commerce (Roland Co.

_v._ Walling, 326 U.S. 657-678 (1946));

(12) employees of a window-cleaning company, the greater part of whose

work is done on the windows of industrial plants of producers of goods

for interstate commerce (Martino _v._ Michigan Window Cleaning Company,

327 U.S. 173-178 (1946));

(13) mechanics engaged in servicing and maintaining equipment of a motor

transportation company which is engaged in interstate commerce (Boutell

_v._ Walling, 327 U.S. 463 (1946)). Nor does the maxim "_de minimis_"

apply to the act. Hence the publishers of a daily newspaper only about

one half of one per cent of whose circulation is outside the State of

publication are not by that fact excluded from the operation of the act.

(Mabee _v._ White Plains Publishing Co., 327 U.S. 178 (1946)). On the

other hand, an employee whose work it is to prepare meals and serve them

to maintenance-of-way employees of an interstate railroad in pursuance

of a contract between his employer and the railroad company is not

"engaged in commerce" within the meaning of Sec. 6 and 7 of the Fair

Labor Standards Act (McLeod _v._ Threlkeld, 319 U.S. 491 (1943)); nor are

maintenance employees of a typical metropolitan office building operated

as an independent enterprise, which is used and is to be used for

offices by every variety of tenants, including some producers of goods

for commerce (10 East 40th St. _v._ Callus, 325 U.S. 578 (1945)); nor

are maintenance employees of a building corporation which furnishes loft

space to tenants engaged in production for interstate commerce "unless

an adequate proportion of such tenants are so engaged." (Schulte _v._

Gangi, 328 U.S. 108 (1946)). _Also_ Section 12 (a) of the Fair Labor

Standards Act, which provides that "no producer, * * * shall ship or

deliver for shipment in commerce any goods produced in an establishment

* * * in or about which * * * any oppressive child labor has been

employed * * *" was held inapplicable to a company engaged in the

transmission in interstate commerce of telegraph messages, (Western

Union _v._ Lenroot, 323 U.S. 490 (1945)). The decision was a

five-to-four one. It should be added that the Court has not always been

unanimous in favoring coverage by the act. In the Borden case above,

Chief Justice Stone, speaking for himself and Justice Roberts,

protested, as follows: "No doubt there are philosophers who would argue,

what is implicit in the decision now rendered, that in a complex modern

society there is such interdependence of its members that the activities

of most of them are necessary to the activities of most others. But I

think that Congress did not make that philosophy the basis of the

coverage of the Fair Labor Standards Act. It did not, by a

'house-that-Jack-built' chain of causation, bring within the sweep of

the statute the ultimate _causa causarum_ which result in the production

of goods for commerce. Instead it defined production as a physical

process. It said in Sec. 3 (j) 'Produced means produced, manufactured,

mined, handled, or in any other manner worked on' and declared that

those who participate in any of these processes 'or in any process or

occupation necessary to' them are engaged in production and subject to

the Act." 325 U.S. 679, 685. On the other hand, the holding in 10 East

40th St., above, was a five-to-four decision, and Justice Frankfurter,

speaking for the Court took pains to explain that Congress in enacting

the Fair Labor Standards Act, "did not see fit, * * *, to exhaust its

constitutional power over commerce." 325 U.S. 578-579. _See_ 87 Law Ed.

pp. 87-105 for a note reviewing both Supreme Court, lower Federal Court,

and State court cases defining "engaged in commerce" as that term is

used in the Fair Labor Standards Act.

[466] 50 Stat. 246.

[467] 315 U.S. 110 (1942).

[468] Ibid. 118-119.

[469] 317 U.S. 111 (1942).

[470] 52 Stat. 31.

[471] 317 U.S. at 128-129.

[472] Ibid. 120-124 _passim_. In United States _v._ Rock Royal

Co-operative, 307 U.S. 533 (1939), the Court sustained an order under

the Agricultural Marketing Agreement Act of 1937 (50 Stat. 752)

regulating the price of milk in certain instances. Said Justice Reed for

the majority of the Court: "The challenge is to the regulation 'of the

price to be paid upon the sale by a dairy farmer who delivers his milk

to some country plant.' It is urged that the sale, a local transaction,

is fully completed before any interstate commerce begins and that the

attempt to fix the price or other elements of that incident violates the

Tenth Amendment. But where commodities are bought for use beyond State

lines, the sale is a part of interstate commerce. We have likewise held

that where sales for interstate transportation were commingled with

intrastate transactions, the existence of the local activity did not

interfere with the federal power to regulate inspection of the whole.

Activities conducted within the State lines do not by this fact alone

escape the sweep of the Commerce Clause. Interstate commerce may be

dependent upon them. Power to establish quotas for interstate marketing

gives power to name quotas for that which is to be left within the State

of production. Where local and foreign milk alike are drawn into a

general plan for protecting the interstate commerce in the commodity

from the interferences, burdens and obstructions, arising from excessive

surplus and the social and sanitary evils of low values, the power of

the Congress extends also to the local sales."' Ibid. 568-569. _See

also_ H.P. Hood & Sons _v._ United States, 307 U.S. 588 (1939), another

milk case; and Mulford _v._ Smith, 307 U.S. 38 (1939), in which certain

restrictions on the sale of tobacco, under the Agricultural Adjustment

Act of 1938 (52 Stat. 31), were sustained in an opinion by Justice

Roberts, who spoke for the Court in the latter case.

[473] United States _v._ The William, 28 Fed. Cas. No. 16,700, 614,

620-623 _passim_ (1808). Other parts of this opinion are considered

below in connection with the prohibiting of interstate commerce. _See

also_ Gibbons _v._ Ogden, 9 Wheat. 1, 191 (1824); United States _v._

Marigold, 9 How. 560 (1850).

[474] 289 U.S. 48 (1933).

[475] Ibid. 57, 58.

[476] 5 Stat. 566 Sec. 28.

[477] 9 Stat. 237 (1848).

[478] 24 Stat. 409.

[479] 35 Stat. 614; 38 Stat. 275.

[480] 29 Stat. 605.

[481] 192 U.S. 470 (1904).

[482] 223 U.S. 166 (1912); _cf._ United States _v._ California, 332 U.S.

19 (1947).

[483] 239 U.S. 325 (1915).

[484] Ibid. 329.

[485] 236 U.S. 216 (1915).

[486] Ibid. 222. _See also_ Robert B. Cushman, National Police Power

Under the Commerce Clause, 3 Selected Essays on Constitutional Law,

62-79.

[487] Groves _v._ Slaughter, 15 Pet. 449, 488-489 (1841).

The Issue

A little reflection will suffice to show that, as a matter of fact, any

regulation at all of commerce implies some measure of power to prohibit

it, since it is the very nature of regulation to lay down terms on which

the activity regulated will be permitted and for noncompliance with

which it will not be permitted. It is also evident that when occasion

does arise for an outright prohibition of an activity, the power to

enact the required prohibition ordinarily must belong to the body which

is vested with authority to regulate it, which in this instance is

Congress.

What, then, are the outstanding differences between such conditional

prohibitions of commerce and that with which this resume deals? There

seem to be three such differences. First, there is often a difference of

_modus operandi_ between the statutes already considered and those about

to be considered. The former impinge upon persons or agencies engaged in

interstate commerce and their activities in connection therewith,

whereas the latter look primarily to things, or the subject matter, of

the trade or commerce prohibited. Secondly, there is a difference in

purpose between the two categories of Congressional statutes. The

purpose of the acts already treated is to lay down the conditions on

which a designated branch of commerce among the States may be carried

on; that of the acts now to be treated is to eliminate outright a

designated branch of trade among the States. In other words, whereas the

former acts were, in general, preservative of the commerce which they

regulated because of its value to society, the latter regard the

commerce which they reach as detrimental to society. The third, and most

important difference from the point of view of Constitutional Law, is

the difference in relation of the two categories of acts respectively to

the reserved powers of the States. The enactments of Congress already

dealt with frequently intrude upon the ordinary field of jurisdiction of

the States; but when they do so, it is because the acts or things which

they thus bring under national control are regarded as "local incidents"

of interstate commerce itself. The relation of the enactments about to

be considered to the reserved powers of the States is precisely the

inverse of this. Their very purpose is to reach and control matters

ordinarily governed by the State's police power, sometimes in order to

make State policy more effective, sometimes in order to supply a

corrective to it.

The Argument Denying Congress' Power To Prohibit Interstate Commerce

The principal argument against the constitutionality of prohibitory

Congressional legislation pivoted on the dual conception of the Federal

System "The Federal Equilibrium". The Constitution, the argument ran,

clearly contemplates two spheres of governmental activity, that of the

States, that of the United States; and while the latter government is

generally supreme when the two collide with one another in the exercise

of their respective powers, yet collision is not contemplated as the

rule of life of the system, but the contrary. And since there are these

two spheres, the line to be drawn between them, in order to secure

harmony instead of collision, should recognize that the objects which

the National Government was established to promote are relatively few,

while those which the States were retained to advance comprise the

principal objectives of government, the protection of the public health,

safety, morals, and welfare. The power to promote these ends is, indeed,

the very definition of the police power of the States--that power for

which all other powers of the States exist. Seriously to impair the

police power of the States, or to diminish their autonomy in its

employment, would be, in fact to remove their reason for being, and so

the reason for the Federal System itself.

So while the power of Congress to regulate commerce among the States and

with foreign nations is in terms a single power, in the intention of the

framers it comprised two very different powers. In the field of foreign

relations, the National Government is completely sovereign, and the

power to regulate commerce with foreign nations is but a branch of this

sovereign power. The power to regulate commerce among the States is, on

the other hand, not a sovereign power except for purposes of commercial

advantage; in other respects it is confronted at every turn by the

police power of the States, and hence requires to be defined in relation

to the known and frequently reiterated objectives of that power.

Indeed, it was urged on the authority of Madison that the power to

regulate commerce among the States was not bestowed upon the National

Government "to be used for * * * positive purposes," but merely as "a

negative and preventive provision against injustice among the States

themselves." Madison IV, Letters and Other Writings, 15 (Philadelphia,

1865). Furthermore, it is a power which was designed for the _promotion_

and _advancement_ of commerce, not a power to strike commerce down in

order to advance other purposes and programs. Grant that the power to

regulate commerce among the States is the power to prohibit it at the

discretion of Congress, and you at once endow Congress with power which

it may use as a weapon to consolidate substantially all power in the

hands of the National Government.

Thus, if Congress may prohibit _ad libitum_ the carrying on of

interstate commerce, it may make deprivation of the right to engage in

interstate commerce in any of its phases, even the right to move from

one State to another, a sanction of ever-increasing efficacy for

whatever standards of conduct it may choose to lay down in any field of

human action; and since laws passed by Congress in pursuance of its

powers are generally supreme over conflicting State laws, these

standards would supersede the conflicting standards imposed under the

police powers of the States. Henceforth, in effect, the police power

would exist solely by "leave and license" of Congress--as "the power to

govern men and things" it would be at an end; and by the same token the

Federal System, which is the outstanding feature of government under the

Constitution, would be at an end. In the First Employers' Liability

Cases, (Howard _v._ Illinois Central R. Co., 207 U.S. 463 (1908)), the

majority of the Court, speaking through Justice White, gave special

attention to the Government's argument that though the act, in terms,

governed the liability of "every" interstate carrier to "any" of its

employees, whether engaged in interstate commerce or not when the

liability fell, it was none the less constitutional "because one who

engaged in interstate commerce thereby submits all his business concerns

to the regulating power of Congress." Justice White answered: "To state

the proposition is to refute it. It assumes that because one engages in

interstate commerce he thereby endows Congress with power not delegated

to it by the Constitution; in other words, with the right to legislate

concerning matters of purely State concern. It rests upon the conception

that the Constitution destroyed that freedom of commerce which it was

its purpose to preserve, since it treats the right to engage in

interstate commerce as a privilege which cannot be availed of except

upon such conditions as Congress may prescribe, even although the

conditions would be otherwise beyond the power of Congress. It is

apparent that if the contention were well founded it would extend the

power of Congress to every conceivable subject, however inherently

local, would obliterate all the limitations of power imposed by the

Constitution, and would destroy the authority of the States as to all

conceivable matters which from the beginning have been, and must

continue to be, under their control so long as the Constitution

endures." Ibid. 502-503. _See also_ Justice White's dissenting opinion,

for himself, Chief Justice Fuller, and Justices Peckham and Holmes, in

Northern Securities Co. _v._ United States, 193 U.S. 197, 396-397

(1904).

The Argument Asserting the Power

The thesis that the power to regulate commerce among the States

comprises in general the power to prohibit it turns on the proposition

stated by Marshall in his opinion in Gibbons _v._ Ogden, that this power

is vested "in Congress as absolutely as it would be in a single

government, having in its Constitution the same restrictions on the

exercise of the power as are found in the Constitution of the United

States. The wisdom and discretion of Congress," Marshall continued,

"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." 9 Wheat. 1,

196-197 (1824).

That the National Government is a government of limited powers, the

advocates of this view conceded; but the powers which it

uncontrovertibly possesses, they urged, may be utilized to promote all

good causes, of which fact, it was asserted, the Preamble of the

Constitution itself was proof. There the objectives of the Constitution

and so, presumably, of the Government created by it, are stated to be

"more perfect union," "justice," "domestic tranquillity," "the common

defense," "the general welfare," and "liberty." It was to forward these

broad general purposes, then, that the commercial power, like its other

powers, was bestowed upon the National Government. No doubt it was

expected that the States, too, would use the powers still left them to

assist the same purposes, which indeed are those of good government

always. Yet that circumstance should not operate to withdraw the powers

delegated to the National Government from the service of these same

ends. The fact, in other words, that the power to govern commerce among

the States was bestowed by the Constitution on the National Government

should not imply that it thereby became available merely for the purpose

of fostering such commerce. It ought, on the contrary, to be applicable,

as would be the equivalent power in England or France for instance, to

aid and support all recognized objectives of government. _See_ Juilliard

_v._ Greenman (Legal Tender Case), 110 U.S. 421, 447-448 (1884). As

originally possessed by the several States, the power to regulate

commerce with one another included the power to prohibit it at

discretion; on what principle, then, it was asked, can it be contended

that the power delegated to Congress is not as exhaustive and complete

as the power it was designed to supersede? _See_ especially Justice

Holmes' dissenting opinion in Hammer _v._ Dagenhart, 247 U.S. 251,

277-281 (1918).