CHAPTER XIII

THE REGULATION OF COMMERCE

=The Power to Regulate Commerce.=--Under the Articles of Confederation,

as we have seen, Congress possessed no power to regulate commerce among

the states or with foreign nations. That power remained entirely with

the states. Each state accordingly made such regulations as it saw fit,

without regard to the general welfare. It was this want of commercial

power on the part of Congress that contributed as much as anything else

perhaps to the downfall of the Confederation. The Constitution as

finally adopted gave Congress the exclusive power to regulate commerce

among the states, with foreign countries, and with the Indian tribes,

which were then treated somewhat as foreign nations for certain

purposes. The only limitations placed on the power of Congress in this

respect were that no duty should be levied on goods exported from any

state; that no preference should be given by any regulation of commerce

or revenue to the ports of one state over those of another; and that no

vessels bound to or from one state should be obliged to enter, clear, or

pay duties in another.

=Regulation of Foreign Commerce.= In pursuance of the power to regulate

commerce with foreign nations Congress has enacted a large amount of

legislation relating to tonnage duties, duties on imports, quarantine,

immigration, the importation of adulterated foods, wines, teas, and

other food products, the conduct of navigation, the construction and

inspection of ships carrying passengers, pilotage, clearances, the

protection of shipping, the rights of seamen, the registration and

insurance of vessels, life-saving appliances, the use of wireless

telegraph apparatus, and the like. It was also in pursuance of this

power that the Embargo Act was passed in 1807 and the Nonintercourse Act

in 1809--both of which were in effect prohibitions rather than

regulations of commerce.

_The Navigation Laws_ prescribe with great detail how vessels registered

under the American flag shall be constructed and equipped for the

comfort and safety of their crews and passengers; how they shall be

inspected; rules that shall be observed to avoid collisions, how signals

shall be displayed, etc.; the forms of papers vessels must carry; how

the wages of seamen shall be paid, the nature of their contracts, etc.

_The Tonnage Laws_ prescribe the rate of tonnage duties that shall be

levied on vessels entering American ports. Tonnage duties, as the name

indicates, are a form of taxation calculated on the basis of the tonnage

admeasurement of the vessel; they are levied on American as well as

foreign ships, though the rate is higher on the latter than on the

former. Sometimes they have been higher on the vessels of some foreign

countries than on those of others, in which case they are known as

discriminating tonnage duties. Such discriminating duties are employed

for the purpose of favoring the commerce of those nations which extend

us commercial privileges and for shutting out or restricting that of

nations which discriminate against our trade. In pursuance of the power

to regulate foreign commerce, Congress prohibits foreign vessels from

engaging in the coasting trade, and permits only citizens of the United

States to serve as masters on vessels registered under the American

flag. Formerly only American-built vessels could be registered, but in

1914, after the outbreak of the great war in Europe, Congress passed an

act allowing ships built in foreign yards, when owned by American

citizens, to be registered under the American flag; and more than 100

such vessels have been so registered.

_Immigration._--By virtue of the commerce power Congress has enacted a

series of immigration laws imposing restrictions on the coming of

immigrants to our shores. For a long time immigration from Europe was

encouraged rather than restricted, but within recent years so many

undesirable persons have found their way to America that Congress has

been led to pass various laws designed to shut out the worst of them and

admit only the desirable ones.[42]

[42] According to the report of the commissioner general of

immigration, 1,218,480 immigrants arrived in the United States during

the year 1914. Of those who applied for admission into the country,

more than 33,000 were turned back. In 1916 the number of arrivals

dropped to 366,748; in 1920 it was 430,000.

First of all, the immigration laws exclude convicts, insane persons,

paupers and those likely to become paupers, persons suffering with

dangerous, loathsome, and contagious diseases; epileptics, persons

afflicted with tuberculosis, idiots, feeble-minded persons, polygamists,

anarchists, immoral persons, and others of this character.

In the second place, what are known as alien contract laborers are

prohibited from entering the United States, that is, persons who come

under contract already entered into, to perform labor, whether skilled

or unskilled. The law excluding this class was enacted in obedience to

the demands of the union laborers of the United States, who did not wish

to be subjected to competition with foreign laborers specially imported

for the purpose. Actors, teachers, lecturers, and members of other

professions are exempted from the law, and so are skilled laborers if

domestic laborers of like kind are not available in the United States.

A third group of excluded classes are Chinese laborers, the immigration

of whom was first prohibited in 1882.

A law of 1916 provides, with certain exceptions, that no alien shall be

admitted unless he can read English or some other language or dialect. A

law passed in 1921 limits the number of immigrants who may enter

annually from each country, to 3 per cent of the number already in the

United States, or a total of about 356,000.

There is now a head tax of eight dollars levied upon every immigrant who

is admitted. Persons whose steamship passage has been paid by others or

who have been otherwise assisted to come are not allowed to enter. When

an immigrant has been denied admission by the commissioner of

immigration at the port at which he has landed, he may take an appeal to

a special board of inquiry. If the decision of this board is against him

he may appeal to the United States commissioner-general of immigration,

and finally to the secretary of the department of labor. If the final

decision is against him, the steamship on which he sailed is required at

its own expense to transport him to the port from which he sailed.

_Quarantine._--In pursuance of the power to regulate foreign commerce,

Congress has enacted a volume of legislation in regard to quarantine and

medical inspection of ships and their passengers coming from foreign

ports. In most instances inspections are made by the United States

consul at the port from which the vessel sails, and a bill of health is

furnished the master of the vessel, but in some Asiatic and South

American ports regular medical inspectors are stationed. At various

ports along the coast, national quarantine stations have been

established at which inspections of incoming vessels are made and at

which they may be detained if found to have on board persons suffering

from dangerous contagious diseases.

_Pure Food._--Congress has also provided for the inspection of foods

imported from abroad. Whenever a vessel is found to have on board impure

or adulterated foods or teas, it is forbidden to land the cargo or is

allowed to land it only after certain conditions are complied with such

as the change of labels to correspond with the actual contents of

packages. In this way an attempt is made to protect the American

consumer against impure and unwholesome food products shipped here from

foreign ports.

=Interstate Commerce= has been interpreted to include the carriage of

passengers from one state to another; the transportation of commodities

of whatsoever character, including lottery tickets, obscene literature,

and any other objects which may be the subject of transportation; and

the transmission of ideas or information by telegraph or telephone from

a point in one state to a point in another. In short, interstate

commerce means not only transportation and traffic in articles but

intercourse and communication by the modern devices for transmitting

thought; and the power to prescribe the conditions under which such

intercourse may be carried on across state lines belongs to Congress.[43]

Congress controls also the coasting trade between parts of the same

state and the traffic on all rivers which flow into the ocean or the

Great Lakes and thus constitute highways of interstate or foreign

commerce.

[43] Under the commerce power. Congress has also enacted the white

slave law, and an act restricting the killing of birds that migrate

from one state to another.

[Illustration: IMMIGRATION STATION, ELLIS ISLAND, NEW YORK HARBOR]

[Illustration: IMMIGRANTS READY TO START WEST]

_Power Retained by the States._--Nevertheless it is often difficult in a

particular case to draw the line between acts which regulate interstate

commerce and acts which merely affect it without regulating it. The

Supreme Court in a long line of decisions has held that the states not

only have complete power of control over all commerce originating and

ending within their limits but that they may also enact legislation for

the protection of the public health, safety, good order, and morals of

their people even when such legislation affects commerce among the

states, the only restriction being that such legislation must be

reasonable and must not amount to a direct interference with interstate

traffic. The right of the states in this respect is known as the _police

power_--a power which is very extensive and of which they cannot be

deprived by Congress. Thus they may enact reasonable quarantine laws

forbidding the entrance into their territory of diseased persons from

other states or the importation of diseased live stock. Likewise they

may limit the speed of interstate trains running through their towns,

may require railroads to provide gates at crossings, safety appliances

for cars, and the like.

_The Original Package Doctrine._--A state, however, prior to 1920, could

not without the consent of Congress prohibit the importation of liquor

in original packages into its territory from other states, although it

might be a prohibition state.[44] But Congress itself, by an act passed

in 1913, prohibited the transportation of intoxicating liquors into

states having prohibition laws.

[44] Early in 1919 the eighteenth amendment to the federal constitution

was adopted, prohibiting the liquor traffic after one year.

Likewise, the states cannot impose taxes on passengers passing through

their territory bound for points in other states, or require interstate

trains to stop at county seats, or impose taxes on telegraph messages

sent to points in other states, or on bills of lading of freight

destined to points in other states, or on goods intended for

exportation, and so on.

=Regulation of Interstate Railway Traffic.=--For a long time Congress

took no action toward regulating railway traffic among the states, thus

leaving the railroads free to carry on their business as they pleased,

regardless of the interest of the public whom they served. But with the

enormous development of the railway system of the country gross evils

began to creep in, in the form of excessive rates, discriminations,

combinations for the suppression of competition, inadequate provision

for the safety of passengers, etc., in consequence of which a widespread

demand grew up for legislation bringing the railroads under governmental

control. The outcome of this agitation was the interstate commerce act

of 1887, the provisions of which have been amended and extended by

several subsequent acts, notably the Elkins act of 1903, the railway

rate law of 1906, and the interstate commerce law of 1910.

_Interstate Commerce Commission._--The law of 1887 created an interstate

commerce commission which now consists of eleven members appointed by

the President and paid a salary of $12,000 a year each, which commission

has general supervision of the execution of the several acts mentioned

above. It hears complaints against the railroads, makes investigations

upon petition, and to this end may summon witnesses and compel the

production of papers and records, and conduct hearings. If, after an

investigation, it finds that the law is being violated by a railroad

company, it may request the proper federal authorities to institute a

prosecution of the offending company, and the law requires that such a

prosecution shall be made. For a long time the commission had no power

to fix rates, but only the negative right to say that a given rate was

unjust and unreasonable. But by the act of 1906 it was given the power,

after a full hearing, to determine and prescribe just and reasonable

maximum rates and charges, as well as to prescribe regulations for the

conduct of railway traffic.

_The Laws Now in Force_ prescribe that all railway rates and charges for

carrying freight and passengers must be just and reasonable; that no

rebates, drawbacks, or special rates shall be granted to particular

shippers; that no discriminations shall be made as to rates or service

to certain persons or places; that no free passes, with certain

specified exceptions, shall be granted; that no greater charges shall be

made for a "short haul" than for a "long haul"; that no railroads shall

be allowed to transport commodities which they are engaged in producing,

with certain exceptions; that competing railways shall not be allowed to

pool their freight or earnings; that schedules showing rates, fares, and

charges shall be published and kept open for inspection and cannot be

changed except after thirty days' notice to the commission; that all

railroads shall keep their accounts according to a uniform system

prescribed by the commission; and that they shall make annually to the

commission a full and complete report of their business and earnings.

An important extension of the interstate commerce act was made in 1906,

when express and sleeping car companies, pipe lines used for

transporting oil from one state to another, and telegraph, telephone,

and cable companies engaged in sending messages from one state to

another or to foreign countries, were brought under the operation of the

law and their business subjected to the same conditions and restrictions

as those applying to railroads. By an act of 1912 railroads were

prohibited from owning, controlling, or having any interest in competing

water carriers, and by an act of 1913 provision was made for preparing a

valuation of all railroads in the United States.

Congress has also enacted laws requiring interstate railroads to equip

their cars with automatic couplers and other safety appliances, fixing

the liability of railway employers for injuries sustained by railway

employees, encouraging the arbitration of railway strikes, and

establishing an eight-hour work day on railways (1916). An act excluding

the products of child labor from interstate commerce (1916) was declared

unconstitutional by the Supreme Court.

In pursuance of acts of Congress passed in 1916 and 1918, the President

in 1918 took over the control of railroads, telegraphs, and telephones

for the duration of the war.

=Federal Anti-trust Legislation.=--The commerce clause of the

Constitution has also furnished the authority for some important

congressional legislation against what are popularly known as "trusts,"

that is, combinations of corporations or business associations formed to

avoid the wastes of competition and to secure economy of management. But

the control of the supply of a commodity means the elimination of

competition and usually the maintenance of high rates to the injury of

consumers. For a long time the greater part of the business of the

country was conducted by individuals, companies, or corporations, and

the advantages of competition were preserved to the public, but in the

course of the economic development of the country, corporations began to

consolidate for the reasons stated, with the result that the supply of

many commodities came to be controlled by single combinations. At first

the states undertook to deal with the problem by passing anti-"trust"

laws, but the business of so many of the more powerful organizations

was interstate in character that state legislation was inadequate to

deal with them.

_The Sherman Anti-"trust" Law._--Finally, in obedience to a widespread

popular demand, Congress took action in 1890 by passing what is

popularly known as the Sherman anti-"trust" act to protect trade and

commerce among the states against unlawful restraint and monopolies.

This act declared that every contract, combination in the form of trust

or otherwise, or conspiracy in restraint of trade or commerce among the

states or with foreign nations was illegal, and it prescribed

appropriate penalties for violations thereof. This law, however, applies

only to "trusts" which are in restraint of trade among the states or

with foreign nations. It has no application to those whose activities

are confined entirely within the boundaries of a single state; with such

"trusts" the states alone have the power to deal.

In pursuance of the act of 1890, prosecutions have been instituted in

the federal courts against a large number of "trusts," and some of them

have been broken up, but the larger number have escaped. In 1911, for

example, the Supreme Court decided that the Standard Oil and tobacco

"trusts" were illegal, and their dissolution was decreed.

_The Clayton Anti-"trust" Act._--In 1914 Congress passed another

important act directed against combinations in restraint of trade. In

brief, it prohibits price discriminations among purchasers, exclusive

trade agreements between manufacturers and retailers, the holding of the

stock of one corporation by another, and interlocking directorates. Like

the other anti-"trust" acts it applies, of course, only to persons or

corporations engaged in interstate commerce or trade. To enforce the act

a _federal trade commission_ was created. It consists of five members

appointed by the President, at a salary of $10,000 each.

=Federal Pure Food Legislation.=--The commerce clause of the

Constitution is also the source of some important legislation designed

to protect the public against impure, unwholesome, and adulterated foods

produced in the United States. We have already called attention to the

legislation of Congress against the importation of impure foods, and

teas from abroad. Still more recently Congress passed an interstate pure

food law prohibiting the transportation among the states and territories

of any food products which are adulterated or which contain foreign

substances not indicated in the labels. The law also provides for the

fixing of a standard of pure foods and other products transported from

one state to another or intended for interstate transportation, and

provides that they must come up to the standard prescribed.

_The Meat Inspection Law._--To protect the public against unwholesome

meat products, Congress enacted in 1891 a law which was strengthened in

important particulars in 1906, providing for the inspection of

slaughtering houses whose products are intended for interstate commerce.

The law requires the registration of all establishments engaged in

slaughtering animals the products of which are to be shipped into other

states or are intended for export. Each is given a number, and federal

inspectors are assigned to inspect the animals intended for slaughter,

to inspect their carcasses in certain cases, and to see that the

business of slaughtering is conducted under clean and wholesome

conditions. Animals found suffering with certain diseases are not

allowed to be slaughtered for food purposes, and meat discovered to be

unwholesome must be rejected. Supervision is also exercised over the

processes of packing and canning, and there are detailed regulations in

regard to labeling.

=References.= ANDREWS, Manual of the Constitution, pp. 89-95.

BEARD, American Government, ch. xix. COOLEY, Principles of

Constitutional Law, pp. 66-88. HART, Actual Government, ch. xxiv.

HINSDALE, American Government, secs. 374-380. JOHNSON, Railway

Transportation, ch. xxvi.

=Illustrative Material.=--Annual reports of the Interstate Commerce

Commission, of the Department of Agriculture, of the

Attorney-General, of the Commissioner of Navigation, of the

Commissioner of Immigration, and of the Public Health and Marine

Hospital Service.

RESEARCH QUESTIONS

1. What were the reasons for giving Congress control over foreign and

interstate commerce?

2. Why did the delegates from the Southern states oppose giving this

power to Congress?

3. What is meant by the "original package" doctrine?

4. Why should a railroad company be prohibited from granting rebates?

For charging more for a "short haul" than for a "long haul"? From

transporting the products of its own mines and manufactories? From

pooling its freight or earnings?

5. What are the arguments for and against granting government subsidies

for the upbuilding of the merchant marine?

6. What have been the principal reasons for the decline of the American

carrying trade?

7. What is the amount of money annually appropriated for improving the

rivers and harbors of the country?

8. How has the commerce clause of the Constitution been the source of

important extensions of the power of the national government? Mention

some important recent acts of Congress that have been passed in

pursuance of this clause.

9. Should Congress, in your judgment, impose greater restrictions upon

immigration than it now imposes?

10. Do you think Congress should have power to regulate the business of

life insurance? To regulate marriage and divorce?

11. Is the policy of governmental regulation of railroads preferable to

governmental ownership? Give your reasons.

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