The Constitution of the United States of America: Analysis and Interpretation / Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952

by Unknown

LEGISLATIVE DEPARTMENT

Article I

Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Doctrine of Enumerated Powers

Two important doctrines of Constitutional Law—that the Federal Government is one of enumerated powers and that legislative power may not be delegated—are derived in part from this section. The classical statement of the former is that by Chief Justice Marshall in McCulloch v. Maryland: "This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted."[1] That, however, "the executive power" is not confined to the items of it which are enumerated in article II was asserted early in the history of the Constitution by Madison and Hamilton alike and is today the doctrine of the Court;[2] and a similar latitudinarian conception of "the judicial power of the United States" was voiced in Justice Brewer's opinion for the Court in Kansas v. Colorado.[3] But even when confined to "the legislative powers herein granted," the doctrine is severely strained by Marshall's conception of some of these as set forth in his McCulloch v. Maryland opinion: This asserts that "the sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to its government";[4] he characterizes "the power of making war," of "levying taxes," and of "regulating commerce" as "great, substantive and independent powers";[5] and the power conferred by the "necessary and proper" clause embraces, he declares, "all [legislative] means which are appropriate" to carry out "the legitimate ends" of the Constitution, unless forbidden by "the letter and spirit of the Constitution."[6] Nine years later, Marshall introduced what Story in his Commentaries labels the concept of "resulting powers," those which "rather be a result from the whole mass of the powers of the National Government, and from the nature of political society, than a consequence or incident of the powers specially enumerated."[7] Story's reference is to Marshall's opinion in American Insurance Company v. Canter,[8] where the latter says, that "the Constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty."[9] And from the power to acquire territory, he continues, arises as "the inevitable consequence" the right to govern it.[10] Subsequently, powers have been repeatedly ascribed to the National Government by the Court on grounds which ill accord with the doctrine of enumerated powers: the power to legislate in effectuation of the "rights expressly given, and duties expressly enjoined" by the Constitution;[11] the power to impart to the paper currency of the Government the quality of legal tender in the payment of debts;[12] the power to acquire territory by discovery;[13] the power to legislate for the Indian tribes wherever situated in the United States;[14] the power to exclude and deport aliens;[15] and to require that those who are admitted be registered and fingerprinted;[16] and finally the complete powers of sovereignty, both those of war and peace, in the conduct of foreign relations. In the words of Justice Sutherland in United States v. Curtiss-Wright Export Corporation,[17] decided in 1936: "The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. In that field, the primary purpose of the Constitution was to carve from the general mass of legislative powers then possessed by the states such portions as it was thought desirable to vest in the federal government, leaving those not included in the enumeration still in the states.... That this doctrine applies only to powers which the states had, is self evident. And since the states severally never possessed international powers, such powers could not have been carved from the mass of state powers but obviously were transmitted to the United States from some other source.... A political society cannot endure without a supreme will somewhere. Sovereignty is never held in suspense. When, therefore, the external sovereignty of Great Britain in respect of the colonies ceased, it immediately passed to the Union.... It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality."[18] Yet for the most part, these holdings do not, as Justice Sutherland suggests, directly affect "the internal affairs" of the nation; they touch principally its peripheral relations, as it were. The most serious inroads on the doctrine of enumerated powers are, in fact, those which have taken place under cover of the doctrine—the vast expansion in recent years of national legislative power in the regulation of commerce among the States and in the expenditure of the national revenues; and verbally at least Marshall laid the ground for these developments in some of the phraseology above quoted from his opinion in McCulloch v. Maryland.

Nondelegability of Legislative Power

ORIGIN OF DOCTRINE

At least three distinct ideas have contributed to the development of the principle that legislative power cannot be delegated. One is the doctrine of separation of powers: Why go to the trouble of separating the three powers of government if they can straightway remerge on their own motion? The second is the concept of due process of law, which precludes the transfer of regulatory functions to private persons. Lastly, there is the maxim of agency "Delegata potestas non potest delegari," which John Locke borrowed and formulated as a dogma of political science.[19] In Hampton Jr. & Co. v. United States,[20] Chief Justice Taft offered the following explanation of the origin and limitations of this idea as a postulate of constitutional law: "The well-known maxim 'Delegata potestas non potest delegari,' applicable to the law of agency in the general and common law, is well understood and has had wider application in the construction of our Federal and State Constitutions than it has in private law. The Federal Constitution and State Constitutions of this country divide the governmental power into three branches. * * * in carrying out that constitutional division * * * it is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch, or if by law it attempts to invest itself or its members with either executive power or judicial power. This is not to say that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination."[21]

FUNCTIONS WHICH MAY BE DELEGATED

Yielding to "common sense and the inherent necessities of governmental co-ordination" the Court has sustained numerous statutes granting in the total vast powers to administrative or executive agencies. Two different theories, both enunciated during the Chief Justiceship of John Marshall, have been utilized to justify these results. First in importance is the theory that another department may be empowered to "fill up the details" of a statute.[22] The second is that Congress may legislate contingently, leaving to others the task of ascertaining the facts which bring its declared policy into operation.[23]

POWER TO SUPPLEMENT STATUTORY PROVISIONS

The pioneer case which recognized the right of Congress to lodge in another department the power to "fill up the details" of a statute arose out of the authority given to federal courts to establish rules of practice, provided such rules were not repugnant to the laws of the United States. Chief Justice Marshall overruled the objection that this constituted an invalid delegation of legislative power, saying: "It will not be contended, that Congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself. * * * The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details."[24]

STANDARDS FOR ADMINISTRATIVE ACTION

Before another agency can "fill up the details," Congress must enact something to be thus supplemented. In the current idiom, the lawmakers must first adopt a policy or set up an "intelligible standard" to which administrative action must conform.[25] But the Court has taken a generous view of what constitutes a policy or standard. Although it has said that "procedural safeguards cannot validate an unconstitutional delegation,"[26] the nature of the proceedings appears to be one of the elements weighed in determining whether a specific delegation is constitutional.[27] In cases where the delegated power is exercised by orders directed to particular persons after notice and hearing, with findings of fact and of law based upon the record made in the hearing, the Court has ruled that such general terms as "public interest,"[28] "public convenience, interest, or necessity,"[29] or "excessive profits,"[30] were sufficient to satisfy constitutional requirements. But in two cases arising under the National Industrial Recovery Act, a policy declaration of comparable generality was held insufficient for the promulgation of rules applicable to all persons engaged in a designated activity, without the procedural safeguards which surround the issuance of individual orders.[31] By subsequent decisions, somewhat more elaborate, but still very broad, standards have been deemed adequate for various price fixing measures.[32] In a recent case,[33] the Court sustained a statute which, without any explicit standards whatever, authorized the Federal Home Loan Bank Board to make rules and regulations for the supervision of Federal Savings and Loan Associations. That decision was influenced by the fact that the corporation was chartered by federal law as well as by the peculiar problems involved in the supervision of financial institutions. The Court was at pains to make clear that this decision would not necessarily govern the disposition of dissimilar cases.[34]

RULE-MAKING POWER

After Wayman v. Southard, nearly three quarters of a century elapsed before the Court had occasion to approve the delegation to an executive officer of power to issue regulations for the administration of a statute. In 1897 it sustained the authority granted to the Commissioner of Internal Revenue to designate the "marks, brands and stamps" to be affixed to packages of oleomargarine.[35] Soon thereafter it upheld an act which directed the Secretary of the Treasury to promulgate minimum standards of quality and purity for tea imported into the United States.[36] It has approved the delegation to executive or administrative officials of authority to make rules governing the use of forest reservations;[37] permitting reasonable variations and tolerances in the marking of food packages to disclose their contents;[38] designating tobacco markets at which grading of tobacco would be compulsory;[39] establishing priorities for the transportation of freight during a period of emergency;[40] prescribing price schedules for the distribution of milk;[41] or for all commodities[42] and for rental housing[43] in time of war; regulating wages and prices in the production and distribution of coal;[44] imposing a curfew to protect military resources in designated areas from espionage and sabotage;[45] providing for the appointment of receivers or conservators for Federal Savings and Loan Associations;[46] allotting marketing quotas for tobacco;[47] and prescribing methods of accounting for carriers in interstate commerce.[48]

ORDERS DIRECTED TO PARTICULAR PERSONS

The now familiar pattern of regulation of important segments of the economy by boards or commissions which combine in varying proportions the functions of all three departments of government was first established by the States in the field of railroad rate regulation. Discovering that direct action was impracticable, the State legislatures created commissions to deal with the problem. One of the pioneers in this development was Minnesota, whose Supreme Court justified the practice in an opinion which, with the implied[49] and later the explicit,[50] endorsement of the Supreme Court, practically settled the law on this point: "If such a power is to be exercised at all, it can only be satisfactorily done by a board or commission, constantly in session, whose time is exclusively given to the subject, and who, after investigation of the facts, can fix rates with reference to the peculiar circumstances of each road, and each particular kind of business, and who can change or modify these rates to suit the ever-varying conditions of traffic."[51] Contemporaneously Congress created the Interstate Commerce Commission to regulate the rates and practices of railroads with respect to interstate commerce. Although the Supreme Court has never had occasion to render a direct decision on the delegation of rate-making power to the Commission, it has repeatedly affirmed rate orders issued by that agency.[52] Likewise it has sustained the power of the Secretary of War to order the removal or alteration of bridges which unreasonably obstructed navigation over navigable waters;[53] the power of the Federal Reserve Board to authorize national banks to act as fiduciaries;[54] the authority of the Secretary of Labor to deport aliens of certain enumerated classes, if after hearing he found such aliens to be "undesirable residents";[55] the responsibility of the Interstate Commerce Commission to approve railroad consolidations found to be in the "public interest";[56] and the powers of the Federal Radio Commission[57] and the Federal Communications Commission[58] to license broadcasting stations as "public convenience, interest and necessity" may require. The terms, however, in which a statute delegates authority to an administrative agent are subject to judicial review; and in a recent case the Court disallowed an order of the Secretary of Agriculture proporting resting on § 8 of the Agricultural Marketing Agreement Act of 1937[59] as ultra vires.[60]

DELEGATION TO PRIVATE PERSONS

Although in a few early cases the Supreme Court enforced statutes which gave legal effect to local customs of miners with respect to mining claims on public lands,[61] and to standards adopted by railroads for equipment on railroad cars,[62] it held, in Schechter Poultry Corp. v. United States,[63] and Carter v. Carter Coal Company[64] that private trade groups could not be empowered to issue binding rules concerning methods of competition or wages and hours of labor. On the other hand, statutes providing that restrictions upon the production or marketing of agricultural commodities shall become operative only upon a favorable vote by a prescribed majority of the persons affected have been upheld.[65] The position of the Court is that such a requirement does not involve any delegation of legislative authority, since Congress has merely placed a restriction upon its own regulation by withholding its operation in a given case unless it is approved upon a referendum.[66]

POWER TO GIVE EFFECT TO CONTINGENT LEGISLATION

An entirely different problem arises when, instead of directing another department of government to apply a general statute to individual cases, or to supplement it by detailed regulation, Congress commands that a previously enacted statute be revived, suspended or modified, or that a new rule be put into operation, upon the finding of certain facts by an executive or administrative officer. Since the delegated function in such cases is not that of "filling up the details" of a statute, authority for it must be sought elsewhere than in Wayman v. Southard and its progeny. It is to be found in an even earlier case—The Brig Aurora[67]—where the revival of a law upon the issuance of a Presidential proclamation was upheld in 1813. After previous restraints on British shipping had lapsed, Congress passed a new law stating that those restrictions should be renewed in the event the President found and proclaimed that France had abandoned certain practices which violated the neutral commerce of the United States. To the objection that this was an invalid delegation of legislative power, the Court answered briefly that "we can see no sufficient reason, why the legislature should not exercise its discretion in reviving the act of March 1st, 1809, either expressly or conditionally, as their judgment should direct."[68]

MODIFICATION OF TARIFF LAWS

This point was raised again in Field v. Clark,[69] where the Tariff Act of 1890 was assailed as unconstitutional because it directed the President to suspend the free importation of enumerated commodities "for such time as he shall deem just" if he found that other countries imposed upon agricultural or other products of the United States duties or other exactions which "he may deem to be reciprocally unequal and unjust." In sustaining this statute the Court relied heavily upon two factors: (1) legislative precedents which demonstrated that "in the judgment of the legislative branch of the government, it is often desirable, if not essential, * * *, to invest the President with large discretion in matters arising out of the execution of statutes relating to trade and commerce with other nations";[70] (2) that the act "did not, in any real sense, invest the President with the power of legislation. * * * Congress itself prescribed, in advance, the duties to be levied, * * *, while the suspension lasted. Nothing involving the expediency or the just operation of such legislation was left to the determination of the President. * * * He had no discretion in the premises except in respect to the duration of the suspension so ordered."[71] By similar reasoning, the Court sustained the flexible provisions of the Tariff Act of 1922 whereby duties were increased or decreased to reflect differences in cost of production at home and abroad, as such differences were ascertained and proclaimed by the President.[72]

ARMS EMBARGO

That the delegation of discretion in dealing with foreign relations stands upon a different footing than the transfer of authority to regulate domestic concerns was clearly indicated in United States v. Curtiss-Wright Export Corp.[73] There the Court upheld the Joint Resolution of Congress which made it unlawful to sell arms to certain warring countries "if the President finds that the prohibition of the sale of arms and munitions of war in the United States to those countries now engaged in armed conflict in the Chaco may contribute to the reestablishment of peace * * *, and if * * *, he makes proclamation to that effect, * * *" Said Justice Sutherland for the Court: "It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the Federal Government in the field of international relations—* * *, Congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved."[74]

INTERNAL AFFAIRS

Panama Refining Co. v. Ryan[75] was the first case in which the President had been authorized to put into effect by proclamation, a new and independent rule pertaining to internal affairs. One section of the National Industrial Recovery Act authorized the President to forbid the shipment in interstate commerce of oil produced or withdrawn from storage in violation of State law. Apart from the purposes broadly stated in the first section—economic recovery and conservation of natural resources—the measure contained no standard or statement of policy by which the President should be guided in determining whether or when to issue the order. Nor did it require him to make any findings of fact to disclose the basis of his action. By a vote of eight-to-one the Court held the delegation invalid. The only case in which the power of an administrative official to modify a rule enacted by Congress relating to domestic affairs has been sustained is Opp Cotton Mills v. Administrator.[76] That case involved the provisions of the Fair Labor Standards Act which authorized the appointment of Industry Advisory Committees to investigate conditions in particular industries, with notice and opportunity to be heard afforded to interested parties. Upon consideration of factors enumerated in the law and upon finding that the conditions specified in the law were fulfilled, such Committees were empowered to recommend and the Administrator to adopt, higher minimum wage rates for particular industries. Emphasizing the procedure which the agency was directed to follow and the fact that it would be impossible for Congress to prescribe specific minimum wages for particular industries,[77] a unanimous court sustained the law on the ground that the sole function of the Administrator was to put into effect the definite policy adopted by the legislators.

EMERGENCY STATUTES

Occupying a midway station between legislation which deals with foreign affairs and purely domestic legislation is what may be termed "emergency statutes." These are largely the outgrowth of the two World Wars. Thus on December 16, 1950, President Truman issued a proclamation declaring "the existence of a national emergency," and by so doing "activated" more than sixty statutes or parts thereof which by their terms apply to or during "a condition of emergency" or "in time of war or national emergency," etc. Most of these specifically leave it to the President to determine the question of emergency, and the White House assumption seems to be that they all do so. Many of the provisions thus activated delegate powers of greater or less importance to the President himself or remove statutory restrictions thereon.[78]

PUNISHMENT OF VIOLATIONS

If Congress so provides, violations of valid administrative regulations may be punished as crimes.[79] But the penalties must be provided in the statute itself; additional punishment cannot be imposed by administrative action.[80] In an early case, the Court held that a section prescribing penalties for any violation of a statute did not warrant a prosecution for wilful disobedience of regulations authorized by, and lawfully issued pursuant to, the act.[81] Without disavowing this general proposition, the Court, in 1944, upheld a suspension order issued by the OPA whereby a dealer in fuel oil who had violated rationing regulations was forbidden to receive or deal on that commodity.[82] Although such an order was not explicitly authorized by statute, it was sustained as being a reasonable measure for effecting a fair allocation of fuel oil, rather than as a means of punishment for an offender. In another OPA case, the Court ruled that in a criminal prosecution, a price regulation was subject to the same rule of strict construction as a statute, and that omissions from, or indefiniteness in, such a regulation, could not be cured by the Administrator's interpretation thereof.[83]

Congressional Investigations

INVESTIGATIONS IN AID OF LEGISLATION

No provision of the Constitution expressly authorized either house of Congress to make investigations and exact testimony to the end that it may exercise its legislative function effectively and advisedly. But such a power had been frequently exercised by the British Parliament and by the Assemblies of the American Colonies prior to the adoption of the Constitution.[84] It was asserted by the House of Representatives as early as 1792 when it appointed a committee to investigate the disaster to General St. Clair and his army in the Northwest and empowered it to "call for such persons, papers, and records, as may be necessary to assist their inquiries."[85]

CONDUCT OF EXECUTIVE DEPARTMENT

For many years the investigating function of Congress was limited to inquiries into the administration of the Executive Department or of instrumentalities of the Government. Until the administration of Andrew Jackson this power was not seriously challenged.[86] During the controversy over renewal of the charter of the Bank of the United States, John Quincy Adams contended that an unlimited inquiry into the operations of the bank would be beyond the power of the House.[87] Four years later the legislative power of investigation was challenged by the President. A committee appointed by the House of Representatives "with power to send for persons and papers, and with instructions to inquire into the condition of the various executive departments, the ability and integrity with which they have been conducted, * * *"[88] called upon the President and the heads of departments for lists of persons appointed without the consent of the Senate and the amounts paid to them. Resentful of this attempt "to invade the just rights of the Executive Departments" the President refused to comply and the majority of the committee acquiesced.[89] Nevertheless Congressional investigations of Executive Departments have continued to the present day. Shortly before the Civil War, contempt proceedings against a witness who refused to testify in an investigation of John Brown's raid upon the arsenal at Harper's Ferry occasioned a thorough consideration by the Senate of the basis of this power. After a protracted debate, which cut sharply across sectional and party lines, the Senate voted overwhelmingly to imprison the contumacious witness.[90] Notwithstanding this firmly established legislative practice the Supreme Court took a narrow view of the power in the case of Kilbourn v. Thompson.[91] It held that the House of Representatives had overstepped its jurisdiction when it instituted an investigation of losses suffered by the United States as a creditor of Jay Cooke and Company, whose estate was being administered in bankruptcy by a federal court. But nearly half a century later, in McGrain v. Daugherty,[92] it ratified in sweeping terms, the power of Congress to inquire into the administration of an executive department and to sift charges of malfeasance in such administration.

PRIVATE AFFAIRS

Beginning with the resolution adopted by the House of Representatives in 1827 which vested its Committee on Manufactures "with the power to send for persons and papers with a view to ascertain and report to this House such facts as may be useful to guide the judgment of this House in relation to a revision of the tariff duties on imported goods,"[93] the two Houses have asserted the right to inquire into private affairs when necessary to enlighten their judgment on proposed legislation. In Kilbourn v. Thompson,[94] the Court denied the right of Congress to pry into private affairs. Again, in Interstate Commerce Commission v. Brimson,[95] in sustaining a statute authorizing the Courts to use their process to compel witnesses to give testimony sought by the Commission for the enforcement of the act, the Court warned that, "neither branch of the legislative department, still less any merely administrative body, established by Congress, possesses, or can be invested with, a general power of making inquiry into the private affairs of the citizen."[96] Finally, however, in McGrain v. Daugherty,[97] the power of either House "to compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution, * * *"[98] was judicially recognized and approved.

PURPOSE OF INQUIRY

In the absence of any showing that legislation was contemplated as a result of the inquiry undertaken in Kilbourn v. Thompson, the Supreme Court concluded that the purpose was an improper one—to pry into matters with which the judiciary alone was empowered to deal.[99] Subsequent cases have given the legislature the benefit of a presumption that its object is legitimate. In re Chapman[100] established the proposition that to make an investigation lawful "it was certainly not necessary that the resolutions should declare in advance what the Senate meditated doing when the investigation was concluded."[101] Similarly, in McGrain v. Daugherty, the investigation was presumed to have been undertaken in good faith to aid the Senate in legislating.[102] Going one step further in Sinclair v. United States,[103] which on its facts presented a close parallel to the Kilbourn Case, the Court affirmed the right of the Senate to carry on its investigation of fraudulent leases of government property after suit for the recovery thereof had been instituted. The president of the lessee corporation had refused to testify on the ground that the questions related to his private affairs and to matters cognizable only in the courts wherein they were pending and that the committee avowedly had departed from any inquiry in aid of legislation. The Senate prudently had directed the investigating committee to ascertain what, if any, other or additional legislation may be advisable. Conceding "that Congress is without authority to compel disclosures for the purpose of aiding the prosecution of pending suits," the Court declared that the authority "to require pertinent disclosures in aid of its own constitutional power is not abridged because the information sought to be elicited may also be of use in such suits."[104]

JUDICIAL FUNCTIONS

When either House exercises a judicial function, as in judging of elections or determining whether a member should be expelled, it is clearly entitled to compel the attendance of witnesses to disclose the facts upon which its action must be based. Thus the Court held that since a House had a right to expel a member for any offense which it deemed incompatible with his trust and duty as a member, it was entitled to investigate such conduct and to summon private individuals to give testimony concerning it.[105] The decision in Barry v. United States ex rel. Cunningham[106] sanctioned the exercise of a similar power in investigating a Senatorial election.

SANCTIONS OF THE INVESTIGATORY POWER

Contempt

Explicit judicial recognition of the right of either House of Congress to commit for contempt a witness who ignores its summons or refuses to answer its inquiries dates from McGrain v. Daugherty. But the principle there applied had its roots in an early case, Anderson v. Dunn,[107] which affirmed in broad terms the right of either branch of the legislature to attach and punish a person other than a member for contempt of its authority—in that case an attempt to bribe one of its members. The right to punish a contumacious witness was conceded in Marshall v. Gordon,[108] although the Court there held that the implied power to deal with contempt did not extend to the arrest of a person who published matter defamatory of the House. Both Anderson v. Dunn and Marshall v. Gordon emphasized that the power to punish for contempt rests upon the right of self-preservation; that is, in the words of Chief Justice White, "the right to prevent acts which in and of themselves inherently obstruct or prevent the discharge of legislative duty or the refusal to do that which there is inherent legislative power to compel in order that legislative functions may be performed."[109] Whence it was argued, in Jurney v. MacCracken[110] that the Senate had no power to punish a witness who, having been commanded to produce papers, destroyed them after service of the subpoena, because the "power to punish for contempt may never be exerted, in the case of a private citizen, solely qua punishment. * * * the power to punish ceases as soon as the obstruction has been removed, or its removal has become impossible; * * *" The Court confirmed the power to punish for a past contempt as an appropriate means for vindicating "the established and essential privilege of requiring the production of evidence."[111]

Criminal Prosecutions

Under the rule laid down by Anderson v. Dunn, imprisonment for contempt of one of the Houses of Congress could not extend beyond the adjournment of the body which ordered it.[112] This limitation seriously impaired the efficacy of such sanction. Accordingly, in 1857 Congress found it necessary to provide criminal penalties for recalcitrant witnesses, in order to make its power to compel testimony more effective. The Supreme Court held that the purpose of this statute was merely to supplement the power of contempt by providing additional punishment, and overruled all constitutional objections to it saying: "We grant that Congress could not divest itself, or either of its Houses, of the essential and inherent power to punish for contempt, in cases to which the power of either House properly extended; but, because Congress, by the act of 1857, sought to aid each of the Houses in the discharge of its constitutional functions, it does not follow that any delegation of the power in each to punish for contempt was involved; * * *."[113] In a prosecution for wilful failure of a person to produce records within her custody and control pursuant to a lawful subpoena issued by a committee of the House of Representatives, the Supreme Court ruled that the presence of a quorum of the committee at the time of the return of the subpoena was not an essential element of the offense.[114] Previously the Court had held that a prosecution could not be maintained under a general perjury statute for false testimony given before a Congressional committee unless a quorum of the committee was present when the evidence was given.[115]

Section 2. Clause 1. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

Clause 2. No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of the State in which he shall be chosen.

Qualifications of Members of Congress

CONGRESSIONAL PROTECTION OF RIGHT TO VOTE FOR REPRESENTATIVES

Although the qualifications of electors of Members of Congress are defined by State law,[116] the right to vote for such Representatives is derived from the Federal Constitution.[117] Unlike the rights guaranteed by the Fourteenth and Fifteenth Amendments, this privilege is secured against the actions of individuals as well as of the States.[118] It embraces the right to cast a ballot and to have it counted honestly.[119] Where a primary election is made by law an integral part of the procedure of choice or where the choice of a representative is in fact controlled by the primary, the Constitution safeguards the rights of qualified electors to participate therein.[120] Congress may protect this right by appropriate legislation.[121] In prosecutions instituted under section 19 of the Criminal Code,[122] the Court had held that failure to count ballots lawfully cast,[123] or dilution of their value by stuffing the ballot box with fraudulent ballots[124] constitutes a denial of the constitutional right to elect Representatives in Congress. But the bribery of voters, although within reach of Congressional power under other clauses of the Constitution, is not deemed to be an interference with the rights guaranteed by this section to other qualified voters.[125]

WHEN THE ABOVE QUALIFICATIONS MUST BE POSSESSED

The principal disputes which have arisen under these sections have related to the time as of which members-elect must fulfill the conditions of eligibility, and whether additional requirements may be imposed by federal or State law. Although on two occasions when it refused to seat persons who were ineligible when they sought to take the oath of office, the Senate indicated that eligibility must exist at the time of election, it is now established in both Houses that it is sufficient if the requirements are met when the oath is administered. Thus persons elected to either House before attaining the required age or term of citizenship have been admitted as soon as they became qualified.[126]

ENLARGEMENT OF QUALIFICATIONS

Writing in The Federalist[127] with reference to the election of Members of Congress, Hamilton expressed the opinion that "the qualifications of persons who may * * * be chosen * * * are defined and fixed in the Constitution and are unalterable by the legislature." The question remained academic until the Civil War, when Congress passed a law requiring its members to take an oath that they had never been disloyal to the Federal Government. In subsequent contests over the seating of men charged with disloyalty, the right of Congress to establish by law other qualifications for its members than those contained in the Constitution was sharply challenged. Nevertheless, both the House and Senate, relying on this act, did refuse to seat several persons.[128] At this time the principal argument against the statute was that all persons were eligible for the office of Representative unless the Constitution made them ineligible. In Burton v. United States,[129] the argument was given a new twist. A law providing that a Senator or Representative convicted of unlawfully receiving money for services rendered before a government department should be "rendered forever thereafter incapable of holding any office of honor, trust or profit under the Government of the United States," was assailed as an unconstitutional interference with the authority of each House to judge the qualifications of, or to expel, one of its own members. The Court construed the statute not to affect the offender's tenure as a Senator, and left undecided the power of Congress to impose additional qualifications (or disqualifications).[130] In exercising the power granted by section 5 to judge the qualifications of its own members, each House has asserted the power to inquire into the conduct of a member-elect prior to his election. In 1900 the House of Representatives refused to seat a person who practiced polygamy,[131] and in 1928 the Senate voted to exclude a Senator-elect on the ground that his acceptance of large campaign contributions from persons who were subject to regulation by a State Administrative Commission of which he had been Chairman were "contrary to sound public policy" and tainted his credentials with fraud and corruption.[132]

INABILITY OF THE STATES TO ENLARGE

A State may not add to the qualifications prescribed by the Constitution for members of the Senate and House of Representatives. Asserting this principle, the House in 1807 seated a member whose election was contested on the ground that he had not been twelve months a resident of the district from which elected as required by State law. No attempt was made to ascertain whether these requirements were met because the State law was deemed to be unconstitutional.[133] Both the House and Senate have seated members elected during their term of office as State judges, despite the provision of State constitutions purporting to bar the election of judges to any other office under the State or the United States during such term.[134]

Clause 3. [Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons].[135] The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

THE CENSUS REQUIREMENT

While section 2 expressly provides for an enumeration of persons, Congress has repeatedly directed an enumeration not only of the free persons in the States, but also of those in the territories, and has required all persons over eighteen years of age to answer an ever-lengthening list of inquiries concerning their personal and economic affairs. This extended scope of the census has received the implied approval of the Supreme Court;[136] it is one of the methods whereby the national legislature exercises its inherent power to obtain the information necessary for intelligent legislative action. Although taking an enlarged view of its power in making the enumeration of persons called for by this section, Congress has not always complied with its positive mandate to reapportion representatives among the States after the census is taken. It failed to make such a reapportionment after the census of 1920, being unable to reach agreement for allotting representation without further increasing the size of the House. Ultimately, by the act of June 18, 1929,[137] it provided that the membership of the House of Representatives should henceforth be restricted to 435 members, to be distributed among the States by the so-called "method of major fractions" which had been earlier employed in the apportionment of 1911.

Clause 4. When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

Clause 5. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Section 3. Clause 1. [The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one vote].

Clause 2. Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; [and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies].[138]

Clause 3. No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

Clause 4. The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

Clause 5. The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

Clause 6. The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Clause 7. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Section 4. Clause 1. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Federal Legislation Under This Clause

Not until 1842 did Congress undertake to exercise the power to regulate the "times, places and manner of holding elections for Senators and Representatives." In that year it passed a law requiring the election of Representatives by districts.[139] Prior to that time some of the States had sought to increase their influence by electing all of their Representatives on a general ticket. The frequent deadlocks between the two Houses of State legislatures with respect to the election of Senators prompted Congress to pass a further act in 1866, which compelled the two bodies to meet in joint session on a specified day, and to meet everyday thereafter and vote for a Senator until one was elected.[140] The first comprehensive federal statute dealing with elections was adopted in 1870. Under the Enforcement Act of 1870 and kindred measures,[141] false registration, bribery, voting without legal right, making false returns of votes cast, interference in any manner with officers of election, and the neglect by any such officer of any duty required of him by State of federal law, were made federal offenses. Provision was made for the appointment by federal judges of persons to attend at places of registration and at elections with authority to challenge any person proposing to register or vote unlawfully, to witness the counting of votes, and to identify by their signatures the registration of voters and election tally sheets. After twenty-four years experience Congress repealed those portions of the Reconstruction legislation which dealt specifically with elections, but left in effect those dealing generally with Civil Rights.[142] As seen earlier, those sections have been invoked for the prosecution of election offenses which interfere with the rights of voters guaranteed by the second section of this article. The election laws, of the Reconstruction period were held invalid in part as applied to municipal elections,[143] but were found to be a constitutional exercise of the authority conferred by this section with respect to the election of members of Congress.[144]

LEGISLATURE DEFINED

While requiring the election of Representatives by districts, Congress has left it to the States to define the areas from which members should be chosen. This has occasioned a number of disputes concerning the validity of action taken by the States. In Ohio ex rel. Davis v. Hildebrant,[145] a requirement that a redistricting law be submitted to a popular referendum was challenged and sustained. After the reapportionment made pursuant to the 1930 census, deadlocks between the Governor and legislature in several States, produced a series of cases in which the right of the Governor to veto a reapportionment bill was questioned. Contrasting this function with other duties committed to State legislatures by the Constitution, the Court decided that it was legislative in character and hence subject to gubernatorial veto to the same extent as ordinary legislation under the terms of the State constitution.[146]

PRESENT INEQUALITY OF ELECTION DISTRICTS

The Reapportionment Act of 1929[147] omitted a requirement contained in the 1911 law[148] that Congressional districts be "composed of a contiguous and compact territory, * * * containing as nearly as practicable an equal number of inhabitants." Since the earlier act was not repealed it was argued that the mandate concerning compactness, contiguity and equality of population of districts was still controlling. The Supreme Court rejected this view.[149] In Colegrove v. Green,[150] the Illinois Apportionment law, which created districts now having glaringly unequal populations, was attacked as unconstitutional on the ground that it denied to voters in the more populous districts the full right to vote and to the equal protection of the laws. The Court dismissed the complaint, three Justices asserting that the issue was not justiciable, and a fourth that the case was one in which the Court should decline to exercise jurisdiction.[151] Justice Black, dissenting in an opinion in which Justices Douglas and Murphy joined, argued: "While the Constitution contains no express provision requiring that Congressional election districts established by the States must contain approximately equal populations, the constitutionally guaranteed right to vote and the right to have one's vote counted clearly imply the policy that State election systems, no matter what their form, should be designed to give approximately equal weight of each vote case. * * * legislation which must inevitably bring about glaringly unequal representation in the Congress in favor of special classes and groups should be invalidated, 'whether accomplished ingeniously or ingenuously'."[152]

CONGRESSIONAL PROTECTION OF THE ELECTORAL PROCESS

Congress can by law protect the voter from personal violence or intimidation and the election itself from corruption and fraud.[153] To accomplish these ends it may adopt the statutes of the States and enforce them by its own sanctions.[154] It may punish a State election officer for violating his duty under a State law governing Congressional elections.[155] It may also punish federal officers and employees who solicit or receive contributions to procure the nomination of a particular candidate in a State primary election.[156] At one time the Court held that Congress had no power, at least prior to the adoption of the Seventeenth Amendment, to limit the expenditures made to procure a primary nomination to the United States Senate,[157] but this decision has been greatly weakened, and the right of the National Government to regulate primary elections conducted under State law for the nomination of Members of Congress has been squarely recognized where such primary is made by State law "an integral part of the procedure of choice, or where in fact the primary effectively controls the choice,..."[158]

Clause 2. [The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by law appoint a different Day].

Section 5. Clause 1. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Clause 2. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Clause 3. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Clause 4. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Powers and Duties of the Houses

POWER TO JUDGE ELECTIONS

Each House, in judging of elections under this clause acts as a judicial tribunal, with like power to compel attendance of witnesses. In the exercise of its discretion, it may issue a warrant for the arrest of a witness to procure his testimony, without previous subpoena, if there is good reason to believe that otherwise such witness would not be forthcoming.[159] It may punish perjury committed in testifying before a notary public upon a contested election.[160] The power to judge elections extends to an investigation of expenditures made to influence nominations at a primary election.[161] Refusal to permit a person presenting credentials in due form to take the oath of office does not oust the jurisdiction of the Senate to inquire into the legality of the election.[162] Nor does such refusal unlawfully deprive the State which elected such person of its equal suffrage in the Senate.[163]

"A QUORUM TO DO BUSINESS"

For many years the view prevailed in the House of Representatives that it was necessary for a majority of the members to vote on any proposition submitted to the House in order to satisfy the constitutional requirement for a quorum. It was a common practice for the opposition to break a quorum by refusing to vote. This was changed in 1890, by a ruling made by Speaker Reed, and later embodied in Rule XV of the House, that members present in the chamber but not voting would be counted in determining the presence of a quorum.[164] The Supreme Court upheld this rule in United States v. Ballin,[165] saying that the capacity of the House to transact business is "created by the mere presence of a majority," and that since the Constitution does not prescribe any method for determining the presence of such majority "it is therefore within the competency of the House to prescribe any method which shall be reasonably certain to ascertain the fact."[166] The rules of the Senate provide for the ascertainment of a quorum only by a roll call,[167] but in a few cases it has held that if a quorum is present, a proposition can be determined by the vote of a lesser number of members.[168]

RULES OF PROCEDURE

In the exercise of their constitutional power to determine their rules of proceedings the Houses of Congress may not "ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the House, * * * The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the House, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal."[169] Where a rule affects private rights, the construction thereof becomes a judicial question. In United States v. Smith,[170] the Court held that the Senate's attempt to reconsider its confirmation of a person nominated by the President as Chairman of the Federal Power Commission was not warranted by its rules, and did not deprive the appointee of his title to the office. In Christoffel v. United States[171] a sharply divided Court upset a conviction for perjury in the district courts of one who had denied under oath before a House Committee any affiliation with Communism. The reversal was based on the ground that inasmuch as a quorum of the Committee, while present at the outset, was not present at the time of the alleged perjury, testimony before it was not before a "competent tribunal" within the sense of the District of Columbia Code.[172] Four Justices, speaking by Justice Jackson dissented, arguing that under the rules and practices of the House, "a quorum once established is presumed to continue unless and until a point of no quorum is raised" and that the Court was, in effect, invalidating this rule, thereby invalidating at the same time the rule of self-limitation observed by courts "where such an issue is tendered."[173]

POWERS OF THE HOUSES OVER MEMBERS

Congress has authority to make it an offense against the United States for a Member, during his continuance in office, to receive compensation for services before a government department in relation to proceedings in which the United States is interested. Such a statute does not interfere with the legitimate authority of the Senate or House over its own Members.[174] In upholding the power of the Senate to investigate charges that some Senators had been speculating in sugar stocks during the consideration of a tariff bill, the Supreme Court asserted that "the right to expel extends to all cases where the offence is such as in the judgment of the Senate is inconsistent with the trust and duty of a Member."[175] It cited with apparent approval the action of the Senate in expelling William Blount in 1797 for attempting to seduce an American agent among the Indians from his duty and for negotiating for services in behalf of the British Government among the Indians—conduct which was not a "statutable offense" and which was not committed in his official character, nor during the session of Congress nor at the seat of government.

THE DUTY TO KEEP A JOURNAL

The object of the clause requiring the keeping of a Journal is "to insure publicity to the proceedings of the legislature, and a correspondent responsibility of the members to their respective constituents."[176] When the Journal of either House is put in evidence for the purpose of determining whether the yeas and nays, were ordered, and what the vote was on any particular question, the Journal must be presumed to show the truth, and a statement therein that a quorum was present, though not disclosed by the yeas and nays, is final.[177] But when an enrolled bill, which has been signed by the Speaker of the House and by the President of the Senate, in open session, receives the approval of the President and is deposited in the Department of State, its authentication as a bill that has passed Congress is complete and unimpeachable, and it is not competent to show from the Journals of either House that an act so authenticated, approved, and deposited, in fact omitted one section actually passed by both Houses of Congress.[178]

Section 6. Clause 1. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Compensation, Immunities and Disabilities of Members

WHEN THE PAY STARTS

A Member of Congress who receives his certificate of admission, and is seated, allowed to vote, and serve on committees, is prima facie entitled to the seat and salary, even though the House subsequently declares his seat vacant. The one who contested the election and was subsequently chosen to fill the vacancy is entitled to salary only from the time the compensation of such "predecessor" has ceased.[179]

PRIVILEGE FROM ARREST

This clause is practically obsolete. It applies only to arrests in civil suits, which were still common in this country at the time the Constitution was adopted.[180] It does not apply to service of process in either civil[181] or criminal cases.[182] Nor does it apply to arrest in any criminal case. The phrase "treason, felony or breach of the peace" is interpreted to withdraw all criminal offenses from the operation of the privilege.[183]

THE PRIVILEGE OF SPEECH OR DEBATE

The protection of this clause is not limited to words spoken in debate, but is applicable to written reports, to resolutions offered, to the act of voting and to all things generally done in a session of the House by one of its members in relation to the business before it.[184] In Kilbourn v. Thompson[185] the Supreme Court quoted with approval the following excerpt from the opinion of Chief Justice Parsons in the early Massachusetts of Coffin v. Coffin,[186] giving a broad scope to the immunity of legislators: "'These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. I, therefore, think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate, but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature and in the execution of the office. And I would define the article as securing to every member exemption from prosecution for everything said or done by him as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular, according to the rules of the House, or irregular and against their rules. I do not confine the member to his place in the House; and I am satisfied that there are cases in which he is entitled to this privilege when not within the walls of the representatives' chamber.'"[187] Accordingly the Court ruled that Members of the House of Representatives were not liable to a suit for false imprisonment by reason of their initiation and prosecution of the legislative proceedings under which plaintiff was arrested.[188] Nor does the claim of an unworthy purpose destroy the privilege. "Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators".[189]

Clause 2. No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

INCOMPATIBLE OFFICES

According to legislative precedents, visitors to academies, regents, directors and trustees of public institutions, and members of temporary commissions who receive no compensation as such, are not officers within the constitutional inhibition of section 6.[190] Government contractors and federal officers who resign before presenting their credentials may be seated as Members of Congress.[191] In 1909, after having increased the salary of the Secretary of State,[192] Congress reduced it to the former figure so that a Member of the Senate at the time the increase was voted would be eligible for that office.[193] The first clause again became a subject of discussion in 1937, when Justice Black was appointed to the Supreme Court in face of the fact that Congress had recently improved the financial position of Justices retiring at seventy and the term for which Mr. Black had been elected to the Senate from Alabama in 1932 had still some time to run. The appointment was defended by the argument that inasmuch as Mr. Black was only fifty-one years old at the time and so would be ineligible for the "increased emolument" for nineteen years, it was not as to him an increased emolument.[194]

Section 7. Clause 1. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Clause 2. Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

THE LEGISLATIVE PROCESS

REVENUE BILLS

Only bills to levy taxes in the strict sense of the word are comprehended by the phrase "all bills for raising revenue"; bills for other purposes, which incidentally create revenue, are not included.[195] An act providing a national currency secured by a pledge of bonds of the United States, which, "in the furtherance of that object, and also to meet the expenses attending the execution of the act," imposed a tax on the circulating notes of national banks was held not to be a revenue measure which must originate in the House of Representatives.[196] Neither was a bill which provided that the District of Columbia should raise by taxation and pay to designated railroad companies a specified sum for the elimination of grade crossings and the construction of a union railway station.[197] The substitution of a corporation tax for an inheritance tax,[198] and the addition of a section imposing an excise tax upon the use of foreign built pleasure yachts,[199] have been held to be within the Senate's constitutional power to propose amendments.

APPROVAL BY THE PRESIDENT

The President is not restricted to signing a bill on a day when Congress is in session.[200] He may sign within ten days (Sundays excepted) after the bill is presented to him, even if that period extends beyond the date of the final adjournment of Congress.[201] His duty in case of approval of a measure is merely to sign it. He need not write on the bill the word "approved" nor the date. If no date appears on the face of the roll, the Court may ascertain the fact by resort to any source of information capable of furnishing a satisfactory answer.[202] A bill becomes law on the date of its approval by the President.[203] When no time is fixed by the act it is effective from the date of its approval,[204] which usually is taken to be the first moment of the day, fractions of a day being disregarded.[205]

THE VETO POWER

If Congress adjourns within ten days (Sundays excepted) of the presentation of a bill to the President, the return of the bill is prevented within the meaning of this clause. Consequently it does not become law if the President does not sign it, but succumbs to what in Congressional parlance is called a "pocket veto."[206] But a brief recess by the House in which a bill originated, while the Congress is still in session, does not prevent the return of a bill by delivery to one of the officers of the House who has implied authority to receive it.[207] The two-thirds vote of each House required to pass a bill over a veto means two-thirds of a quorum.[208] After a bill becomes law the President has no authority to repeal it. Asserting this truism, the Supreme Court held in The Confiscation Cases,[209] that the immunity proclamation issued by the President in 1868 did not require reversal of a decree condemning property which had been seized under the Confiscation Act of 1862.[210]

Clause 3. Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

PRESENTATION OF RESOLUTIONS

The sweeping nature of this obviously ill-considered provision is emphasized by the single exception specified to its operation. Actually, it was impossible from the first to give it any such scope. Otherwise the intermediate stages of the legislative process would have been bogged down hopelessly, not to mention other highly undesirable results. In a report rendered by the Senate Judiciary Committee in 1897 it was shown that the word "necessary" in the clause had come in practice to refer "to the necessity occasioned by the requirement of other provisions of the Constitution, whereby every exercise of 'legislative powers' involves the concurrence of the two Houses"; or more briefly, "necessary" here means necessary if an "order, resolution, or vote" is to have the force of law. Such resolutions have come to be termed "joint resolutions" and stand on a level with "bills," which if "enacted" become Statutes. But "votes" taken in either House preliminary to the final passage of legislation need not be submitted to the President, nor resolutions passed by the Houses concurrently with a view to expressing an opinion or to devising a common program of action (e.g., the concurrent resolutions by which during the fight over Reconstruction the Southern States were excluded from representation in the House and Senate, the Joint Committee on Reconstruction containing members from both Houses was created, etc.), or to directing the expenditure of money appropriated to the use of the two Houses.[211] Within recent years the concurrent resolution has been put to a new use—the termination of powers delegated to the Chief Executive, or the disapproval of particular exercises of power by him. Most of the important legislation enacted for the prosecution of World War II provided that the powers granted to the President should come to an end upon adoption of concurrent resolutions to that effect.[212] Similarly, measures authorizing the President to reorganize executive agencies have provided that a Reorganization Plan promulgated by him should be reported by Congress and should not become effective if one[213] or both[214] Houses adopted a resolution disapproving it. Also, it was settled as early as 1789 that resolutions of Congress proposing amendments to the Constitution need not be submitted to the President, the Bill of Rights having been referred to the States without being laid before President Washington for his approval—a procedure which the Court ratified in due course.[215]

Section 8. The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

The Taxing-Spending Power

KINDS OF TAXES PERMITTED

By the terms of the Constitution, the power of Congress to levy taxes is subject to but one exception and two qualifications. Articles exported from any State may not be taxed at all. Direct taxes must be levied by the rule of apportionment and indirect taxes by the rule of uniformity. The Court has emphasized the sweeping character of this power by saying from time to time that it "reaches every subject,"[216] that it is "exhaustive"[217] or that it "embraces every conceivable power of taxation."[218] Despite these generalizations, the power has been at times substantially curtailed by judicial decision with respect to the subject matter of taxation, the manner in which taxes are imposed, and the objects for which they may be levied.

DECLINE OF THE FORBIDDEN SUBJECT MATTER TEST

In recent years the Supreme Court has restored to Congress the power to tax most of the subject matter which had previously been withdrawn from its reach by judicial decision. The holding of Evans v. Gore[219] and Miles v. Graham[220] that the inclusion of the salaries received by federal judges in measuring the liability for a nondiscriminatory income tax violated the constitutional mandate that the compensation of such judges should not be diminished during their continuance in office was repudiated in O'Malley v. Woodrough.[221] The specific ruling of Collector v. Day[222] that the salary of a State officer is immune to federal income taxation also has been overruled.[223] But the principle underlying that decision—that Congress may not lay a tax which would impair the sovereignty of the States—is still recognized as retaining some vitality.

THE RISE AND FALL OF COLLECTOR v. DAY

Collector v. Day was decided in 1871 while the country was still in the throes of reconstruction. As noted by Chief Justice Stone in a footnote to his opinion in Helvering v. Gerhardt,[224] the Court had not then determined how far the Civil War amendments had broadened the federal power at the expense of the States; the fact that the taxing power had recently been used with destructive effect upon notes issued by State banks[225] suggested the possibility of similar attacks upon the existence of the States themselves. Two years later the Court took the logical further step of holding that the federal income tax could not be imposed on income received by a municipal corporation from its investments.[226] A far-reaching extension of private immunity was granted in Pollock v. Farmers Loan and Trust Co.,[227] where interest received by a private investor on State or municipal bonds was held to be exempt from federal taxation. As the apprehensions of this era subsided, the doctrine of these cases was pushed into the background. It never received the same wide application as did McCulloch v. Maryland[228] in curbing the power of the States to tax operations or instrumentalities of the Federal Government. Only once since the turn of the century has the national taxing power been further narrowed in the name of Dual Federalism. In 1931 the Court held that a federal excise tax was inapplicable to the manufacture and sale to a municipal corporation of equipment for its police force.[229] Justices Stone and Brandeis dissented from this decision and it is doubtful whether it would be followed today.

FEDERAL TAXATION OF STATE INTERESTS

Within a decade after the Pollock decision the retreat from Collector v. Day began. In 1903, a succession tax upon a bequest to a municipality for public purposes was upheld on the ground that the tax was payable out of the estate before distribution to the legatee. Looking to form and not to substance, in disregard of the mandate of Brown v. Maryland,[230] a closely divided Court declined to "regard it as a tax upon the municipality, though it might operate incidentally to reduce the bequest by the amount of the tax."[231] When South Carolina embarked upon the business of dispensing alcoholic beverages, its agents were held to be subject to the national internal revenue tax, the ground of the holding being that in 1787 such a business was not regarded as one of the ordinary functions of government.[232] Another decision marking a clear departure from the logic of Collector v. Day was Flint v. Stone Tracy Company,[233] where the Court sustained an act of Congress taxing the privilege of doing business as a corporation, the tax being measured by the income. The argument that the tax imposed an unconstitutional burden on the exercise by a State of its reserved power to create corporate franchises was rejected, partly in consideration of the principle of national supremacy, and partly on the ground that the corporate franchises were private property. This case also qualified Pollock v. Farmers Loan and Trust Company to the extent of allowing interest on State bonds to be included in measuring the tax on the corporation. Subsequent cases have sustained an estate tax on the net estate of a decedent, including State bonds;[234] excise taxes on the transportation of merchandise in performance of a contract to sell and deliver it to a county;[235] on the importation of scientific apparatus by a State university;[236] on admissions to athletic contests sponsored by a State institution, the net proceeds of which were used to further its educational program;[237] and on admissions to recreational facilities operated on a nonprofit basis by a municipal corporation.[238] Income derived by independent engineering contractors from the performance of State functions;[239] the compensation of trustees appointed to manage a street railway taken over and operated by a State;[240] profits derived from the sale of State bonds;[241] or from oil produced by lessees of State lands;[242] have all been held to be subject to federal taxation despite a possible economic burden on the State.

IS ANY IMMUNITY LEFT THE STATES?

Although there have been sharp differences of opinion among members of the Supreme Court in recent cases dealing with the tax immunity of State functions and instrumentalities, it has been stated that "all agree that not all of the former immunity is gone."[243] Twice the Court has made an effort to express its new point of view in a statement of general principles by which the right to such immunity shall be determined. However, the failure to muster a majority in concurrence with any single opinion in the more recent of these cases leaves the question very much in doubt. In Helvering v. Gerhardt,[244] where, without overruling Collector v. Day, it narrowed the immunity of salaries of State officers and federal income taxation, the Court announced "* * *, two guiding principles of limitation for holding the tax immunity of State instrumentalities to its proper function. The one, dependent upon the nature of the function being performed by the State or in its behalf, excludes from the immunity activities thought not to be essential to the preservation of State governments even though the tax be collected from the State treasury. * * * The other principle, exemplified by those cases where the tax laid upon individuals affects the State only as the burden is passed on to it by the taxpayer, forbids recognition of the immunity when the burden on the State is so speculative and uncertain that if allowed it would restrict the federal taxing power without affording any corresponding tangible protection to the State government; even though the function be thought important enough to demand immunity from a tax upon the State itself, it is not necessarily protected from a tax which well may be substantially or entirely absorbed by private persons."[245]

CONFLICTING VIEWS ON THE COURT

The second attempt to formulate a general doctrine was made in New York v. United States,[246] where, on review of a judgment affirming the right of the United States to tax the sale of mineral waters taken from property owned and operated by the State of New York, the Court was asked to and did reconsider the right of Congress to tax business enterprises carried on by the States. Justice Frankfurter, speaking for himself and Justice Rutledge, made the question of discrimination vel non against State activities the test of the validity of such a tax. They found "no restriction upon Congress to include the States in levying a tax exacted equally from private persons upon the same subject matter."[247] In a concurring opinion in which Justices Reed, Murphy, and Burton joined, Chief Justice Stone rejected the criterion of discrimination. He repeated what he had said in an earlier case to the effect that "'* * * the limitation upon the taxing power of each, so far as it affects the other, must receive a practical construction which permits both to function with the minimum of interference each with the other; and that limitation cannot be so varied or extended as seriously to impair either the taxing power of the government imposing the tax * * * or the appropriate exercise of the functions of the government affected by it.'"[248] Justices Douglas and Black dissented in an opinion written by the former on the ground that the decision disregarded the Tenth Amendment, placed "the sovereign States on the same plane as private citizens," and made them "pay the Federal Government for the privilege of exercising powers of sovereignty guaranteed them by the Constitution."[249] In the most recent case dealing with State immunity the Court sustained the tax on the second ground mentioned in Helvering v. Gerhardt—that the burden of the tax was borne by private persons—and did not consider whether the function was one which the Federal Government might have taxed if the municipality had borne the burden of the exaction.[250]

THE RULE OF UNIFORMITY

Whether a tax is to be apportioned among the States according to the census taken pursuant to article I, section 2, or imposed uniformly throughout the United States depends upon its classification as direct or indirect.[251] The rule of uniformity for indirect taxes is easy to obey. It exacts only that the subject matter of a levy be taxed at the same rate wherever found in the United States; or, as it is sometimes phrased, the uniformity required is "geographical," not "intrinsic."[252] The clause accordingly places no obstacle in the way of legislative classification for the purpose of taxation, nor in the way of what is called progressive taxation.[253] A taxing statute does not fail of the prescribed uniformity because its operation and incidence may be affected by differences in State laws.[254] A federal estate tax law which permitted a deduction for a like tax paid to a State was not rendered invalid by the fact that one State levied no such tax.[255] The term "United States" in this clause refers only to the States of the Union, the District of Columbia, and incorporated territories. Congress is not bound by the rule of uniformity in framing tax measures for unincorporated territories.[256] Indeed, in Binns v. United States,[257] the Court sustained license taxes imposed by Congress but applicable only in Alaska, where the proceeds, although paid into the general fund of the Treasury, did not in fact equal the total cost of maintaining the territorial government.

PURPOSES OF TAXATION

Regulation by Taxation

The discretion of Congress in selecting the objectives of taxation has also been held at times to be subject to limitations implied from the nature of the Federal System. Apart from matters which Congress is authorized to regulate, the national taxing power, it has been said, "reaches only existing subjects."[258] Congress may tax any activity actually carried on, regardless of whether it is permitted or prohibited by the laws of the United States[259] or by those of a State.[260] But so-called federal "licenses," so far as they relate to trade within State limits, merely express "the purpose of the government not to interfere * * * with the trade nominally licensed, if the required taxes are paid." Whether the "licensed" trade shall be permitted at all is a question for decision by the State.[261] This, nevertheless, does not signify that Congress may not often regulate to some extent a business within a State in order the more effectively to tax it. Under the necessary and proper clause, Congress may do this very thing. Not only has the Court sustained regulations concerning the packaging of taxed articles such as tobacco[262] and oleomargarine,[263] ostensibly designed to prevent fraud in the collection of the tax; it has also upheld measures taxing drugs[264] and firearms[265] which prescribed rigorous restrictions under which such articles could be sold or transferred, and imposed heavy penalties upon persons dealing with them in any other way. These regulations were sustained as conducive to the efficient collection of the tax though they clearly transcended in some respects this ground of justification.

Extermination by Taxation

A problem of a different order is presented where the tax itself has the effect of suppressing an activity or where it is coupled with regulations which clearly have no possible relation to the collection of the tax. Where a tax is imposed unconditionally, so that no other purpose appears on the face of the statute, the Court has refused to inquire into the motives of the lawmakers and has sustained the tax despite its prohibitive proportions.[266] In the language of a recent opinion: "It is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. * * * The principle applies even though the revenue obtained is obviously negligible, * * *, or the revenue purpose of the tax may be secondary, * * * Nor does a tax statute necessarily fall because it touches on activities which Congress might not otherwise regulate. As was pointed out in Magnano Co. v. Hamilton, 292 U.S. 40, 47 (1934): 'From the beginning of our government, the courts have sustained taxes although imposed with the collateral intent of effecting ulterior ends which, considered apart, were beyond the constitutional power of the lawmakers to realize by legislation directly addressed to their accomplishment.'"[267] But where the tax is conditional, and may be avoided by compliance with regulations set out in the statute, the validity of the measure is determined by the power of Congress to regulate the subject matter. If the regulations are within the competence of Congress, apart from its power to tax, the exaction is sustained as an appropriate sanction for making them effective;[268] otherwise it is invalid.[269] During the Prohibition Era, Congress levied a heavy tax upon liquor dealers who operated in violation of State law. In United States v. Constantine[270] the Court held that this tax was unenforceable after the repeal of the Eighteenth Amendment, since the National Government had no power to impose an additional penalty for infractions of State law.

The Protective Tariff

The earliest examples of taxes levied with a view to promoting desired economic objectives in addition to raising revenue were, of course, import duties. The second statute adopted by the first Congress was a tariff act which recited that "it is necessary for the support of government, for the discharge of the debts of the United States, and the encouragement and protection of manufactures, that duties be laid on goods, wares and merchandise imported."[271] After being debated for nearly a century and a half, the constitutionality of protective tariffs was finally settled by the unanimous decision of the Supreme Court in Hampton and Company v. United States,[272] where Chief Justice Taft wrote: "The second objection to § 315 is that the declared plan of Congress, either expressly or by clear implication, formulates its rule to guide the President and his advisory Tariff Commission as one directed to a tariff system of protection that will avoid damaging competition to the country's industries by the importation of goods from other countries at too low a rate to equalize foreign and domestic competition in the markets of the United States. It is contended that the only power of Congress in the levying of customs duties is to create revenue, and that it is unconstitutional to frame the customs duties with any other view than that of revenue raising. * * * In this first Congress sat many members of the Constitutional Convention of 1787. This Court has repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, long acquiesced in, fixes the construction to be given its provisions. * * * The enactment and enforcement of a number of customs revenue laws drawn with a motive of maintaining a system of protection, since the revenue law of 1789, are matters of history. * * * Whatever we may think of the wisdom of a protection policy, we can not hold it unconstitutional. So long as the motive of Congress and the effect of its legislative action are to secure revenue for the benefit of the general government, the existence of other motives in the selection of the subject of taxes cannot invalidate Congressional action."[273]

SPENDING FOR THE GENERAL WELFARE

The grant of power to "provide * * * for the general welfare" raises a two-fold question: How may Congress provide for "the general welfare" and what is "the general welfare" which it is authorized to promote? The first half of this question was answered by Thomas Jefferson in his Opinion on the Bank as follows: "* * * the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They [Congress] are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose."[274] The clause, in short, is not an independent grant of power, but a qualification of the taxing power. Although a broader view has been occasionally asserted,[275] Congress has not acted upon it and the Courts have had no occasion to adjudicate the point.

Hamilton v. Madison

With respect to the meaning of "the general welfare" the pages of The Federalist itself disclose a sharp divergence of views between its two principal authors. Hamilton adopted the literal, broad meaning of the clause;[276] Madison contended that the powers of taxation and appropriation of the proposed government should be regarded as merely instrumental to its remaining powers, in other words, as little more than a power of self-support.[277] From an early date Congress has acted upon the interpretation espoused by Hamilton. Appropriations for subsidies[278] and for an ever increasing variety of "internal improvements"[279] constructed by the Federal Government, had their beginnings in the administrations of Washington and Jefferson.[280] Since 1914, federal grants-in-aid,—sums of money apportioned among the States for particular uses, often conditioned upon the duplication of the sums by the recipient State, and upon observance of stipulated restrictions as to its use—have become commonplace.[281]

Triumph of the Hamiltonian Theory

The scope of the national spending power was brought before the Supreme Court at least five times prior to 1936, but the Court disposed of four of them without construing the "general welfare" clause. In the Pacific Railway Cases[282] and Smith v. Kansas City Title and Trust Company,[283] it affirmed the power of Congress to construct internal improvements, and to charter and purchase the capital stock of federal land banks, by reference to the powers of the National Government over commerce, the post roads and fiscal operations, and to its war powers. Decisions on the merits were withheld in two other cases—Massachusetts v. Mellon and Frothingham v. Mellon[284]—on the ground that neither a State nor an individual citizen is entitled to a remedy in the courts against an unconstitutional appropriation of national funds. In United States v. Gettysburg Electric Railway Co.,[285] however, the Court had invoked "the great power of taxation to be exercised for the common defence and the general welfare,"[286] to sustain the right of the Federal Government to acquire land within a State for use as a national park. Finally, in United States v. Butler,[287] the Court gave its unqualified endorsement to Hamilton's views on the taxing power. Wrote Justice Roberts for the Court: "Since the foundation of the Nation sharp differences of opinion have persisted as to the true interpretation of the phrase. Madison asserted it amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section; that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the Congress. In this view the phrase is mere tautology, for taxation and appropriation are or may be necessary incidents of the exercise of any of the enumerated legislative powers. Hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. Each contention has had the support of those whose views are entitled to weight. This court had noticed the question, but has never found it necessary to decide which is the true construction. Justice Story, in his Commentaries, espouses the Hamiltonian position. We shall not review the writings of public men and commentators or discuss the legislative practice. Study of all these leads us to conclude that the reading advocated by Justice Story is the correct one. While, therefore, the power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of § 8 which bestow and define the legislative powers of the Congress. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution."[288]

The Security Act Cases

Although holding that the spending power is not limited by the specific grants of power contained in article I, section 8, the Court found, nevertheless, that it was qualified by the Tenth Amendment, and on this ground ruled in the Butler case that Congress could not use moneys raised by taxation to "purchase compliance" with regulations "of matters of State concern with respect to which Congress has no authority to interfere."[289] Within little more than a year this decision was reduced to narrow proportions by Steward Machine Co. v. Davis,[290] which sustained the tax imposed on employers to provide unemployment benefits, and the credit allowed for similar taxes paid to a State. To the argument that the tax and credit in combination were "weapons of coercion, destroying or impairing the autonomy of the States," the Court replied that relief of unemployment was a legitimate object of federal expenditure under the "general welfare" clause; that the Social Security Act represented a legitimate attempt to solve the problem by the cooperation of State and Federal Governments; that the credit allowed for State taxes bore a reasonable relation "to the fiscal need subserved by the tax in its normal operation,"[291] since State unemployment compensation payments would relieve the burden for direct relief borne by the national treasury. The Court reserved judgment as to the validity of a tax "if it is laid upon the condition that a State may escape its operation through the adoption of a statute unrelated in subject matter to activities fairly within the scope of national policy and power."[292]

Earmarked Funds

The appropriation of the proceeds of a tax to a specific use does not affect the validity of the exaction, if the general welfare is advanced and no other constitutional provision is violated. Thus a processing tax on coconut oil was sustained despite the fact that the tax collected upon oil of Philippine production was segregated and paid into the Philippine Treasury.[293] In Helvering v. Davis,[294] the excise tax on employers, the proceeds of which were not earmarked in any way, although intended to provide funds for payments to retired workers, was upheld under the "general welfare" clause, the Tenth Amendment being found to be inapplicable.

Conditional Grants-in-Aid

In the Steward Machine Company case, it was a taxpayer who complained of the invasion of the State sovereignty and the Court put great emphasis on the fact that the State was a willing partner in the plan of cooperation embodied in the Social Security Act.[295] A decade later the right of Congress to impose conditions upon grants-in-aid over the objection of a State was squarely presented in Oklahoma v. United States Civil Service Commission.[296] The State objected to the enforcement of a provision of the Hatch Act,[297] whereby its right to receive federal highway funds would be diminished in consequence of its failure to remove from office a member of the State Highway Commission found to have taken an active part in party politics while in office. Although it found that the State had created a legal right which entitled it to an adjudication of its objection, the Court denied the relief sought on the ground that, "While the United States is not concerned with, and has no power to regulate local political activities as such of State officials, it does have power to fix the terms upon which its money allotments to State shall be disbursed. * * * The end sought by Congress through the Hatch Act is better public service by requiring those who administer funds for national needs to abstain from active political partisanship. So even though the action taken by Congress does have effect upon certain activities within the State, it has never been thought that such effect made the federal act invalid."[298]

"Debts of the United States"

The power to pay the debts of the United States is broad enough to include claims of citizens arising on obligations of right and justice.[299] The Court sustained an act of Congress which set apart for the use of the Philippine Islands, the revenue from a processing tax on coconut oil of Philippine production, as being in pursuance of a moral obligation to protect and promote the welfare of the people of the Islands.[300] Curiously enough, this power was first invoked to assist the United States to collect a debt due to it. In United States v. Fisher[301] the Supreme Court sustained a statute which gave the Federal Government priority in the distribution of the estates of its insolvent debtors. The debtor in that case was the endorser of a foreign bill of exchange which apparently had been purchased by the United States. Invoking the "necessary and proper" clause, Chief Justice Marshall deduced the power to collect a debt from the power to pay its obligations by the following reasoning: "The government is to pay the debt of the Union, and must be authorized to use the means which appear to itself most eligible to effect that object. It has, consequently, a right to make remittances by bills or otherwise, and to take those precautions which will render the transaction safe."[302]

Clause 2. The Congress shall have Power * * * To borrow Money on the credit of the United States.

The Borrowing Power

The original draft of the Constitution reported to the convention by its Committee of Detail empowered Congress "To borrow money and emit bills on the credit of the United States."[303] When this section was reached in the debates, Gouverneur Morris moved to strike out the clause "and emit bills on the credit of the United States." Madison suggested that it might be sufficient "to prohibit the making them a tender." After a spirited exchange of views on the subject of paper money the convention voted, nine States to two, to delete the words "and emit bills."[304] Nevertheless, in 1870, the Court relied in part upon this clause in holding that Congress had authority to issue treasury notes and to make them legal tender in satisfaction of antecedent debts.[305] When it borrows money "on the credit of the United States" Congress creates a binding obligation to pay the debt as stipulated and cannot thereafter vary the terms of its agreement. A law purporting to abrogate a clause in government bonds calling for payment in gold coin was held to contravene this clause, although the creditor was denied a remedy in the absence of a showing of actual damage.[306]

Clause 3. The Congress shall have power * * * To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

Purpose of the Clause

This clause serves a two-fold purpose: it is the direct source of the most important powers which the National Government exercises in time of peace: and, except for the due process of law clause of Amendment XIV, it is the most important limitation imposed by the Constitution on the exercise of State power. The latter, or restrictive, operation of the clause was long the more important one from the point of view of Constitutional Law. Of the approximately 1400 cases which reached the Supreme Court under the clause prior to 1900, the overwhelming proportion stemmed from State legislation.[307] It resulted that, with an important exception to be noted in a moment, the guiding lines in construction of the clause were initially laid down from the point of view of its operation as a curb on State power, rather than of its operation as a source of national power; and the consequence of this was that the word "commerce," as designating the thing to be protected against State interference, came to dominate the clause, while the word "regulate" remained in the background.

Definition of Terms: Gibbons v. Ogden

"COMMERCE"

The etymology of the word, "cum merce (with merchandise)" carries the primary meaning of traffic—i.e., "to buy and sell goods; to trade" (Webster's International). This narrow conception was replaced in the great leading case of Gibbons v. Ogden, 9 Wheat. 1 (1824), by a much broader one, on which interpretation of the clause has been patterned ever since. The case arose out of a series of acts of the legislature of New York, passed between the years 1798 and 1811, which conferred upon Livingston and Fulton the exclusive right to navigate the waters of that State with steam-propelled vessels. Gibbons challenged the monopoly by sending from Elizabethtown, New Jersey, into the Hudson in the State of New York two steam vessels which had been licensed and enrolled to engage in the coasting trade under an act passed by Congress in 1793. Counsel for Ogden (an assignee of Livingston and Fulton) argued that since Gibbons' vessels carried only passengers between New Jersey and New York, they were not engaged in traffic and hence not in "commerce" in the sense of the Constitution. This argument Chief Justice Marshall answered as follows: "The subject to be regulated is commerce; * * * The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more—it is intercourse."[308] The term, therefore, included navigation—a conclusion which Marshall supported by appeal to general understanding, to the prohibition in article I, § 9, against any preference being given "'* * * by any regulation of commerce or revenue, to the ports of one State over those of another,'" and to the admitted and demonstrated power of Congress to impose embargoes.[309]

"COMMERCE" TODAY

Later in his opinion Marshall qualified the word "intercourse" with the word "commercial."[310] Today "commerce" in the sense of the Constitution, and hence "interstate commerce" when it is carried on across State lines, covers every species of movement of persons and things, whether for profit or not;[311] every species of communication, every species of transmission of intelligence, whether for commercial purposes or otherwise;[312] every species of commercial negotiation which, as shown "by the established course of the business," will involve sooner or later an act of transportation of persons or things, or the flow of services or power across State lines.[313]

From time to time the Court has said that certain things were not interstate commerce, such as mining or manufacturing undertaken "with the intent" that the product shall be transported to other States;[314] insurance transactions when carried on across State lines;[315] exhibitions of baseball between professional teams which travel from State to State;[316] the making of contracts for the insertion of advertisements in periodicals in another State;[317] contracts for personal services to be rendered in another State.[318] Recent decisions either overturn or cast doubt on most if not all of these holdings. By one of these the gathering of news by a press association and its transmission to client newspapers is termed interstate commerce.[319] By another the activities of a Group Health Association which serves only its own members are held to be "trade" within the protection of the Sherman Act and hence capable, if extended, of becoming interstate commerce.[320] By a third the business of insurance when transacted between an insurer and an insured in different States is interstate commerce.[321]

THE "NECESSARY AND PROPER" CLAUSE

In the majority of the above cases the commerce clause was involved solely as a limitation on the powers of the States. But when the clause is treated as a source of national power it is, of course, read in association with the power of Congress "* * * To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, * * *,"[322] with the result that, as is pointed out later, "interstate commerce" has come in recent years practically to connote both those operations which precede as well as those which follow commercial intercourse itself, provided such operations are deemed by the Court to be capable of "affecting" such intercourse.[323]

"AMONG THE SEVERAL STATES"

In Cohens v. Virginia, decided in 1821, Marshall had asserted, "for all commercial purposes we are one nation."[324] In Gibbons v. Ogden, however, he conceded that the phrase commerce "among the several States" was "not one which would probably have been selected to indicate the completely interior traffic of a State"; and added: "The genius and character of the whole government seem to be, that its action is to be applied to all external concerns of the nation, and to those internal concerns which affect the States generally; but not those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government."[325]

This recognition of an "exclusively internal" commerce of a State ("intrastate commerce" today) appears at times to have been regarded as implying the existence of an area of State power which Congress was not entitled constitutionally to enter.[326] This inference overlooked the fact that, in consequence of its powers under the necessary and proper clause, Congress can, as Marshall indicates in the words above quoted, interfere with the completely internal concerns of a State "for the purpose of executing its general powers," one of which is its power over foreign and interstate commerce. It is today established doctrine that "no form of State activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress."[327]

And while the word "among" serves to demark "the completely internal" commerce of a State from that which "extends to or affects" other States, it also serves, as Marshall further pointed out, to emphasize the fact that "the power of Congress does not stop at the jurisdictional lines of the several States," but "must be exercised whenever [wherever?] the subject exists. * * * Commerce among the States must, of necessity, be commerce [within?] the States. * * * The power of Congress, then, whatever it may be, must be exercised within the territorial jurisdiction of the several States."[328]

"REGULATE"

Elucidating this word in his opinion for the Court in Gibbons v. Ogden, Chief Justice Marshall said: "We are now arrived at the inquiry—What is this power? It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments."[329]

INTERSTATE VERSUS FOREIGN COMMERCE

There are certain later judicial dicta which urge or suggest that Congress's power to regulate interstate commerce restrictively is less than its analogous power over foreign commerce, the argument being that whereas the latter is a branch of the nation's unlimited power over foreign relations, the former was conferred upon the National Government primarily in order to protect freedom of commerce from State interference. The four dissenting Justices in the Lottery Case (decided in 1903) endorsed this view in the following words: "It is argued that the power to regulate commerce among the several States is the same as the power to regulate commerce with foreign nations, and among the Indian tribes. But is its scope the same? * * *, the power to regulate commerce with foreign nations and the power to regulate interstate commerce, are to be taken diverso intuitu, for the latter was intended to secure equality and freedom in commercial intercourse as between the States, not to permit the creation of impediments to such intercourse; while the former clothes Congress with that power over international commerce, pertaining to a sovereign nation in its intercourse with foreign nations, and subject, generally speaking, to no implied or reserved power in the States. The laws which would be necessary and proper in the one case, would not be necessary or proper in the other. * * * But that does not challenge the legislative power of a sovereign nation to exclude foreign persons or commodities, or place an embargo, perhaps not permanent, upon foreign ships or manufactures. * * * The same view must be taken as to commerce with Indian tribes. There is no reservation of police powers or any other to a foreign nation or to an Indian tribe, and the scope of the power is not the same as that over interstate commerce."[330]

And twelve years later Chief Justice White, speaking for the Court, expressed the same view, as follows: "In the argument reference is made to decisions of this court dealing with the subject of the power of Congress to regulate interstate commerce, but the very postulate upon which the authority of Congress to absolutely prohibit foreign importations as expounded by the decisions of this court rests is the broad distinction which exists between the two powers and therefore the cases cited and many more which might be cited announcing the principles which they uphold have obviously no relation to the question in hand."[331]

But dicta to the contrary are much more numerous and span a far longer period of time. Thus Chief Justice Taney wrote in 1847: "The power to regulate commerce among the several States is granted to Congress in the same clause, and by the same words, as the power to regulate commerce with foreign nations, and is coextensive with it."[332] And nearly fifty years later Justice Field, speaking for the Court, said: "The power to regulate commerce among the several States was granted to Congress in terms as absolute as is the power to regulate commerce with foreign nations."[333] Today it is firmly established doctrine that the power to regulate commerce, whether with foreign nations or among the several States comprises the power to restrain or prohibit it at all times for the welfare of the public, provided only the specific limitations imposed upon Congress's powers, as by the due process clause of the Fifth Amendment, are not transgressed.[334]

Nor does the power to regulate commerce stop with, nor in fact is it most commonly exercised in, measures designed to outlaw some branch of commerce. In the words of the Court: It is the power to provide by appropriate legislation for its "protection and advancement";[335] to adopt measures "to promote its growth and insure its safety";[336] "to foster, protect, control and restrain, [commerce]."[337] This protective power has, moreover, two dimensions. In the first place, it includes the power to reach and remove every conceivable obstacle to or restriction upon interstate and foreign commerce from whatever source arising, whether it results from unfavorable conditions within the States or from State legislative policy, like the monopoly involved in Gibbons v. Ogden; or from both combined. In the second place, it extends—as does also the power to restrain commerce—to the instruments and agents by which commerce is carried on; nor are such instruments and agents confined to those which were known or in use when the Constitution was adopted.[338]

INSTRUMENTS OF COMMERCE

The applicability of Congress's power to the agents and instruments of commerce is implied in Marshall's opinion in Gibbons v. Ogden,[339] where the waters of the State of New York in their quality as highways of interstate and foreign transportation are held to be governed by the overruling power of Congress. Likewise, the same opinion recognizes that in "the progress of things," new and other instruments of commerce will make their appearance. When the Licensing Act of 1793 was passed, the only craft to which it could apply were sailing vessels, but it and the power by which it was enacted were, Marshall asserted, indifferent to the "principle" by which vessels were moved. Its provisions therefore reached steam vessels as well. A little over half a century later the principle embodied in this holding was given its classic expression in the opinion of Chief Justice Waite in the case of the Pensacola Telegraph Co. v. Western Union Co.,[340] a case closely paralleling Gibbons v. Ogden in other respects also. The passage alluded to reads as follows: "The powers thus granted are not confined to the instrumentalities of commerce, or the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of times and circumstances. They extend from the horse with its rider to the stage-coach, from the sailing-vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They were intended for the government of the business to which they relate, at all times and under all circumstances. As they were intrusted to the general government for the good of the nation, it is not only the right, but the duty, of Congress to see to it that intercourse among the States and the transmission of intelligence are not obstructed or unnecessarily encumbered by State legislation."[341] The Radio Act of 1927 whereby "all forms of interstate and foreign radio transmissions within the United States, its Territories and possessions" were brought under national control, affords another illustration. Thanks to the foregoing doctrine the measure met no serious constitutional challenge either on the floors of Congress or in the Courts.[342]

Congressional Regulation of Waterways

NAVIGATION

In the case of Pennsylvania v. Wheeling & Belmont Bridge Co.,[343] decided in 1852, the Court, on the application of the complaining State, acting as representative of the interests of its citizens, granted an injunction requiring that a bridge, erected over the Ohio under a charter from the State of Virginia, either be altered so as to admit of free navigation of the river, or else be entirely abated. The decision was justified by the Court on the basis both of the commerce clause and of a compact between Virginia and Kentucky, whereby both these States had agreed to keep the Ohio River "free and common to the citizens of the United States." The injunction was promptly rendered inoperative by an act of Congress declaring the bridge to be "a lawful structure" and requiring all vessels navigating the Ohio to be so regulated as not to interfere with it.[344] This act the Court sustained as within Congress's power under the commerce clause, saying: "So far, * * *, as this bridge created an obstruction to the free navigation of the river, in view of the previous acts of Congress, they [the said acts] are to be regarded as modified by this subsequent legislation; and, although it still may be an obstruction in fact, [it] is not so in the contemplation of law. * * * That body [Congress] having in the exercise of this power, regulated the navigation consistent with its preservation and continuation, the authority to maintain it would seem to be complete. That authority combines the concurrent powers of both governments, State and federal, which, if not sufficient, certainly none can be found in our system of government."[345] In short, it is Congress and not the Court which is authorized by the Constitution to regulate commerce.

The law and doctrine of the earlier cases with respect to the fostering and protection of navigation are well summed up in the following frequently cited passage from the Court's opinion in Gilman v. Philadelphia,[346] decided in 1866. "Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the nation, and subject to all requisite legislation by Congress. This necessarily includes the power to keep them open and free from any obstruction to their navigation, interposed by the States or otherwise; to remove such obstructions when they exist; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders. For these purposes, Congress possesses all the powers which existed in the States before the adoption of the national Constitution, and which have always existed in the Parliament in England."[347]

Thus Congress was within its powers in vesting the Secretary of War with power to determine whether a structure of any nature in or over a navigable stream is an obstruction to navigation and to order its abatement if he so finds.[348] Nor is the United States required to compensate the owners of such structures for their loss, since they were always subject to the servitude represented by Congress's powers over commerce; and the same is true of the property of riparian owners which is damaged.[349] And while it was formerly held that lands adjoining nonnavigable streams were not subject to the above mentioned servitude,[350] this rule has been impaired by recent decisions;[351] and at any rate it would not apply as to a stream which had been rendered navigable by improvements.[352]

In exercising its power to foster and protect navigation Congress legislates primarily on things external to the act of navigation. But that act itself and the instruments by which it is accomplished are also subject to Congress's power if and when they enter into or form a part of "commerce among the several States." When does this happen? Words quoted above from the Court's opinion in the Gilman case answered this question to some extent; but the decisive answer to it was returned five years later in the case of The "Daniel Ball."[353] Here the question at issue was whether an act of Congress, passed in 1838 and amended in 1852, which required that steam vessels engaged in transporting passengers or merchandise upon the "bays, lakes, rivers, or other navigable waters of the United States," applied to the case of a vessel which navigated only the waters of the Grand River, a stream which lies entirely in the State of Michigan. Argued counsel for the vessel: "The navigable rivers of the United States pass through States, they form their boundary lines, they are not in any one State, nor the exclusive property of any one, but are common to all. To make waters navigable waters of the United States, some other incident must attach to them besides the territorial and the capability for public use. This term contrasts with domestic waters of the United States, and implies, not simply that the waters are public and within the Union, but that they have attached to them some circumstance that brings them within the scope of the sovereignty of the United States as defined by the Constitution." Then as a sort of reductio ad absurdum counsel added: "* * * if merely because a stream is a highway it becomes a navigable water of the United States, in a sense that attaches to it and to the vessels trading upon it the regulating control of Congress, then every highway must be regarded as a highway of the United States, and the vehicles upon it must be subject to the same control. But this will not be asserted on the part of the Government."[354] The Court answered: "In this case it is admitted that the steamer was engaged in shipping and transporting down Grand River, goods destined and marked for other States than Michigan, and in receiving and transporting up the river goods brought within the State from without its limits; * * * So far as she was employed in transporting goods destined for other States, or goods brought from without the limits of Michigan and destined to places within that State, she was engaged in commerce between the States, and however limited that commerce may have been, she was, so far as it went, subject to the legislation of Congress. She was employed as an instrument of that commerce; for whenever a commodity has begun to move as an article of trade from one State to another, commerce in that commodity between the States has commenced."[355] Turning then to counsel's reductio ad absurdum, the Court added: "We answer that the present case relates to transportation on the navigable waters of the United States, and we are not called upon to express an opinion upon the power of Congress over interstate commerce when carried on by land transportation. And we answer further, that we are unable to draw any clear and distinct line between the authority of Congress to regulate an agency employed in commerce between the States, when the agency extends through two or more States, and when it is confined in its action entirely within the limits of a single State. If its authority does not extend to an agency in such commerce, when that agency is confined within the limits of a State, its entire authority over interstate commerce may be defeated. Several agencies combining, each taking up the commodity transported at the boundary line at one end of a State, and leaving it at the boundary line at the other end, the Federal jurisdiction would be entirely ousted, and the constitutional provision would become a dead letter."[356] In short, it was admitted inferentially, that the principle of the decision would apply to land transportation; but the actual demonstration of the fact still awaited some years.[357] See infra.

HYDROELECTRIC POWER

As a consequence, in part, of its power to forbid or remove obstructions to navigation in the navigable waters of the United States, Congress has acquired the right to develop hydroelectric power, and the ancillary right to sell it to all takers. By a long-standing doctrine of Constitutional Law the States possess dominion over the beds of all navigable streams within their borders,[358] but on account of the servitude which Congress's power to regulate commerce imposes upon such streams, they are practically unable, without the assent of Congress, to utilize their prerogative for power development purposes. Sensing, no doubt, that controlling power to this end must be attributed to some government in the United States and that "in such matters there can be no divided empire,"[359] the Court held, in 1913, in United States v. Chandler-Dunbar Co.,[360] that in constructing works for the improvement of the navigability of a stream, Congress was entitled, as a part of a general plan, to authorize the lease or sale of such excess water power as might result from the conservation of the flow of the stream. "If the primary purpose is legitimate," it said, "we can see no sound objection to leasing any excess of power over the needs of the government. The practice is not unusual in respect to similar public works constructed by State governments."[361]

Congress's Jurisdiction Over Navigable Streams Today

Since the Chandler-Dunbar case the Court has come, in effect, to hold that it will sustain any act of Congress which purports to be for the improvement of navigation whatever other purposes it may also embody; nor does the stream involved have to be one which is "navigable in its natural state." Such, at least, seems to be the algebraic sum of its holdings in Arizona v. California,[362] decided in 1931, and in the United States v. Appalachian Electric Power Co.,[363] decided in 1940. In the former the Court, speaking through Justice Brandeis, said that it was not free to inquire into the motives "which induced members of Congress to enact the Boulder Canyon Project Act," adding: "As the river is navigable and the means which the Act provides are not unrelated to the control of navigation, * * *, the erection and maintenance of such dam and reservoir are clearly within the powers conferred upon Congress. Whether the particular structures proposed are reasonably necessary, is not for this Court to determine. * * * And the fact that purposes other than navigation will also be served could not invalidate the exercise of the authority conferred, even if those other purposes would not alone have justified an exercise of congressional power."[364] And in the Appalachian Electric Power case, the Court, abandoning previous holdings which had laid down the doctrine that to be subject to Congress's power to regulate commerce a stream must be "navigable in fact," said: "A waterway, otherwise suitable for navigation, is not barred from that classification merely because artificial aids must make the highway suitable for use before commercial navigation may be undertaken," provided there must be a "balance between cost and need at a time when the improvement would be useful. * * * Nor is it necessary that the improvements should be actually completed or even authorized. The power of Congress over commerce is not to be hampered because of the necessity for reasonable improvements to make an interstate waterway available for traffic. * * * Nor is it necessary for navigability that the use should be continuous. * * * Even absence of use over long periods of years, because of changed conditions, * * * does not affect the navigability of rivers in the constitutional sense."[365]

Purposes for Which Power May be Exercised

Furthermore, the Court defined the purposes for which Congress may regulate navigation in the broadest terms, as follows: "It cannot properly be said that the constitutional power of the United States over its waters is limited to control for navigation. * * * That authority is as broad as the needs of commerce. * * * Flood protection, watershed development, recovery of the cost of improvements through utilization of power are likewise parts of commerce control."[366] These views the Court has since reiterated.[367] Nor is it by virtue of Congress's power over navigation alone that the National Government may develop super-power. Its war powers and power of expenditure in furtherance of the common defense and the general welfare supplement its powers over commerce in this respect.[368]

Congressional Regulation of Land Transportation

EARLY ACTS; FEDERAL PROVISION FOR HIGHWAYS

The acquisition and settlement of California stimulated Congress some years before the Civil War to authorize surveys of possible routes for railway lines to the Pacific; but it was not until 1862, in the midst of war, with its menace of a general dissolution of the Union, that more decisive action was taken. That year Congress voted aid in the construction of a line from Missouri River to the Pacific; and four years later it chartered the Union Pacific Company.[369] First and last, litigation growing out of this type of legislation has resulted in the establishment in judicial decision of the following propositions: First, that Congress may provide highways for interstate transportation (earlier, as well as today, this result might have followed from Congress's power of spending, independently of the commerce clause, as well as from its war and postal powers, which were also invoked by the Court in this connection); second, that it may charter private corporations for the purpose of doing the same thing; third, that it may vest such corporations with the power of eminent domain in the States; and fourth, that it may exempt their franchises from State taxation.[370]

BEGINNINGS OF FEDERAL RAILWAY REGULATION

Congress began regulating the railroads of the country in a more positive sense in 1866. By the so-called Garfield Act of that year "every railroad company in the United States, whose road is operated by steam," was authorized by Congress "* * * to connect with roads of other States so as to form continuous lines for the transportation of passengers, freight, troops, governmental supplies, and mails, to their destination";[371] while by an act passed on July 24 of the same year it was ordered, "in the interest of commerce and the convenient transmission of intelligence * * * by the government of the United States and its citizens, that the erection of telegraph lines shall, so far as State interference is concerned, be free to all who will submit to the conditions imposed by Congress, and that corporations organized under the laws of one State for constructing and operating telegraph lines shall not be excluded by another from prosecuting their business within its jurisdiction, if they accept the terms proposed by the National Government for this national privilege."[372]

Another act of the same period provided that "no railroad company within the United States whose road forms any part of a line of road over which cattle, sheep, swine, or other animals are conveyed from one State to another, or the owners or masters of steam, sailing, or other vessels carrying or transporting cattle, sheep, swine, or other animals from one State to another, shall confine the same in cars, boats, or vessels of any description, for a longer period than twenty-eight consecutive hours, without unloading the same for rest, water, and feeding, for a period of at least five consecutive hours, unless prevented from so unloading by storm or other accidental causes."[373]

REGULATION OF RAILROAD RATES: THE INTERSTATE COMMERCE COMMISSION

On account of the large element of "fixed charges" which enters into the setting of rates by railway companies, competition between lines for new business was from the first very sharp, and resulted in many evils which, in the early 70's, led in the Middle West to the enactment by the State legislatures of the so-called "Granger Laws"; and in the famous "Granger Cases," headed by Munn v. Illinois,[374] the Court at first sustained this legislation, in relation to both the commerce clause and the due process of law clause of Amendment XIV. The principal circumstance, however, which shaped the Court's attitude toward the "Granger Laws" had, by a decade later, disappeared, the fact, namely, that originally the railroad business was largely in local hands. In consequence, first, of the panic of 1873, and then of the panic of 1885, hundreds of these small lines went into bankruptcy, from which they emerged consolidated into great interstate systems. The result for the Court's interpretation of the commerce clause was determinative. In the case of Wabash, St. Louis and Pacific R. Co. v. Illinois,[375] decided in 1886, it was ruled that a State may not regulate charges for the carriage even within its own boundaries of goods brought from without the State or destined to points outside it; that in this respect Congress's power over interstate commerce was exclusive. The following year, Congress, responding to a widespread public demand, passed the original Interstate Commerce Act.[376]

By this measure a commission of five was created with authority to pass upon the "reasonableness" of all charges by railroads for the transportation of goods or persons in interstate commerce and to order the discontinuance of all such charges as it found to be "unreasonable," or otherwise violative of the provisions of the act. In Interstate Commerce Commission v. Brimson,[377] decided in 1894, the validity of the Commission as a means "necessary and proper" for the enforcement of Congress's power to regulate commerce among the States was sustained, as well as its right to enter the courts of the United States in order to secure process for the execution of its orders. Later decisions of the Court, however, including one in which the act was construed not to give the Commission power to set reasonable maximum rates in substitution for those found by it to be unreasonable, disappointed earlier expectations.[378]

The history of the Commission as an effective instrument of government dates from the Hepburn Act of 1906[379] which was followed four years later by the Mann-Elkins Act.[380] By the former the Commission was explicitly endowed with the power, after a full hearing on a complaint made to it, "to determine and prescribe just and reasonable" maximum rates. By the latter it was further authorized to set such rates on its own initiative, and without waiting for a complaint; while any increase of rates by a carrier was made subject to suspension by the Commission until its approval could be obtained. At the same time, the Commission's jurisdiction was extended to telegraphs, telephones and cables.[381]

THE INTERSTATE COMMERCE COMMISSION TODAY

The powers of the Commission, which has been gradually increased to a body of eleven, are today largely defined in the Transportation Act of February 28, 1920. By that act they were extended not only to all "railroads," comprehensively defined, but also to the following additional categories of "'common carriers' * * * all pipeline companies; telegraph, telephone, and cable companies operating by wire or wireless [See [note 3 above]]; express companies; sleeping-car companies; and all persons, natural or artificial, engaged in such transportation or transmission as aforesaid as common carriers for hire." The jurisdiction of the Commission covers not only the characteristic activities of such carriers in commerce among the States, but also the issuance of securities by them, and all consolidations of existing companies, or lines. Furthermore, for the first time, the Commission was put under the injunction, in exercising its control over rates and charges, to "give due consideration, among other things, to the transportation needs of the country and the necessity (under honest, efficient and economical management of existing transportation facilities) of enlarging such facilities in order to provide the people of the United States with adequate transportation."[382] Railway rate control itself, which was originally entered upon by the National Government exclusively from the point of view of restraint, has thus been assimilated to the idea of "fostering and promoting" transportation.

Two types of constitutional questions have presented themselves under the legislation just passed in review: 1. Those arising out of the safeguards which the Bill of Rights throws about property rights; 2. Those arising out of the intermingling of the interstate and intrastate operations of the same carriers, and the resulting tangency of State with national power. Only the latter are considered at this point.

THE SHREVEPORT CASE

Section 1 of the act of 1887 contains the proviso "that the provisions of this act shall not apply to 'transportation' wholly within the State." Section 3 of the act prohibits "any common carrier subject to the provisions" of the act from giving "any unreasonable preference or advantage" to any person, firm, or locality. In the Shreveport Case,[383] decided in 1914, the Commission, reading § 3 independently of § 1, had ordered several Texas lines to increase certain of their rates between points in Texas till they should approximate rates already approved by the Commission to adjoining points in Louisiana. The latter rates, being interstate, were admittedly subject to the Commission. The local rates were as clearly within the normal jurisdiction of the State, and had in fact been set by the Texas Railway Commission. The Court found that the Interstate Commerce Commission had not exceeded its statutory powers. The constitutional objection to the Commission's action was stated thus: "That Congress is impotent to control the intrastate charges of an interstate carrier even to the extent necessary to prevent injurious discrimination against interstate traffic." This objection the Court met, as follows: "Wherever the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is Congress, and not the State, that is entitled to prescribe the final and dominant rule, for otherwise Congress would be denied the exercise of its constitutional authority and the State, and not the Nation, would be supreme in the national field."[384] This, the Court continued, "is not to say that Congress possesses the authority to regulate the internal commerce of a State as such, but that it does possess the power to foster and protect interstate commerce, and to take all measures necessary or appropriate to that end, although intrastate transactions of interstate carriers may thereby be controlled."[385]

THE ACT OF 1920 AND STATE RAILWAY RATE REGULATION

The power of the Commission under § 3 of the act of 1887, as interpreted in the Shreveport Case, was greatly enlarged by § 416 of the act of 1920, which authorizes the Commission to remove "any undue, unreasonable, or unjust discrimination against interstate or foreign commerce." Thus, commerce as a whole, instead of specific firms or localities, is made the beneficiary of the restriction. In the Wisconsin R.R. Comm. v. Chicago, B. & Q.R.R. Co.,[386] the Court held that this section sustained the Interstate Commerce Commission in annulling intrastate passenger rates which it found to be unduly low, in comparison with rates which the Commission had established for interstate travel, and so tending to thwart, in deference to a merely local interest, the general purpose of the act to maintain an efficient transport service for the benefit of the country at large.[387]

REGULATION OF OTHER AGENTS OF CARRIAGE AND COMMUNICATION

In the Pipe Line Cases, decided in 1914,[388] the Court affirmed the power of Congress to regulate the transportation of oil and gas in pipe lines from one State to another and held that this power applies to such transportation even though the oil (or gas) in question was the property of the owner of the lines.[389] Thirteen years later, in 1927, the Court ruled that an order by a State commission fixing rates on electric current generated within the State and sold to a distributor in another State was invalid as imposing a burden on interstate commerce, thus holding impliedly that Congress' power to regulate the transmission of electric current from one State to another carried with it the power to regulate the price of such electricity.[390] Proceeding on this implication Congress, in the Federal Power Act of 1935,[391] conferred upon the Federal Power Commission the power to govern the wholesale distribution of electricity in interstate commerce; and three years later vested in the same body like power over natural gas moving in interstate commerce.[392] In Federal Power Commission v. Natural Gas Pipeline Company,[393] the power of the Commission to set the prices at which gas, originating in one State and transported into another, should be sold to distributors wholesale in the latter State, was sustained by the Court in the following terms: "The argument that the provisions of the statute applied in this case are unconstitutional on their face is without merit. The sale of natural gas originating in the State and its transportation and delivery to distributors in any other State constitutes interstate commerce, which is subject to regulation by Congress. * * * It is no objection to the exercise of the power of Congress that it is attended by the same incidents which attend the exercise of the police power of a State. The authority of Congress to regulate the prices of commodities in interstate commerce is at least as great under the Fifth Amendment as is that of the States under the Fourteenth to regulate the prices of commodities in intrastate commerce."[394]

Other acts regulative of interstate commerce and communication which belong to this period are the Federal Communications Act of 1934, which regulates, through the Federal Communications Commission,[395] "interstate and foreign communication by wire and radio"; the Federal Motor Carrier Act of 1935, which, through the Interstate Commerce Commission, governs the transportation of persons and property by motor vehicle common carriers;[396] the Civil Aeronautics Act of 1938, enacted for the purpose of bringing under the control of a central agency, called "the Civil Aeronautics Authority" (functioning through the Civil Aeronautics Administrator and the Civil Aeronautics Board) all phases of airborne commerce, foreign and interstate.[397] None of these measures have provoked challenge to the power of Congress to enact them.

ACTS OF CONGRESS PROTECTIVE OF LABOR ENGAGED IN INTERSTATE TRANSPORTATION

In the course of the years 1903 to 1908 Congress enacted a series of such measures which were notable both on account of their immediate purpose and as marking the entry of the National Government into the field of labor legislation. The Safety Appliance Act of 1893,[398] which applied only to cars and locomotives engaged in moving interstate traffic, was amended in 1903 to embrace "all trains, locomotives, tenders, cars," etc., "used on any railway engaged in interstate commerce * * * and to all other locomotives * * * cars," etc., "used in connection therewith."[399] In Southern Railway Company v. United States,[400] the validity of this extension of the act was challenged. The Court sustained the measure as being within Congress's power, saying: "* * * this is so, not because Congress possesses any power to regulate intrastate commerce as such, but because its power to regulate interstate commerce is plenary and competently may be exerted to secure the safety of the persons and property transported therein and of those who are employed in such transportation, no matter what may be the source of the dangers which threaten it. That is to say, it is no objection to such an exertion of this power that the dangers intended to be avoided arise, in whole or in part, out of matters connected with intrastate commerce."[401]

Four years later the Hours of Service Act of 1907[402] was passed, requiring, as a safety measure, that carriers engaged in the transportation of passengers or property by railroad in interstate or foreign commerce should not work their employees for longer periods than those prescribed by the Act. In sustaining this legislation the Court, speaking through Justice Hughes, said: "The fundamental question here is whether a restriction upon the hours of labor of employés who are connected with the movement of trains in interstate transportation is comprehended within this sphere of authorized legislation. This question admits of but one answer. The length of hours of service has direct relation to the efficiency of the human agencies upon which protection of life and property necessarily depends. * * * In its power suitably to provide for the safety of the employés and travelers, Congress was not limited to the enactment of laws relating to mechanical appliances, but it was also competent to consider, and to endeavor to reduce, the dangers incident to the strain of excessive hours of duty on the part of engineers, conductors, train dispatchers, telegraphers, and other persons embraced within the class defined by the act."[403]

But by far the most notable of these safety measures were the Federal Employers Liability Acts of 1906 and 1908,[404] the second of which merely reenacted the first with certain "unconstitutional" features eliminated. What the amended act does, in short, is to modify, in the case of injuries incurred by the employees of interstate carriers while engaged in interstate commerce, the defenses that had hitherto been available to the carriers at common law. The principal argument against the acts was that the commerce clause afforded no basis for an attempt to regulate the relation of master and servant, which had heretofore in all cases fallen to the reserved powers of the States; that indeed the rules of common law modified or abrogated by the act existed solely under State authority, and had always been enforced, in the main, in the courts of the States.[405] Countering this argument, the Court, speaking by Justice Van Devanter, quoted the following passage from the brief of the Solicitor-General: "Interstate commerce—if not always, at any rate when the commerce is transportation—is an act. Congress, of course, can do anything which, in the exercise by itself of a fair discretion, may be deemed appropriate to save the act of interstate commerce from prevention or interruption, or to make that act more secure, more reliable or more efficient. The act of interstate commerce is done by the labor of men and with the help of things; and these men and things are the agents and instruments of the commerce. If the agents or instruments are destroyed while they are doing the act, commerce is stopped; if the agents or instruments are interrupted, commerce is interrupted; if the agents or instruments are not of the right kind or quality, commerce in consequence becomes slow or costly or unsafe or otherwise inefficient; and if the conditions under which the agents or instruments do the work of commerce are wrong or disadvantageous, those bad conditions may and often will prevent or interrupt the act of commerce or make it less expeditious, less reliable, less economical and less secure. Therefore, Congress may legislate about the agents and instruments of interstate commerce, and about the conditions under which those agents and instruments perform the work of interstate commerce, whenever such legislation bears, or in the exercise of a fair legislative discretion can be deemed to bear, upon the reliability or promptness or economy or security or utility of the interstate commerce act."[406]

The Adair Case

But while the idea expressed here that the human agents of commerce, in the sense of transportation, are instrumentalities of it, and so, in that capacity, within the protective power of Congress, signalized the entrance of Congress into the field of labor legislation, the Court was not at the time prepared to give the idea any considerable scope. Pertinent in this connection is the case of Adair v. United States,[407] which was decided between the two Employers' Liability Cases. Here was involved the validity of § 10 of the "Erdman Act" of 1898,[408] by which it was made a misdemeanor for a carrier or agent thereof to require of an employee, as a condition of employment, that he should not become or remain a member of a trade union, or to threaten him with loss of employment if he should become or remain a member. This proviso the Court held not to be a regulation of commerce, there being no connection between an employee's membership in a labor organization and the carrying on of interstate commerce. Twenty-two years later, however, in 1930, the Court conceded that the connection between interstate commerce and union membership was a real and substantial one, and on that ground sustained the power of Congress in the Railway Labor Act of 1926[409] to prevent employers from interfering with the right of employees to select freely their own collective bargaining representatives.[410]

The Railroad Retirement Act

Still pursuing the idea of protecting commerce and the labor engaged in it concurrently, Congress, by the Railroad Retirement Act of June 27, 1934,[411] ordered the compulsory retirement of superannuated employees of interstate carriers, and provided that they be paid pensions out of a fund comprising compulsory contributions from the carriers and their present and future employees. In Railroad Retirement Board v. Alton R.R. Company,[412] however, a closely divided Court held this legislation to be in excess of Congress's power to regulate commerce and contrary to the due process clause of Amendment V. Said Justice Roberts for the majority: "We feel bound to hold that a pension plan thus imposed is in no proper sense a regulation of the activity of interstate transportation. It is an attempt for social ends to impose by sheer fiat noncontractual incidents upon the relation of employer and employee, not as a rule or regulation of commerce and transportation between the States, but as a means of assuring a particular class of employees against old age dependency. This is neither a necessary nor an appropriate rule or regulation affecting the due fulfillment of the railroads' duty to serve the public in interstate transportation."[413] Chief Justice Hughes, speaking for the dissenters, contended, on the contrary, that "the morale of the employees [had] an important bearing upon the efficiency of the transportation service." He added: "The fundamental consideration which supports this type of legislation is that industry should take care of its human wastage, whether that is due to accident or age. That view cannot be dismissed as arbitrary or capricious. It is a reasoned conviction based upon abundant experience. The expression of that conviction in law is regulation. When expressed in the government of interstate carriers, with respect to their employees likewise engaged in interstate commerce, it is a regulation of that commerce. As such, so far as the subject matter is concerned, the commerce clause should be held applicable."[414] Under subsequent legislation, an excise is levied on interstate carriers and their employees, while by separate but parallel legislation a fund is created in the Treasury out of which pensions are paid along the lines of the original plan. The constitutionality of this scheme appears to be taken for granted in Railroad Retirement Board v. Duquesne Warehouse Company.[415]

BILLS OF LADING; THE FERGER CASE

Some years earlier the Court had had occasion in United States v. Ferger,[416] decided in 1919, to reiterate the rule laid down in the Southern Railway Case, that Congress's protective power over interstate commerce reaches all kinds of obstructions whatever the source of their origin. Ferger and associates had been indicted under a federal statute for issuing a false bill of lading, to cover a fictitious shipment in interstate commerce. Their defense was that, since there could be no commerce in a fraudulent bill of lading, therefore Congress's power could not reach their alleged offense, a contention which Chief Justice White, speaking for the Court, answered thus: "But this mistakenly assumes that the power of Congress is to be necessarily tested by the intrinsic existence of commerce in the particular subject dealt with, instead of by the relation of that subject to commerce and its effect upon it. We say mistakenly assumes, because we think it clear that if the proposition were sustained it would destroy the power of Congress to regulate, as obviously that power, if it is to exist, must include the authority to deal with obstructions to interstate commerce (In re Debs, 158 U.S. 564) and with a host of other acts which, because of their relation to and influence upon interstate commerce, come within the power of Congress to regulate, although they are not interstate commerce in and of themselves. * * * That as instrumentalities of interstate commerce, bills of lading are the efficient means of credit resorted to for the purpose of securing and fructifying the flow of a vast volume of interstate commerce upon which the commercial intercourse of the country, both domestic and foreign, largely depends, is a matter of common knowledge as to the course of business of which we may take judicial notice. Indeed, that such bills of lading and the faith and credit given to their genuineness and the value they represent are the producing and sustaining causes of the enormous number of transactions in domestic and foreign exchange, is also so certain and well known that we may notice it without proof."[417]

Congressional Regulation of Commerce as Traffic

THE SHERMAN ACT; THE "SUGAR TRUST CASE"

Congress's chief effort to regulate commerce in the primary sense of "traffic" is embodied in the Sherman Antitrust Act of 1890, the opening section of which declares "every contract, combination in the form of trust or otherwise," or "conspiracy in restraint of trade and commerce among the several States, or with foreign nations" to be "illegal," while the second section makes it a misdemeanor for anybody to "monopolize or attempt to monopolize any part of such commerce."[418] The act was passed to curb the growing tendency to form industrial combinations and the first case to reach the Court under it was the famous "Sugar Trust Case," United States v. E.C. Knight Co.[419] Here the Government asked for the cancellation of certain agreements, whereby, through purchases of stock in other companies, the American Sugar Refining Company, had "acquired," it was conceded, "nearly complete control of the manufacture of refined sugars in the United States." The question of the validity of the act was not expressly discussed by the Court, but was subordinated to that of its proper construction. So proceeding, the Court, in pursuance of doctrines of Constitutional Law which were then dominant with it, turned the act from its intended purpose and destroyed its effectiveness for several years, as that of the Interstate Commerce Act was being contemporaneously impaired. The following passage early in Chief Justice Fuller's opinion for the Court, sets forth the conception of the Federal System that controlled the decision: "It is vital that the independence of the commercial power and of the police power, and the delimitation between them, however sometimes perplexing, should always be recognized and observed, for while the one furnishes the strongest bond of union, the other is essential to the preservation of the autonomy of the States as required by our dual form of government; and acknowledged evils, however grave and urgent they may appear to be, had better be borne, than risk be run, in the effort to suppress them, of more serious consequences by resort to expedients of even doubtful constitutionality."[420]

In short, what was needed, the Court felt, was a hard and fast line between the two spheres of power, and in the following series of propositions it endeavored to lay down such a line: (1) production is always local, and under the exclusive domain of the States; (2) commerce among the States does not commence until goods "commence their final movement from their State of origin to that of their destination"; (3) the sale of a product is merely an incident of its production and while capable of "bringing the operation of commerce into play," affects it only incidentally; (4) such restraint as would reach commerce, as above defined, in consequence of combinations to control production "in all its forms," would be "indirect, however inevitable and whatever its extent," and as such beyond the purview of the act.[421] Applying then the above reasoning to the case before it, the Court proceeded: "The object [of the combination] was manifestly private gain in the manufacture of the commodity, but not through the control of interstate or foreign commerce. It is true that the bill alleged that the products of these refineries were sold and distributed among the several States, and that all the companies were engaged in trade or commerce with the several States and with foreign nations; but this was no more than to say that trade and commerce served manufacture to fulfil its function. Sugar was refined for sale, and sales were probably made at Philadelphia for consumption, and undoubtedly for resale by the first purchasers throughout Pennsylvania and other States, and refined sugar was also forwarded by the companies to other States for sale. Nevertheless it does not follow that an attempt to monopolize, or the actual monopoly of, the manufacture was an attempt, whether executory or consummated, to monopolize commerce, even though, in order to dispose of the product, the instrumentality of commerce was necessarily invoked. There was nothing in the proofs to indicate any intention to put a restraint upon trade or commerce, and the fact, as we have seen that trade or commerce might be indirectly affected was not enough to entitle complainants to a decree."[422]

THE SHERMAN ACT REVISED

Four years later occurred the case of Addyston Pipe and Steel Co. v. United States,[423] in which the Antitrust Act was successfully applied as against an industrial combination for the first time. The agreements in the case, the parties to which were manufacturing concerns, effected a division of territory among them, and so involved, it was held, a "direct" restraint on the distribution and hence of the transportation of the products of the contracting firms. The holding, however, did not question the doctrine of the earlier case, which in fact continued substantially undisturbed until 1905, when Swift and Co. v. United States,[424] was decided.

THE "CURRENT OF COMMERCE" CONCEPT: THE SWIFT CASE

Defendants in the Swift case were some thirty firms engaged in Chicago and other cities in the business of buying livestock in their stockyards, in converting it at their packing houses into fresh meat, and in the sale and shipment of such fresh meat to purchasers in other States. The charge against them was that they had entered into a combination to refrain from bidding against each other in the local markets, to fix the prices at which they would sell, to restrict shipments of meat, and to do other forbidden acts. The case was appealed to the Supreme Court on defendants' contention that certain of the acts complained of were not acts of interstate commerce and so did not fall within a valid reading of the Sherman Act. The Court, however, sustained the Government on the ground that the "scheme as a whole" came within the act, and that the local activities alleged were simply part and parcel of this general scheme.[425]

Referring to the purchases of livestock at the stockyards, the Court, speaking by Justice Holmes, said: "Commerce among the States is not a technical legal conception, but a practical one, drawn from the course of business. When cattle are sent for sale from a place in one State, with the expectation that they will end their transit, after purchase, in another, and when in effect they do so, with only the interruption necessary to find a purchaser at the stockyards, and when this is a typical, constantly recurring course, the current thus existing is a current of commerce among the States, and the purchase of the cattle is a part and incident of such commerce."[426] Likewise the sales alleged of fresh meat at the slaughtering places fell within the general design. Even if they imported a technical passing of title at the slaughtering places, they also imported that the sales were to persons in other States, and that shipments to such States were part of the transaction.[427] Thus, sales of the type which in the Sugar Trust Case were thrust to one side as immaterial from the point of view of the law, because they enabled manufacture "to fulfill its function," were here treated as merged in an interstate commerce stream. Thus, the concept of commerce as trade, that is, as traffic, again entered the Constitutional Law picture, with the result that conditions which directly affected interstate trade could not be dismissed on the ground that they affected interstate commerce, in the sense of interstate transportation, only "indirectly." Lastly, the Court added these significant words: "But we do not mean to imply that the rule which marks the point at which State taxation or regulation becomes permissible necessarily is beyond the scope of interference by Congress in cases where such interference is deemed necessary for the protection of commerce among the States."[428] That is to say, the line that confines State power from one side does not always confine national power from the other. For even though the line accurately divides the subject matter of the complementary spheres, still national power is always entitled to take on such additional extension as is requisite to guarantee its effective exercise, and is furthermore supreme.

THE DANBURY HATTERS CASE

In this respect, the Swift Case only states what the Shreveport Case was later to declare more explicitly; and the same may be said of an ensuing series of cases in which combinations of employees engaged in such intrastate activities as manufacturing, mining, building construction, and the distribution of poultry were subjected to the penalties of the Sherman Act because of the effect or intended effect of their activities on interstate commerce.[429]

STOCKYARDS AND GRAIN FUTURES ACTS

In 1921 Congress passed the Packers and Stockyards Act[430] whereby the business of commission men and livestock dealers in the chief stockyards of the country was brought under national supervision; and the year following it passed the Grain Futures Act[431] whereby exchanges dealing in grain futures were subjected to control. The decisions of the Court sustaining these measures both built directly upon the Swift Case.

In Stafford v. Wallace,[432] which involved the former act, Chief Justice Taft, speaking for the Court, said: "The object to be secured by the act is the free and unburdened flow of livestock from the ranges and farms of the West and Southwest through the great stockyards and slaughtering centers on the borders of that region, and thence in the form of meat products to the consuming cities of the country in the Middle West and East, or, still as livestock, to the feeding places and fattening farms in the Middle West or East for further preparation for the market."[433] The stockyards, therefore, were "not a place of rest or final destination." They were "but a throat through which the current flows," and the sales there were not merely local transactions. "They do not stop the flow;—but, on the contrary" are "indispensable to its continuity."[434]

In Chicago Board of Trade v. Olsen,[435] involving the Grain Futures Act, the same course of reasoning was repeated. Speaking of the Swift Case, Chief Justice Taft remarked: "That case was a milestone in the interpretation of the commerce clause of the Constitution. It recognized the great changes and development in the business of this vast country and drew again the dividing line between interstate and intrastate commerce where the Constitution intended it to be. It refused to permit local incidents of a great interstate movement, which taken alone were intrastate, to characterize the movement as such."[436] Of special significance, however, is the part of the opinion which was devoted to showing the relation between future sales and cash sales, and hence the effect of the former upon the interstate grain trade. The test, said the Chief Justice, was furnished by the question of price. "The question of price dominates trade between the States. Sales of an article which affect the country-wide price of the article directly affect the country-wide commerce in it."[437] Thus a practice which demonstrably affects prices would also affect interstate trade "directly," and so, even though local in itself, would fall within the regulatory power of Congress. In the following passage, indeed, Chief Justice Taft whittles down, in both cases, the "direct-indirect" formula to the vanishing point: "Whatever amounts to more or less constant practice, and threatens to obstruct or unduly to burden the freedom of interstate commerce is within the regulatory power of Congress under the commerce clause, and it is primarily for Congress to consider and decide the fact of the danger and meet it. This court will certainly not substitute its judgment for that of Congress in such a matter unless the relation of the subject to interstate commerce and its effect upon it are clearly nonexistent."[438] And it was in reliance on the doctrine of these cases that Congress first set to work to combat the Depression in 1933 and the years immediately following. But in fact, much of its legislation at this time marked a wide advance upon the measures just passed in review. They did not stop with regulating traffic among the States and the instrumentalities thereof; they also essayed to govern production and industrial relations in the field of production. Confronted with this revolutionary claim to power on Congress' part, the Court again deemed itself called upon to define a limit to the commerce power that would save to the States their historical sphere, and especially their customary monopoly of legislative power in relation to industry and labor management.

THE SECURITIES AND EXCHANGE COMMISSION

Not all antidepression legislation, however, was of this revolutionary type. The Securities Exchange Act of 1934[439] and the Public Utility Company Act ("Wheeler-Rayburn Act") of 1935[440] were not. The former creates the Securities and Exchange Commission, and authorizes it to lay down regulations designed to keep dealing in securities honest and above-board and closes the channels of interstate commerce and the mails to dealers refusing to register under the act. The latter requires, by sections 4 (a) and 5, the companies which are governed by it to register with the Securities and Exchange Commission and to inform it concerning their business, organization and financial structure, all on pain of being prohibited use of the facilities of interstate commerce and the mails; while by section 11, the so-called "death sentence" clause, the same act closes after a certain date the channels of interstate communication to certain types of public utility companies whose operations, Congress found, were calculated chiefly to exploit the investing and consuming public. All these provisions have been sustained,[441] Gibbons v. Ogden, furnishing the Court its principal reliance.[442]

Congressional Regulation of Production and Industrial Relations

ANTIDEPRESSION LEGISLATION

In the following words of Chief Justice Hughes, spoken in a case which was decided a few days after President Franklin D. Roosevelt's first inauguration, the problem which confronted the new Administration was clearly set forth: "When industry is grievously hurt, when producing concerns fail, when unemployment mounts and communities dependent upon profitable production are prostrated, the wells of commerce go dry."[443]

THE NATIONAL INDUSTRIAL RECOVERY ACT

The initial effort of Congress to deal with this situation was embodied in the National Industrial Recovery Act of June 16, 1933.[444] The opening section of the act asserted the existence of "a national emergency productive of widespread unemployment and disorganization of industry which" burdened "interstate and foreign commerce," affected "the public welfare," and undermined "the standards of living of the American people." To effect the removal of these conditions the President was authorized, upon the application of industrial or trade groups, to approve "codes of fair competition," or to prescribe the same in cases where such applications were not duly forthcoming. Among other things such codes, of which eventually more than 700 were promulgated, were required to lay down rules of fair dealing with customers and to furnish labor certain guarantees respecting hours, wages and collective bargaining. For the time being business and industry were to be cartelized on a national scale.

THE SCHECHTER CASE

In the case of Schechter Corp. v. United States,[445] one of these codes, the Live Poultry Code, was pronounced unconstitutional. Although it was conceded that practically all poultry handled by the Schechters came from outside the State, and hence via interstate commerce, the Court held, nevertheless, that once the chickens came to rest in the Schechters' wholesale market interstate commerce in them ceased. The act, however, also purported to govern business activities which "affected" interstate commerce. This, Chief Justice Hughes held, must be taken to mean "directly" affect such commerce: "the distinction between direct and indirect effects of intrastate transactions upon interstate commerce must be recognized as a fundamental one, essential to the maintenance of our constitutional system. Otherwise, * * *, there would be virtually no limit to the federal power and for all practical purposes we should have a completely centralized government."[446] In short, the case was governed by the ideology of the Sugar Trust Case, which was not mentioned in the Court's opinion.[447]

THE AGRICULTURAL ADJUSTMENT ACT

Congress' second attempt to combat the Depression comprised the Agricultural Adjustment Act of 1933.[448] As is pointed out elsewhere the measure was set aside as an attempt to regulate production, a subject which was held to be "prohibited" to the United States by Amendment X.[449] See pp. [917-918].

THE BITUMINOUS COAL CONSERVATION ACT

The third measure to be disallowed was the Guffey-Snyder Bituminous Coal Conservation Act of 1935.[450] The statute created machinery for the regulation of the price of soft coal, both that sold in interstate commerce and that sold "locally," and other machinery for the regulation of hours of labor and wages in the mines. The clauses of the act dealing with these two different matters were declared by the act itself to be separable so that the invalidity of the one set would not affect the validity of the other; but this strategy was ineffectual. A majority of the Court, speaking by Justice Sutherland held that the act constituted one connected scheme of regulation which, inasmuch as it invaded the reserved powers of the States over conditions of employment in productive industry, was violative of the Constitution and void.[451] Justice Sutherland's opinion set out from Chief Justice Hughes's assertion in the Schechter Case of the "fundamental" character of the distinction between "direct" and "indirect" effects; that is to say, from the doctrine of the Sugar Trust Case. It then proceeded: "Much stress is put upon the evils which come from the struggle between employers and employees over the matter of wages, working conditions, the right of collective bargaining, etc., and the resulting strikes, curtailment and irregularity of production and effect on prices; and it is insisted that interstate commerce is greatly affected thereby. But, ..., the conclusive answer is that the evils are all local evils over which the Federal Government has no legislative control. The relation of employer and employee is a local relation. At common law, it is one of the domestic relations. The wages are paid for the doing of local work. Working conditions are obviously local conditions. The employees are not engaged in or about commerce, but exclusively in producing a commodity. And the controversies and evils, which it is the object of the act to regulate and minimize, are local controversies and evils affecting local work undertaken to accomplish that local result. Such effect as they may have upon commerce, however extensive it may be, is secondary and indirect. An increase in the greatness of the effect adds to its importance. It does not alter its character."[452] We again see the influence of the ideology of the Sugar Trust Case.[453]

THE NATIONAL LABOR RELATIONS ACT

The case in which the Court reduced the distinction between "direct" and "indirect" effects to the vanishing point, and thereby put Congress in the way of governing productive industry and labor relations in such industry was National Labor Relations Board v. Jones and Laughlin Steel Corp.,[454] decided April 12, 1937. Here the statute involved was the National Labor Relations Act of July 5, 1935,[455] which forbids "any unfair labor practice affecting interstate commerce" and lists among these "the denial by employers of the right of employees to organize and the refusal by employers to accept the procedure of collective bargaining." Ignoring recent holdings, government counsel appealed to the "current of commerce" concept of the Swift Case. The scope of respondent's activities, they pointed out, was immense. Besides its great steel-producing plants, it owned and operated mines, steamships, and terminal railways scattered through several States, and altogether it gave employment to many thousands of workers. A vast industrial commonwealth such as this, whose operations constantly traversed State lines, comprised, they contended, a species of territorial enclave which was subject in all its parts to the only governmental power capable of dealing with it as an entity, that is, the National Government. Yet even if this were not so, still the protective power of Congress over interstate commerce must be deemed to extend to disruptive strikes by employees of such an immense concern, and hence to include power to remove the causes of such strikes. The Court, speaking through Chief Justice Hughes, held the corporation to be subject to the act on the latter ground. "The close and intimate effect," said he, "which brings the subject within the reach of federal power may be due to activities in relation to productive industry although the industry when separately viewed is local." Nor will it do to say that such effect is "indirect." Considering defendant's "far-flung activities," the effect of strife between it and its employees "* * * would be immediate and [it] might be catastrophic. We are asked to shut our eyes to the plainest facts of our national life and to deal with the question of direct and indirect effects in an intellectual vacuum. * * * When industries organize themselves on a national scale, making their relation to interstate commerce the dominant factor in their activities, how can it be maintained that their industrial labor relations constitute a forbidden field into which Congress may not enter when it is necessary to protect interstate commerce from the paralyzing consequences of industrial war? We have often said that interstate commerce itself is a practical conception. It is equally true that interferences with that commerce must be appraised by a judgment that does not ignore actual experience."[456]

While the act was thus held to be within the constitutional powers of Congress in relation to a productive concern, the interruption of whose business by strike "might be catastrophic," the decision was forthwith held to apply also to two minor concerns;[457] and in a later case the Court stated specifically that "the smallness of the volume of commerce affected in any particular case" is not a material consideration.[458] Moreover, the doctrine of the Jones-Laughlin Case applies equally to "natural" products, to coal mined, to stone quarried, to fruit and vegetables grown.[459]

THE FAIR LABOR STANDARDS ACT; THE DARBY CASE

In 1938 Congress enacted the Fair Labor Standards Act.[460] The measure prohibits not only the shipment in interstate commerce of goods manufactured by employees whose wages are less than the prescribed minimum or whose weekly hours of labor are greater than the prescribed maximum, but also the employment of workmen in the production of goods for such commerce at other than the prescribed wages and hours. Interstate commerce is defined by the act to mean "trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof." It was further provided that "for the purposes of this act an employee shall be deemed to have been engaged in the production of goods [that is, for interstate commerce] if such employee was employed * * *, or in any process or occupation necessary to the production thereof, in any State." Sustaining an indictment under the act, a unanimous Court, speaking by Chief Justice Stone, said: "The motive and purpose of the present regulation are plainly to make effective the congressional conception of public policy that interstate commerce should not be made the instrument of competition in the distribution of goods produced under substandard labor conditions, which competition is injurious to the commerce and to the States from and to which commerce flows."[461] In support of the decision the Court invokes Chief Justice Marshall's reading of the necessary and proper clause in McCulloch v. Maryland and his reading of the commerce clause in Gibbons v. Ogden.[462] Objections purporting to be based on the Tenth Amendment are met from the same point of view: "Our conclusion is unaffected by the Tenth Amendment which provides: 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and State governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new National Government might seek to exercise powers not granted, and that the States might not be able to exercise fully their reserved powers. See e.g., II Elliot's Debates, 123, 131; III id. 450, 464, 600; IV id. 140, 149; I Annals of Congress, 432, 761, 767-768; Story, Commentaries on the Constitution, §§ 1907-1908."[463] Commenting recently on this decision, former Justice Roberts said: "Of course, the effect of sustaining the Fair Labor Standards Act was to place the whole matter of wages and hours of persons employed throughout the United States, with slight exceptions, under a single federal regulatory scheme and in this way completely to supersede state exercise of the police power in this field."[464] In a series of later cases construing terms of the act, it had been given wide application.[465]

THE AGRICULTURAL MARKETING AGREEMENT ACT

Meantime Congress had returned to the task of bolstering agriculture by passing the Agricultural Marketing Agreement Act of June 3, 1937,[466] authorizing the Secretary of Agriculture to fix the minimum prices of certain agricultural products, when the handling of such products occurs "in the current of interstate or foreign commerce or * * * directly burdens, obstructs or affects interstate or foreign commerce in such commodity or product thereof." In United States v. Wrightwood Dairy Company[467] the Court sustained an order of the Secretary of Agriculture fixing the minimum prices to be paid to producers of milk in the Chicago "marketing area." The dairy company demurred to the regulation on the ground of its applying to milk produced and sold intrastate. Sustaining the order the Court said: "Congress plainly has power to regulate the price of milk distributed through the medium of interstate commerce, * * *, and it possesses every power needed to make that regulation effective. The commerce power is not confined in its exercise to the regulation of commerce among the States. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce. See McCulloch v. Maryland, 4 Wheat. 316, 421; * * * The power of Congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. Gibbons v. Ogden, 9 Wheat. 1, 196. It follows that no form of State activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress. Hence the reach of that power extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power."[468]

In Wickard v. Filburn[469] a still deeper penetration by Congress into the field of production was sustained. As amended by the act of 1941, the Agricultural Adjustment Act of 1938,[470] regulates production even when not intended for commerce but wholly for consumption on the producer's farm. Sustaining this extension of the act, the Court pointed out that the effect of the statute was to support the market. It said: "It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and, if induced by rising prices, tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices."[471] And it elsewhere stated: "Questions of the power of Congress are not to be decided by reference to any formula which would give controlling force to nomenclature such as 'production' and 'indirect' and foreclose consideration of the actual effects of the activity in question upon interstate commerce. * * * The Court's recognition of the relevance of the economic effects in the application of the Commerce Clause, * * *, has made the mechanical application of legal formulas no longer feasible."[472]

Acts of Congress Prohibiting Commerce

FOREIGN COMMERCE; JEFFERSON'S EMBARGO

"Jefferson's Embargo" of 1807-1808, which cut all trade with Europe, was attacked on the ground that the power to regulate commerce was the power to preserve it, not the power to destroy it. This argument was rejected by Judge Davis of the United States District Court for Massachusetts in the following words: "A national sovereignty is created [by the Constitution]. Not an unlimited sovereignty, but a sovereignty, as to the objects surrendered and specified, limited only by the qualifications and restrictions, expressed in the Constitution. Commerce is one of those objects. The care, protection, management and control, of this great national concern, is, in my opinion, vested by the Constitution, in the Congress of the United States; and their power is sovereign, relative to commercial intercourse, qualified by the limitations and restrictions, expressed in that instrument, and by the treaty making power of the President and Senate. * * * Power to regulate, it is said, cannot be understood to give a power to annihilate. To this it may be replied, that the acts under consideration, though of very ample extent, do not operate as a prohibition of all foreign commerce. It will be admitted that partial prohibitions are authorized by the expression; and how shall the degree, or extent, of the prohibition be adjusted, but by the discretion of the National Government, to whom the subject appears to be committed? * * * The term does not necessarily include shipping or navigation; much less does it include the fisheries. Yet it never has been contended, that they are not the proper objects of national regulation; and several acts of Congress have been made respecting them. * * * [Furthermore] if it be admitted that national regulations relative to commerce, may apply it as an instrument, and are not necessarily confined to its direct aid and advancement, the sphere of legislative discretion is, of course, more widely extended; and, in time of war, or of great impending peril, it must take a still more expanded range. Congress has power to declare war. It, of course, has power to prepare for war; and the time, the manner, and the measure, in the application of constitutional means, seem to be left to its wisdom and discretion. * * * Under the Confederation, * * * we find an express reservation to the State legislatures of the power to pass prohibitory commercial laws, and, as respects exportations, without any limitations. Some of them exercised this power. * * * Unless Congress, by the Constitution, possess the power in question, it still exists in the State legislatures—but this has never been claimed or pretended, since the adoption of the federal Constitution; and the exercise of such a power by the States, would be manifestly inconsistent with the power, vested by the people in Congress, 'to regulate commerce.' Hence I infer, that the power, reserved to the States by the articles of Confederation, is surrendered to Congress, by the Constitution; unless we suppose, that, by some strange process, it has been merged or extinguished, and now exists no where."[473]

FOREIGN COMMERCE; PROTECTIVE TARIFFS

Tariff laws have customarily contained prohibitory provisions, and such provisions have been sustained by the Court under Congress's revenue powers ([see above]) and under its power to regulate foreign commerce. Speaking for the Court in University of Illinois v. United States,[474] in 1933, Chief Justice Hughes said: "The Congress may determine what articles may be imported into this country and the terms upon which importation is permitted. No one can be said to have a vested right to carry on foreign commerce with the United States. * * * It is true that the taxing power is a distinct power; that it is distinct from the power to regulate commerce. * * * It is also true that the taxing power embraces the power to lay duties. Art. I, § 8, cl. 1. But because the taxing power is a distinct power and embraces the power to lay duties, it does not follow that duties may not be imposed in the exercise of the power to regulate commerce. The contrary is well established. Gibbons v. Ogden, 9 Wheat. 1, 202. 'Under the power to regulate foreign commerce Congress impose duties on importations, give drawbacks, pass embargo and nonintercourse laws, and make all other regulations necessary to navigation, to the safety of passengers, and the protection of property.' Groves v. Slaughter, 15 Pet. 449, 505. The laying of duties is 'a common means of executing the power.' 2 Story on the Constitution, § 1088."[475]

FOREIGN COMMERCE; BANNED ARTICLES

The forerunners of more recent acts excluding objectionable commodities from interstate commerce are the laws forbidding the importation of like commodities from abroad. This power Congress has exercised since 1842. In that year it forbade the importation of obscene literature or pictures from abroad.[476] Six years later it passed an act "to prevent the importation of spurious and adulterated drugs" and to provide a system of inspection to make the prohibition effective.[477] Such legislation guarding against the importation of noxiously adulterated foods, drugs, or liquor has been on the statute books ever since. In 1887 the importation by Chinese nationals of smoking opium was prohibited,[478] and subsequent statutes passed in 1909 and 1914 made it unlawful for anyone to import it.[479] In 1897 Congress forbade the importation of any tea "inferior in purity, quality, and fitness for consumption" as compared with a legal standard.[480] The act was sustained in 1904, in the leading case of Buttfield v. Stranahan.[481] In "The Abby Dodge" case an act excluding sponges taken by means of diving or diving apparatus from the waters of the Gulf of Mexico or Straits of Florida was sustained, but construed as not applying to sponges taken from the territorial waters of a State.[482] In Weber v. Freed[483] an act prohibiting the importation and interstate transportation of prize-fight films or of pictorial representation of prize fights was upheld. Speaking for the unanimous Court, Chief Justice White said: "In view of the complete power of Congress over foreign commerce and its authority to prohibit the introduction of foreign articles recognized and enforced by many previous decisions of this court, the contentions are so devoid of merit as to cause them to be frivolous."[484] In Brolan v. United States[485] the Court again stressed the absolute nature of Congress's power over foreign commerce, saying: "In the argument reference is made to decisions of this court dealing with the subject of the power of Congress to regulate interstate commerce, but the very postulate upon which the authority of Congress to absolutely prohibit foreign importations as expounded by the decisions of this court rests is the broad distinction which exists between the two powers and therefore the cases cited and many more which might be cited announcing the principles which they uphold have obviously no relation to the question in hand."[486]

INTERSTATE COMMERCE; CONFLICT OF DOCTRINE AND OPINION

The question whether Congress's power to regulate commerce "among the several States" embraced the power to prohibit it furnished the topic of one of the most protracted debates in the entire history of the Constitution's interpretation, a debate the final resolution of which in favor of Congressional power is an event of first importance for the future of American Federalism. The issue was as early as 1841 brought forward by Henry Clay, in an argument before the Court in which he raised the specter of an act of Congress forbidding the interstate slave trade.[487] The debate was concluded ninety-nine years later by the decision in United States v. Darby, in which the Fair Labor Standards Act was sustained. The résumé of it which is given below is based on judicial opinions, arguments of counsel, and the writings of jurists and political scientists. Much of this material was evoked by efforts of Congress, from about 1905 onward, to stop the shipment interstate of the products of child labor.

ACTS OF CONGRESS PROHIBITIVE OF INTERSTATE COMMERCE

The earliest such acts were in the nature of quarantine regulations and usually dealt solely with interstate transportation. In 1884 the exportation or shipment in interstate commerce of livestock having any infectious disease was forbidden.[488] In 1903 power was conferred upon the Secretary of Agriculture to establish regulations to prevent the spread of such diseases through foreign or interstate commerce.[489] In 1905 the same official was authorized to lay an absolute embargo or quarantine upon all shipments of cattle from one State to another when the public necessity might demand it.[490] A statute passed in 1905 forbade the transportation in foreign and interstate commerce and the mails of certain varieties of moths, plant lice, and other insect pests injurious to plant crops, trees, and other vegetation.[491] In 1912 a similar exclusion of diseased nursery stock was decreed,[492] while by the same act, and again by an act of 1917,[493] the Secretary of Agriculture was invested with powers of quarantine on interstate commerce for the protection of plant life from disease similar to those above described for the prevention of the spread of animal disease. While the Supreme Court originally held federal quarantine regulations of this sort to be constitutionally inapplicable to intrastate shipments of livestock, on the ground that federal authority extends only to foreign and interstate commerce,[494] this view has today been abandoned. See pp. [248-249].

THE LOTTERY CASE

The first case to come before the Court in which the issues discussed above were canvassed at all thoroughly was Champion v. Ames,[495] involving the act of 1895 "for the suppression of lotteries."[496] An earlier act excluding lottery tickets from the mails had been upheld in the earlier case of In re Rapier,[497] on the proposition that Congress clearly had the power to see that the very facilities furnished by it were not put to bad uses. But in the case of commerce the facilities are not ordinarily furnished by the National Government, and the right to engage in foreign and interstate commerce comes from the Constitution itself, or is anterior to it.

How difficult the Court found the question produced by the act of 1895, forbidding any person to bring within the United States or to cause to be "carried from one State to another" any lottery ticket, or an equivalent thereof, "for the purpose of disposing of the same," is shown by the fact that the case was thrice argued before the Court, and the fact that the Court's decision finally sustaining the act was a five-to-four decision. The opinion of the Court, on the other hand, prepared by Justice Harlan, marked an almost unqualified triumph at the time for the view that Congress's power to regulate commerce among the States includes the power to prohibit it, especially to supplement and support State legislation enacted under the police power.[498] Early in the opinion extensive quotation is made from Chief Justice Marshall's opinion in Gibbons v. Ogden,[499] with special stress upon the definition there given of the phrase "to regulate." Justice Johnson's assertion on the same occasion is also given: "The power of a sovereign State over commerce, * * *, amounts to nothing more than, a power to limit and restrain it at pleasure." Further along is quoted with evident approval Justice Bradley's statement in Brown v. Houston,[500] that "the power to regulate commerce among the several States is granted to Congress in terms as absolute as is the power to regulate commerce with foreign nations."

NATIONAL PROHIBITIONS AND STATE POLICE POWER

Following in the wake of Champion v. Ames, Congress has repeatedly brought its prohibitory powers over interstate commerce and communications to the support of certain local policies of the States in the exercise of their reserved powers, thereby aiding them in the repression of the liquor traffic,[501] of traffic in game taken in violation of State laws,[502] of commerce in convict-made goods,[503] of the white slave traffic,[504] of traffic in stolen motor vehicles,[505] of kidnapping,[506] of traffic in stolen property,[507] of racketeering,[508] of prize-fight films or other pictorial representation of encounters of pugilists.[509] The conception of the Federal System on which the Court based its validation of this legislation was stated by it in 1913 in sustaining the Mann "White Slave" Act in the following words: "Our dual form of government has its perplexities, State and Nation having different spheres of jurisdiction, * * *, but it must be kept in mind that we are one people; and the powers reserved to the States and those conferred on the Nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material, and moral."[510] At the same time, the Court made it plain that in prohibiting commerce among the States, Congress was equally free to support State legislative policy or to devise a policy of its own. "Congress," it said, "may exercise this authority in aid of the policy of the State, if it sees fit to do so. It is equally clear that the policy of Congress acting independently of the States may induce legislation without reference to the particular policy or law of any given State. Acting within the authority conferred by the Constitution it is for Congress to determine what legislation will attain its purposes. The control of Congress over interstate commerce is not to be limited by State laws."[511]

HAMMER v. DAGENHART

However, it is to be noted that none of this legislation operated in the field of industrial relations. So when the Court was confronted in 1918, in the case of Hammer v. Dagenhart,[512] with an act which forbade manufacturers and others to offer child-made goods for transportation in interstate commerce,[513] it held the act, by the narrow vote of five Justices to four, to be not an act regulative of commerce among the States, but one which invaded the reserved powers of the States. "The maintenance of the authority of the States over matters purely local," said Justice Day for the Court, "is as essential to the preservation of our institutions as is the conservation of the supremacy of the federal power in all matters entrusted to the Nation by the Federal Constitution."[514] As to earlier decisions sustaining Congress's prohibitory powers, Justice Day said: "In each of these instances the use of interstate transportation was necessary to the accomplishment of harmful results. * * * This element is wanting in the present case. * * * The goods shipped are in themselves harmless. * * * When offered for shipment, and before transportation begins, the labor of their production is over, and the mere fact that they were intended for interstate commerce transportation does not make their production subject to federal control under the commerce power. * * * 'When commerce begins is determined, not by the character of the commodity, nor by the intention of the owner to transfer it to another State for sale, * * *, but by its actual delivery to a common carrier for transportation, * * *' (Mr. Justice Jackson in In re Greene, 52 Fed. Rep. 113). This principle has been recognized often in this court. Coe v. Errol, 116 U.S. 517 * * *."[515]

The decision in Hammer v. Dagenhart was, in short, governed by the same general conception of the interstate commerce process as that which governed the decision in the Sugar Trust Case. Commerce was envisaged as beginning only with an act of transportation from one State to another. And from this it was deduced that the only commerce which Congress may prohibit is an act of transportation from one State to the other which is followed in the latter by an act within the normal powers of government to prohibit. Commerce, however, is primarily traffic; and the theory of the Child Labor Act was that it was designed to discourage a widespread and pernicious interstate traffic in the products of child labor—pernicious because it bore "a real and substantial relation" to the existence of child labor employment in some States and constituted a direct inducement to its spread to other States. Deprived of the interstate market which this decision secured to it, child labor could not exist.

INTERSTATE COMMERCE IN STOLEN GOODS BANNED

In Brooks v. United States,[516] decided in 1925, the Court, in sustaining the National Motor Vehicle Theft Act of 1919,[517] materially impaired the ratio decidendi of Hammer v. Dagenhart. At the outset of his opinion for the Court, Chief Justice Taft stated the general proposition that "Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty or the spread of any evil or harm to the people of other States from the State of origin." This statement was buttressed by a review of previous cases, including the explanation that the goods involved in Hammer v. Dagenhart were "harmless" and did not spread harm to persons in other States. Passing then to the measure before the Court, the Chief Justice noted "the radical change in transportation" brought about by the automobile, and the rise of "elaborately organized conspiracies for the theft of automobiles * * *, and their sale or other disposition" in another police jurisdiction from the owner's. This, the opinion declared, "is a gross misuse of interstate commerce. Congress may properly punish such interstate transportation by anyone with knowledge of the theft, because of its harmful result and its defeat of the property rights of those whose machines against their will are taken into other jurisdictions."[518]

The Motor Vehicle Act was sustained, therefore, mainly as protective of owners of automobiles, that is to say, of interests in "the State of origin." It was designed to repress automobile thefts, and that notwithstanding the obvious fact that such thefts must necessarily occur before transportation of the thing stolen can take place, that is, under the formula followed in Hammer v. Dagenhart, before Congress's power over interstate commerce becomes operative. Also, the Court took cognizance of "elaborately organized conspiracies" for the theft and disposal of automobiles across State lines—that, to say, of a widespread traffic in such property.

THE DARBY CASE

The formal overruling of Hammer v. Dagenhart, however, did not occur until 1941 when, in sustaining the Fair Labor Standards Act, a unanimous Court, speaking by Justice Stone, said: "Hammer v. Dagenhart has not been followed. The distinction on which the decision was rested that Congressional power to prohibit interstate commerce is limited to articles which in themselves have some harmful or deleterious property—a distinction which was novel when made and unsupported by any provision of the Constitution—has long since been abandoned. * * * The thesis of the opinion that the motive of the prohibition or its effect to control in some measure the use or production within the States of the article thus excluded from the commerce can operate to deprive the regulation of its constitutional authority has long since ceased to have force. * * * And finally we have declared 'The authority of the Federal Government over interstate commerce does not differ in extent or character from that retained by the States over intrastate commerce.' United States v. Rock Royal Co-operative, 307 U.S. 533, 569. The conclusion is inescapable that Hammer v. Dagenhart, was a departure from the principles which have prevailed in the interpretation of the Commerce Clause both before and since the decision and that such vitality, as a precedent, as it then had has long since been exhausted. It should be and now is overruled."[519] And commenting in a recent case on the Fair Labor Standards Act, Justice Burton, speaking for the Court said: "The primary purpose of the act is not so much to regulate interstate commerce as such, as it is, through the exercise of legislative power, to prohibit the shipment of goods in interstate commerce if they are produced under substandard labor conditions."[520]

CONGRESS AND THE FEDERAL SYSTEM

In view of these developments the following dictum by Justice Frankfurter, was no doubt, intended to be reassuring as to the future of the Federal System: "The interpenetrations of modern society have not wiped out State lines. It is not for us [the Court] to make inroads upon our federal system either by indifference to its maintenance or excessive regard for the unifying forces of modern technology. Scholastic reasoning may prove that no activity is isolated within the boundaries of a single State, but that cannot justify absorption of legislative power by the United States over every activity."[521] While this may be conceded, the unmistakable lesson of recent cases is that the preservation of our Federal System depends today mainly upon Congress.

The Commerce Clause as a Restraint on State Powers

DOCTRINAL BACKGROUND

The grant of power to Congress over commerce, unlike that of power to levy customs duties, the power to raise armies, and some others, is unaccompanied by correlative restrictions on State power. This circumstance does not, however, of itself signify that the States were expected still to participate in the power thus granted Congress, subject only to the operation of the supremacy clause. As Hamilton points out in The Federalist, while some of the powers which are vested in the National Government admit of their "concurrent" exercise by the States, others are of their very nature "exclusive," and hence render the notion of a like power in the States "contradictory and repugnant."[522] As an example of the latter kind of power Hamilton mentioned the power of Congress to pass a uniform naturalization law. Was the same principle expected to apply to the power over foreign and interstate commerce?

Unquestionably one of the great advantages anticipated from the grant to Congress of power over commerce was that State interferences with trade, which had become a source of sharp discontent under the Articles of Confederation, would be thereby brought to an end. As Webster stated in his argument for appellant in Gibbons v. Ogden: "The prevailing motive was to regulate commerce; to rescue it from the embarrassing and destructive consequences, resulting from the legislation of so many different States, and to place it under the protection of a uniform law." In other words, the constitutional grant was itself a regulation of commerce in the interest of uniformity. Justice Johnson's testimony in his concurring opinion in the same case is to like effect: "There was not a State in the Union, in which there did not, at that time, exist a variety of commercial regulations; * * * By common consent, those laws dropped lifeless from their statute books, for want of sustaining power that had been relinquished to Congress";[523] and Madison's assertion, late in life, that power had been granted Congress over interstate commerce mainly as "a negative and preventive provision against injustice among the States,"[524] carries a like implication.

That, however, the commerce clause, unimplemented by Congressional legislation, took from the States any and all power over foreign and interstate commerce was by no means universally conceded; and Ogden's attorneys directly challenged the idea. Moreover, as was pointed out on both sides in Gibbons v. Ogden, legislation by Congress regulative of any particular phase of commerce would still leave many other phases unregulated and consequently raise the question whether the States were entitled to fill the remaining gaps, if not by virtue of a "concurrent" power over interstate and foreign commerce, then by virtue of "that immense mass of legislation," as Marshall termed it, "which embraces everything within the territory of a State, not surrendered to the general government,"[525]—in a word, the "police power."

The commerce clause does not, therefore, without more ado, settle the question of what power is left to the States to adopt legislation regulating foreign or interstate commerce in greater or less measure. To be sure, in cases of flat conflict between an act or acts of Congress regulative of such commerce and a State legislative act or acts, from whatever State power ensuing, the act of Congress is today recognized, and was recognized by Marshall, as enjoying an unquestionable supremacy.[526] But suppose, first, that Congress has passed no act; or secondly, that its legislation does not clearly cover the ground which certain State legislation before the Court attempts to cover—what rules then apply? Since Gibbons v. Ogden both of these situations have confronted the Court, especially as regards interstate commerce, hundreds of times, and in meeting them the Court has, first and last, coined or given currency to numerous formulas, some of which still guide, even when they do not govern, its judgment.

DOCTRINAL BACKGROUND; WEBSTER'S CONTRIBUTION

The earliest, and the most successful, attempt to set forth a principle capable of guiding the Court in adjusting the powers of the States to unexercised power of Congress under the commerce clause was that which was made by Daniel Webster in his argument in Gibbons v. Ogden, in the following words: "He contended, * * *, that the people intended, in establishing the Constitution, to transfer from the several States to a general government, those high and important powers over commerce, which, in their exercise, were to maintain a uniform and general system. From the very nature of the case, these powers must be exclusive; that is, the higher branches of commercial regulation must be exclusively committed to a single hand. What is it that is to be regulated? Not the commerce of the several States, respectively, but the commerce of the United States. Henceforth, the commerce of the States was to be a unit; and the system by which it was to exist and be governed, must necessarily be complete, entire and uniform." At the same time Webster conceded "that the words used in the Constitution, 'to regulate commerce,' are so very general and extensive, that they might be construed to cover a vast field of legislation, part of which has always been occupied by State laws; and therefore, the words must have a reasonable construction, and the power should be considered as exclusively vested in Congress, so far, and so far only, as the nature of the power requires."[527]

Webster also dealt with the problem which arises when Congress has exercised its power. The results of its act, he contended, must be treated as a unit, so that when Congress had left subject matter within its jurisdiction unregulated, it must be deemed to have done so of design, and its omissions, or silences, accordingly be left undisturbed by State action. Although Marshall, because he thought the New York act creating the Livingston-Fulton monopoly to be in direct conflict with the Enrolling and Licensing Act of 1793, was not compelled to pass on either of Webster's theories, he indicated his sympathy with them.[528]

COOLEY v. BOARD OF PORT WARDENS

Aside from Marshall's opinion in 1827 in Brown v. Maryland,[529] in which the famous "original package" formula made its debut, the most important utterance of the Court touching interpretation of the commerce clause as a restriction on State legislative power is that for which Cooley v. Board of Wardens of Port of Philadelphia,[530] decided in 1851, is usually cited. The question at issue was the validity of a Pennsylvania pilotage act so far as it applied to vessels engaged in foreign commerce and the coastwise trade. The Court, speaking through Justice Curtis, sustained the act on the basis of a distinction between those subjects of commerce which "imperatively demand a single uniform rule" operating throughout the country and those which "as imperatively" demand "that diversity which alone can meet the local necessities of navigation," that is to say, of commerce. As to the former the Court held Congress's power to be "exclusive"—as to the latter it held that the States enjoyed a power of "concurrent legislation."

While this formula obviously stems directly from Webster's argument in Gibbons v. Ogden, it covers considerably less ground. Citation, nevertheless, of the Cooley case throughout the next half century eliminated the difference and brought the Curtis dictum abreast of Webster's earlier argument. The doctrine consequently came to be established, first, that Congress's power over interstate commerce is "exclusive" as to those phases of it which require "uniform regulation"; second, that outside this field, as plotted by the Court, the States enjoyed a "concurrent" power of regulation, subject to Congress's overriding power.[531]

JUDICIAL FORMULAS

But meantime other formulas had emerged from the judicial smithy, several of which are brought together into something like a doctrinal system, in Justice Hughes' comprehensive opinion for the Court in the Minnesota Rate Cases,[532] decided in 1913. "Direct" regulation of foreign or interstate commerce by a State is here held to be out of the question. At the same time, the States have their police and taxing powers, and may use them as their own views of sound public policy may dictate even though interstate commerce may be "incidentally" or "indirectly" regulated, it being understood that such "incidental" or "indirect" effects are always subject to Congressional disallowance. "Our system of government," Justice Hughes reflects, "is a practical adjustment by which the National authority as conferred by the Constitution is maintained in its fall scope without unnecessary loss of local efficiency."[533]

In more concrete terms, the varied formulas which characterize this branch of our Constitutional Law have been devised by the Court from time to time in an endeavor to effect "a practical adjustment" between two great interests, the maintenance of freedom of commerce except so far as Congress may choose to restrain it, and the maintenance in the States of efficient local governments. Thus, while formulas may serve to steady and guide its judgment, the Court's real function in this area of judicial review is essentially that of an arbitral or quasi-legislative body. So much so is this the case that in 1940 three Justices joined in an opinion in which they urged that the business of drawing the line between the immunity of interstate commerce and the taxing power of the States "should be left to the legislatures of the States and the Congress," with the final remedy in the hands of the latter.[534]

State Taxing Power and Foreign Commerce

BROWN v. MARYLAND; THE ORIGINAL PACKAGE DOCTRINE

The leading case under this heading is Brown v. Maryland,[535] decided in 1827, the issue in which was the validity of a Maryland statute requiring "all importers of foreign articles or commodities," preparatory to selling the same, to take out a license. Holding this act to be void under both article I, sec. 10, and the commerce clause, the Court, speaking through Chief Justice Marshall, advanced the following propositions: (1) that "commerce is intercourse; one of its most ordinary ingredients is traffic"; (2) that the right to import includes the right to sell; (3) that a tax on the sale of an article is a tax on the article itself—a conception of the incidence of taxation which has at times had important repercussions in other fields of Constitutional Law; (4) that the taxing power of the State does not extend in any form to imports from abroad so long as they remain "the property of the importer, in his warehouse, in the original form or package" in which they were imported—the famous "original package doctrine"; (5) that once, however, the importer parts with his importations "or otherwise mixes them with the general property of the State by breaking up his packages," the law may treat them as part and parcel of such property; (6) that even while in the original package imports are subject to the incidental operation of police measures adopted by the State in good faith for the protection of the public against apparent dangers. Lastly, in determining whether a State law amounts to a regulation of commerce the Court would, Marshall announced, be guided by "substance" and not by "form"—a proposition which has many times opened the way to extensive inquiries by the Court into the actualities both of commercial practice and of State administration.

The decision in Brown v. Maryland, but more especially the "original package doctrine" there laid down, has been sometimes criticised as going too far. It would have been sufficient, the critics contend, for the Court to have held the Maryland act void on account of its obviously discriminatory character; and they urge that original packages receiving the protection of the State ought to be subject to nondiscriminatory taxation by it. The criticism was partially anticipated by Marshall himself in the apprehensions which he voiced that any concession to "the great importing States" might be turned by them against the rest of the country. Indeed, he is uncertain whether the original package doctrine will prove sufficient for its purposes and accordingly offers it not as a rule "universal in its application," but rather as a stop-gap principle. History has proved, however, that in this he builded better than he knew. For in the field of foreign commerce the original package doctrine has never been disturbed, and it has scarcely been added to; and so confined, it has never been surpassed by any later piece of judicial legislation, whether in point of durability or in that of definiteness and easy comprehensibility.[536]

State Taxation of the Subject Matter of Interstate Commerce

GENERAL CONSIDERATIONS

The task of drawing the line between State power and the commercial interest has proved a comparatively simple one in the field of foreign commerce, the two things being in great part territorially distinct. With "commerce among the States" it is very different. This is conducted in the interior of the country, by persons and corporations that are ordinarily engaged also in local business; its usual incidents are acts which, if unconnected with commerce among the States, would fall within the State's powers of police and taxation; while the things it deals in and the instruments by which it is carried on comprise the most ordinary subject matter of State power. In this field the Court has, consequently, been unable to rely upon sweeping solutions. To the contrary, its judgments have often been fluctuating and tentative, even contradictory; and this is particularly the case as respects the infringement of the State taxing power on interstate commerce. In the words of Justice Frankfurter: "The power of the States to tax and the limitations upon that power imposed by the Commerce Clause have necessitated a long, continuous process of judicial adjustment. The need for such adjustment is inherent in a Federal Government like ours, where the same transaction has aspects that may concern the interests and involve the authority of both the central government and the constituent States. The history of this problem is spread over hundreds of volumes of our Reports. To attempt to harmonize all that has been said in the past would neither clarify what has gone before nor guide the future. Suffice it to say that especially in this field opinions must be read in the setting of the particular cases and as the product of preoccupation with their special facts."[537]

THE STATE FREIGHT TAX CASE

The great leading case dealing with the relation of the State's taxing power to interstate commerce is that of the State Freight Tax,[538] decided in 1873. The question before the Court was the validity of a Pennsylvania statute, passed eight years earlier, which required every company transporting freight within the State, with certain exceptions, to pay a tax at specified rates on each ton of freight carried by it. Overturning the act, the Court held: "(1) The transportation of freight, or of the subjects of commerce, is a constituent part of commerce itself; (2) a tax upon freight, transported from State to State, is a regulation of commerce among the States; (3) whenever the subjects in regard to which a power to regulate commerce is asserted are in their nature National, or admit of one uniform system or plan of regulation, they are exclusively within the regulating control of Congress; (4) transportation of passengers or merchandise through a State, or from one State to another, is of this nature; (5) hence a statute of a State imposing a tax upon freight, taken up within the State and carried out of it, or taken up without the State and brought within it, is repugnant to that provision of the Constitution of the United States, which ordains that 'Congress shall have power to regulate commerce with foreign nations and among the several States, and with the Indian tribes.'"[539]

GOODS IN TRANSIT

States, therefore, may not tax property in transit in interstate commerce. A nondiscriminatory tax, however, is permitted if the goods have not yet started in interstate commerce, or have completed the interstate transit even though still in the original package, unless they are foreign imports in the original package; and States may also impose a nondiscriminatory tax when there is a break in an interstate transit, and the goods have not been restored to the current of interstate commerce. Such is the law in brief. Two questions arise, first, when do goods originating in a State pass from under its power to tax; and, second, when do goods arriving from another State lose their immunity?

The leading case dealing with the first of these questions is Coe v. Errol,[540] in which the matter at issue was the right of the town of Errol, New Hampshire, to tax certain logs on their way to points in Maine, while they lay in the river before the town or along its shore awaiting the spring freshets and consequent rise of the river. As to the logs in the river, which had come from Maine on their way to Lewiston in the same State, but had been detained at Errol by low water, the Supreme Court of New Hampshire itself ruled that the local tax did not apply, the logs being still in transit. As to the logs which had been cut in New Hampshire and lay on the shore or in tributaries of the river, both courts were again in agreement that they were still subject to local taxation, notwithstanding the intention of their owners to send them out of the State. Said Justice Bradley: "* * * goods do not cease to be part of the general mass of property in the State, subject, as such, to its jurisdiction, and to taxation in the usual way, until they have been shipped, or entered with a common carrier for transportation to another State, or have been started upon such transportation in a continuous route or journey."[541]

STATE TAXATION OF MANUFACTURING AND MINING

Under the above rule, obviously, production is not interstate commerce even though the thing produced is intended for the interstate market. Thus a Pennsylvania ad valorem tax on anthracite coal when prepared and ready for shipment was held not to be an interference with interstate commerce although applied to coal destined for a market in other States;[542] and in Oliver Iron Company v. Lord[543] an occupation tax on the mining of iron ore was upheld, although substantially all of the ore was immediately and continuously loaded on cars and shipped into other States. Said the Court: "Mining is not interstate commerce, but, * * * subject to local regulation and taxation. Its character in this regard is intrinsic, is not affected by the intended use or disposal of the product, is not controlled by contractual engagements, and persists even though the business be conducted in close connection with interstate commerce."[544] Likewise an annual privilege tax on the business of producing natural gas in the State, computed on the value of the gas produced "as shown by the gross proceeds derived from the sale thereof by the producer," was held constitutional even though most of the gas passed into interstate commerce in continuous movement from the wells.[545] And in Utah Power and Light Co. v. Pfost[546] the generation of electricity in a State was held to be distinguishable from its transmission over wires to consumers in another State, and hence taxable by the former State. Likewise, a State statute imposing a privilege tax on the production of mechanical power for sale or use did not contravene the interstate commerce clause although applied to an engine operating a compressor to increase the pressure of natural gas and thereby permit it to be transported to purchasers in other States.[547] Similarly, a tax so much per pound on shrimp taken within the three-mile belt of the coast of the taxing State was valid, since the taxable event, the taking of the shrimp, occurred before they could be said to have entered the interstate commerce stream.[548]

PRODUCTION FOR AN ESTABLISHED MARKET

But while the production of goods intended for the interstate market is taxable by the State where it takes place, their purchase for an established market in another State is interstate commerce and as such is neither regulatable nor taxable by the State of origin, provided at any rate their trans-shipment is not unduly delayed.[549] Thus, oil gathered into the pipe lines of a distributing company and intended for the most part for customers outside the State, is in interstate commerce from the moment it leaves the wells;[550] and a like result has been reached as to natural gas.[551] "The typical and actual course of events," says the Court, "marks the carriage of the greater part as commerce among the States and theoretical possibilities may be left out of account."[552]

REJECTION OF THE ORIGINAL PACKAGE CONCEPT IN INTERSTATE COMMERCE

But the question also arises as to when goods entering a State from another State become part of the mass of property of the former and hence taxable by it? In Brown v. Maryland,[553] Chief Justice Marshall, had remarked at the close of his opinion, "We suppose the principles laid down in this case, apply equally to importations from a sister State."[554] Forty-two years later, in Woodruff v. Parham,[555] an effort was made to induce the Court, in reliance on this dictum, to apply the original package doctrine against a Mobile, Alabama tax on sales at auction, so far as it reached "imports" from sister States. The Court refused the invitation; first on the ground that Marshall's statement was obiter, the point not having been involved in Brown v. Maryland; second, because usage contemporary with the Constitution and of the Constitution itself confined the term "imports" as employed in article I, section 10 to imports from abroad; third, because the tax in question was nondiscriminatory. At the same time, nevertheless, reference was made to the power of Congress to interpose at any time in exercise of its power over commerce, "in such a manner as to prevent the States from any oppressive interference with the free interchange of commodities by the citizens of one State with those of another."[556] The same result was reached a few years later in Brown v. Houston,[557] where it was held that coal transported down the Mississippi from Pennsylvania had been validly subjected by Louisiana to a general ad valorem property tax, having "come to its place of rest, for final disposal or use," and hence become "a part of the general mass of property in the State."[558] Again, however, a caveat was entered in behalf of the power of Congress to impose a different rule affording "a temporary exemption" of property transported from one State to another from taxation by the latter.[559]

INSPECTION CHARGES

Woodruff v. Parham and Brown v. Houston are still good law for the most part.[560] Nevertheless, there is one respect in which imports from sister States are treated as "imports" in the sense of the Constitution, and that is in being exempt from "unreasonable" inspection charges.[561] It is true, also, that in a series of cases involving sales of oil about 1920 the Court appeared to be contemplating reviving the original package doctrine,[562] but these holdings were presently "qualified" in a sweeping opinion by Chief Justice Taft, reviewing the cases.[563] But taxation is one thing, prohibition another. In the field of the police power, where its applicability was not so much as suggested in Brown v. Maryland, the original package doctrine has been frequently invoked by the Court against State legislation, and even today, perhaps retains a spark of life.[564]

LOCAL SALES: PEDDLERS

By the same token, local sales of goods brought into a State from another State are subject to a nondiscriminatory exercise of its taxing power. Such a tax, the Court has said, "has never been regarded as imposing a direct burden upon interstate commerce and has no greater or different effect upon that commerce than a general property tax to which all those enjoying the protection of the State may be subjected"; and this is true, even of goods immediately to be used in interstate commerce.[565] The commerce clause, therefore, does not prohibit a State from imposing special license taxes on merchants using profit sharing coupons and trading stamps although the coupons may have been inserted in retail packages by the manufacturer or shipper outside the State and are redeemable outside the State, either by such manufacturer or shipper, or by some other agency outside the State;[566] nor yet a nondiscriminatory tax upon local peddling of goods and sales thereof by peddlers even though the goods are foreign or interstate imports, since the sale occurs after foreign or interstate commerce thereof has ended.[567] And in Kehrer v. Stewart[568] it was held that a State tax upon resident managing agents of nonresident meatpacking houses did not conflict with the commerce clause, regardless of the fact that the greater portion of the business was interstate in character, the tax having been construed by the highest court of the State as applying only to the business of selling to local customers from the stock of "original packages" shipped into the State without a previous sale or contract to sell, and kept and held for sale in the ordinary course of trade. Contrariwise, a tax on sales discriminatory in its incidence against merchandise because of its origin in another State is ipso facto unconstitutional. The leading case is Welton v. Missouri,[569] decided in 1876, in which a peddler's license tax confined to the sale of goods manufactured outside the State was set aside. The doctrine of Welton v. Missouri has been reiterated many times.[570]

STOPPAGE IN TRANSIT

It also follows logically from Coe v. Errol,[571] and the cases deriving from it, that a State may impose a nondiscriminatory tax when there is a break in interstate transit, and the goods have not been restored to the current of interstate commerce. The effect of an interruption upon the continuity of an interstate movement depends upon its causes and purposes. If the delay is due to the necessities of the journey, as in the Coe case, where the logs were detained for a time within the State by low water, they are deemed "in the course of commercial transportation, and * * * clearly under the protection of the Constitution."[572] Intention thus often enters into the determination of the question whether goods from another State have come to rest sufficiently to subject them to the local taxing power. In a typical case the Court held that oil shipped from Pennsylvania and held in tanks in Memphis, Tennessee for separation, distribution and reshipment, was subject to the taxing power of the latter State.[573] The delay in transportation resulting from these proceedings on the part of the owners, the Court pointed out, was clearly designed for their own profit and convenience and was not a necessary incident to the method of transportation adopted, as had been the delay of the logs coming from Maine in Coe v. Errol. The distinction is fundamental.[574]

Applying this rule in more recent cases, the Court has upheld State taxation: on the use and storage of gasoline brought into the State by a railroad company and unloaded and stored there, to be used for its interstate trains;[575] on gasoline imported and stored by an airplane company and withdrawn to fill airplanes that use it in their interstate travel;[576] on supplies brought into the State by an interstate railroad company to be used in replacements, repairs and extensions, and installed immediately upon arrival in the taxing State;[577] on equipment brought into the State by a telephone and telegraph company for operation, maintenance, and repair of its interstate system.[578] In all these cases the Court applied the principle that "use and storage" are subject to local taxation when "there is an interval after the articles have reached the end of their interstate movement and before their consumption in interstate operation has begun."[579] On the other hand, in the absence of such an "interval," the Court declared invalid State gasoline taxes imposed per gallon of gasoline imported by interstate carriers as fuel for use in such vehicles, and used within the State as well as in their interstate travel.[580]

THE DRUMMER CASES; ROBBINS v. SHELBY COUNTY TAXING DISTRICT

But there is one situation in which goods introduced into one State from another have until recent years enjoyed a special immunity from taxation by the former, and that is when they were introduced in consequence of a contract of sale. The leading case is Robbins v. Shelby County Taxing District,[581] in which the Court, after a penetrating survey of commercial practices, ruled that "the negotiation of sales of goods"—in this instance by sample—"which are in another State, for the purpose of introducing them into the State in which the negotiation is made, is interstate commerce." In short, whereas in foreign commerce, importation is succeeded by the right to sell in the original package, in interstate commerce sale was succeeded by the right of importation, which continued until the goods reached the hands of the purchaser. The benefits of this holding were extended in a series of rulings in which it was held to apply whether solicitation of orders was or was not made with sample,[582] and to sales which were not, accurately speaking, consummated until the actual delivery of the goods, which was attended by local incidents. So, where a North Carolina agent of a Chicago firm took orders for framed pictures, which were then sent to him packed separately from the frames and then framed by him before delivery, the rule laid down in the Robbins case was held to apply throughout, with the result that North Carolina could tax or license no part of the transaction described;[583] so also as to a sewing machine ordered by a customer in North Carolina and sent to her C.O.D.;[584] so also as to brooms sent in quantity for the fulfillment of a number of orders, and subject to rejection by the purchaser if deemed by him not up to sample.[585] Said Justice Holmes in the case last referred to: "'Commerce among the States' is a practical conception not drawn from the 'witty diversities' * * * of the law of sales. * * * The brooms were specifically appropriated to specific contracts, in a practical, if not in a technical, sense. Under such circumstances it is plain that, wherever might have been the title, the transport of the brooms for the purpose of fulfilling the contracts was protected commerce."[586] Nor did it make any difference that the solicitor received his compensation in form of down payment by the purchaser.[587] Moreover, sales under a mail order business, with delivery taking place within the State to a carrier for through shipment to another State to fill orders, was held to be beyond the taxing power of the first State.[588] The fact that a concern doing a strictly interstate business had goods on hand within the State which were capable of being used in intrastate commerce, did not, the Court declared, take the business out of the protection of the commerce clause and allow the State to impose a privilege tax on such concern.

LIMITATION OF THE ROBBINS CASE

On the other hand, it was early held that the rule laid down in the Robbins case did not prevent a State from taxing a resident citizen who engaged in a general commission business, on the profits thereof, although the business consisted "for the time being, wholly or partially in negotiating sales between resident and nonresident merchants, of goods situated in another State."[589] Also, it has been held that a stamp tax on transfers of corporate stock, as applied to a sale between two nonresidents, of the stock of foreign railway corporations, was not an interference with interstate commerce.[590] Likewise, the business of taking orders on commission for the purchase and sale of grain and cotton for future delivery not necessitating interstate shipment was ruled not to be interstate commerce, and as such exempt from taxation, although deliveries were sometimes made by interstate shipment.[591] And in Banker Bros. Co. v. Pennsylvania[592] it was held that a tax upon a domestic corporation selling automobiles built by a foreign corporation under an arrangement by which the latter agreed to build for and sell to the former, for cash, at a specified price less than list price, was not a tax on interstate transactions, there being nothing which connected the ultimate buyer with the manufacturer but a warranty and the buyer's agreement to pay the list price f.o.b. factory. Similarly, in Browning v. Waycross[593] it was held that the business of erecting lightning rods within the limits of a town by the agent of a nonresident manufacturer on whose behalf such agent had solicited orders for the sale of the rods, and from whom he had received them when shipped into the State, was validly subjected to a municipal license tax. "It was not," said the Court, "within the power of the parties by the form of their contract to convert what was exclusively a local business, * * *, into an interstate commerce business * * *"[594] Also, a municipal license tax upon persons engaged in the business of buying or selling cotton for themselves was found not to impose a forbidden burden upon interstate commerce even though the cotton was purchased with a view to ultimate shipment in some other State or country.[595] Nor was a gallonage tax imposed by a State upon a distributor of liquid fuel rendered repugnant to the commerce clause by the fact that the distributor caused fuel sold to customers in the State to be shipped from another State for delivery in tank cars—"deemed original packages"—on purchaser's siding, as agreed. Said the Court: "The contracts were executory and related to unascertained goods. * * * It does not appear that when they were made appellant had any fuels of the kinds covered, or that those to be delivered were then in existence. There was no selection of goods by purchasers. Appellant was not required by the contracts to obtain the fuels at Wilmington but was free to effect performance by shipping from, any place within or without Pennsylvania."[596]

THE ROBBINS CASE TODAY

In the cases reviewed in the preceding paragraph protestants against local taxation appealed, but unavailingly, to the Robbins case. So it would seem that the generative powers of that prolific precedent had begun to wane somewhat even before the Depression, an event which rendered judicial reaction against it still more pronounced. Indeed, by the Court's decision in McGoldrick v. Berwind-White Co.,[597] in 1940, the authority of the entire line of cases descending from Robbins v. Shelby County Taxing District was seriously impaired, for the time being, while a second holding the same year seemed to reduce the significance of the Robbins case itself to that of a reassertion of the elementary rule against discrimination. "The commerce clause," Justice Reed remarked sententiously, "forbids discrimination, whether forthright or ingenious."[598]

DEPRESSION CASES: USE TAXES

With a majority of the States on the verge of bankruptcy, extensive recourse was had to sales taxes and, as an offset to these in favor of the local economy, "use" taxes on competing products coming from sister States. The basic decision sustaining the use tax, in this novel employment of it, was Henneford v. Silas Mason Co.,[599] in which was involved a State of Washington two per cent tax on the privilege of using products coming from sister States. Excepted from the tax, on the other hand, was any property the sole use of which had already been subjected to an equal or greater tax, whether under the laws of Washington or any other State. Stressing this provision in its opinion, the Court said: "Equality is the theme that runs through all the sections of the statute. * * * When the account is made up, the stranger from afar is subject to no greater burdens as a consequence of ownership than the dweller within the gates."[600] There being no actual discrimination in favor of Washington products, the tax was valid.

DEPRESSION CASES: SALES TAXES

A companion piece of the Henneford case in motivation, although it occurred three years later, was McGoldrick v. Berwind-White Coal Mining Company,[601] in which it was held that in the absence of Congressional action, a New York City general sales tax was applicable to sales of coal under contracts entered into within the municipality and calling for delivery therein. Speaking for the majority, Justice Stone declared any "distinction * * * between a tax laid on sales made, without previous contract, after the merchandise had crossed the State boundary, and sales, the contracts for which when made contemplate or require the transportation of merchandise interstate to the taxing State," to be "without the support of reason or authority";[602] and the Robbins case was held to be "narrowly limited to fixed-sum license taxes imposed on the business of soliciting order for the purchase of goods to be shipped interstate, * * *"[603] Three Justices, speaking by Chief Justice Hughes, dissented. Three companion cases decided the same day were found to follow the Berwind-White pattern,[604] while a fourth was held not to, on the ground that foreign commerce was involved.[605] For the time being Robbins and family looked to be on the way out.

END OF THE DEPRESSION CASES

Two cases, decided respectively in 1944 and 1946, signalized the end of the Depression. In McLeod v. Dilworth Co.,[606] a divided Court ruled that a sales tax could not be validly imposed by a State on sales to its residents which were consummated by acceptance of orders in, and shipment of goods from another State, in which title passed upon delivery to the carrier. Said Justice Frankfurter for the majority: "A sales tax and a use tax in many instances may bring about the same result. But they are different in conception, are assessments upon different transactions, * * * A sales tax is a tax on the freedom of purchase * * * A use tax is a tax on the enjoyment of that which was purchased. In view of the differences in the basis of these two taxes and the differences in the relation of the taxing State to them, a tax on an interstate sale like the one before us and unlike the tax on the enjoyment of the goods sold, involves an assumption of power by a State which the Commerce Clause was meant to end."[607] He also "distinguished" the Berwind-White case—just as it had "distinguished" the Robbins case—but not to the satisfaction of three of his brethren, who found the decision to mark a retreat from the Berwind-White case.[608]

The second case, Nippert v. Richmond,[609] involved a municipal ordinance imposing upon solicitors of orders for goods a license tax of fifty dollars and one-half of one per cent of the gross earnings, commissions, etc., for the preceding year in excess of $1,000. Speaking for the same majority that had decided McLeod v. Dilworth Co., Justice Rutledge found that "as the case has been made, the issue is substantially whether the long line of so-called 'drummer cases' beginning with Robbins v. Shelby County Taxing District, 120 U.S. 489, shall be adhered to in result or shall now be overruled in the light of what attorneys for the city say are recent trends requiring that outcome."[610] The tax was held void, Berwind-White being not only "distinguished" this time, but also "explained." "The drummer," said Justice Rutledge, "is a figure representative of a by-gone day," citing Wright, Hawkers and Walkers in Early America (1927). "But his modern prototype persists under more euphonious appellations. So endure the basic reasons which brought about his protection from the kind of local favoritism the facts of this case typify."[611]

A year later a Mississippi "privilege tax" laid upon each person soliciting business for a laundry not licensed in the State, was set aside directly on the authority of the Robbins case.[612] It would appear that Robbins and his numerous progeny can once more claim full constitutional status.[613]

TAXATION OF CARRIAGE OF PERSONS

Whether the carriage of persons from one State to another was a branch of interstate commerce was a question which the Court was able to side-step in Gibbons v. Ogden.[614] A quarter of a century later, however, an affirmative answer was suggested in the Passenger Cases,[615] in which a State tax on each passenger arriving on a vessel from a foreign country was set aside, though chiefly in reliance on existing treaties and acts of Congress. But similar cases arising after the Civil War were disposed of by direct recourse to the commerce clause.[616] Meantime, in 1865, the newly admitted State of Nevada, in an endeavor to prevent a threatened dissipation of its population, levied a special tax on railroad and stage companies for every passenger they carried out of the State, and in Crandall v. Nevada[617] this act was held void on the general ground that the National Government had at all times the right to require the services of its citizens at the seat of government and they the correlative right to visit the seat of government, rights which, if the Nevada tax was valid, were at the mercy of any State, the power to tax being without limit. Reference was also made to the right of the government to transport troops at all times by the most expeditious method. Two of the Justices, however, rejected this line of reasoning and held the act to be void under the commerce clause.[618] But it was not until 1885 that the Court, in deciding Gloucester Ferry Company v. Pennsylvania,[619] stated flatly that "Commerce among the States * * * includes the transportation of persons,"[620] and hence was not taxable by the States, a proposition which is still good law.[621] Four years earlier it had been held that the transmission of telegraph messages from one State to another, being interstate commerce, was something that the State of origin could not tax.[622]

State Taxation of the Interstate Commerce Privilege: Foreign Corporations

DOCTRINAL HISTORY

In the famous case of Paul v. Virginia,[623] decided in 1869, it was held that a corporation chartered by one State could enter other States only with their assent, which might "be granted upon such terms and conditions as those States may think proper to impose";[624] but along with this holding went the statement that "the power conferred upon Congress to regulate commerce includes as well commerce carried on by corporations as commerce carried on by individuals."[625] And in the State Freight Tax Case it is implied that no State can regulate or restrict the right of a "foreign" corporation—one chartered by another State—to carry on interstate commerce within its borders,[626] an implication which soon became explicit. In Leloup v. Port of Mobile,[627] decided in 1888, the Court had before it a license tax on a telegraph company which was engaged in both domestic and interstate business. The general nature of the exaction did not suffice to save it. Said the Court: "The question is squarely presented to us, * * *, whether a State, as a condition of doing business within its jurisdiction, may exact a license tax from a telegraph company, a large part of whose business is the transmission of messages from one State to another and between the United States and foreign countries, and which is invested with the powers and privileges conferred by the act of Congress passed July 24, 1866, and other acts incorporated in Title LXV of the Revised Statutes? Can a State prohibit such a company from doing such a business within its jurisdiction, unless it will pay a tax and procure a license for the privilege? If it can, it can exclude such companies, and prohibit the transaction of such business altogether. We are not prepared to say that this can be done."[628]

In Crutcher v. Kentucky[629] a like result was reached, without assistance from an act of Congress, with respect to a Kentucky statute which provided that the agent of an express company not incorporated by the laws of that State should not carry on business there without first obtaining a license from the State, and that, preliminary thereto, he must satisfy the auditor of the State that the company he represented was possessed of an actual capital of at least $150,000. The act was held to be a regulation of interstate commerce so far as applied to a corporation of another State in that business. "To carry on interstate commerce," said the Court, "is not a franchise or a privilege granted by the State; it is a right which every citizen of the United States is entitled to exercise under the Constitution and laws of the United States; and the accession of mere corporate facilities, as a matter of convenience in carrying on their business, cannot have the effect of depriving them of such right, unless Congress should see fit to interpose some contrary regulation on the subject."[630]

LICENSE TAXES

The demand for what in effect is a license is, of course, capable of assuming various guises. In Ozark Pipe Line v. Monier[631] an annual franchise tax on foreign corporations equal to one-tenth of one per cent of the par value of their capital stock and surplus employed in business in the State was found to be a privilege tax, and hence one which could not be exacted of a foreign corporation whose business in the taxing State consisted exclusively of the operation of a pipe line for transporting petroleum through the State in interstate commerce, and of activities the sole purpose of which was the furtherance of its interstate business. Likewise a Massachusetts tax based on "the corporate surplus" of a foreign corporation having only an office in the State for the transaction of interstate business was held in Alpha Portland Cement Co. v. Massachusetts to be virtually an attempt to license interstate commerce.[632] In the same category of unconstitutional taxation of the interstate commerce privilege, the Court has also included the following: a State "franchise" tax on a foreign corporation, whose sole business in the State consisted in landing, storing and selling in the original package goods imported by it from abroad, the tax being imposed annually on the doing of such business and measured by the value of the goods on hand;[633] a State privilege or occupation tax on every corporation engaged in the business of operating and maintaining telephone lines and furnishing telephone service in the State, of so much for each telephonic instrument controlled and operated by it, as applied to a company furnishing both interstate and intrastate service, and employing the same telephones, wires, etc., in both as integrated parts of its system;[634] a State occupation tax measured by the entire gross receipts of the business of a radio broadcasting station, licensed by the Federal Communications Commission, and engaged in broadcasting advertising "programs" for customers for hire to listeners within and beyond the State, since it did not "appear that any of the taxed income ... [was] allocable to interstate commerce";[635] a State occupation tax on the business of loading and unloading vessels engaged in interstate and foreign commerce;[636] an Indiana income tax imposed on the gross receipts from commerce inasmuch as the tax reached indiscriminately and without apportionment the gross income from both interstate commerce and intrastate activities;[637] an Arkansas statute making entry into the State of motor vehicles carrying more than twenty gallons of gasoline conditional on the payment of an excise on the excess.[638]

DOCTRINE OF WESTERN UNION TELEGRAPH v. KANSAS EX REL. COLEMAN

One of the most striking concessions ever made by the Court to the interstate commercial interest at the expense of the State's taxing power was that which appeared originally in 1910, in Western Union Telegraph. Co. v. Kansas ex rel. Coleman,[639] which involved a percentage tax upon the total capitalization of all foreign corporations doing or seeking to do a local business in the State. The Court pronounced the tax, as to the Western Union, a burden upon the company's interstate business and upon its property located and used outside the State, and hence void under both the commerce clause and the due process of law clause of the Fourteenth Amendment. The decision was substantially aided by the fact that the company had been doing a general telegraphic business within the State for more than fifty years without having been subjected to such an exaction.[640]

SPREAD OF THE DOCTRINE

The doctrine of the case, however, soon cast off these initial limitations. In Looney v. Crane Company[641] a similar tax by the State of Texas was disallowed as to an Illinois corporation, engaged in its home State in the manufacture of hardware, but maintaining in Texas depots and warehouses from which orders were filled and sales made, likewise, in International Paper Company v. Massachusetts,[642] it was clearly stated that "the immunity of interstate commerce from State taxation" is not confined to what is done by carriers in such commerce, but "is universal and covers every class of ... [interstate] commerce, including that conducted by merchants and trading companies." On the same occasion the general proposition was laid down that "the power of a State to regulate the transaction of a local business within its borders by a foreign corporation, ... is not unrestricted or absolute, but must be exerted in subordination to the limitations which the Constitution places on State action."[643]

STATUS OF THE DOCTRINE TODAY

The precise standing of this doctrine is, nevertheless, seriously clouded by certain more recent holdings. In Sprout v. South Bend,[644] decided in 1928, the doctrine was still applied, to disallow a license tax on concerns operating a bus interstate. Pointing to the fact that the ordinance made no distinction between busses engaged exclusively interstate and those engaged intrastate or both interstate and intrastate, the Court said: "In order that the fee or tax shall be valid, it must appear that it is imposed solely on account of the intrastate business; that the amount exacted is not increased because of the interstate business done; that one engaged exclusively in interstate commerce would not be subject to the imposition; and that the person taxed could discontinue the intrastate business without withdrawing also from the interstate business."[645] Likewise, in Cooney v. Mountain States Telephone and Telegraph Co., the Court asserted that to sustain a State occupation tax on one whose business is both interstate and intrastate, "it must appear * * *, and that the one [who is] taxed could discontinue the intrastate business without [also] withdrawing from the interstate business."[646] A year later, nevertheless, Justice Brandeis, speaking for the Court in Pacific Telephone and Telegraph Co. v. Tax Commission,[647] asserted flatly: "No decision of this Court lends support to the proposition that an occupation tax upon local business, otherwise valid, must be held void merely because the local and interstate branches are for some reason inseparable."[648] An occupation tax, like other taxes and expenses, lessens the benefit derived by interstate commerce from the joint operation with it of the intrastate business of the carrier; but it is not an undue burden on interstate commerce where, as in this case, the advantage to the carrier, and to the interstate commerce, of continuing the intrastate business is greatly in excess of the tax. And subsequent holdings in cases involving foreign corporations doing a mixed business, comprising both interstate and intrastate elements, have tended on the whole to restore the rule stated in Paul v. Virginia[649] shortly after the Civil War, that the Constitution does not confer upon a foreign corporation the right to engage in local business in a State without its assent, which it may give on such terms as it chooses.[650]

State Taxation of Property Engaged in, and of the Proceeds From, Interstate Commerce

GENERAL ISSUE

In this area of Constitutional Law the principle asserted in the State Freight Tax Case,[651] that a State may not tax interstate commerce, is confronted with the principle that a State may tax all purely domestic business within its borders and all property "within its jurisdiction." Inasmuch as most large concerns prosecute both an interstate and a domestic business, while the instrumentalities of interstate commerce and the pecuniary returns from such commerce are ordinarily property within the jurisdiction of some State or other, the task before the Court in drawing the line between the immunity claimed by interstate business on the one hand and the prerogatives claimed by local power on the other has at times involved it in self-contradiction, as successive developments have brought into prominence novel aspects of its complex problem or have altered the perspective in which the interests competing for its protection have appeared. In this field words of the late Justice Rutledge, spoken in 1946, are especially applicable: "For cleanly as the commerce clause has worked affirmatively on the whole, its implied negative operation on State power has been uneven, at times highly variable. * * * Into what is thus left open for inference to fill, divergent ideas of meaning may be read much more readily than into what has been made explicit by affirmation. That possibility is broadened immeasurably when not logic alone, but large choices of policy, affected in this instance by evolving experience of federalism, control in giving content to the implied negation."[652]

DEVELOPMENT OF THE APPORTIONMENT RULE

At the outset the Court appears to have thought that it could solve all difficulties by the simple device of falling back on Marshall's opinion in Brown v. Maryland;[653] and on the same day that it set aside Pennsylvania's freight tax by appeal to that transcendent precedent, it sustained, by reference to the same authority, a Pennsylvania tax on the gross receipts of all railroads chartered by it, the theory being that such receipts had, by tax time, become "part of the mass of property of the State."[654] This precedent stood fourteen years, being at last superseded by a ruling in which substantially the same tax was held void as to a Pennsylvania chartered steamship company.[655] A year later the Court sustained Massachusetts in levying a tax on Western Union, a New York corporation, on account of property owned and used by it in the State, taking as the basis of the assessment such proportion of the value of its capital stock as the length of its lines within the State bore to their entire length throughout the country.[656] The tax was characterized by the Court as an attempt by Massachusetts "to ascertain the just amount which any corporation engaged in business within its limits shall pay as a contribution to the support of its government upon the amount and value of the capital so employed by it therein."[657] And drawing on certain decisions in which it had sought to limit the principle of tax exemption as applied in the case of railroads chartered by the United States, it expressed concern that "the necessary powers of the States" should not be destroyed or "their efficient exercise" be prevented.[658] Three years later Pennsylvania, still in quest of revenue, was sustained in applying the Massachusetts idea to Pullman's Palace Car Company, a "foreign" corporation.[659] Pointing to the fact that the company had at all times substantially the same number of cars within the State and continuously and constantly used there a portion of its property, the Court commended the State for taking "as a basis of assessment such proportion of the capital stock of the company as the number of miles over which it ran cars within the State bore to the whole number of miles, in that and other States, * * *" This, said the Court, was "a just and equitable method of assessment;" one which, "if it were adopted by all the States through which these cars ran, the company would be assessed upon the whole value of its capital stock, and no more."[660]

THE UNIT RULE

And pursuing the same course of thought, the Court, in Adams Express Company v. Ohio,[661] decided in 1897, sustained that State in taxing property worth less than $70,000.00 at a valuation of more than half a million, on the ground that the latter figure did not exceed, in relation to the total capital value of the company, the proportion borne by the railway mileage which the company covered in Ohio to the total mileage which it covered in all States. To the objection that "the intangible values" reached by the tax were derived from interstate commerce, the Court replied with the "cardinal rule * * * that whatever property is worth for purposes of income and sale it is also worth for purposes of taxation,"[662] which obviously does not meet the issue. What the case indubitably establishes is that a State may tax property within its limits "as part of a going concern" and hence "at its value as it is in its organic relations," although those relations constitute interstate commerce.[663] In short, values created by interstate commerce are taxed.

Thus emerged the concept of an "apportioned" tax, or as it is called when applied to the problem of property valuation, the "unit rule," which till 1938 afforded the Court its chief reliance in the field of Constitutional Law now under review. The theory underlying the concept appears to be that it is always possible for a State to devise a formula whereby it may assign to the property employed in interstate commerce within its limits, or to the proceeds from such commerce, a value which it may tax or by which it may "measure" a tax, without unconstitutionally burdening or interfering with interstate commerce, while at the same time exacting from it a fair return for the protection which the State gives it. The question in each case is, of course, whether the State has guessed right.

APPORTIONED PROPERTY TAXES

In reliance on the apportionment concept the Court has at various times sustained, in the case of a sleeping car company, as we have seen, a valuation based on the ratio of the miles of track over which the company runs within the State to the whole track mileage over which it runs;[664] in the case of a railroad company, a valuation based on the ratio of its mileage within the State to its total mileage;[665] in the case of a telegraph company, a valuation based upon the ratio of its length of line within the State to its total length;[666] in the case of an express company, as we have just seen, a valuation based upon the ratio of miles covered by it in the State to the mileage covered by it in all States.[667] Also, a tax has been upheld as to a railroad line whose principal business was hauling ore from mines in the taxing State to terminal docks outside the State, where the line and the docks were treated by the railway as a unit, the charge for the dock service being absorbed in the charge per ton transported; and where the evidence did not show that the mileage value of the part of the line outside of the taxing State, with the docks included, was greater than the mileage value of part within it.[668] Nor does the commerce clause preclude the assessment of an interstate railway within a State by taking such part of the value of the railroad's entire system, less the value of its localized property, such as terminal buildings, shops and nonoperating real estate, as is represented by the ratio which the railroad's mileage within the State bears to its total mileage.[669] To the objection that the mileage formula was inapplicable in this instance because of the disparity of the revenue-producing capacity between the lines in and out of the State, the Court answered that mathematical exactitude in making an apportionment had never been a constitutional requirement. "Wherever," it explained, "the State's taxing authorities have been held to have intruded upon the protected domain of interstate commerce in their use of a mileage formula, the special circumstances of the particular situation, in the view which this Court took of them, precluded a defensible utilization of the mileage basis."[670] The principle of apportionment is, moreover, applicable to the intangible property of a company engaged in both interstate and local commerce, as well as to its tangible property.[671]

APPORTIONED GROSS RECEIPTS TAXES

The first State to attempt to employ the apportionment device in order to tax the gross receipts of companies engaged in interstate commerce was Maine, in connection with a so-called "franchise tax," which was levied on such proportion of the revenues of railroads operating in the State as their mileage there bore to their total mileage. In Maine v. Grand Trunk Railway Company,[672] a sharply divided Court upheld the tax on the basis of its designation, giving scant attention to its apportionment feature. Said Justice Field for the majority: "The privilege of exercising the franchises of a corporation within a State is generally one of value, and often of great value, and the subject of earnest contention. It is natural, therefore, that the corporation should be made to bear some proportion of the burdens of government. As the granting of the privilege rests entirely in the discretion of the State, whether the corporation be of domestic or foreign origin, it may be conferred upon such conditions, pecuniary or otherwise, as the State in its judgment may deem most conducive to its interests or policy."[673] Four Justices, speaking by Justice Bradley, protested forcefully that the decision directly contradicted a whole series of decisions holding that the States are without power to tax interstate commerce;[674] and seventeen years later another sharply divided Court endorsed this contention when it overturned a Texas gross receipts tax drawn on the lines of the earlier Maine statute.[675] The Maine tax, however, the later Court suggested, had been in the nature of a commutation tax in lieu of all taxes, which the Texas tax was not.[676]

FRANCHISE TAXES

Today the term, franchise tax, possesses no specific saving quality of its own. If the tax is merely a "just equivalent" of other taxes it is valid however calculated.[677] Conversely, when such taxes are in addition to other taxes then their fate will be determined by the same rules as would apply had the label been omitted.[678] More precisely, the rule governing this species of tax is ordinarily the apportionment concept, and if the basis of apportionment adopted by the taxing State is deemed by the Court to be a fair and reasonable one, the tax will be sustained; otherwise, not.

Thus a franchise tax may be measured by such proportion of the company's net income as its capital invested in the taxing State and its business carried on there bear to its total capital and business;[679] also by the net income justly attributable to business done within the State although a part of this was derived from foreign or interstate commerce;[680] also by such proportion of the company's outstanding capital stock, surplus and undivided profits, plus its long-term obligations, as the gross receipts of its local business bear to its total gross receipts from its entire business;[681] also by such proportion of the company's total capital stock as the value of its property in the taxing State and of the business done there bears to the total value of its property and of its business.[682] On the other hand, a "franchise" tax on the unapportioned gross receipts of railroad companies engaged in interstate commerce, was, as we saw above, held void;[683] as was also one which was measured by assigning to the company's property in the State the same proportion of the total value of its stocks and bonds as its mileage in the State bore to its total mileage, no account being taken of the greater cost of construction of the company's lines in other States or of its valuable terminals elsewhere.[684] Other examples were given earlier.[685]

GROSS RECEIPTS TAXES, CLASSES OF

The late Justice Rutledge classified gross receipts taxes which have been sustained by the Court as follows: (a) those which were judged to be fairly apportioned;[686] (b) those which were justified on a "local incidence" theory, or the burden of which on interstate commerce was held to be "remote";[687] (c) those which were justified as not inviting the danger of multiple taxation of interstate commerce.[688] Gross receipts taxes which, on the other hand, have been invalidated under the commerce clause he placed in the following groups: (a) those which were held not to be fairly apportioned;[689] (b) those which were not apportioned at all and were bound to subject interstate commerce to the risk of multiple taxation;[690] (c) those in which a discriminatory element was detected in that they were directed exclusively at transportation or communication;[691] (d) those in which there was no discrimination but a possible multiple burden;[692] and, of course, any tax which it disallows the Court is always free to stigmatize as an unconstitutional attempt to tax or license the interstate commerce privilege.[693]

"MULTIPLE TAXATION" TEST

That the Depression—allowing for the customary judicial lag—greatly altered the Court's conception of Congress's powers under the commerce clause, was pointed out earlier.[694] To a less, but appreciable degree, it also affected its views as to the allowable scope under the clause of the taxing power of the States, a majority of which were on the verge of bankruptcy. The more evident proofs of this fact occurred in relation to State taxation of the subject matter of interstate commerce, as is indicated above.[695] But a certain revision of doctrine, apparently temporary in nature, however, is to be seen in the connection with State taxes impinging on property engaged in interstate commerce and the revenues from such commerce, the principal manifestation of which is to be seen in the emphasis which was for a time given the "multiple taxation" test. Thus in his opinion in the Western Live Stock Case,[696] cited above, Justice Stone seems to be engaged in an endeavor to erect this into an almost exclusive test of the validity, or invalidity of State taxation affecting interstate commerce. "It was not," he there remarks, "the purpose of the commerce clause to relieve those engaged in interstate commerce from their just share of State tax burden even though it increases the cost of doing the business. 'Even interstate business must pay its way,' * * * and the bare fact that one is carrying on interstate commerce does not relieve him from many forms of State taxation which add to the cost of his business."[697] Then citing cases, he continues: "All of these taxes in one way or another add to the expense of carrying on interstate commerce, and in that sense burden it; but they are not for that reason prohibited. On the other hand, local taxes, measured by gross receipts from interstate commerce, have often been pronounced unconstitutional. The vice characteristic of those which have been held invalid is that they have placed on the commerce burdens of such a nature as to be capable, in point of substance, of being imposed * * * [or added to] with equal right by every State which the commerce touches, merely because interstate commerce is being done, so that without the protection of the commerce clause it would bear cumulative burdens not imposed on local commerce. * * * The multiplication of State taxes measured by the gross receipts from interstate transactions would spell the destruction of interstate commerce and renew the barriers to interstate trade which it was the object of the commerce clause to remove," citing cases, most of which have been discussed above.[698] And speaking again for the Court eleven months later, in Gwin, White and Prince v. Henneford,[699] Justice Stone applied the test to invalidate a State of Washington tax. "Such a tax," said he, "at least when not apportioned to the activities carried on within the State, * * * would, if sustained, expose it [interstate commerce] to multiple tax burdens, each measured by the entire amount of the commerce, to which local commerce is not subject." The tax thus discriminated against interstate commerce; and threatened to "reestablish the barriers to interstate trade which it was the object of the commerce clause to remove."[700]

The adoption by the Court of the multiple taxation principle as an exclusive test of State taxing power in relation to interstate commerce would have enlarged the former; but this was not the sole reason for its temporary vogue with the Court, or at least a section of it. Discontent with the difficulties and uncertainties of the apportionment rule also played a great part. Thus in his concurring opinion in the Gwin case, Justice Butler, speaking for himself and Justice McReynolds after showing the instability of decisions in this area of Constitutional Law, contend that "the problems of conjectured 'multiple taxation' or 'apportionment'" should be left to Congress,[701] a suggestion which Justice Black, speaking also for Justices Frankfurter and Douglas a year later, made the basis of a dissenting opinion,[702] from the doctrines of which, however, Justice Frankfurter appears since to have recanted.[703]

RECENT CASES

In Freedman v. Hewit,[704] decided in 1946, the Court held void as an "unconstitutional burden on interstate commerce" an Indiana gross income tax of the proceeds from certain securities sent outside the State to be sold. Justice Frankfurter spoke for the Court; Justice Rutledge concurred in an opinion deploring the majority's failure to employ the multiple taxation test;[705] three Justices dissented.[706] In Joseph v. Carter and Weekes Stevedoring Co.,[707] also decided in 1947, the Court, reaffirming an earlier ruling, held void the application of a Washington gross receipts tax to the receipts of a stevedoring company from loading and unloading vessels employed in interstate and foreign commerce, or to the privilege of engaging in such business measured by their receipts. Said Justice Reed for the Court: "Although State laws do not discriminate against interstate commerce or * * * subject it to the cumulative burden of multiple levies, those laws may be unconstitutional because they burden or interfere with [interstate] commerce."[708] This time Justice Rutledge was among the dissenters so far as interstate commerce was concerned.[709] In Central Greyhound Lines, Inc. v. Mealey,[710] decided in 1948, five members of the Court ruled that a New York tax on the gross income of public utilities doing business in the State could not be constitutionally imposed on a carrier's unapportioned receipts from continuous transportation between termini in the State over a route a material part of which passes through other States. Justice Frankfurter, speaking for the Court, held, however, that the tax was sustainable as to receipts apportioned as to the mileage within the State.[711] Justice Rutledge concurred without opinion. Justice Murphy, for himself and Justices Black and Douglas, thought the tax was on an essentially local activity and that the transportation through other States was "a mere geographic incident," conceding at the same time, that this view invited the other States involved to levy similar taxes and exposed the company to the danger of multiple taxation. In Memphis Natural Gas Co. v. Stone,[712] also of the 1948 grist, a Mississippi franchise tax, measured by the value of capital invested or employed in the State, was sustained in the case of a gas pipeline company a portion of whose line passed through the State but which did no local business there. Three Justices, speaking by Justice Reed, held that the tax was on the intrastate activities of the company in maintaining its facilities there, and was no more burdensome than the concededly valid ad valorem tax on the company's property in the State. Justice Rutledge held that the tax was valid because it did not discriminate against interstate commerce nor invite multiple taxation, while Justice Black concurred without opinion. Four Justices, speaking by Justice Frankfurter, contended that the pipeline already paid the ad valorem tax to which Justice Reed had adverted, and that the franchise tax must therefore be regarded as being on the interstate commerce privilege.

This survey of recent cases leaves the impression that the Court is at loose ends for intermediate guiding principles in this field of Constitutional Law. The "leave it to Congress" formula is evidently in the discard, although Justice Black's successive dissents without opinion may indicate that he still thinks it sound. The multiple tax test seems to be in an equally bad way, with both Chief Justice Stone and Justice Rutledge in the grave. The concept of an apportioned tax still has some vitality however, although just how much is difficult to assess. Thus in Interstate Oil Pipe Line Co. v. Stone,[713] which was decided in 1949, we find Justice Rutledge, speaking for himself and Justices Black, Douglas, and Murphy, endorsing the view that Mississippi was within her rights in imposing on a Delaware corporation, as a condition of doing a local business, a "privilege" tax equal to two per cent of its intrastate business even though the exaction amounted to "a 'direct' tax on the 'privilege' of engaging in interstate commerce," an assertion which was countered by one just as positive, and also endorsed by four Justices, that no State may "levy privilege, excise or franchise taxes on a foreign corporation for the privilege of carrying on or the actual doing of solely interstate business," even though the tax is not discriminatory and is fairly apportioned between the corporation's intrastate and interstate business. The tax in controversy was sustained by the vote of the ninth Justice, who construed it as being levied only on the privilege of engaging in intrastate commerce, a conclusion which obviously ignores the question of the tax's actual impact on interstate commerce, the precise question on which many previous decisions have turned.[714]

TAXES ON NET INCOME

The leading case under this caption is United States Glue Co. v. Oak Creek[715] where it was held that the State of Wisconsin, in laying a general income tax upon the gains and profits of a domestic corporation, was entitled to include in the computation the net income derived from transportations in interstate commerce. Pointing out the difference between such a tax and one on gross receipts, the Court said the latter "affects each transaction in proportion to its magnitude and irrespective of whether it is profitable or otherwise. Conceivably it may be sufficient to make the difference between profit and loss, or to so diminish the profit as to impede or discourage the conduct of the commerce. A tax upon the net profits has not the same deterrent effect, since it does not arise at all unless a gain is shown over and above expenses and losses, and the tax cannot be heavy unless the profits are large." Such a tax "constitutes one of the ordinary and general burdens of government, from which persons and corporations otherwise subject to the jurisdiction of the States are not exempted * * * because they happen to be engaged in commerce among the States."[716]

Adhering to this precedent, the Court has held that a tax upon the net income of a nonresident from business carried on by him in the State is not a burden on interstate commerce merely because the products of the business are shipped out of the State;[717] also that a tax which is levied upon the proportion of the net profits of a foreign corporation earned by operations conducted within the taxing State is valid, if the method of allocation employed be not arbitrary or unreasonable.[718] Where, however, the method of allocating the net income of a foreign corporation attributed to the State an amount of income out of all proportion to the business there transacted by the corporation, it was held void.[719]

Also, a State may impose a tax upon the net income of property, as distinguished from the net income of him who owns or operates it, although the property is used in interstate commerce;[720] also a "franchise tax" measured by the net income justly attributable to business done by corporations within the State, although part of the income so attributable comes from interstate and foreign commerce;[721] also a tax on corporate net earnings derived from business done wholly within the State may be applied to the income of a foreign pipeline corporation which is commercially domiciled there and which pipes natural gas into that State for delivery to, and sale by, a local distributing corporation to local consumers.[722] Indeed it was asserted that even if the taxpayer's business were wholly interstate commerce, such a nondiscriminatory tax upon its net income "is not prohibited by the commerce clause," there being no showing that the income was not on net earnings partly attributable to the taxing State;[723] but a more recent holding appears to contradict this position.[724]

MISCELLANEOUS TAXES AFFECTING INTERSTATE COMMERCE

Vessels

In Gloucester Ferry Company v. Pennsylvania,[725] decided in 1885, the Court held inapplicable to a New Jersey corporation which was engaged solely in transporting passengers across the Delaware River and entered Pennsylvania only to discharge and receive passengers and freight, a statute which taxed the capital stock of all corporations doing business within the State. Such transactions, the Court held, were interstate commerce; nor were the company's vessels subject to taxation by Pennsylvania, their taxing situs being in the company's home State. The only property held by the company in Pennsylvania was the lease there of a wharf which could be taxed by the State according to its appraised value; and the State could also levy reasonable charges by way of tolls for the use of such facilities as it might itself furnish for the carrying on of commerce. This ruling rested on two earlier ones. In 1855, the Court had held that vessels registered in New York, owned by a New York corporation, and plying between New York City and San Francisco had the former city for their home port, and were not taxable by California where they remained no longer than necessary to discharge passengers and freight;[726] and in 1877 it had sustained Keokuk, Iowa in charging tolls for the use by vessels plying the Mississippi of wharves owned by the municipality, said tolls being reasonable and not discriminatory as between interstate and intrastate commerce.[727] Today it is still the general rule as to vessels plying between ports of different States and engaged in the coastwise trade, that the domicile of the owner is deemed to be the situs of the vessel for purposes of taxation,[728] unless the vessel has acquired actual situs in another State, by continuous employment there, in which event it may be taxed there.[729] Recently, however, this long standing rule has been amended by the addition to it of the apportionment rule as developed in the Pullman case. This occurred in Ott v. Mississippi Barge Line Co.,[730] decided in 1949, in which the Court sustained Louisiana in levying an ad valorem tax on vessels owned by an interstate carrier and used within the State, the assessment for the tax being based on the ratio between the number of miles of the carrier's lines within the State and its total mileage.

Airplanes

When, however, it was confronted by an attempt on the part of the State of Minnesota to impose a personal property tax on the entire air fleet owned and operated by a company in interstate commerce although only a part of it was in the State on tax day, the Court found itself unable to recruit a majority for any of the above formulas.[731] Pointing to the fact that the company was a Minnesota corporation and that its principal place of business was located in the State, Justice Frankfurter for himself and three others wished to stress the prerogatives of the State of domicile.[732] Justice Black, concurring in this view, added the caveat that the taxing rights of other States should not be foreclosed and made reference to his "leave it to Congress" notion.[733] Justice Jackson, after speaking lightly of the apportionment theory,[734] joined the affirming brethren on the ground that the record seemed "to establish Minnesota as a 'home port' within the meaning of the old and somewhat neglected but to me wise authorities cited," to wit, the Hays case and those decided by analogy to it.[735] Four Justices, speaking by Chief Justice Stone dissented, urging the Pullman Case[736] as an applicable model and the fact that "the rationale found necessary to support the present tax leaves other States free to impose comparable taxes on the same property."[737] Evidently in this area of Constitutional Law the Court is still much at sea or better perhaps, "up in the air."

Motor Vehicles

In the matter of motor vehicle taxation, on the other hand, durable and consistent results have been achieved. This is because most such taxation has been readily classifiable as the exaction of a toll for the use of the State's highways, and the only question was whether the toll was exorbitant. Moreover, such taxation is apt to be designed not merely to raise revenue but to promote safety on the highways. In the leading case, Hendrick v. Maryland,[738] decided in 1915, the Court took cognizance of the fact that "the movement of motor vehicles over the highways is attended by constant and serious dangers to the public, and is also abnormally destructive to the ways themselves";[739] and on this factual basis it has held that registration may be required by a State for out-of-State vehicles operated therein,[740] or passing through from one State to another;[741] that a special fee may be exacted for the privilege of transporting motor vehicles on their own wheels in caravans,[742] unless excessive;[743] that taxes may also be imposed on carriers based on capacity[744] or mileage,[745] or as a flat fee;[746] but that a privilege tax on motor busses operated exclusively in interstate commerce, cannot be sustained unless it appears affirmatively in some way, that it is levied only as compensation for use of the highways in the State or to defray the expense of regulating motor traffic.[747] Later decisions follow in the same general track,[748] the most recent one being Capitol Greyhound Lines v. Brice,[749] in which the Court, speaking by Justice Black passed upon a Maryland excise tax on the fair market value of motor vehicles used in interstate commerce as a condition to the issuance of certificates of title as prerequisites to the registration and operation of motor vehicles in the State. Because the tax was applied to vehicles used in both interstate and intrastate commerce and the proceeds were used for road purposes and because the Court considered the tax, though actually separate, to be an adjunct of Maryland's mileage tax, it was able to find that the total charge varied substantially with the mileage travelled, and on that ground sustained it, being constant, it said with "rough approximation rather than precision," no showing having been made that Maryland's taxes considered as a whole exceeded "fair compensation for the privilege of using State roads." Justice Frankfurter, who was joined by Justice Jackson, dissented, and in so doing contributed as an Appendix to his opinion a useful analysis of decisions involving State taxation of motor vehicles engaged in interstate commerce, for highway purposes.[750]

Public Utilities; Regulatory Charges

"The principles governing decision [in this class of cases] have repeatedly been announced and were not questioned below.[751] In the exercise of its police power the State may provide for the supervision and regulation of public utilities, such as railroads; may delegate the duty to an officer or commission; and may exact the reasonable cost of such supervision and regulation from the utilities concerned and allocate the exaction amongst the members of the affected class without violating the rule of equality imposed by the Fourteenth Amendment.[752] The supervision and regulation of the local structures and activities of a corporation engaged in interstate commerce, and the imposition of the reasonable expense thereof upon such corporation, is not a burden upon, or regulation of, interstate commerce in violation of the commerce clause of the Constitution.[753] A law exhibiting the intent to impose a compensatory fee for such a legitimate purpose is prima facie reasonable.[754] If the exaction be so unreasonable and disproportionate to the service as to impugn the good faith of the law[755] it cannot stand either under the commerce clause or the Fourteenth Amendment.[756] The State is not bound to adjust the charge after the fact, but may, in anticipation, fix what the legislature deems to be a fair fee for the expected service, the presumption being that if, in practice, the sum charged appears inordinate the legislative body will reduce it in the light of experience.[757] Such a statute may, in spite of the presumption of validity, show on its face that some part of the exaction is to be used for a purpose other than the legitimate one of supervision and regulation and may, for that reason, be void.[758] And a statute fair upon its face may be shown to be void and unenforceable on account of its actual operation.[759] If the exaction be clearly excessive it is bad in toto and the State cannot collect any part of it."[760]

Dominance of Congress

The Supreme Court has never forgotten the lesson which was administered it by the act of Congress of August 31, 1852,[761] which pronounced the Wheeling Bridge "a lawful structure," thereby setting aside the Court's determination to the contrary earlier the same year.[762] This lesson, stated in the Court's own language thirty years later, was, "It is Congress, and not the Judicial Department, to which the Constitution has given the power to regulate commerce * * *."[763] A parallel to the Wheeling Bridge episode occurred in 1945.

THE McCARRAN ACT: REGULATION OF INSURANCE

Less than a year after the ruling in United States v. South-Eastern Underwriters Association[764] that insurance transactions across State lines constituted interstate commerce, thereby logically establishing their immunity from discriminatory State taxation, Congress passed the McCarran Act[765] authorizing State regulation and taxation of the insurance business; and in Prudential Insurance Co. v. Benjamin,[766] a statute of South Carolina which imposed on foreign insurance companies, as a condition of their doing business in the State, an annual tax of three per cent of premiums from business done in South Carolina, while imposing no similar tax on local corporations, was sustained. "Obviously," said Justice Rutledge for the Court, "Congress' purpose was broadly to give support to the existing and future State systems for regulating and taxing the business of insurance. This was done in two ways. One was by removing obstructions which might be thought to flow from its own power, whether dormant or exercised, except as otherwise expressly provided in the Act itself or in future legislation. The other was by declaring expressly and affirmatively that continued State regulation and taxation of this business is in the public interest and that the business and all who engage in it 'shall be subject to' the laws of the several States in these respects. * * * The power of Congress over commerce exercised entirely without reference to coordinated action of the States is not restricted, except as the Constitution expressly provides, by any limitation which forbids it to discriminate against interstate commerce and in favor of local trade. Its plenary scope enables Congress not only to promote but also to prohibit interstate commerce, as it has done frequently and for a great variety of reasons. * * * This broad authority Congress may exercise alone, subject to those limitations, or in conjunction with coordinated action by the States, in which case limitations imposed for the preservation of their powers become inoperative and only those designed to forbid action altogether by any power or combination of powers in our governmental system remain effective."[767] The generality of this language enforces again the sweeping nature of Congress's power to prohibit interstate commerce.[768]

The Police Power and Foreign Commerce

ORIGIN OF POLICE POWER

In Gibbons v. Ogden[769] cognizance was taken of the existence in the States of an "immense mass" of legislative power to be used for the protection of their welfare and the promotion of local interests.[770] In Marshall's opinion in Brown v. Maryland[771] this power is christened "the Police Power," a name which has since come to supply one of the great titles of Constitutional Law. Counsel for Maryland had argued that if the State was not permitted to tax imports in the original package before they left the hands of the importer, it would also be unable to prevent their introduction into its midst although they might comprise articles dangerous to the public health and safety. "The power to direct the removal of gunpowder," the Chief Justice answered, "is a branch of the police power, which unquestionably remains, and ought to remain, with the States;" and the power to direct "the removal or destruction of infectious or unsound articles" fell within the same category.[772]

STATE CURBS ON ENTRY OF FOREIGNERS

In short, the power to tax was one thing, the police power something quite different. To concede the former would be to concede a power which could be exercised to any extent and at the will of its possessor;[773] to concede the latter was to concede a power which was limited of its own inherent nature to certain necessary objectives. In New York v. Miln,[774] however, the Court which came after Marshall inclined toward the notion of a power of internal police which was also unlimited; and on this ground upheld a New York statute which required masters of all vessels arriving at the port of New York to make reports as to passengers carried, and imposed fines for failure to do so. "We are of opinion," the Court said, "that the act is not a regulation of commerce, but of police." But, when New York, venturing a step further, passed an act to authorize State health commissioners to collect certain fees from captains arriving in ports of that State, and when Massachusetts enacted a statute requiring captains of ships to give bonds as to immigrants landed, both measures were pronounced void, either as conflicting with treaties and laws of the United States or as invading the "exclusive" power of Congress to regulate foreign commerce.[775] Following the Civil War, indeed, New York v. Miln was flatly overruled, and a New York statute similar to the one sustained in 1837 was pronounced void as intruding upon Congress's powers.[776] Nothing was gained, said the Court, by invoking "[the police power] * * *, it is clear, from the nature of our complex form of government, that, whenever the statute of a State invades the domain of legislation which belongs exclusively to the Congress of the United States, it is void, no matter under what class of powers it may fall, or how closely allied to powers conceded to belong to the States."[777] At the same time a California statute requiring a bond from shipowners as a condition precedent to their being permitted to land persons whom a State commissioner of immigration might choose to consider as coming within certain enumerated classes, e.g., "debauched women," was also disallowed. Said the Court: "If the right of the States to pass statutes to protect themselves in regard to the criminal, the pauper, and the diseased foreigner, landing within their borders, exists at all, it is limited to such laws as are absolutely necessary for that purpose; and this mere police regulation cannot extend so far as to prevent or obstruct other classes of persons from the right to hold personal and commercial intercourse with the people of the United States."[778]

STATE QUARANTINE LAWS

On the other hand, it has been repeatedly held that the States may, in the absence of legislation by Congress, enact quarantine laws, even though in effect they thereby regulate foreign commerce; and furthermore that such legislation may be, in the interest of effective enforcement, applied beyond the mere exclusion of diseased persons. Thus in the leading case the State of Louisiana was sustained in authorizing its Board of Health in its discretion to prohibit the introduction into any infected portion of the State of "persons acclimated, unacclimated or said to be immune, when in its judgment the introduction of such persons would add to or increase the prevalence of the disease."[779] At the same time it was emphasized that all such legislation was subject to be supplanted by Congress at any time.

STATE GAME PROTECTION AND FOREIGN COMMERCE

The Court's tolerance of legal provisions which might not standing alone be constitutional, when they are designed to make legislation within the police power practically enforceable, is also illustrated in connection with State game laws. In the case of Silz v. Hesterberg[780] the Court was confronted with a New York statute establishing a closed season for certain game, during which season it was a penal offense to take or possess any of the protected animals, fish or birds; and providing farther that the ban should equally apply "to such fish, game or flesh coming from without the State as to that taken within the State." This provision was held to have been validly applied in the case of a dealer in imported game who had in his possession during the closed season "one dead body of an imported grouse, ..., and taken in Russia." Again the absence of conflicting legislation by Congress was adverted to.[781]

The Police Power and Interstate Commerce

GENERAL PRINCIPLES

In Southern Pacific Co. v. Arizona,[782] decided in 1945, Chief Justice Stone made the following systematic statement of principles which have guided the Court in the exercise of its power of judicial review of State legislation affecting interstate commerce: "Although the commerce clause conferred on the national government power to regulate commerce, its possession of the power does not exclude all state power of regulation. Ever since Willson v. Black-Bird Creek Marsh Co., 2 Pet. 245, and Cooley v. Board of Wardens, 12 How. 299, it has been recognized that, in the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it.[783] Thus the states may regulate matters which, because of their number and diversity, may never be adequately dealt with by Congress.[784] When the regulation of matters of local concern is local in character and effect, and its impact on the national commerce does not seriously interfere with its operation, and the consequent incentive to deal with them nationally is slight, such regulation has been generally held to be within state authority.[785]

"But ever since Gibbons v. Ogden, 9 Wheat. 1, the states have not been deemed to have authority to impede substantially the free flow of commerce from state to state, or to regulate those phases of the national commerce which, because of the need of national uniformity, demand that their regulation, if any, be prescribed by a single authority.[786] Whether or not this long-recognized distribution of power between the national and the state governments is predicated upon the implications of the commerce clause itself,[787] or upon the presumed intention of Congress, where Congress has not spoken,[788] the result is the same.

"In the application of these principles some enactments may be found to be plainly within and others plainly without state power. But between these extremes lies the infinite variety of cases, in which regulation of local matters may also operate as a regulation of commerce, in which reconciliation of the conflicting claims of state and national power is to be attained only by some appraisal and accommodation of the competing demands of the state and national interests involved.[789]

"For a hundred years it has been accepted constitutional doctrine that the commerce clause, without the aid of Congressional legislation, thus affords some protection from state legislation inimical to the national commerce, and that in such cases, where Congress has not acted, this Court, and not the state legislature, is under the commerce clause the final arbiter of the competing demands of state and national interests.[790]

"Congress has undoubted power to redefine the distribution of power over interstate commerce. It may either permit the states to regulate the commerce in a manner which would otherwise not be permissible,[791] or exclude state regulation even of matters of peculiarly local concern which nevertheless affect interstate commerce.[792]

"But in general Congress has left it to the courts to formulate the rules thus interpreting the commerce clause in its application, doubtless because it has appreciated the destructive consequences to the commerce of the nation if their protection were withdrawn,[793] and has been aware that in their application state laws will not be invalidated without the support of relevant factual material which will 'afford a sure basis' for an informed judgment.[794] Meanwhile, Congress has accommodated its legislation, as have the states, to these rules as an established feature of our constitutional system. There has thus been left to the states wide scope for the regulation of matters of local state concern, even though it in some measure affects the commerce, provided it does not materially restrict the free flow of commerce across state lines, or interfere with it in matters with respect to which uniformity of regulation is of predominant national concern."

State Regulation of Agencies of Interstate Commerce

RAILWAY RATE REGULATION

In one of the Granger Cases decided in 1877 the Court upheld the power of the legislature of Wisconsin in the absence of legislation by Congress, to prescribe by law the maximum charges to be made by a railway company for fare and freight upon the transportation of persons and property within the State, or taken up outside the State and brought within it, or taken up inside and carried without it.[795] Ten years later, in Wabash, St. Louis and Pacific Railway Co. v. Illinois[796] this decision was reversed as to persons and property taken up within the State and transported out of it and as to persons and property brought into the State from outside. As to these, the Court held that the regulation of rates and charges must be uniform and that, therefore, the States had no power to deal with the subject even when Congress had not acted. The following year Congress passed the Interstate Commerce Act[797] to fill the gap created by the Wabash decision. Today, the States still exercise the power to regulate railway rates for the carriage of persons and property taken up and put down within their borders, but do so subject to the rule, which is enforced by the Interstate Commerce Commission, that such rates may not discriminate against interstate commerce.[798]

ADEQUATE SERVICE REGULATIONS

In many other respects the power still remains with the States to require by statute or administrative order a fair and adequate service for their inhabitants from railway companies, including interstate carriers operating within their borders, so long as the burdens thus imposed upon interstate commerce are, in the judgment of the Court, "reasonable." In an instructive brace of cases the Court was asked to say whether a carrier, in the interest of providing proper local facilities of commerce, could be required to stop its interstate trains. In one case a State regulation requiring all regular passenger trains operating wholly within the State to stop at all county seats was held to have been validly applied to interstate connection trains;[799] while in the other case a statute requiring all passenger trains to stop at county seats was held invalid, there being "other and ample accommodation."[800] Comparing these and other like decisions, the Court has stated "the applicable general doctrine" to be as follows: (1) It is competent for a State to require adequate local facilities, even to the stoppage of interstate trains or the rearrangement of their schedules. (2) Such facilities existing—that is, the local conditions being adequately met—the obligation of the railroad is performed, and the stoppage of interstate trains becomes an improper and illegal interference with interstate commerce. (3) And this, whether the interference be directly by the legislature or by its command through the orders of an administrative body. (4) The fact of local facilities this court may determine, such fact being necessarily involved in the determination of the Federal question whether an order concerning an interstate train does or does not directly regulate interstate commerce, by imposing an arbitrary requirement.[801] "There is, however," it later added, "no inevitable test of the instances; the facts in each must be considered."[802]

In the same way a State regulation requiring intersecting railways to make track connections was held valid,[803] as was also a regulation requiring equality of car service between shippers;[804] while a regulation requiring the delivery of shipments on private sideways[805] and one requiring cars for local shipments to be furnished on demand, were held to be invalid.[806] In the first brace of decisions, the application of the local regulation to interstate commerce was found not to be "unduly" burdensome; in the second brace the contrary conclusion was reached.

SAFETY AND OTHER REGULATIONS

A class of regulations as to which the Court has exhibited marked tolerance although they "incidentally" embrace interstate transportation within their operation are those which purport to be in furtherance of "public safety."[807] The leading case is Smith v. Alabama,[808] in which the Court held it to be within the police power of the State to require locomotive engineers to be examined and licensed, and to enforce this requirement until Congress should decree otherwise in the case of an engineer employed exclusively in interstate transportation. Also upheld as applicable to interstate trains were a statute which forbade the heating of passenger cars by stoves;[809] a municipal ordinance restricting the speed of trains within city limits;[810] the order of a public utility commission requiring the elimination of grade crossings;[811] a statute requiring electric headlights of a specified minimum capacity;[812] a statute requiring three brakemen on freight trains of over twenty-five cars.[813] In the last case the Court admitted that "under the evidence," there was "some room for controversy" as to whether the statute was necessary, but thought it "not so unreasonable as to justify the Court in adjudging it" to be "merely an arbitrary exercise of power" and "not germane" to objects which the State was entitled to accomplish.[814] And in 1943 the Court sustained, though again in somewhat doubtful terms, the order of a State railroad commission requiring a terminal railroad which served both interstate and local commerce to provide caboose cars for its employees.[815] At times, indeed, the Court has made surprising concession to local views that had nothing to do with safety. Hennington v. Georgia,[816] decided in 1896, where was sustained a Georgia statute forbidding freight trains to run on Sunday, is perhaps the supreme example. Whether such an act would pass muster today is doubtful. And earlier statutes reinforcing the legal liability of railroads as common carriers and the carriers of passengers were sustained in the absence of legislation by Congress.[817]

INVALID STATE REGULATIONS

"The principle that, without controlling Congressional action, a State may not regulate interstate commerce so as substantially to affect its flow or deprive it of needed uniformity in its regulation is not to be avoided by 'simply invoking the convenient apologetics of the police power.'" So remarks Chief Justice Stone in his summarizing opinion cited above, in Southern Pacific Co. v. Arizona.[818] Among others he lists the following instances in which State legislation was invalidated on the basis of this rule: "In the Kaw Valley case[819] the Court held that the State was without constitutional power to order a railroad to remove a railroad bridge over which its interstate trains passed, as a means of preventing floods in the district and of improving its drainage, because it was 'not pretended that local welfare needs the removal of the defendants' bridges at the expense of the dominant requirements of commerce with other States, but merely that it would be helped by raising them.' And in Seaboard Air Line R. Co. v. Blackwell,[820] it was held that the interference with interstate rail transportation resulting from a State statute requiring as a safety measure that trains come almost to a stop at grade crossings, outweigh the local interest in safety, when it appealed that compliance increased the scheduled running time more than six hours in a distance of one hundred and twenty-three miles."[821] And "more recently in Kelly v. Washington,"[822] the Chief Justice continued, "we have pointed out that when a State goes beyond safety measures which are permissible because only local in their effect upon interstate commerce, and 'attempts to impose particular standards as to structure, design, equipment and operation [of vessels plying interstate] which in the judgment of its authorities may be desirable but pass beyond what is plainly essential to safety and seaworthiness, the State will encounter the principle that such requirements, if imposed at all, must be through the action of Congress which can establish a uniform rule. Whether the State in a particular matter goes too far must be left to be determined when the precise question arises.'"

STATE REGULATION OF LENGTH OF TRAINS

Applying the test of these precedents, the Chief Justice concluded that Arizona, in making it unlawful to operate within the State a railroad train of more than fourteen passenger or seventy freight cars, had gone "too far"; and in support of this conclusion he recites the following facts: "In Arizona, approximately 93% of the freight traffic and 95% of the passenger traffic is interstate. Because of the Train Limit Law appellant is required to haul over 30% more trains in Arizona than would otherwise have been necessary. The record shows a definite relationship between operating costs and the length of trains, the increase in length resulting in a reduction of operating costs per car. The additional cost of operation of trains complying with the Train Limit Law in Arizona amounts for the two railroads traversing that State to about $1,000,000 a year. The reduction in train lengths also impedes efficient operation. More locomotives and more manpower are required; the necessary conversion and reconversion of train lengths at terminals and the delay caused by breaking up and remaking long trains upon entering and leaving the state in order to comply with the law, delays the traffic and diminishes its volume moved in a given time, especially when traffic is heavy.

"At present the seventy freight car laws are enforced only in Arizona and Oklahoma, with a fourteen car passenger car limit in Arizona. The record here shows that the enforcement of the Arizona statute results in freight trains being broken up and reformed at the California border and in New Mexico, some distance from the Arizona line. Frequently it is not feasible to operate a newly assembled train from the New Mexico yard nearest to Arizona, with the result that the Arizona limitation governs the flow of traffic as far east as El Paso, Texas. For similar reasons the Arizona law often controls the length of passenger trains all the way from Los Angeles to El Paso.

"If one State may regulate train lengths, so may all the others, and they need not prescribe the same maximum limitation. The practical effect of such regulation is to control train operations beyond the boundaries of the State exacting it because of the necessity of breaking up and reassembling long trains at the nearest terminal points before entering and after leaving the regulating State. The serious impediment to the free flow of commerce by the local regulation of train lengths and the practical necessity that such regulation, if any, must be prescribed by a single body having a nation-wide authority are apparent.

"The trial court found that the Arizona law had no reasonable relation to safety, and made train operation more dangerous. Examination of the evidence and the detailed findings makes it clear that this conclusion was rested on facts found which indicate that such increased danger of accident and personal injury as may result from the greater length of trains is more than offset by the increase in the number of accidents resulting from the larger number of trains when train lengths are reduced. In considering the effect of the statute as a safety measure, therefore, the factor of controlling significance for present purposes is not whether there is basis for the conclusion of the Arizona Supreme Court that the increase in length of trains beyond the statutory maximum has an adverse effect upon safety of operation. The decisive question is whether in the circumstances the total effect of the law as a safety measure in reducing accidents and casualties is so slight or problematical as not to outweigh the national interest in keeping interstate commerce free from interferences which seriously impede it and subject it to local regulation which does not have a uniform effect on the interstate train journey which it interrupts."[823]

THE LESSON OF SOUTHERN PACIFIC CO. v. ARIZONA

The lesson to be extracted from Southern Pacific Co. v. Arizona is a threefold one: 1) Where uniformity is judged by the Court to be "essential for the functioning of commerce, a State may not interpose its regulation"; 2) in resolving this question the Court will canvass what it considers to be relevant facts extensively; 3) its task is, however, in the last analysis, one of weighing competing values, in brief, arbitral rather than strictly judicial.

The lesson of Southern Pacific is further exemplified by the more recent holding in Morgan v. Virginia,[824] in which the Court was confronted with a State statute which, in providing for the segregation of white and colored passengers, required passengers to change seats from time to time as might become necessary to increase the number of seats available to the one race or the other. First, reciting the rule of uniformity, Justice Heed, for the Court, said: "Congress, within the limits of the Fifth Amendment, has authority to burden [interstate] commerce if that seems to it a desirable means of accomplishing a permitted end. * * * As no State law can reach beyond its own border nor bar transportation of passengers across its boundaries, diverse seating requirements for the races in interstate journeys result. As there is no federal act dealing with the separation of races in interstate transportation, we must decide the validity of this Virginia statute on the challenge that it interferes with commerce, as a matter of balance between the exercise of the local police power and the need for national uniformity in the regulations for interstate travel. It seems clear to us that seating arrangements for the different races in interstate motor travel require a single, uniform rule to promote and protect national travel. Consequently, we hold the Virginia statute in controversy invalid."

STATE REGULATION OF MOTOR VEHICLES; VALID REGULATIONS

Cases arising under this caption further illustrate the competition for judicial recognition between the interstate commerce interest and local interests, especially that of public safety. A new element enters the problem, however, which lends some added weight to the claims of the police power, the fact, namely, that motor vehicles use highways furnished and maintained by the State.

A State is entitled to enact a comprehensive scheme for the licensing and regulation of motor vehicles using its highways with a view to insuring itself of reasonable compensation for the facilities afforded and to providing adequate protection of the public safety; and such scheme may embrace out-of-State vehicles using the State's highways.[825] Thus legislation limiting the net loads of trucks using the State's highways is valid;[826] as are also, in the absence of national legislation on the subject, State regulations limiting the weight and width of the vehicles themselves, provided such regulations are applied without discrimination as between vehicles moving in interstate commerce and those operating only intrastate.[827] Likewise, a State may deny a certificate of public convenience and necessity to one desiring to operate a common carrier over a particular highway to an out-of-State destination in an adjacent State, on the ground that the specified route is already congested. So it was held in Bradley v. Public Utilities Commission of Ohio,[828] in which the Court took cognizance of the full hearing accorded the appellant, and of his failure to choose another route, although he was at liberty to do so. And in Maurer v. Hamilton a Pennsylvania[829] statute prohibiting the operation over its highways of any motor vehicle carrying any other vehicle over the head of the operator was upheld in the absence of conflicting Congressional legislation. Similarly, in Welch v. New Hampshire[830] a statute of that State establishing maximum hours for drivers of motor vehicles was held not to be superseded by the Federal Motor Carrier Act prior to the effective date of regulations by the Interstate Commerce Commission dealing with the subject. Nor was pendency before the Interstate Commerce Commission of an application under the Motor Carrier Act for a license to operate a motor carrier in interstate commerce found to supersede as to the applicant the authority of a State to enforce "reasonable regulations" of traffic upon its highways. "In the absence of the exercise of federal authority," said the Court, "and in the light of local exigencies, the State is free to act in order to protect its legitimate interests even though interstate commerce is directly affected."[831] And for the same reason New York City was entitled to apply to trucks engaged in the delivery of goods from New Jersey a traffic regulation forbidding the operation on the streets of an advertising vehicle.[832] Said Justice Douglas for the Court: "Many of these trucks are engaged in delivering goods in interstate commerce from New Jersey to New York. Where traffic control and the use of highways are involved and where there is no conflicting federal regulation, great leeway is allowed local authorities, even though the local regulation materially interferes with interstate commerce."[833] Also, the Court has consistently sustained State regulations requiring motor carriers to provide adequate insurance protection for injuries caused by the negligent operation of their vehicles.[834]

INVALID STATE ACTS AFFECTING MOTOR CARRIERS

A State law which imposes upon all persons engaged in transporting for hire by motor vehicle over the public highways of the State the burdens and duties of common carriers and requires them to furnish bonds to secure the payment of claims and liabilities resulting from injury to property carried, may not be validly applied to a private carrier which is engaged exclusively in hauling from one State to another State the goods of particular factories under standing contracts with their owners, the said carrier enjoying neither a special franchise nor using the eminent domain power.[835] On the other hand, a State statute which prohibits common carriers for hire from using the highways of the State between fixed termini or over regular routes without having first obtained from a director of public works a certificate of public convenience, is primarily not a regulation to secure safety on the highways or to conserve them, but a ban on competition and, as applied to a common carrier by motor vehicle of passengers and express purely in interstate commerce, is both violation of the Commerce Clause and defeats the express purpose of Congressional legislation rendering federal aid for the construction of interstate highways.[836]

TRANSPORTATION AGENCIES

The special characteristics of motor travel have brought about a reversal of the Court's attitude toward State control of transportation agencies. Sustaining in 1941 a California statute requiring that agents engaged in negotiating for the transportation of passengers in motor vehicles over the highways of the State take out a license, Justice (later Chief Justice) Stone, speaking for the Court, said: "In Di Santo v. Pennsylvania,[837] this Court took a different view * * *, it held that a Pennsylvania statute requiring others than railroad or steamship companies, who engage in the intrastate sale of steamship tickets or of orders for transportation to and from foreign countries, to procure a license by giving proof of good moral character and filing a bond as security against fraud and misrepresentation to purchasers, was an infringement of the Commerce Clause. Since the decision in that case this Court has been repeatedly called upon to examine the constitutionality of numerous local regulations affecting interstate motor vehicle traffic. It has uniformly held that in the absence of pertinent Congressional legislation there is constitutional power in the States to regulate interstate commerce by motor vehicle wherever it affects the safety of the public or the safety and convenient use of its highways, provided only that the regulation does not in any other respect unnecessarily obstruct interstate commerce."[838]

NAVIGATION; GENERAL DOCTRINE

In Gibbons v. Ogden[839] the Court, speaking by Chief Justice Marshall, held that New York legislation which excluded from the navigable waters of that State steam vessels enrolled and licensed under an act of Congress to engage in the coasting trade was in conflict with the act of Congress and hence void. In Willson v. Blackbird Creek and Marsh Co.[840] the same Court held that in the absence of an act of Congress, "the object of which was to control State legislation over those small navigable creeks into which the tide flows," the State of Delaware was entitled to incorporate a company vested with the right to erect a dam across such a creek. From these two cases the Court in Cooley v. the Board of Wardens,[841] decided in 1851, extracted the rule that in the absence of conflicting legislation by Congress States were entitled to enact legislation adapted to the local needs of interstate and foreign commerce, that a pilotage law was of this description, and was, accordingly, constitutionally applicable until Congress acted to the contrary to vessels engaged in the coasting trade. In the main, these three holdings have controlled the decision of cases under the above and the following caption, there being generally no applicable act of Congress involved. But the power which the rule attributed to the States, they must use "reasonably," something they have not always done in the judgment of the Court.

Thus an Alabama statute which required that owners of vessels using the public waters of the enacting State be enrolled, pay fees, file statements as to ownership, etc., was held to be inapplicable to vessels licensed under the act of Congress to engage in the coasting trade;[842] as was also a Louisiana statute ordering masters and wardens of the port of Orleans to survey the hatches of all vessels arriving there and to enact a fee for so doing.[843] "The unreason and the oppressive character of the act" was held to take it out of the class of local legislation protected by the rule of the Cooley case.[844] Likewise, while control by a State of navigable waters wholly within its borders has been often asserted to be complete in the absence of regulation by Congress,[845] Congress may assume control at any time;[846] and when such waters connect with other similar waters "so as to form a waterway to other States or foreign nations, [they] cannot be obstructed or impeded so as to impair, defeat, or place any burden upon a right to their navigation granted by Congress."[847]

On the other hand, in Kelly v. Washington,[848] decided in 1937, the Court sustained the State in applying to motor-driven tugs operating in navigable waters of the United States legislation which provided for the inspection and regulation of every vessel operated by machinery if the same was not subject to inspection under the laws of the United States. It was conceded that there was "elaborate" federal legislation in the field, but it was asserted that the Washington statute filled a gap. "The principle is thoroughly established," said Chief Justice Hughes for the Court, "that the exercise by the State of its police power, which would be valid if not superseded by federal action, is superseded only where the repugnance or conflict is so 'direct and positive' that the two acts cannot 'be reconciled or consistently stand together.'"[849] And in Bob-Lo Excursion Co. v. Michigan,[850] the Court, elbowing aside a decision of many years standing,[851] ruled that the commerce clause does not preclude a State, in the absence of federal statute or treaty, from forbidding racial discrimination by one carrying passengers by vessel to and from a port in the United States to an island situated in Canadian territory.

BRIDGES, DAMS, FERRIES, WHARVES

The holding in Willson v. Blackbird Creek Marsh Co.[852] has been invoked by the Court many times in support of State legislation permitting the construction across navigable streams of dams, booms, and other shore protections,[853] as well as in support of State legislation authorizing the erection of bridges and the operation of ferries across such streams.[854] Bridges, it is true, may obstruct some commerce, but they may more than compensate for this by aiding other commerce.[855] In Justice Field's words in Huse v. Glover,[856] it should not be forgotten that: "the State is interested in the domestic as well as in the interstate and foreign commerce conducted on the Illinois River, and to increase its facilities, and thus augment its growth, it has full power. It is only when, in the judgment of Congress, its action is deemed to encroach upon the navigation of the river as a means of interstate and foreign Commerce, that that body may interfere and control or supersede it. * * * How the highways of a State, whether on land or by water, shall be best improved for the public good is a matter for State determination, subject always to the right of Congress to interpose in the cases mentioned."[857] The same principle applies to the construction of piers and wharves in a navigable stream,[858] as well as to harbor improvements by a State for the aid and protection of navigation;[859] and reasonable tolls may be charged for the use of such aids, and reasonable regulations laid down governing their employment.[860]

Ferries

A State may license individuals to operate a ferry across an interstate river bounding its territory, or may incorporate a company for the purpose.[861] Nor may a neighbor State make the securing of its consent and license a condition precedent to the operation of such a ferry to one of its towns.[862] Earlier the right of a State to regulate the rates to be charged by an interstate bridge company for passage across its structure was denied by a closely divided Court.[863] The ruling does not, however, control the regulation of rates to be charged by an interstate ferry company. These the chartering State may, in the absence of action by Congress, regulate except in the case of ferries operated in connection with railroads,[864] as to which Congress has acted with the result of excluding all State action.[865] A State may also regulate the rates of a vessel plying between two points within the State although the journey is over the high seas; although again action by Congress may supersede State action at any time.[866]

TELEGRAPHS AND TELEPHONES

An Indiana statute which required telegraph companies to deliver dispatches by messenger to the persons to whom they were addressed if the latter resided within one mile of the telegraph station or within the city or town where it was located, and which prescribed the order of preference to be given various kinds of messages, was held to be an unconstitutional interference with interstate commerce;[867] as was also the order of the Massachusetts Public Service Commission interfering with the transmission to firms within the State's borders of continuous quotations of the New York Stock Exchange by means of ticker service.[868] But a Virginia statute which imposed a penalty on a telegraph company for failure in its "clear common-law duty" of transmitting messages without unreasonable delay, was held, in the absence of legislation by Congress, to be valid;[869] as was also a Michigan statute which prohibited the stipulation by a company against liability for nonperformance of such duty.[870] However, a South Carolina statute which sought to make mental anguish caused by the negligent nondelivery of a telegram a cause of action, was held to be, as applied to messages transmitted from one State to another or to the District of Columbia, an unconstitutional attempt to regulate interstate commerce.[871] A State has no authority to interfere with the operation of the lines of telegraph companies constructed along postal routes within its borders under the authority of the Post Road Act of 1866,[872] nor to exclude altogether a company proposing to take advantage of the act;[873] but that act does not deprive the State or a municipality of the right to subject telegraph companies to reasonable regulations, and an ordinance regulating the erection and use of poles and wires in the streets does not interfere with the exercise of authority under that act.[874] The jurisdiction conferred by The Transportation Act of 1920 upon the Interstate Commerce Commission, and since transferred to the Federal Communications Commission, over accounts and depreciation rates of telephone companies does not, in the absence of exercise by the federal agency of its power, operate to curtail the analogous State authority;[875] nor is an unconstitutional burden laid upon interstate commerce by the action of a State agency in requiring a telephone company to revise its intrastate toll rates so as to conform to rates charged for comparable distances in interstate service.[876]

GAS AND ELECTRICITY

The business of piping natural gas from one State to another to local distributors which sell it locally to consumers is a branch of interstate commerce which a State may not regulate.[877] Likewise, an order by a State commission fixing rates on electric current generated within the States and sold to a distributor in another State, imposes an unconstitutional burden on interstate commerce, although the regulation of such rates would necessarily benefit local consumers of electricity furnished by the same company.[878] In the absence, on the other hand, of contrary regulation by Congress a State may regulate the sale to consumers in its cities of natural gas produced in and transmitted from another State;[879] nor did Congress, by the National Gas Act of 1938, impose any such contrary regulation.[880] Likewise, a State is left free by the same act to require a gas company engaged in interstate commerce to obtain a certificate of convenience before selling directly to customers in the State.[881] And where a pipe line is used to distribute both gas that is brought in from without the State and gas that is produced and used within the State, and the two are commingled, but their proportionate quantities are known, an order by the State commission directing the gas company to continue supplying gas from the line to a certain community does not burden interstate commerce.[882] The transportation of natural gas from sources outside the State to local consumers in its municipalities ceases to be interstate commerce at the point where it passes from a pressure producing station into local distributing stations, and from that point is subject to State regulation.[883] A State public utilities commission is entitled to require a natural gas distributing company seeking an increase of rates to show the fairness and reasonableness of the rate paid by it to the pipe line company from which it obtains its supplies, both companies being subsidiaries of a third.[884] A State agency may require a company which sells natural gas to local consumers and distributing companies, transporting it in pipe lines from other States, to file contracts, agreements, etc., for sales and deliveries to the distributing companies;[885] nor does the fact that a natural gas pipe line from the place of production to the distributing points in the same State cuts across a corner of another State render it improper, in determining maximum rates for gas sold by the owner of the pipe line to distributing companies, to include the value of the total line in the rate base.[886] A State may, as a conservation measure, fix the minimum prices at the wellhead on natural gas produced in the State and sold interstate.[887]

FOREIGN CORPORATIONS

A State may require that a foreign corporation as a condition of its being admitted to do a local business or to having access to its courts obtain a license, and in connection therewith furnish information as to its home State or country, the location of its principal office, the names of its officers and directors, its authorized capitalization, and the like, and that it pay a reasonable license fee;[888] nor is a corporation licensed by the National Government to act as a customs broker thereby relieved from meeting such conditions.[889] So it was decided in 1944. The holding does not necessarily disturb one made thirty years earlier in which the Court ruled that a statute which closed the courts of the enacting State to any action on any contract in the State by a foreign corporation unless it had previously appointed a resident agent to accept process, could not be constitutionally applied to the right of a foreign corporation to sue on an interstate transaction.[890] A suit brought in a State court by a foreign corporation having its principal place of business in the State against another foreign corporation engaged in interstate commerce on a cause of action arising outside the State does not impose an undue burden on such commerce; and the forum being in other respects appropriate, its jurisdiction is not forfeited because the property attached is an instrumentality of interstate commerce.[891] There is nothing in the commerce clause which immunizes a foreign corporation doing business in a State from any fair inquiry, judicial or legislative, that is required by local laws.[892]

MISCELLANEOUS

Banks and Banking

A State statute which forbids individuals or partnerships to engage in the banking business without a license is not, as to one whose business chiefly consists in receiving deposits for periodic shipment to other States and to foreign countries, invalid as a regulation of interstate and foreign commerce.[893]

Brokers

A statute which requires dealers in securities evidencing title or interest in property to obtain a license from a State officer, is not invalid as applied to dispositions within the State securities transported from other States.[894]

Commission Men

A statute requiring commission merchants to give bonds for the protection of consignees may be validly applied to commission merchants handling produce shipped to them from without the State.[895]

Attachment and Garnishment

Railway cars are not exempt from attachment under State laws, although they may have been or are intended to be used in interstate commerce.[896]

Statutory Liens

A State statute which gives a lien upon all vessels whether domestic or foreign, and whether engaged in interstate commerce or not, for injuries to persons and property within the State, does not as applied to nonmaritime torts offend the commerce clause, there being no act of Congress in conflict.[897] Nor can the enforcement of a lien for materials used in the construction of a vessel be avoided because the vessel is engaged in interstate commerce.[898]

The Police Power and the Subject-Matter of Commerce

SCOPE OF THE POLICE POWER

"Quarantine regulations are essential measures of protection which the States are free to adopt when they do not come into conflict with Federal action. In view of the need of conforming such measures to local conditions, Congress from the beginning has been content to leave the matter for the most part, notwithstanding its vast importance, to the States and has repeatedly acquiesced in the enforcement of State laws. * * * Such laws undoubtedly operate upon interstate and foreign commerce. They could not be effective otherwise. They cannot, of course, be made the cover for discriminations and arbitrary enactments having no reasonable relation to health * * *; but the power of the State to take steps to prevent the introduction or spread of disease, although interstate and foreign commerce are involved (subject to the paramount authority of Congress if it decides to assume control), is beyond question.[899] * * * State inspection laws and statutes designed to safeguard the inhabitants of a State from fraud and imposition are valid when reasonable in their requirements and not in conflict with Federal rules, although they may affect interstate commerce in their relation to articles prepared for export or by including incidentally those brought into the State and held for sale in the original imported packages."[900]

QUARANTINE LAWS

In two earlier cases a Missouri statute which prohibited the driving of all Texan, Mexican, and Indian cattle into the state during certain seasons of the year was held void;[901] while a statute making anybody in the State who had Texas cattle which had not wintered north of a certain line liable for damage through the communication of disease from these to other cattle was sustained;[902] as were also the regulations of a sanitary commission which excluded all cattle, horses, and mules, from the State at a certain period when anthrax was prevalent.[903] Reviewing previous cases in the one last cited, the Court declared their controlling principle to be simply whether the police power of the State had been exerted to exclude "beyond what is necessary for any proper quarantine," a question predominantly of fact, and one therefore to be determined for each case with only general guidance from earlier decisions.[904]

More recent cases conform to the same pattern. Among measures sustained are the following: an Ohio statute forbidding the sale in that State of condensed milk unless made from unadulterated milk;[905] a New York statute penalizing the sale with intent to defraud of preparations falsely represented to be Kosher;[906] a New York statute requiring that cattle shall not be imported for dairy or breeding purposes unless accompanied by the certificate of a proper sanitary official in the State of origin, in order to prevent the spread of an infectious disease;[907] an order of a State Department of Agriculture, pursuant to a State law, regulating the standards of containers in which agricultural products (berries) may be marketed within the State;[908] a State statute restricting the processing of fish found within the waters of the State with the purpose of conserving it for food, even though it also operates upon fish brought into the State from without;[909] the price fixing and licensing provisions of a State Milk and Cream Act, not applicable to transactions in interstate commerce, by declaration of the act;[910] a Maine statute requiring the registration with the State Health Department of cosmetic preparations for the purpose of ascertaining whether the products are harmless;[911] an Indiana Animals Disposal Act requiring that animal carcasses, not promptly disposed of by the owner, be delivered to the representative of a disposal plant licensed by the State, and prohibiting their transportation on the public highways for any other purpose;[912] a Pennsylvania statute providing for the licensing and bonding of all milk dealers and fixing a minimum price to be paid producers, as applied to a dealer purchasing milk within the State for shipment to points outside it.[913]

STATE INSPECTION LAWS

The application of State inspection laws to imports from outside the State has been sustained as warranted by local interests and as not discriminating against out-of-state products, in the following instances: A North Carolina statute providing that "every bag, barrel, or other package" of commercial fertilizer offered for sale in the State should bear a label truly describing its chemical composition, which must comply with certain requirements, and charging 25 cents per ton to meet the cost of inspection;[914] an Indiana statute forbidding the sale in the original package of concentrated feeding stuffs prior to inspection and analysis for the purpose of ascertaining whether certain minimum standards as to composition had been met;[915] a Minnesota statute requiring as a precondition of its being offered for sale in the State, the inspection of illuminating oil and gasoline;[916] a Kansas statute forbidding any moving picture film or reel to be exhibited in the State unless it had been examined by the State Superintendent of Instruction and certified by him as moral and instructive and not tending to debase or corrupt the morals.[917] A Minnesota statute, on the other hand, which forbade the sale in any city of the State of any beef, mutton, lamb, or pork which, had not been inspected on the hoof by local inspectors within twenty-four hours of slaughter, was held void.[918] Its "necessary operation," said the Court, was to ban from the State wholesome and properly inspected meat from other States.[919] Also a Virginia statute which required the inspection and labelling of all flour brought into the State for sale was disallowed because flour produced in the State was not subject to inspection;[920] likewise a Florida statute providing for the inspection of all cement imported into the State and enacting a fee therefor, but making no provision for the inspection of the local product, met a like fate;[921] as did also a Madison, Wisconsin ordinance which sought to exclude a foreign corporation from selling milk in that city solely because its pasteurization plants were more than five miles away.[922]

STATE PROHIBITION LAWS; THE ORIGINAL PACKAGE DOCTRINE

The original package doctrine made its debut in Brown v. Maryland,[923] where it was applied to remove imports from abroad which were still in the hands of the importer in the original package, out of the reach of the State's taxing power. This rule the Court, overriding a dictum in Marshall's opinion in Brown v. Maryland,[924] rejected outright after the Civil War as to imports from sister States.[925] However, when in the late eighties and early nineties State-wide Prohibition laws began making their appearance, the Court seized on the rejected dictum and began applying it as a brake on the operation of such laws with respect to interstate commerce in intoxicants, which the Court denominated "legitimate articles of commerce." While holding that a State was entitled to prohibit the manufacture and sale within its limits of intoxicants,[926] even for an outside market—manufacture being no part of commerce[927]—it contemporaneously laid down the rule, in Bowman v. Chicago and Northwestern Railroad Co.,[928] that so long as Congress remained silent in the matter, a State lacked the power, even as part and parcel of a program of Statewide prohibition of the traffic in intoxicants, to prevent the shipment into it of intoxicants from a sister State; and this holding was soon followed by another to the effect that, so long as Congress remained silent, a State had no power to prevent the sale in the original package of liquors introduced from another State.[929] The effect of the latter decision was soon overcome by an act of Congress, the so-called Wilson Act, repealing its alleged silence,[930] but the Bowman decision still stood, the act in question being interpreted by the Court not to subject liquors from sister States to local authority until their arrival in the hands of the person to whom consigned.[931] Not till 1913 was the effect of the decision in the Bowman case fully nullified by the Webb-Kenyon Act,[932] which placed intoxicants entering a State from another State under the control of the former for all purposes whatsoever.

OLEOMARGARINE AND CIGARETTES

Long before this the immunity temporarily conferred by the original package doctrine upon liquors had been extended to cigarettes[933] and, with an instructive exception, to oleomargarine. The exception referred to was made in Plumley v. Massachusetts,[934] where the Court held that a statute of that State forbidding the sale of oleomargarine colored to look like butter could validly be applied to oleomargarine brought from another State and still in the original package. The justification of the statute to the Court's mind was that it sought "to suppress false pretenses and promote fair dealing in the sale of an article of food." Nor did Leisy and Co. v. Hardin[935] apply, said Justice Harlan for the Court, because the beer in that case was "genuine beer, and not a liquid or drink colored artificially so as to cause it to look like beer." That decision was never intended, he continued, to hold that "a State is powerless to prevent the sale of articles manufactured in or brought from another State, and subjects of traffic and commerce, if their sale may cheat the people into purchasing something they do not intend to buy * * *."[936] Obviously, the argument was conclusive only on the assumption that a State has a better right to prevent frauds than it has to prevent drunkenness and like evils; and doubtless that is the way the Court felt about the matter at that date. On the one hand, the liquor traffic was a very ancient, if not an altogether, venerable institution, while oleomargarine was then a relatively novel article of commerce whose wholesomeness was suspect. On the other hand, laws designed to secure fair dealing and condemnatory of fraud followed closely the track of the common law, while anti-liquor laws most decidedly did not. The real differentiation of the two cases had to be sought in historical grounds. Yet the State must not put unreasonable burdens upon interstate commerce even in oleomargarine. Thus a Pennsylvania statute forbidding the sale of this product even in the unadulterated condition was pronounced invalid so far as it operated to prevent the introduction of such oleomargarine from another State and its sale in the original package;[937] as was also a New Hampshire statute which required that all oleomargarine marketed in the State be colored pink.[938] A little later in the case above mentioned involving cigarettes, the Court discovered some of the difficulties of the original package doctrine when applied to interstate commerce, in which the package is not so apt to be standardized as it is in foreign commerce.[939]

DEMISE OF THE ORIGINAL PACKAGE DOCTRINE

What importance has the original package doctrine today as a restraint on State legislation affecting interstate commerce? The answer is, very little, if any. State laws prohibiting the importation of intoxicating liquor, have since the passage of the Twenty-first Amendment consistently been upheld, even when imposing a burden on interstate commerce or discriminating against liquor imported from another State.[940] Indeed the Court has, without appealing to the Twenty-first Amendment, even gone so far as to uphold a statute requiring a permit for transportation of liquor through the enacting State.[941] In Whitfield v. Ohio,[942] moreover, the Court upheld a State law prohibiting the sale in open market of convict-made goods including sales of goods imported from other States and still in the original package. While the decision is based on the Hawes-Cooper Act of 1929,[943] which follows the pattern of the Webb-Kenyon Act, Justice Sutherland speaking for the Court, takes pains to disparage the "unbroken-package doctrine, as applied to interstate commerce, * * *, as more artificial than sound."[944] Indeed, earlier cases make it clear that the enforcement of State quarantine and inspection acts, otherwise constitutional, is not to be impeded by the doctrine in any way.[945]

CURBS ON THE INTERSTATE MOVEMENT OF PERSONS

Prior to the Civil War the slaveholding States, ever fearful of a slave uprising, adopted legislation meant to exclude from their borders free Negroes whether hailing from abroad or from sister States, and in 1823 a South Carolina Negro Seamen's Act embodying this objective was held void by Justice William Johnson, himself a South Carolinian, in a case arising in the Carolina circuit and involving a colored British sailor.[946] The basis of the ruling, which created tremendous uproar in Charleston,[947] was the commerce clause and certain treaties of the United States. There followed two rulings of Attorneys General, the earlier by Attorney General Wirt, denouncing such legislation as unconstitutional;[948] the latter by Attorney General Berrien, sustaining it;[949] and in City of New York v. Miln[950] the Court, speaking by Justice Barbour of Virginia, asserted, six years after Nat Turner's rebellion, the power of the States to exclude undesirables in sweeping terms, which in the Passenger Cases,[951] decided in 1840, a narrowly divided Court considerably qualified. Shortly after the Civil War the Court overturned a Nevada statute which sought to halt the further loss of population by a special tax on railroads on every passenger carried out of the State.[952] This time only two Justices invoked the commerce clause; the majority, speaking by Justice Miller held the measure to be an unconstitutional interference with a right of national citizenship—a holding today translatable, in the terminology of the Fourteenth Amendment, as an abridgment of a privilege or immunity of citizens of the United States.

Against this background the Court in 1941, in Edwards v. California,[953] held void a statute which penalized the bringing into that State, or the assisting to bring into it, any nonresident knowing him to be "an indigent person." Five Justices, speaking by Justice Byrnes, held the act to be even as to "persons who are presently destitute of property and without resources to obtain the necessities of life, and who have no relatives or friends able and willing to support them,"[954] an unconstitutional interference with interstate commerce. "The State asserts," Justice Byrnes recites, "that the huge influx of migrants into California in recent years has resulted in problems of health, morals, and especially finance, the proportions of which are staggering. It is not for us to say that this is not true. We have repeatedly and recently affirmed, and we now reaffirm, that we do not conceive it our function to pass upon 'the wisdom, need, or appropriateness' of the legislative efforts of the States to solve such difficulties. * * * But this does not mean that there are no boundaries to the permissible area of State legislative activity. There are. And none is more certain than the prohibition against attempts on the part of any single State to isolate itself from difficulties common to all of them by restraining the transportation of persons and property across its borders. It is frequently the case that a State might gain a momentary respite from the pressure of events by the simple expedient of shutting its gates to the outside world. But, in the words of Mr. Justice Cardozo: 'The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several States must sink or swim together, and that in the long run prosperity and salvation are in union and not division'."[955] Four of the Justices would have preferred to rest the holding of unconstitutionality on the rights of national citizenship under the privileges and immunities clause of Amendment XIV.[956]

STATE CONSERVATION AND EMBARGO MEASURES

In Geer v. Connecticut[957] the Court sustained the right of the State to forbid the shipment beyond its borders of game taken within the State—this on the ground, in part, that a State has an underlying property right to wild things found within its limits, and so is entitled to qualify the right of individual takers thereof to any extent it chooses; and a similar ruling was laid down in a later case as to the prohibition by a State of the transportation out of it of water from its important streams.[958] In Oklahoma v. Kansas Natural Gas Co.,[959] however, this doctrine was held inapplicable to the case of natural gas, on the ground: first, that "gas, when reduced to possession, is a commodity, the individual property" of the owner; and secondly, that "the business welfare of the State," is subordinated by the commerce clause to that of the nation as a whole. If the States had the power asserted in the Oklahoma statute, said Justice McKenna, "a singular situation might result. Pennsylvania might keep its coal, the Northwest its timber, the mining States their minerals. And why may not the products of the field be brought within the principle? * * * And yet we have said that 'in matters of foreign and interstate commerce there are no State lines.' In such commerce, instead of the States, a new power appears and a new welfare, a welfare which transcends that of any State. But rather let us say it is constituted of the welfare of all the States and that of each State is made greater by a division of its resources, * * *, with every other State, and those of every other State with it. This was the purpose, as it is the result, of the interstate commerce clause of the Constitution of the United States."[960] In Pennsylvania v. West Virginia[961] the same doctrine was enforced in disallowance of a West Virginia statute whereby that State sought to require that a preference be accorded local consumers of gas produced within the State. West Virginia's argument that the supply of gas within the State was waning and no longer sufficed for both the local and the interstate markets, and that therefore the statute was a legitimate measure of conservation in the interest of the people of the State, was answered in the words just quoted.

In the above cases the State prohibition overturned was directed specifically to shipments beyond the State. In two other cases the State enactments involved reached all commerce, both domestic and interstate without discrimination. In the first of these, Sligh v. Kirkwood,[962] the Court upheld the application to oranges which were intended for the interstate market of a Florida statute prohibiting the sale, shipment, or delivery for shipment of any citrus fruits which were immature or otherwise unfit for consumption. The burden thus imposed upon interstate commerce was held by the Court to be incidental merely to the effective enforcement of a measure intended to safeguard the health of the people of Florida. Moreover, said the Court, "we may take judicial notice of the fact that the raising of citrus fruits is one of the great industries of the State of Florida. It was competent for the legislature to find that it was essential for the success of that industry that its reputation be preserved in other States wherein such fruits find their most extensive market."[963] In Lemke v. Farmers Grain Co.,[964] on the other hand, a North Dakota statute which confined the purchase of grain within that State to those holding licenses from the State and which regulated prices, was pronounced void under the commerce clause. To the argument that such legislation was "in the interest of the grain growers and essential to protect them from fraudulent purchases, and to secure payment to them of fair prices for the grain actually sold," the Court answered that, "Congress is amply authorized to pass measures to protect interstate commerce if legislation of that character is needed."

The differentiation of the above two cases is twofold. The statute under review in the earlier one was of the ordinary type of inspection law and was applied without discrimination to fruits designed for the home and the interstate market. The North Dakota act was far more drastic, approximating an attempt on the part of the State to license interstate commerce. What is even more important, however, the later case represents a new rule of law, and one which at the time the Florida act was before the Court had not yet been heard of. This is embodied in the head note of the case in the following words: "The business of buying grain in North Dakota, practically all of which is intended for shipment to, and sale at, terminal markets in other States, conformably to the usual and general course of business in the grain trade, is interstate commerce."[965] The application of this rule in the field of state taxation was mentioned on a previous page.[966]

STATE CONSERVATION AND EMBARGO MEASURES: THE MILK CASES

Certain recent cases have had to deal with State regulation of the milk business. In Nebbia v. New York,[967] decided in 1934, that State's law regulating the price of milk was sustained by the Court against objections based on the due process clause of Amendment XIV. A year later, in Baldwin v. Seelig[968] the refusal of a license under the same act to a dealer who had procured his milk at a lower minimum price than producers were guaranteed in New York, was set aside as an unconstitutional interference with interstate commerce. However, a Pennsylvania statute requiring dealers to obtain licenses was sustained as to one who procured milk from neighboring farms and shipped it all into a neighboring State for sale.[969] The purpose of the act, explained Justice Roberts, was to control "a domestic situation in the interest of the welfare of the producers and consumers," and its application to the kind of case before the Court was essential to its effective enforcement and affected interstate commerce only incidentally.[970] But when a distributor of milk in Massachusetts, who already had two milk stations in Eastern New York, was refused a license for a third on the ground, among others, that the further diversion of milk to Massachusetts would deprive the local market of a supply needed during the short season, a narrowly divided Court interposed its veto on the basis of Oklahoma v. Kansas Natural Gas Co.[971]

STATE CONSERVATION AND EMBARGO MEASURES: THE SHRIMP CASES

Meantime, Geer v. Connecticut has been somewhat overcast by subsequent rulings. In a case, decided in 1928, it was held that a Louisiana statute which permitted the shipment of shrimp taken in the tidal waters of Louisiana marshes only if the heads and hulls have been previously removed was unconstitutional.[972] Distinguishing Geer v. Connecticut the Court said: "As the representative of its people, the State might have retained the shrimp for [local] consumption and use therein." But the object of the Louisiana statute was in direct opposition to the conservation of a local food supply. Its object was to favor the canning of shrimp for the interstate market. "* * * by permitting its shrimp to be taken and all the products thereof to be shipped and sold in interstate commerce, the State necessarily releases its hold and, as to the shrimp so taken, definitely terminates its control. * * * And those taking the shrimp under the authority of the act necessarily thereby become entitled to the rights of private ownership and the protection of the commerce clause."[973] On the same reasoning a South Carolina statute which required that owners of shrimp boats, fishing in the marine waters off the coast of the State, dock at a State port and unload, pack and stamp their catch with a tax stamp before shipping or transporting it to another State, was pronounced void in 1948.[974] However, a California statute which restricted the processing of fish, both that taken in the waters of the State and that brought into the State in a fresh condition, was found by the Court to be purely a food conservation measure, and hence valid.[975] The application of the act to fish brought from outside was held to be justified "by rendering evasion of it less easy."[976]

Concurrent Federal and State Legislation

THE GENERAL ISSUE

Since the turn of the century federal legislation under the commerce clause has penetrated more and more deeply into areas once occupied exclusively by the police power of the States. The result has been that State laws have come under increasingly frequent attack as being incompatible with acts of Congress operating in the same general field. The Court's decisions resolving such alleged conflicts fall into three groups: first, those which follow Webster's theory, advanced in Gibbons v. Ogden, that when Congress acts upon a particular phase of interstate commerce, it designs to appropriate the entire field with the result that no room is left for supplementary State action; second, those in which, in the absence of conflict between specific provisions of the State and Congressional measures involved, the opposite result is reached; third, those in which the State legislation involved is found to conflict with certain acts of Congress, and in which the principle of national supremacy is invoked by the Court. Most of the earlier cases stemming from State legislation affecting interstate railway transportation fall in the first class; while illustrations of the second category usually comprise legislation intended to promote the public health and fair dealing. More recent cases are more difficult to classify, especially as between the first and third categories.

THE HEPBURN ACT

No act ever passed by Congress was more destructive of legislation on the State statute books than the Hepburn Act of 1906,[977] amending the Interstate Commerce Act. Thus a State statute which, while prohibiting a railway from giving free passes or free transportation, authorized the issuance of transportation in payment for printing and advertising, was found to conflict with the unqualified prohibition by Congress of free interstate transportation.[978] Likewise, a State statute which penalized a carrier for refusing to receive freight for transportation whenever tendered at a regular station was found to conflict with the Congressional provision that no carrier "shall engage or participate in the transportation of passengers or property, as defined in this act, unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this act."[979] In enacting this provision, the Court found, Congress had intended to occupy the entire field. In a third case, it was held that the Hepburn Act had put it outside the power of a State to regulate the delivery of cars for interstate shipments;[980] and on the same ground, a State statute authorizing recovery of a penalty for delay in giving notice of the arrival of freight was disallowed;[981] as was also the similar rule of a State railroad commission with respect to failure to deliver freight at depots and warehouses within a stated time limit.[982] And in Adams Express Co. v. Croninger[983] it was sweepingly ruled that the so-called Carmack Amendment to the Hepburn Act, which puts the responsibility for loss of, or injury to, cargo upon the initial carrier, had superseded all State statutes limiting recovery for loss or injury to goods in transportation to an agreed or declared value. Substantially contemporaneous with these holdings were others in which the Court ruled that the federal Employers' Liability Act of 1908, as amended in 1910;[984] the federal Hours of Service Act (Railroads) of 1907;[985] and the federal Safety Appliance Acts of 1893, as amended in 1903[986] superseded all State legislation dealing with the same subjects so far as such legislation affected interstate commerce.[987] However, the States were still able to regulate the time and manner of payment of the employees of railroads, including those engaged in interstate commerce,[988] Congress having not legislated on the subject.

QUARANTINE CASES

In 1904 it was held that a New York statute prohibiting the manufacture or sale of any adulterated food or drug, or the coloring or coating of food whereby it is made to appear better than it really is, was not, as applied to imported coffee, repugnant to either the commerce clause or the Meat Inspection Act of 1890,[989] prohibiting the importation into the United States of adulterated and unwholesome food, but as exertion by the State of power to legislate for the protection of the health and safety of the community and to provide against deception and fraud.[990] And in 1912 it was held that an Indiana statute regulating the sale of concentrated commercial feeding stuff and requiring the disclosure of ingredients by certificate and label, and providing for inspection and analysis, was not in conflict with the Pure Food and Drugs Act of 1906.[991] However, when Wisconsin about the same time passed an act requiring that when certain commodities were offered for sale in that State they should bear the label required by State law and no other, she was informed that she could not validly apply it to articles which had been labeled in accordance with the federal statute nor did it make any difference that the goods in question had been removed from the container in which they had been shipped into the State, inasmuch as they could still be proceeded against under the act of Congress.[992] The original package doctrine, it was added, "was not intended to limit the right of Congress, * * *, to keep the channels of interstate commerce free from the carriage of injurious or fraudulently branded articles and to choose appropriate means to that end."[993] But a North Dakota statute requiring that lard compound or substitutes, unless sold in bulk, should be put up in pails or containers holding one, three, or five pounds net weight, or some multiple of these numbers, was held not to be repugnant to the Pure Food and Drugs Act.[994] On the other hand, a decade later the Court found that the Plant Quarantine Act of 1912, as amended in 1917,[995] had so completely occupied the field indicated by its title that a State was left without power to prevent the importation of plants infected by a particular disease to which the Secretary of Agriculture's regulations did not apply.[996] Congress promptly intervened by further amending the federal statute to permit the States to impose quarantines in such overlooked cases.[997]

RECENT CASES SUSTAINING STATE LEGISLATION

In 1935, it was held[998] that an order of the New York Commissioner of Agriculture prohibiting the importation of cattle for dairy or breeding purposes unless such cattle and the herds from which they come had been certified by the chief sanitary officer of the State of origin as being free from Bang's disease, was not in conflict with the Cattle Contagious Diseases Acts.[999] In 1937, it was ruled[1000] that a Georgia statute fixing maximum charges for handling and selling leaf tobacco did not, as applied to sales of tobacco destined for export, conflict with the Tobacco Inspection Act.[1001] In 1942,[1002] it was held that an order of the Wisconsin Employment Relations Board which commanded a union, its agents, and members, to desist from mass picketing of a factory, threatening personal injury or property damage to employees desiring to work, obstructing the streets about the factory, and picketing the homes of employees, was not in conflict with the National Labor Relations Act,[1003] to which the employer was admittedly subject but which had not been invoked. An "intention of Congress," said the Court, "to exclude States from exerting their police power must be clearly manifested."[1004] In 1943,[1005] the Court sustained the marketing program for the 1940 California raisin crop, adopted pursuant to the California Agricultural Prorate Act. Although it was conceded that the program and act operated to eliminate competition among producers concerning terms of sale and price as to product destined for the interstate market, they were held not to conflict with the commerce clause or with the Sherman Act or the Agricultural Marketing Agreement Act.[1006] To the contrary, said Chief Justice Stone, speaking for the unanimous court, the program "is one which it has been the policy of Congress to aid and encourage through federal agencies" under federal act.[1007] The case was not one, he further observed, which was to be resolved by "mechanical test," but with the object in view of accommodating "the competing demands of the State and national interests involved."[1008] In 1944,[1009] the Court upheld the right of Minnesota to exclude from its courts a firm licensed by the National Government to carry on the business of customs broker because of its failure to comply with a State statute requiring foreign corporations to obtain a license to do business in the State. Speaking for the Court, Justice Frankfurter, again disparaged "the generalities" to which certain cases had given utterance. Actually, he asserted, "the fate of State legislation in these cases has not been determined by these generalities but by the weight of the circumstances and the practical and experienced judgment in applying these generalities to the particular instances."[1010] In cases, decided in 1947,[1011] the Court ruled that Indiana had not violated the Natural Gas Act[1012] by attempting to regulate the rates for natural gas sold within the State by an interstate pipe line company to local industrial consumers; and that Illinois was not precluded by the Commodity Exchange Act[1013] from imposing upon grain exchanges doing business within her borders regulations not at variance with the provisions of the act or with regulations promulgated under it by the Secretary of Agriculture. Nor, it was held by a bare majority of the Court in 1949, did the Motor Carrier Act of 1935, as amended in 1942,[1014] prevent California from prohibiting the sale or arrangement of any transportation over its public highways if the transporting carrier has no permit from the Interstate Commerce Commission.[1015] The opposed opinions line up most of the cases on either side of the question.

RECENT CASES NULLIFYING STATE ACTION

On the other side of the ledger appear the following cases, decided contemporaneously with those just reviewed: one in 1942 in which it was held that a gas company engaged in the business of piping natural gas from without the State of Illinois and selling it wholesale to distributors in that State was subject to the jurisdiction of the Federal Power Commission under the Natural Gas Act,[1016] and hence could not be required by the Illinois Commerce Commission to extend its facilities in the absence of a certificate of convenience from the Federal Power Commission;[1017] one, in the same year, in which it was held, by a sharply divided Court, that federal regulation of the production of renovated butter under the Internal Revenue Code[1018] prevented the State of Alabama from inspecting, seizing and detaining stock butter from which such butter was made, some of it being intended for interstate commerce;[1019] one in 1947 holding that the United States Warehouse Act, as amended,[1020] must be construed as superseding State authority to regulate licenses thereunder, and hence overruled the stricter requirements of Illinois law dealing with such subject as rate discrimination, the dual position of grain warehousemen storing their own grain, the mixing of inferior grain owned by the warehousemen with superior grain of other users of the facility, delay in loading grain, the sacrificing or rebating of storage charges, retraining desirable transit tonnage, utilizing preferred storage space, maintenance of unsafe and inadequate grain elevators, inadequate and ineffectual warehouse service, the obtaining of a license, the abandonment of warehousing service, and the rendition of warehousing service without filing and publishing rate schedules;[1021] one decided the same year in which it was held that the authority of the Federal Power Commission under the Natural Gas Act[1022] extended to and superseded State regulatory power over sales made within a State by a natural gas producing company to pipe line companies which transported the purchased gas to markets in other States;[1023] one in 1948, in which a sharply divided Court held that Michigan law governing the rights of dissenting stockholders could not be applied to embarrass a merger agreement between two railroad companies which had been approved by the Interstate Commerce Commission under the Interstate Commerce Act[1024] as "just and reasonable";[1025] and finally one decided the same year in which it was held by a unanimous Court that the Interstate Commerce Commission may, in approving the acquisition by a railroad corporation of one State of railroad lines in another, relieve such corporation from being incorporated under the laws of the latter State.[1026]

FEDERAL VERSUS STATE LABOR LAWS

One group of cases, which has caused the Court some difficulty and its attitude in which has perhaps shifted in some measure, deals with the question of the effect of the Wagner, and, latterly, of the Taft-Hartley Act on State power to govern labor union activities. In a case decided in 1945[1027] it was held that a Florida statute which required business agents of a union operating in the State to file annual reports and pay an annual fee of one dollar conflicted with the Wagner Act,[1028] standing, as the Court put it, "'as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'"[1029] In two cases decided in 1949, however, State legislation regulative of labor relations was sustained. In one a "cease and desist" order of the Wisconsin Employment Relations Board[1030] implementing the State Employment Peace Act, which made it an unfair labor practice for an employee to interfere with production except by leaving the premises in an orderly manner for the purpose of going on strike, was found not to conflict with either the Wagner or the Taft-Hartley Act,[1031] both of which, the Court asserted, designedly left open an area for State control. In the other,[1032] the Wisconsin board, acting under the same statute, was held to be within its powers in labelling as "an unfair labor practice" the discharge by an employer of an employee under a maintenance of membership clause which had been inserted in the contract of employment in 1943 under pressure from the National War Labor Board, but which was contrary to provisions of the Wisconsin Act. On the other hand, in 1950, the Court invalidated a Michigan mediation statute, and in 1951, a Wisconsin Public Utility Anti-Strike Act, on the ground that these matters were governed by the policies embodied in the Wagner and Taft-Hartley Acts.[1033]

Commerce With Indian Tribes

UNITED STATES v. KAGAMA

Congress is given power to regulate commerce "with the Indian tribes." Faced in 1886 with a Congressional enactment which prescribed a system of criminal laws for Indians living on their reservations, the Court rejected the government's argument which sought to base the act on the commerce clause. It sustained the act, however, on the following grounds: "From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this Court, whenever the question has arisen. * * * The power of the General Government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government, because it never has existed anywhere else, because the theatre of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes." Moreover, such power was operative within the States.[1034]

Obviously, this line of reasoning renders the commerce clause superfluous as a source of power over the Indian tribes; and some years earlier, in 1871, Congress had forbidden the further making of treaties with them.[1035] However, by a characteristic judicial device the effort has been made at times to absorb the doctrine of the Kagama case into the commerce clause,[1036] although more commonly the Court, in sustaining Congressional legislation, prefers to treat the commerce clause and "the recognized relations of tribal Indians," as joint sources of Congress's power.[1037] Most of the cases have arisen, in fact, in connection with efforts by Congress to ban the traffic in "fire water" with tribal Indians. In this connection it has been held that even though an Indian has become a citizen, yet so long as he remains a member of his tribe, under the charge of an Indian agent, and so long as the United States holds in trust the title to land which has been allotted him, Congress can forbid the sale of intoxicants to him.[1038] Also Congress can prohibit the introduction of intoxicating liquors into land occupied by a tribe of uncivilized Indians within territory admitted to statehood.[1039] Nor can a State withdraw Indians within its borders from the operation of acts of Congress regulating trade with them by conferring on them rights of citizenship and suffrage, whether by its constitution or its statutes.[1040] And when a State is admitted into the Union Congress may, in the enabling act, reserve authority to legislate in the future respecting the Indians residing within the new State, and may declare that existing acts of Congress relating to traffic and intercourse with them shall remain in force.[1041]

Clause 4. The Congress shall have Power * * * To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.

Naturalization and Citizenship

CATEGORIES OF NATURALIZED PERSONS

Naturalization has been defined by the Supreme Court as "the act of adopting a foreigner, and clothing him with the privileges of a native citizen, * * *"[1042] In the Dred Scott Case,[1043] the Court asserted that the power of Congress under this clause applies only to "persons born in a foreign country, under a foreign government."[1044] These dicta are much too narrow to sustain the power which Congress has actually exercised on the subject. The competence of Congress in this field merges, in fact, with its indefinite, inherent powers in the field of foreign relations. In the words of the Court: "As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other countries."[1045] By the Immigration and Nationality Act of June 27, 1952,[1046] which codifies much previous legislation, it is enacted that the following shall be citizens of the United States at birth:

"(1) a person born in the United States, and subject to the jurisdiction thereof;

"(2) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;

"(3) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

"(4) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

"(5) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;

"(6) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;

"(7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph."[1047] By the same act, "persons born in the Canal Zone and Panama after February 26, 1904, one or both of whose parents were at the time of birth of such person citizens of the United States, are declared to be citizens of the United States; as likewise are of certain categories of persons born in Puerto Rico, Alaska, Hawaii, the Virgin Islands and Guam on or after certain stated dates."[1048]

WHO ARE ELIGIBLE FOR NATURALIZATION

Naturalization is a privilege to be given, qualified, or withheld as Congress may determine, which an alien may claim only upon compliance with the terms which Congress imposes. Earlier the privilege was confined to white persons and persons of African descent, but was extended by the Act of December 17, 1943, to descendants of races indigenous to the Western Hemisphere and Chinese persons or persons of Chinese descent;[1049] and by the Act of June 27, 1952, "the rights of a person to become a naturalized citizen of the United States shall not be denied or abridged because of race or sex or because the person is married."[1050] But, any person "who advocates or teaches or who is a member of or affiliated with any organization that advocates or teaches * * *" opposition to all organized government, or "who advocates or teaches or who is a member of or affiliated with any organization that advocates or teaches the overthrow by force or violence or other unconstitutional means of the Government of the United States" may not be naturalized as a citizen of the United States.[1051] These restrictive provisions are, moreover, "applicable to any applicant for naturalization who at any time within a period of ten years immediately preceding the filing of the petition for naturalization or after such filing and before taking the final oath of citizenship is, or has been found to be within any of the classes enumerated within this section, notwithstanding that at the time the petition is filed he may not be included within such classes."[1052]

THE PROCEDURE OF NATURALIZATION

This involves as its principal and culminating event the taking in open court by the applicant of an oath: "(1) to support the Constitution of the United States; (2) to renounce and abjure absolutely and entirely all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which the petitioner was before a subject or citizen; (3) to support and defend the Constitution and the laws of the United States against all enemies, foreign and domestic; (4) to bear true faith and allegiance to the same; and (5)(A) to bear arms on behalf of the United States when required by the law, or (B) to perform noncombatant service in the Armed Forces of the United States when required by the law, or (C) to perform work of national importance under civilian direction when required by law."[1053] Any naturalized person who takes this oath with mental reservations or conceals beliefs and affiliations which under the statute disqualify one for naturalization, is subject, upon these facts being shown in a proceeding brought for the purpose, to have his certificate of naturalization cancelled.[1054] Furthermore, if a naturalized person shall within five years "following his naturalization become a member of or affiliated with any organization, membership in or affiliation with which at the time of naturalization would have precluded such person from naturalization under the provisions of section 313, it shall be considered prima facie evidence that such person was not attached to the principles of the Constitution of the United States and was not well disposed to the good order and happiness of the United States at the time of naturalization, and, in the absence of countervailing evidence, it shall be sufficient in the proper proceeding to authorize the revocation and setting aside of the order admitting such person to citizenship and the cancellation of the certificate of naturalization as having been obtained by concealment of a material fact or by willful misrepresentation. * * *" [1055]

RIGHTS OF NATURALIZED PERSONS

Chief Justice Marshall early stated the dictum that "a naturalized citizen * * * become a member of the society, possessing all the rights of a native citizen, and standing, in the view of the Constitution, on the footing of a native. The Constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national legislature is, to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual."[1056] A similar idea was expressed in 1946 in Knauer v. United States:[1057] "Citizenship obtained through naturalization is not a second-class citizenship. * * * [It] carries with it the privilege of full participation in the affairs of our society, including the right to speak freely, to criticize officials and administrators, and to promote changes in our laws including the very Charter of our Government."[1058] But, as shown above, a naturalized citizen is subject at any time to have his good faith in taking the oath of allegiance to the United States inquired into, and to lose his citizenship if lack of such faith is shown in proper proceedings.[1059] Also, "a person who has become a national by naturalization" may lose his nationality by "having a continuous residence for three years in the territory of a foreign state of which he was formerly a national or in which the place of his birth is situated," or by "having a continuous residence for five years in any other foreign state or states."[1060] However, in the absence of treaty or statute to the contrary effect, a child born in the United States who is taken during minority to the country of his parents' origin, where his parents resume their former allegiance, does not thereby lose his American citizenship provided that on attaining his majority he elects to retain it and returns to the United States to assume its duties.[1061]

CONGRESS' POWER EXCLUSIVE

Congress' power over naturalization is an exclusive power. A State cannot denationalize a foreign subject who has not complied with federal naturalization law and constitute him a citizen of the United States, or of the State, so as to deprive the federal courts of jurisdiction over a controversy between him and a citizen of a State.[1062] But power to naturalize aliens may be, and early was, devolved by Congress upon state courts having a common law jurisdiction.[1063] Also States may confer the right of suffrage upon resident aliens who have declared their intention to become citizens, and have frequently done so.[1064]

RIGHT OF EXPATRIATION: LOSS OF CITIZENSHIP

Notwithstanding evidence in early court decisions[1065] and in the Commentaries of Chancellor Kent of a brief acceptance of the ancient English doctrine of perpetual and unchangeable allegiance to the government of one's birth, whereby a citizen is precluded from renouncing his allegiance without permission of that government, the United States, since enactment of the act of 1868,[1066] if indeed not earlier, has expressly recognized the right of everyone to expatriate himself and choose another country. Retention of citizenship is not dependent entirely, however, upon the desires of the individual; for, although it has been "conceded that a change of citizenship cannot be arbitrarily imposed, that is, imposed without the concurrence of the citizen," the United States, by virtue of the powers which inhere in it as a sovereign nation, has been deemed competent to provide that an individual voluntarily entering into certain designated conditions shall, as a consequence thereof, suffer the loss of citizenship.[1067]

Exclusion of Aliens

The power of Congress "to exclude aliens from the United States and to prescribe the terms and conditions on which they come in" is absolute, being an attribute of the United States as a sovereign nation. In the words of the Court: "That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens, it would be to that extent subject to the control of another power. * * * The United States, in their relation to foreign countries and their subjects or citizens are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory."[1068] By the Immigration and Nationality Act of June 27, 1952, some thirty-one categories of aliens are excluded from the United States[1069] including "aliens who are, or at any time have been, members * * * of or affiliated with any organization that advocates or teaches * * * the overthrow by force, violence, or other unconstitutional means of the Government of the United States * * *"[1070]

With this power of exclusion goes also the power to assert a considerable degree of control over aliens after their admission to the country. By the Alien Registration Act of 1940[1071] it was provided that all aliens in the United States, fourteen years of age and over, should submit to registration and finger printing, and wilful failure to do so was made a criminal offense against the United States. This Act, taken in conjunction with other laws regulating immigration and naturalization, has constituted a comprehensive and uniform system for the regulation of all aliens and precludes enforcement of a State registration act. Said the Court, speaking by Justice Black: "With a view to limiting prospective residents from foreign lands to those possessing the qualities deemed essential to good and useful citizenship in America, carefully defined qualifications are required to be met before aliens may enter our country. These qualifications include rigid requirements as to health, education, integrity, character, and adaptability to our institutions. Nor is the alien left free from the application of federal laws after entry and before naturalization. If during the time he is residing here he should be found guilty of conduct contrary to the rules and regulations laid down by Congress, he can be deported. At the time he enters the country, at the time he applies for permission to acquire the full status of citizenship, and during the intervening years, he can be subjected to searching investigations as to conduct and suitability for citizenship."[1072] The Act of June 27, 1952, repeats these requirements of the Act of 1940.[1073]

Recent cases underscore the sweeping nature of the powers of the National Government to exclude aliens from the United States and to deport by administrative process members of excluded classes. In Knauff v. Shaughnessy,[1074] decided early in 1950, an order of the Attorney General excluding, on the basis of confidential information, a wartime bride who was prima facie entitled to enter the United States under The War Brides Act of 1945,[1075] was held to be not reviewable by the courts; nor were regulations on which the order was based invalid as representing an undue delegation of legislative power. Said the Court: "Normally Congress supplies the conditions of the privilege of entry into the United States. But because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power, e.g., as was done here, for the best interests of the country during a time of national emergency. Executive officers may be entrusted with the duty of specifying the procedures for carrying out the congressional intent."[1076]

In cases decided in March and April, 1952, comparable results were reached: The Internal Security Act of 1950, section 23, in authorizing the Attorney General to hold in custody, without bail, aliens who are members of the Communist Party of the United States, pending determination as to their deportability, is not unconstitutional.[1077] Nor was it unconstitutional to deport under the Alien Registration Act of 1940[1078] a legally resident alien because of membership in the Communist Party, although such membership ended before the enactment of the Act. Such application of the Act did not make it ex post facto, being but an exercise of the power of the United States to terminate its hospitality ad libitum.[1079] And a statutory provision[1080] which makes it a felony for an alien against whom a specified order of deportation is outstanding "to willfully fail or refuse to make timely application for travel or other documents necessary to his departure" is not on its face void for "vagueness."[1081]

The power of Congress to legislate with respect to the conduct of alien residents is, however, a concomitant of its power to prescribe the terms and conditions on which they may enter the United States; to establish regulations for sending out of the country such aliens as have entered in violation of law; and to commit the enforcement of such conditions and regulations to executive officers. It is not a power to lay down a special code of conduct for alien residents or to govern private relations with them. Purporting to enforce the above distinction, the Court, in 1909, held void a statutory provision which, in prohibiting the importation of "any alien woman or girl for the purpose of prostitution," provided further that whoever should keep for the purpose of prostitution "any alien woman or girl within three years after she shall have entered the United States" should be deemed guilty of a felony and punished therefor.[1082] Three Justices, however, thought the measure justifiable on the principle that "for the purpose of excluding those who unlawfully enter this country Congress has power to retain control over aliens long enough to make sure of the facts. * * * To this end it may make their admission conditional for three years. * * *" [And] "if Congress can forbid the entry * * *, it can punish those who cooperate in their fraudulent entry."[1083]

Bankruptcy

PERSONS WHO MAY BE RELEASED FROM DEBT

In an early case on circuit Justice Livingston suggested that inasmuch as the English statutes on the subject of bankruptcy from the time of Henry VIII down had applied only to traders it might "well be doubted, whether an act of Congress subjecting to such a law every description of persons within the United States, would comport with the spirit of the powers vested in them in relation to this subject."[1084] Neither Congress nor the Supreme Court has ever accepted this limited view. The first bankruptcy law, passed in 1800, departed from the English practice to the extent of including bankers, brokers, factors and underwriters as well as traders.[1085] Asserting that the narrow scope of the English statutes was a mere matter of policy, which by no means entered into the nature of such laws, Justice Story defined a law on the subject of bankruptcies in the sense of the Constitution as a law making provisions for cases of persons failing to pay their debts.[1086] This interpretation has been ratified by the Supreme Court. In Hanover National Bank v. Moyses,[1087] it held valid the Bankruptcy Act of 1898 which provided that persons other than traders might become bankrupts and that this might be done on voluntary petition. The Court has given tacit approval to the extension of the bankruptcy laws to cover practically all classes of persons and corporations,[1088] including even municipal corporations.[1089]

LIBERALIZATION OF RELIEF GRANTED

As the coverage of the bankruptcy laws has been expanded, the scope of the relief afforded to debtors has been correspondingly enlarged. The act of 1800, like its English antecedents, was designed primarily for the benefit of creditors. Beginning with the act of 1841, which opened the door to voluntary petitions, rehabilitation of the debtor has become an object of increasing concern to Congress. An adjudication in bankruptcy is no longer requisite to the exercise of bankruptcy jurisdiction. In 1867 the debtor for the first time was permitted, either before or after adjudication of bankruptcy, to propose terms of composition which would become binding upon acceptance by a designated majority of his creditors and confirmation by a bankruptcy court. This measure was held constitutional,[1090] as were later acts which provided for the reorganization of corporations which are insolvent or unable to meet their debts as they mature,[1091] and for the composition and extension of debts in proceedings for the relief of individual farmer-debtors.[1092] Nor is the power of Congress limited to adjustment of the rights of creditors. The Supreme Court has also ruled that the rights of a purchaser at a judicial sale of the debtor's property are within reach of the bankruptcy power, and may be modified by a reasonable extension of the period for redemption from such sale.[1093] The sympathetic attitude with which the Court has viewed these developments is reflected in the opinion in Continental Illinois National Bank and Trust Co. v. Chicago, R.I. and P.R. Co.,[1094] where Justice Sutherland wrote, on behalf of a unanimous court: "* * * these acts, far-reaching though they may be, have not gone beyond the limit of Congressional power; but rather have constituted extensions into a field whose boundaries may not yet be fully revealed."[1095]

CONSTITUTIONAL LIMITATIONS ON THE POWER

In the exercise of its bankruptcy powers Congress must not transgress the Fifth and Tenth Amendments. It may not take from a creditor specific property previously acquired from a debtor nor circumscribe the creditor's right to such an unreasonable extent as to deny him due process of law;[1096] neither may it subject the fiscal affairs of a political subdivision of a State to the control of a federal bankruptcy court.[1097] Since Congress may not supersede the power of a State to determine how a corporation shall be formed, supervised and dissolved, a corporation which has been dissolved by a decree of a State court may not file a petition for reorganization under the Bankruptcy Acts.[1098] But Congress may impair the obligation of a contract and may extend the provisions of the bankruptcy laws to contracts already entered into at the time of their passage.[1099] It may also empower courts of bankruptcy to entertain petitions by taxing agencies or instrumentalities for a composition of their indebtedness where the State has consented to the proceeding and the federal court is not authorized to interfere with the fiscal or governmental affairs of the petitioner.[1100] Also bankruptcy legislation must be uniform, but the uniformity required is geographic, not personal. Congress may recognize the laws of the States relating to dower, exemption, the validity of mortgages, priorities of payment and similar matters, even though such recognition leads to different results from State to State.[1101]

THE POWER NOT EXCLUSIVE

Prior to 1898 Congress exercised the power to establish "uniform laws on the subject of bankruptcies" only very intermittently. The first national bankruptcy law was not enacted until 1800 to be repealed in 1803; the second was passed in 1841 and repealed two years later; the third was enacted in 1867 and repealed in 1878.[1102] Thus during the first 89 years under the Constitution a national bankruptcy law was in existence only sixteen years altogether. Consequently the most important problems of interpretation which arose during that period concerned the effect of this clause on State law. The Supreme Court ruled at an early date that in the absence of Congressional action the States may enact insolvency laws since it is not the mere existence of the power but rather its exercise which is incompatible with the exercise of the same power by the States.[1103] Later cases were to settle further that the enactment of a national bankruptcy law does not invalidate State laws in conflict therewith but serves only to relegate them to a state of suspended animation with the result that upon repeal of the national statute they again come into operation without reenactment.[1104]

CONSTITUTIONAL STATUS OF STATE INSOLVENCY LAWS

A State is, of course, without power to enforce any law governing bankruptcies which impairs the obligation of contracts,[1105] extends to persons or property outside its jurisdiction,[1106] or conflicts with the national bankruptcy laws.[1107] Giving effect to the policy of the federal statute, the Supreme Court has held that a State statute regulating the distribution of property of an insolvent was suspended by that law,[1108] and that a State court was without power to proceed with pending foreclosure proceedings after a farmer-debtor had filed a petition in the federal bankruptcy court for a composition or extension of time to pay his debts.[1109] A State law governing fraudulent transfers was found to be compatible with the act of Congress,[1110] as was a statute which provided that a discharge in bankruptcy should be unavailing to terminate the suspension of the driver's license of a person who failed to pay a judgment rendered against him for damages resulting from his negligent operation of a motor vehicle.[1111] If a State desires to participate in the assets of a bankrupt it must submit to the appropriate requirements of the Bankruptcy Court with respect to the filing of claims by a designated date; it cannot assert a claim for taxes by filing a demand therefor at a later date.[1112]

Clauses 5 and 6. The Congress shall have Power * * * To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures.

* * * To provide for the Punishment of counterfeiting the Securities and current Coin of the United States.

Fiscal and Monetary Powers of Congress

COINAGE, WEIGHTS AND MEASURES

The power "to coin money" and "regulate the value thereof" has been broadly construed to authorize regulation of every phase of the subject of currency. Congress may charter banks and endow them with the right to issue circulating notes,[1113] and may restrain the circulation of notes not issued under its own authority.[1114] To this end it may impose a prohibitive tax upon the circulation of the notes of State banks[1115] or of municipal corporations.[1116] It may require the surrender of gold coin and of gold certificates in exchange for other currency not redeemable in gold. A plaintiff who sought payment for the gold coin and certificates thus surrendered in an amount measured by the higher market value of gold, was denied recovery on the ground that he had not proved that he would suffer any actual loss by being compelled to accept an equivalent amount of other currency.[1117] Inasmuch as "every contract for the payment of money, simply, is necessarily subject to the constitutional power of the government over the currency, whatever that power may be, and the obligation of the parties is, therefore, assumed with reference to that power,"[1118] the Supreme Court sustained the power of Congress to make Treasury notes legal tender in satisfaction of antecedent debts,[1119] and, many years later, to abrogate the clauses in private contracts calling for payment in gold coin, even though such contracts were executed before the legislation was passed.[1120] The power to coin money also imports authority to maintain such coinage as a medium of exchange at home, and to forbid its diversion to other uses by defacement, melting or exportation.[1121]

THE PUNISHMENTS OF COUNTERFEITING

In its affirmative aspect this clause has been given a narrow interpretation; it has been held not to cover the circulation of counterfeit coin or the possession of equipment susceptible of use for making counterfeit coin.[1122] At the same time the Supreme Court has rebuffed attempts to read into this provision a limitation upon either the power of the States or upon the powers of Congress under the preceding clause. It has ruled that a State may punish the utterance of forged coins.[1123] On the ground that the power of Congress to coin money imports "the correspondent and necessary power and obligation to protect and to preserve in its purity this constitutional currency for the benefit of the nation,"[1124] it has sustained federal statutes penalizing the importation or circulation of counterfeit coin,[1125] or the willing and conscious possession of dies in the likeness of those used for making coins of the United States.[1126] In short, the above clause is entirely superfluous. Congress would have had the power which it purports to confer under the necessary and proper clause; and the same is the case with the other enumerated crimes which it is authorized to punish. The enumeration was unnecessary and is not exclusive.[1127]

THE BORROWING POWER VERSUS THE FISCAL POWER

Usually the aggregate of the fiscal and monetary powers of the National Government—to lay and collect taxes, to borrow money and to coin money and regulate the value thereof—have reinforced each other, and, cemented by the necessary and proper clause, have provided a secure foundation for acts of Congress chartering banks and other financial institutions,[1128] or making its treasury notes legal tender in the payment of antecedent debts.[1129] But in 1935 the opposite situation arose—one in which the power to regulate the value of money collided with the obligation incurred in the exercise of the power to borrow money. By a vote of eight-to-one the Supreme Court held that the obligation assumed by the exercise of the latter was paramount, and could not be repudiated to effectuate the monetary policies of Congress.[1130] In a concurring opinion Justice Stone declined to join with the majority in suggesting that "the exercise of the sovereign power to borrow money on credit, which does not override the sovereign immunity from suit, may nevertheless preclude or impede the exercise of another sovereign power, to regulate the value of money; or to suggest that although there is and can be no present cause of action upon the repudiated gold clause, its obligation is nevertheless, in some manner and to some extent, not stated, superior to the power to regulate the currency which we now hold to be superior to the obligation of the bonds."[1131]

Clause 7. The Congress shall have Power * * * To establish Post Offices and post Roads.

The Postal Power

"ESTABLISH"

The great question raised in the early days with reference to the postal clause concerned the meaning to be given to the word "establish"—did it confer upon Congress the power to construct post offices and post roads, or only the power to designate from existing places and routes those that should serve as post offices and post roads? As late as 1855 Justice McLean stated that this power "has generally been considered as exhausted in the designation of roads on which the mails are to be transported," and concluded that neither under the commerce power nor the power to establish post roads could Congress construct a bridge over a navigable water.[1132] A decade earlier, however, the Court, without passing upon the validity of the original construction of the Cumberland Road, held that being "charged, * * *, with the transportation of the mails," Congress could enter a valid compact with the State of Pennsylvania regarding the use and upkeep of the portion of the road lying in that State.[1133] The debate on the question was terminated in 1876 by the decision in Kohl v. United States[1134] sustaining a proceeding by the United States to appropriate a parcel of land in Cincinnati as a site for a post office and courthouse.

POWER TO PROTECT THE MAILS

The postal powers of Congress embrace all measures necessary to insure the safe and speedy transit and prompt delivery of the mails.[1135] And not only are the mails under the protection of the National Government, they are in contemplation of law its property. This principle was recognized by the Supreme Court in 1845 in holding that wagons carrying United States mail were not subject to a State toll tax imposed for use of the Cumberland Road pursuant to a compact with the United States.[1136] Half a century later it was availed of as one of the grounds on which the national executive was conceded the right to enter the national courts and demand an injunction against the authors of any wide-spread disorder interfering with interstate commerce and the transmission of the mails.[1137]

ANTI-SLAVERY AND THE MAILS

Prompted by the efforts of Northern anti-slavery elements to disseminate their propaganda in the Southern States through the mails, President Jackson, in his annual message to Congress in 1835, suggested "the propriety of passing such a law as will prohibit, under severe penalties, the circulation in the Southern States, through the mail, of incendiary publications intended to instigate the slaves to insurrection."[1138] In the Senate John C. Calhoun resisted this recommendation, taking the position that it belonged to the States and not to Congress to determine what is and what is not calculated to disturb their security. He expressed the fear that if Congress might determine what papers were incendiary, and as such prohibit their circulation through the mail, it might also determine what were not incendiary and enforce their circulation.[1139]

POWER TO PREVENT HARMFUL USE OF THE POSTAL FACILITIES

Some thirty years later Congress passed the first of a series of acts to exclude from the mails publications designed to defraud the public or corrupt its morals. In the pioneer case of Ex parte Jackson,[1140] the Court sustained the exclusion of circulars relating to lotteries on the general ground that "the right to designate what shall be carried necessarily involves the right to determine what shall be excluded."[1141] The leading fraud order case, decided in 1904, holds to the same effect.[1142] Pointing out that it is "an indispensable adjunct to a civil government," to supply postal facilities, the Court restated its premise that the "legislative body in thus establishing a postal service, may annex such conditions to it as it chooses."[1143] Later cases appear to have qualified these sweeping declarations. In upholding requirements that publishers of newspapers and periodicals seeking second-class mailing privileges file complete information regarding ownership, indebtedness and circulation and that all paid advertisements in such publications be marked as such, the Court emphasized that these provisions were reasonably designed to safeguard the second-class privilege from exploitation by mere advertising publications. Chief Justice White warned that the Court by no means intended to imply that it endorsed the government's "broad contentions concerning the existence of arbitrary power through the classification of the mails, or by way of condition * * *"[1144] Again, in Milwaukee Social Democratic Publishing Co. v. Burleson,[1145] where the Court sustained an order of the Postmaster General excluding from the second-class privilege a newspaper which he found to have systematically published matter banned by the Espionage Act of 1917, the claim of absolute power in Congress to withhold this privilege was sedulously avoided. More recently, when reversing an order denying the second-class privilege to a mailable publication because of the poor taste and vulgarity of its contents, on the ground that the Postmaster General exceeding his statutory authority, Justice Douglas assumed, in the opinion of the Court, "that Congress has a broad power of classification and need not open second-class mail to publications of all types."[1146]

THE EXCLUSION POWER AS AN ADJUNCT TO OTHER POWERS

In the cases just reviewed the mails were closed to particular types of communication which were deemed to be harmful. A much broader power of exclusion was asserted in the Public Utility Holding Company Act of 1935.[1147] To induce compliance with the regulatory requirements of that act, Congress denied the privilege of using the mails for any purpose to holding companies which failed to obey that law, irrespective of the character of the material to be carried. Viewing the matter realistically, the Supreme Court treated this provision as a penalty. While it held this statute constitutional because the regulations whose infractions were thus penalized were themselves valid,[1148] it declared that "Congress may not exercise its control over the mails to enforce a requirement which lies outside its constitutional province, * * *."[1149]

STATE REGULATIONS AFFECTING THE MAILS

In determining the extent to which State laws may impinge upon persons or corporations whose services are utilized by Congress in executing its postal powers, the task of the Supreme Court has been to determine whether particular measures are consistent with the general policies indicated by Congress. Broadly speaking, the Court has approved regulations which have a trivial or remote relation to the operation of the postal service, while disallowing those which constitute a serious impediment to it. Thus a State statute which granted to one company an exclusive right to operate a telegraph business in the State was found to be incompatible with a federal law which, in granting to any telegraph company the right to construct its lines upon post roads, was interpreted as a prohibition of State monopolies in a field which Congress was entitled to regulate in the exercise of its combined power over commerce and post roads.[1150] An Illinois statute which, as construed by the State courts, required an interstate mail train to make a detour of seven miles in order to stop at a designated station, also was held to be an unconstitutional interference with the power of Congress under this clause.[1151] But a Minnesota statute which required intrastate trains to stop at county seats was found to be unobjectionable.[1152] Local laws classifying postal workers with railroad employees for the purpose of determining a railroad's liability for personal injuries,[1153] or subjecting a union of railway mail clerks to a general law forbidding any "labor organization" to deny any person membership because of his race, color or creed,[1154] have been held not to conflict with national legislation or policy in this field. Despite the interference pro tanto with the performance of a federal function, a State may arrest a postal employee charged with murder while he is engaged in carrying out his official duties,[1155] but it cannot punish a person for operating a mail truck over its highways without procuring a driver's license from State authorities.[1156]

Clause 8. The Congress shall have Power * * * To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Copyrights and Patents

SCOPE OF THE POWER

This clause is the foundation upon which the national patent and copyright laws rest, although it uses neither of those terms. So far as patents are concerned, modern legislation harks back to the Statute of Monopolies of 1624, whereby Parliament endowed inventors with the sole right to their inventions for fourteen years.[1157] Copyright law, in turn, traces back to the statute of 1710 which secured to authors of books the sole right of publishing them for designated periods.[1158] Congress was not, however, by this provision, vested with anything akin to the royal prerogative in the creation and bestowal of monopolistic privileges. Its power is limited as to subject matter, and as to the purpose and duration of the rights granted. Only the writings and discoveries of authors and inventors may be protected, and then only to the end of promoting science and the useful arts.[1159] While Congress may grant exclusive rights only for a limited period, it may extend the term upon the expiration of the period originally specified, and in so doing may protect the rights of purchasers and assignees.[1160] The copyright and patent laws do not have, of their own force, any extraterritorial operation.[1161]

PATENTABLE DISCOVERIES

The protection afforded by acts of Congress under this clause is limited to new and useful inventions,[1162] and while a patentable invention is a mental achievement,[1163] yet for an idea to be patentable it must have first taken physical form.[1164] Despite the fact that the Constitution uses the term "discovery" rather than "invention," a patent may not issue for the discovery of a hitherto unknown phenomenon of nature; "if there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end."[1165] Conversely, the mental processes which are thus applied must display "more ingenuity * * * than the work of a mechanic skilled in the art";[1166] and while combination patents have been at times sustained,[1167] the accumulation of old devices is patentable "only when the whole in some way exceeds the sum of its parts."[1168] The Court's insistence on the presence of "inventive genius" as the test of patentability goes far back and has been reiterated again and again in slightly varying language,[1169] although it seems to have had little effect on the point of view of the Patent Office.[1170]

PROCEDURE IN ISSUING PATENTS

The standard of patentability is a constitutional standard, and the question of the validity of a patent is a question of law.[1171] Congress may authorize the issuance of a patent for an invention by a special, as well as by general law, provided the question as to whether the patentees device is in truth an invention is left open to investigation under the general law.[1172] The function of the Commissioner of Patents in issuing letters patent is deemed to be quasi-judicial in character. Hence an act granting a right of appeal from the Commission to the Court of Appeals for the District of Columbia is not unconstitutional as conferring executive power upon a judicial body.[1173]

NATURE AND SCOPE OF THE RIGHT SECURED

The leading case bearing on the nature of the rights which Congress is authorized to secure is that of Wheaton v. Peters. Wheaton charged Peters with having infringed his copyright on the twelve volumes of "Wheaton's Reports" wherein are reported the decisions of the United States Supreme Court for the years from 1816 to 1827 inclusive. Peters's defense turned on the proposition that inasmuch as Wheaton had not complied with all of the requirements of the act of Congress, his alleged copyright was void. Wheaton, while denying this assertion of fact, further contended that the statute was only intended to secure him in his pre-existent rights at common law. These at least, he claimed, the Court should protect. A divided Court held in favor of Peters on the legal question. It denied, in the first place, that there was any principle of the common law which protected an author in the sole right to continue to publish a work once published. It denied, in the second place, that there is any principle of law, common or otherwise, which pervades the Union except such as are embodied in the Constitution and the acts of Congress. Nor, in the third place, it held, did the word "securing" in the Constitution recognize the alleged common law principle which Wheaton invoked. The exclusive right which Congress is authorized to secure to authors and inventors owes its existence solely to the acts of Congress securing it,[1174] from which it follows that the rights granted by a patent or copyright are subject to such qualifications and limitations as Congress, in its unhampered consultation of the public interest, sees fit to impose.[1175]

In giving to authors the exclusive right to dramatize any of their works, Congress did not exceed its powers under this clause. Even as applied to pantomime dramatization by means of silent motion pictures, the act was sustained against the objection that it extended the copyright to ideas rather than to the words in which they were clothed.[1176] But the copyright of the description of an art in a book was held not to lay a foundation for an exclusive claim to the art itself. The latter can be protected, if at all, only by letters patent.[1177] Since copyright is a species of property distinct from the ownership of the equipment used in making copies of the matter copyrighted, the sale of a copperplate under execution did not pass any right to print and publish the map which the copperplate was designed to produce.[1178] A patent right may, however, be subjected, by bill in equity, to payment of a judgment debt of the patentee.[1179]

POWER OF CONGRESS OVER PATENT RIGHTS

Letters patent for a new invention or discovery in the arts confer upon the patentee an exclusive property in the patented invention which cannot be appropriated or used by the Government without just compensation.[1180] Congress may, however, modify rights under an existing patent, provided vested property rights are not thereby impaired,[1181] but it does not follow that it may authorize an inventor to recall rights which he has granted to others or reinvest in him rights of property which he had previously conveyed for a valuable and fair consideration.[1182] Furthermore, the rights which the present statutes confer are subject to the Anti-Trust Acts, though it can be hardly said that the cases in which the Court has endeavored to draw the line between the rights claimable by patentees and the kind of monopolistic privileges which are forbidden by those acts exhibit entire consistency in their holdings.[1183]

STATE POWER AFFECTING PATENTS AND COPYRIGHTS

Nor do the patent laws displace the police or taxing powers of the States. Whatever rights are secured to inventors must be enjoyed in subordination to the general authority of the State over all property within its limits. A statute of Kentucky requiring the condemnation of illuminating oils which were inflammable at less than 130 degrees Fahrenheit, was held not to interfere with any right secured by the patent laws, although the oil for which the patent was issued could not be made to comply with State specifications.[1184] In the absence of federal legislation, a State may prescribe reasonable regulations for the transfer of patent rights so as to protect its citizens from fraud. Hence a requirement of State law that the words "given for a patent right" appear on the face of notes given in payment for such right is not unconstitutional.[1185] Royalties received from patents or copyrights are subject to a nondiscriminating State income tax, a holding to the contrary in 1928 having been subsequently overruled.[1186]

TRADE-MARKS AND ADVERTISEMENTS

In the famous Trade-Mark Cases,[1187] decided in 1879, the Supreme Court held void acts of Congress which, in apparent reliance upon this clause, extended the protection of the law to trade-marks registered in the Patent Office. "The ordinary trade-mark" said Justice Miller for the Court, "has no necessary relation to invention or discovery"; nor is it to be classified "under the head of writings of authors." It does not "depend upon novelty, invention, discovery, or any work of the brain."[1188] Not many years later the Court, again speaking through Justice Miller, ruled that a photograph may be constitutionally copyright,[1189] while still more recently a circus poster was held to be entitled to the same protection. In answer to the objection of the Circuit Court that a lithograph which "has no other use than that of a mere advertisement * * * (would not be within) the meaning of the Constitution," Justice Holmes summoned forth the shades of Velasquez, Whistler, Rembrandt, Ruskin, Degas, and others in support of the proposition that it is not for the courts to attempt to judge the worth of pictorial illustrations outside the narrowest and most obvious limits.[1190]

Clause 9. The Congress shall have Power * * * To constitute Tribunals inferior to the supreme Court; See article III, p. [528].

Clause 10. The Congress shall have Power * * * To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.

Piracies, Felonies, and Offenses Against the Law of Nations

ORIGIN OF THE CLAUSE

"When the United States ceased to be a part of the British empire, and assumed the character of an independent nation, they became subject to that system of rules which reason, morality, and custom had established among civilized nations of Europe, as their public law. * * * The faithful observance of this law is essential to national character, * * *"[1191] These words of Chancellor Kent expressed the view of the binding character of International Law which was generally accepted at the time the Constitution was adopted. During the Revolutionary War, Congress took cognizance of all matters arising under the law of nations and professed obedience to that law.[1192] Under the Articles of Confederation, it was given exclusive power to appoint courts for the trial of piracies and felonies committed on the high seas, but no provision was made for dealing with offenses against the law of nations.[1193] The draft of the Constitution submitted to the Convention of 1787 by its Committee of Detail empowered Congress "to declare the law and punishment of piracies and felonies committed on the high seas, and the punishment of counterfeiting the coin of the United States, and of offences against the law of nations."[1194] In the debate on the floor of the Convention the discussion turned on the question as to whether the terms, "felonies" and the "law of nations," were sufficiently precise to be generally understood. The view that these terms were often so vague and indefinite as to require definition eventually prevailed and Congress was authorized to define as well as punish piracies, felonies and offenses against the law of nations.[1195]

DEFINITION OF OFFENSES

The fact that the Constitutional Convention considered it necessary to give Congress authority to define offenses against the law of nations does not mean that in every case Congress must undertake to codify that law or mark its precise boundaries before prescribing punishments for infractions thereof. An act punishing "the crime of piracy, as defined by the law of nations" was held to be an appropriate exercise of the constitutional authority to "define and punish" the offense, since it adopted by reference the sufficiently precise definition of International Law.[1196] Similarly, in Ex parte Quirin,[1197] the Court found that by the reference in the Fifteenth Article of War to "offenders or offenses that * * * by the law of war may be triable by such military commissions * * *," Congress had "exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals."[1198] Where, conversely, Congress defines with particularity a crime which is "an offense against the law of nations," the law is valid, even if it contains no recital disclosing that it was enacted pursuant to this clause. Thus the duty which the law of nations casts upon every government to prevent a wrong being done within its own dominion to another nation with which it is at peace, or to the people thereof, was found to furnish a sufficient justification for the punishment of the counterfeiting within the United States, of notes, bonds and other securities of foreign governments.[1199]

EXTRATERRITORIAL REACH OF THE POWER

Since this clause contains the only specific grant of power to be found in the Constitution for the punishment of offenses outside the territorial limits of the United States, a lower federal court held in 1932[1200] that the general grant of admiralty and maritime jurisdiction by article III, section 2, could not be construed as extending either the legislative or judicial power of the United States to cover offenses committed on vessels outside the United States but not on the high seas. Reversing that decision, the Supreme Court held that this provision "cannot be deemed to be a limitation on the powers, either legislative or judicial, conferred on the National Government by article III, § 2. The two clauses are the result of separate steps independently taken in the Convention, by which the jurisdiction in admiralty, previously divided between the Confederation and the States, was transferred to the National Government. It would be a surprising result, and one plainly not anticipated by the framers or justified by principles which ought to govern the interpretation of a constitution devoted to the redistribution of governmental powers, if part of them were lost in the process of transfer. To construe the one clause as limiting rather than supplementing the other would be to ignore their history, and without effecting any discernible purpose of their enactment, to deny to both the States and the National Government powers which were common attributes of sovereignty before the adoption of the Constitution. The result would be to deny to both the power to define and punish crimes of less gravity than felonies committed on vessels of the United States while on the high seas, and crimes of every grade committed on them while in foreign territorial waters."[1201] Within the meaning of this section an offense is committed on the high seas even where the vessel on which it occurs is lying at anchor on the road in the territorial waters of another country.[1202]

Clauses 11, 12, 13, and 14. The Congress shall have power * * *:

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.

To provide and maintain a Navy.

To make Rules for the Government and Regulation of the land and naval Forces.

The War Power

SOURCE AND SCOPE

Three different views regarding the source of the war power found expression in the early years of the Constitution and continued to vie for supremacy for nearly a century and a half. Writing in The Federalist,[1203] Hamilton elaborated the theory that the war power is an aggregate of the particular powers granted by article I, section 8. Not many years later, in 1795, the argument was advanced that the war power of the National Government is an attribute of sovereignty and hence not dependent upon the affirmative grants of the written Constitution.[1204] Chief Justice Marshall appears to have taken a still different view, namely that the power to wage war is implied from the power to declare it. In McCulloch v. Maryland[1205] he listed the power "to declare and conduct a war"[1206] as one of the "enumerated powers" from which the authority to charter the Bank of the United States was deduced. During the era of the Civil War the two latter theories were both given countenance by the Supreme Court. Speaking for four Justices in Ex Parte Milligan, Chief Justice Chase described the power to declare war as "necessarily" extending "to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and conduct of campaigns."[1207] In another case, adopting the terminology used by Lincoln in his Message to Congress on July 4, 1861,[1208] the Court referred to "the war power" as a single unified power.[1209]

AN INHERENT POWER

Thereafter we find the phrase, "the war power," being used by both Chief Justice White[1210] and Chief Justice Hughes,[1211] the former declaring the power to be "complete and undivided."[1212] Not until 1936 however did the Court explain the logical basis for imputing such an inherent power to the Federal Government. In United States v. Curtiss-Wright Export Corp.,[1213] the reasons for this conclusion were stated by Justice Sutherland as follows: "As a result of the separation from Great Britain by the colonies acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America. Even before the Declaration, the colonies were a unit in foreign affairs, acting through a common agency—namely the Continental Congress, composed of delegates from the thirteen colonies. That agency exercised the powers of war and peace, raised an army, created a navy, and finally adopted the Declaration of Independence. * * * It results that the investment of the Federal Government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The power to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the Federal Government as necessary concomitants of nationality."[1214]

A COMPLEXUS OF GRANTED POWERS

In the more recent case of Lichter v. United States,[1215] on the other hand, the Court speaks of the "war powers" of Congress. Upholding the Renegotiation Act, it declared that: "In view of this power 'To raise and support Armies, * * *' and the power granted in the same Article of the Constitution 'to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, * * *' the only question remaining is whether the Renegotiation Act was a law 'necessary and proper for carrying into Execution' the war powers of Congress and especially its power to support armies."[1216] In a footnote it listed the Preamble, the necessary and proper clause, the provisions authorizing Congress to lay taxes and provide for the common defense, to declare war, and to provide and maintain a navy, together with the clause designating the President as Commander in Chief of the Army and Navy, as being "among the many other provisions implementing the Congress and the President with powers to meet the varied demands of war, * * *"[1217]

A DECLARATION OF WAR, WHEN REQUIRED

In the first draft of the Constitution presented to the Convention of 1787 by its Committee of Detail Congress was empowered "to make war."[1218] On the floor of the Convention according to Madison's Journal "Mr. Madison and Mr. Gerry, moved to insert 'declare' striking out 'make' war; leaving to the Executive the power to repel sudden attacks"[1219] and their motion was adopted. When the Bey of Tripoli declared war upon the United States in 1801 a sharp debate was precipitated as to whether a formal declaration of war by Congress was requisite to create the legal status of war. Jefferson sent a squadron of frigates to the Mediterranean to protect our commerce but its mission was limited to defense in the narrowest sense of the term. After one of the vessels in this squadron had been engaged by, and had defeated, a Tripolitan cruiser, the latter was permitted to return home. Jefferson defended this course in a message to Congress saying, "Unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defence, the vessel being disabled from committing further hostilities, was liberated with its crew."[1220] Hamilton promptly espoused a different interpretation of the power given to Congress to declare war. "It is the peculiar and exclusive province of Congress," he declared "when the nation is at peace to change that state into a state of war; whether from calculations of policy, or from provocations, or injuries received; in other words, it belongs to Congress only to go to War. But when a foreign nation declares or openly and avowedly makes war upon the United States, they are then by the very fact already at war, and any declaration on the part of Congress is nugatory; it is at least unnecessary."[1221] Apparently Congress shared the view that a formal declaration of war was unnecessary. It enacted a statute which authorized the President to instruct the commanders of armed vessels of the United States to "seize and make prize of all vessels, goods and effects, belonging to the Bey of Tripoli, * * *; and also to cause to be done all such other acts of precaution or hostility as the state of war will justify, * * *"[1222]

THE PRIZE CASES, 1863

Sixty years later the Supreme Court, in sustaining the blockade of the Southern ports which Lincoln had instituted in April 1861, at a time when Congress was not in session, adopted virtually the same line of reasoning as Hamilton had advanced. "This greatest of civil wars" said the Court "was not gradually developed * * * it * * * sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact."[1223] This doctrine was sharply challenged by a powerful minority of the Court on the ground that while the President could unquestionably adopt such measures as the statutes permitted for the enforcement of the laws against insurgents, Congress alone could stamp an insurrection with the character of war and thereby authorize the legal consequences which ensue a state of war.[1224] Inasmuch as the Court finally conceded that the blockade had been retroactively sanctioned by Congress, that part of its opinion dealing with the power of the President, acting alone, was really obiter. But a similar opinion was voiced by Chief Justice Chase on behalf of a unanimous Court, after the war was over. In Freeborn v. The "Protector,"[1225] it became necessary to ascertain the exact dates on which the war began and ended in order to determine whether the statute of limitation had run against the asserted claim. To answer this question the Chief Justice said that "it is necessary, therefore, to refer to some public act of the political departments of the government to fix the dates; and, for obvious reasons, those of the executive department, which may be, and, in fact, was, at the commencement of hostilities, obliged to act during the recess of Congress, must be taken. The proclamation of intended blockade by the President may therefore be assumed as marking the first of these dates, and the proclamation that the war had closed, as marking the second."[1226]

The Power To Raise and Maintain Armed Forces

PURPOSE OF SPECIFIC GRANTS

The clauses of the Constitution which give Congress authority "to raise and support armies, to provide and maintain a navy" and so forth, were not inserted for the purpose of endowing the National Government with power to do these things, but rather to designate the department of government which should exercise such powers. Moreover, they permit Congress to take measures essential to the national defense in time of peace as well as during a period of actual conflict. That these provisions grew out of the conviction that the Executive should be deprived of the "sole power of raising and regulating fleets and armies" which Blackstone attributed to the King under the British Constitution,[1227] was emphasized by Story in his Commentaries. He wrote: "Our notions, indeed, of the dangers of standing armies, in time of peace, are derived in a great measure from the principles and examples of our English ancestors. In England, the King possessed the power of raising armies in the time of peace according to his own good pleasure. And this prerogative was justly esteemed dangerous to the public liberties. Upon the revolution of 1688, Parliament wisely insisted upon a bill of rights, which should furnish an adequate security for the future. But how was this done? Not by prohibiting standing armies altogether in time of peace; but (as has been already seen) by prohibiting them without the consent of Parliament. This is the very proposition contained in the Constitution; for Congress can alone raise armies; and may put them down, whenever they choose."[1228]

THE TIME LIMIT ON APPROPRIATIONS FOR THE ARMY

Prompted by the fear of standing armies to which Story alluded, the framers inserted the limitation that "no appropriation of money to that use shall be for a longer term than two years." In 1904 the question arose whether this provision would be violated if the Government contracted to pay a royalty for use of a patent in constructing guns and other equipment where the payments were likely to continue for more than two years. Solicitor-General Hoyt ruled that such a contract would be lawful; that the appropriations limited by the Constitution "are those only which are to raise and support armies in the strict sense of the word 'support,' and that the inhibition of that clause does not extend to appropriations for the various means which an army may use in military operations, or which are deemed necessary for the common defense, * * *"[1229] Relying on this earlier opinion, Attorney General Clark ruled in 1948 that there was "no legal objection to a request to the Congress to appropriate funds to the Air Force for the procurement of aircraft and aeronautical equipment to remain available until expended."[1230]

ESTABLISHMENT OF THE AIR FORCE

By the National Security Act of 1947[1231] there was established within the National Military Establishment "an executive department to be known as the Department of the Air Force" which was made coordinate with the Departments of the Army and the Navy. Shortly after the passage of this Act a Joint Resolution was offered in the House of Representatives, proposing an amendment to the Constitution whereby Congress would be authorized to "provide and maintain an Air Force and to make rules for the government and regulation thereof," and the President would be designated as Commander in Chief of the Air Force.[1232] Apparently in the belief that the broad sweep of the war power warranted the creation of the Air Force, without a constitutional amendment, Congress took no action on this proposal.

CONSCRIPTION

The constitutions adopted during the Revolutionary War by at least nine of the States sanctioned compulsory military service.[1233] Towards the end of the War of 1812, conscription of men for the army was proposed by James Monroe, then Secretary of War, but opposition developed and peace came before the bill could be enacted.[1234] In 1863 a compulsory draft law was adopted and put into operation without being challenged in the federal courts.[1235] Not so the Selective Service Act of 1917. This measure was attacked on the grounds that it tended to deprive the States of the right to "a well-regulated militia," that the only power of Congress to exact compulsory service was the power to provide for calling forth the militia for the three purposes specified in the Constitution, which did not comprehend service abroad, and finally that the compulsory draft imposed involuntary servitude in violation of the Thirteenth Amendment. The Supreme Court rejected all of these contentions. It held that the powers of the States with respect to the militia were exercised in subordination to the paramount power of the National Government to raise and support armies, and that the power of Congress to mobilize an army was distinct from its authority to provide for calling the militia and was not qualified or in any wise limited thereby.[1236] Before the United States entered the first World War, the Court had anticipated the objection that compulsory military service would violate the Thirteenth Amendment and had answered it in the following words: "It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the State, such as services in the army, militia, on the jury, etc. The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers."[1237] Accordingly, in the Selective Draft Law Cases[1238] it dismissed the objection under that amendment as a contention that was "refuted by its mere statement."[1239]

CARE OF ARMED FORCES

Congress has a plenary and exclusive power to determine the age at which a soldier or seaman shall be received, the compensation he shall be allowed and the service to which he shall be assigned. This power may be exerted to supersede parents' control of minor sons who are needed for military service. Where the statute which required the consent of parents for enlistment of a minor son did not permit such consent to be qualified, their attempt to impose a condition that the son carry war risk insurance for the benefit of his mother was not binding on the Government.[1240] Since the possession of government insurance payable to the person of his choice, is calculated to enhance the morale of the serviceman, Congress may permit him to designate any beneficiary he desires, irrespective of State law, and may exempt the proceeds from the claims of creditors.[1241] To safeguard the health and welfare of the armed forces, Congress may authorize the suppression of houses of ill fame in the vicinity of the places where such forces are stationed.[1242]

TRIAL AND PUNISHMENT OF OFFENSES

Under its power to make rules for the Government and regulation of the land and naval forces, Congress may provide for the trial and punishment of military and naval offenses in the manner practiced by civilized nations. This authority is independent of the judicial power conferred by article III.[1243] "Cases arising in the land and naval forces" are expressly excepted from the provision of the Fifth Amendment requiring presentment by a grand jury for capital or infamous and by implication they are also excepted from Amendment VI,[1244] which relates to the trial of criminal offenses. Also the Fifth Amendment's provision against double-jeopardy apparently does not apply to military courts.[1245] A statute which provided that offenses not specifically mentioned therein should be punished "according to the laws and customs of such cases at sea" was held sufficient to give a naval court-martial jurisdiction to try a seaman of the United States Navy for the unspecified offense of attempted desertion.[1246] In habeas corpus proceedings a court can consider only whether the military tribunal had jurisdiction to act in the case under consideration.[1247] The acts of a court-martial, within the scope of its jurisdiction and duty, cannot be controlled or reviewed in the civil courts, by a writ of prohibition or otherwise.[1248]

War Legislation

THE REVOLUTIONARY WAR LEGISLATION

The American Revolution affords many precedents for extensive and detailed regulation of the nation's economy in time of war. But since the resolves of Congress under the Articles of Confederation were in practical effect mere recommendations to the State legislatures, it was the action of the latter which made these policies effective. On November 22, 1777, for example, Congress recommended to the States that they take steps "to regulate and ascertain the price of labour, manufactures, [and] internal produce."[1249] A month later the same body further recommended "to the respective legislatures of the United States, forthwith to enact laws, appointing suitable persons to seize and take, for the use of the continental army of the said States, all woolen cloths, blankets, linens, shoes, stockings, hats, and other necessary articles of clothing, * * *"[1250] Responding to such appeals, or acting on their own initiative, the State legislatures enacted measure after measure which entrenched upon the normal life of the community very drastically. Laws were passed forbidding the distillation of whiskey and other spirits in order to conserve grain supplies;[1251] fixing prices of labor and commodities, sometimes in greatest detail;[1252] levying requisitions upon the inhabitants for supplies needed by the army;[1253] and so on. In one instance a statute authorized the erection of an arms manufactory for the United States;[1254] in another, Negro Slaves were impressed for labor on fortifications.[1255] The fact that all this legislation came from the State legislatures whereas the war power was attributed to the "United States in Congress assembled" served to obscure the fact that the former was really an outgrowth of the latter.

CIVIL WAR LEGISLATION

The most pressing economic problem of the Civil War was that of finance. When Congress found itself unable to raise money to pay the soldiers in the field, it authorized the issuance of Treasury notes which, although not redeemable in specie, were made legal tender in payment of private debts. Upon its first consideration of this measure, the Supreme Court held it unconstitutional. It concluded that even if the circulation of such notes was facilitated by giving them the quality of legal tender, that result did not suffice to make the expedient an appropriate and plainly adapted means for the execution of the power to declare and carry on war.[1256] Three of the seven Justices then constituting the Court dissented from this decision,[1257] and it was reversed within a little more than a year, after two vacancies in the membership of the Court had been filled. One of the grounds relied upon by the new majority to sustain the statute was that the exigencies of war justified its enactment under the necessary and proper clause.[1258]

WORLD WAR I LEGISLATION

In meeting the strain which World War I put on our national resources of men and material, the economic activities of the people were directed or restricted by the Government on a scale previously unparalleled. The most sweeping measure of control was the Lever Food and Fuel Control Act,[1259] which authorized the President to regulate by license the importation, manufacture, storage, mining or distribution of necessaries; to requisition foods, feeds, and fuels; to take over and operate factories, packinghouses, pipelines, mines or other plants; to fix a minimum price for wheat; to limit, regulate or prohibit the use of food materials in the production of alcoholic beverages; and to fix the price of coal and coke and to regulate the production, sale and distribution thereof. Other statutes clothed him with power to determine priority in car service,[1260] to license trade with the enemy and his allies,[1261] and to take over and operate the rail and water transportation system,[1262] and the telephonic and telegraphic communication systems,[1263] of the country.

WORLD WAR II LEGISLATION

Several of these World War I measures were still on the statute books when World War II broke out. Moreover, in the period of preparation preceding the latter, Congress had enacted the Priorities Act of May 31, 1941[1264] which gave the President power to allocate any material where necessary to facilitate the defense effort. By the Second War Powers Act,[1265] passed early in 1942, the authority to allocate materials was extended to facilities. These two acts furnished the statutory foundation for the extensive system of consumer rationing administered by the Office of Price Administration, as well as for the comprehensive control of industrial materials and output which was exercised by the War Production Board. Under the Emergency Price Control Act[1266] the Office of Price Administration regulated the price of almost all commodities, as well as the rentals for housing accommodations in scores of defense rental areas. The War Labor Disputes Act[1267] permitted the President to commandeer plants which were closed by strikes.

MOBILIZATION OF INDUSTRIAL RESOURCES

While the validity of several of the measures just reviewed was assailed on one constitutional ground or another, the general power of Congress to regulate their subject matter in time of war was not disputed. Not until the Government sought to recover excessive profits realized on war contracts did the Supreme Court have occasion to affirm the broad authority of the National Government to mobilize the industrial resources of the nation in time of war. Using the power of Congress to conscript men for the armed forces as a measure of its power to regulate industry, the Court sustained the legislation, saying: "The Renegotiation Act was developed as a major wartime policy of Congress comparable to that of the Selective Service Act. The authority of Congress to authorize each of them sprang from its war powers. * * * With the advent of * * * [global] warfare, mobilized property in the form of equipment and supplies became as essential as mobilized manpower. Mobilization of effort extended not only to the uniformed armed services but to the entire population. Both Acts were a form of mobilization. The language of the Constitution authorizing such measures is broad rather than restrictive. * * * [It] * * * places emphasis upon the supporting as well as upon the raising of armies. The power of Congress as to both is inescapably express, not merely implied."[1268]

DELEGATION OF LEGISLATIVE POWER IN WARTIME

While insisting that, "in peace or in war it is essential that the Constitution be scrupulously obeyed, and particularly that the respective branches of the Government keep within the powers assigned to each,"[1269] the Supreme Court has recognized that in the conduct of a war delegations of power may be valid which would not be admissible in other circumstances. The cases in which this issue has been raised have been few in number. In one, the Selective Draft Law cases,[1270] the objection was dismissed without discussion. In a second, the price-fixing authority exercised by the Office of Price Administration during the second world war, was, on the issue of delegation of power, sustained by reference to peace time precedents.[1271] Where the war power has been the basis of decision, two different theories concerning its significance can be recognized. The first is that since the war power is an inherent power shared by the legislative and executive departments rather than an enumerated power granted to the former, Congress does not delegate legislative power when it authorizes the President to exercise the war power in a prescribed manner. Opposed to this is the view that the right of Congress to delegate power to the President is limited in this as in other cases but that where the validity of the delegation depends upon whether or not too great a latitude of discretion has been conferred upon the Executive, the existence of a state of war is a factor to be considered in determining whether the delegation in the particular case is necessary and hence permissible.

The idea that a delegation of discretion in the exercise of the war power stands on a different footing than delegation of authority to levy a tax is implicit in Justice Bradley's opinion in Hamilton v. Dillin.[1272] The plaintiffs in that case contended that the sum they were required to pay for the privileges of buying cotton in the South was a tax, which, since it was imposed by the Secretary of the Treasury, was invalid because the taxing power was not susceptible of delegation to the Executive Department. To this argument the Court replied: "It is hardly necessary, under the view we have taken of the character of the regulations in question, * * *, to discuss the question of the constitutionality of the act of July 13th, 1861, regarded as authorizing such regulations. * * *, the power of the Government to impose such conditions upon commercial intercourse with an enemy in time of war * * * does not belong to the same category as the power to levy and collect taxes, duties, and excises. It belongs to the war powers of the Government * * *."[1273]

The Mergence of Legislative and Executive in Wartime

Both theories receive countenance in different passages in the opinion of Chief Justice Stone in Hirabayashi v. United States.[1274] In disposing of the contention that the curfew imposed upon a citizen of Japanese descent involved an invalid delegation of legislative power, the Chief Justice said: "The question then is not one of Congressional power to delegate to the President the promulgation of the Executive Order, but whether, acting in cooperation, Congress and the Executive have constitutional authority to impose the curfew restriction here complained of. * * *, we conclude that it was within the constitutional power of Congress and the executive arm of the Government to prescribe this curfew order for the period under consideration and that its promulgation by the military commander involved no unlawful delegation of legislative power. * * * Where, as in the present case, the standard set up for the guidance of the military commander, and the action taken and the reasons for it, are in fact recorded in the military orders, so that Congress, the courts and the public are assured that the orders, in the judgment of the commander, conform to the standards approved by the President and Congress, there is no failure in the performance of the legislative function."[1275] He went on to say, however, that: "The essentials of [the legislative] * * * function are the determination by Congress of the legislative policy and its approval of a rule of conduct to carry that policy into execution. The very necessities which attend the conduct of military operations in time of war in this instance as in many others preclude Congress from holding committee meetings to determine whether there is danger, before it enacts legislation to combat the danger."[1276]

Doctrine of Lichter v. United States

A similar ambiguity is found in Lichter v. United States,[1277] but on the whole the opinion seems to espouse the second theory, as the following excerpts indicate: "A constitutional power implies a power of delegation of authority under it sufficient to effect its purposes.—This power is especially significant in connection with constitutional war powers under which the exercise of broad discretion as to methods to be employed may be essential to an effective use of its war powers by Congress. The degree to which Congress must specify its policies and standards in order that the administrative authority granted may not be an unconstitutional delegation of its own legislative power is not capable of precise definition.[1278] * * * Thus, while the constitutional structure and controls of our Government are our guides equally in war and in peace, they must be read with the realistic purposes of the entire instrument fully in mind. In 1942, in the early stages of total global warfare, the exercise of a war power such as the power 'To raise and support Armies, * * *' and 'To provide and maintain a Navy; * * *,' called for the production by us of war goods in unprecedented volume with the utmost speed, combined with flexibility of control over the product and with a high degree of initiative on the part of the producers. Faced with the need to exercise that power, the question was whether it was beyond the constitutional power of Congress to delegate to the high officials named therein the discretion contained in the Original Renegotiation Act of April 28, 1942, and the amendments of October 21, 1942. We believe that the administrative authority there granted was well within the constitutional war powers then being put to their predestined uses."[1279]

WAR POWERS IN TIME OF PEACE

To some indeterminate extent the power to wage war embraces the power to prepare for it and the further power to deal with the problem of adjustment after hostilities have ceased. In his Commentaries, Justice Story wrote as follows with specific reference to the question of preparation for war: "'It is important also to consider, that the surest means of avoiding war is to be prepared for it in peace. * * * How could a readiness for war in time of peace be safely prohibited, unless we could in like manner prohibit the preparations and establishments of every hostile nation? The means of security can be only regulated by the means and the danger of attack. * * * It will be in vain to oppose constitutional barriers to the impulse of self-preservation.'"[1280] Authoritative judicial recognition of the power is found in Ashwander v. Tennessee Valley Authority,[1281] where, in sustaining the power of the Government to construct and operate Wilson Dam and the power plant connected with it, pursuant to the National Defense Act of June 3, 1916,[1282] the Court said: "While the District Court found that there is no intention to use the nitrate plants or the hydroelectric units installed at Wilson Dam for the production of war materials in time of peace, 'the maintenance of said properties in operating condition and the assurance of an abundant supply of electric energy in the event of war, constitute national defense assets.' This finding has ample support."[1283]

Atomic Energy Act

By far the most significant example of legislation adopted at a time when no actual "shooting war" was in progress, with the object of providing for the national defense, is the Atomic Energy Act of 1946.[1284] That law establishes an Atomic Energy Commission of five members which is empowered to conduct through its own facilities, or by contracts with, or loans to private persons, research and developmental activity relating to nuclear processes, the theory and production of atomic energy and the utilization of fissionable and radioactive materials for medical, industrial and other purposes. The act further provides that the Commission shall be the exclusive owner of all facilities (with minor exceptions) for the production of fissionable materials; that all fissionable material produced shall become its property; that it shall allocate such materials for research and developmental activities, and shall license all transfer of source materials. The Commission is charged with the duty of producing atomic bombs, bomb parts, and other atomic military weapons at the direction of the President. Patents relating to fissionable materials must be filed with the Commission, the "just compensation" payable to the owners to be determined by a Patent Compensation Board designated by the Commission from among its employees.

POSTWAR LEGISLATION

The war power "is not limited to victories in the field. * * * It carries with it inherently the power to guard against the immediate renewal of the conflict, and to remedy the evils which have arisen from its rise and progress."[1285] Accordingly, the Supreme Court held in 1871 that it was within the competence of Congress to deduct from the period limited by statute for the bringing of an action the time during which plaintiff had been unable to prosecute his suit in consequence of the Civil War. This principle was given a much broader application after the first world war in Hamilton v. Kentucky Distilleries and Wine Co.,[1286] where the War Time Prohibition Act adopted after the signing of the Armistice was upheld as an appropriate measure for increasing war efficiency. It was conceded that the measure was valid when enacted, since the mere cessation of hostilities did not end the war or terminate the war powers of Congress. The plaintiff contended however that in October 1919, when the suit was brought, the war emergency had in fact passed, and that the law was therefore obsolete. Inasmuch as the treaty of peace had not yet been concluded and other war activities had not been brought to a close, the Court said it was "unable to conclude" that the act had ceased to be valid. But in 1924 it held upon the facts that we judicially know that the rent control law for the District of Columbia, which had previously been upheld,[1287] had ceased to operate because the emergency which justified it had come to an end.[1288] A similar issue was present after World War II in Woods v. Miller,[1289] where the Supreme Court reversed a decision of a lower court to the effect that the authority of Congress to regulate rents by virtue of the war power ended with the Presidential proclamation terminating hostilities on December 31, 1946. This decision was coupled with a warning that: "We recognize the force of the argument that the effects of war under modern conditions may be felt in the economy for years and years, and that if the war power can be used in days of peace to treat all the wounds which war inflicts on our society, it may not only swallow up all other powers of Congress but largely obliterate the Ninth and the Tenth Amendments as well. There are no such implications in today's decision."[1290] In 1948, a sharply divided Court further ruled that the power which Congress has conferred upon the President to deport enemy aliens in time of a declared war was not exhausted when the shooting war stopped. Speaking for the majority of five, Justice Frankfurter declared: "It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilites [sic] do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come."[1291]

Private Rights in Wartime

ENEMY COUNTRY

Although, broadly speaking, the constitutional provisions designed for the protection of individual rights are operative in war as well as in peace, the incidents of war repeatedly give rise to situations in which judicially enforceable constitutional restraints are inapplicable. In the first place persons in enemy territory are entirely beyond the reach of constitutional limitations. They are subject, in relation to the war powers of the National Government, to the laws of war as interpreted and applied by Congress and by the President as Commander in Chief. To the question: "What is the law which governs an army invading an enemy's country?" the Court gave the following answer in Dow v. Johnson:[1292] "It is not the civil law of the invaded country; it is not the civil law of the conquering country: it is military law,—the law of war,—and its supremacy for the protection of the officers and soldiers of the army, when in service in the field in the enemy's country, is as essential to the efficiency of the army as the supremacy of the civil law at home, and, in time of peace, is essential to the preservation of liberty."[1293]

THEATRE OF MILITARY OPERATIONS

That substantially the same rule, resting on the same considerations, applies in the field of active military operations, was assumed by all members of the Court in Ex parte Milligan.[1294] There the Court held that the trial by a military commission of a civilian charged with acts of disloyalty committed in a part of the country which was remote from the theatre of military operations, and in which the civil courts were open and functioning, was invalid under the Fifth and Sixth Amendments. Although unanimous in holding that the military tribunal lacked jurisdiction to try the case, the Court divided, five-to-four, as to the grounds of the decision. The point on which the Justices differed was which department of the Government had authority to say with finality what regions lie within the theatre of military operation. Claiming this as a function of the courts, the majority held that the theatre of war did not embrace an area in which the civil courts were open and functioning.[1295] The minority argued that this was a question to be determined by Congress.[1296] All rejected the argument of the government that the President's determination was conclusive in the absence of restraining legislation. A similar result was reached in Duncan v. Kahanamoku[1297] where, upon an examination of the circumstances existing in Hawaii after Pearl Harbor, a divided Court found that the authority which Congress had granted to the Territorial Governor to declare martial law "in case of rebellion or invasion, or imminent danger thereof," did not warrant the trial of civilians by military tribunals.

ENEMY PROPERTY

The position of enemy property was dealt with by Chief Justice Marshall in the early case of Brown v. United States.[1298] Here it was held that the mere declaration of war by Congress does not effect a confiscation of enemy property situated within the territorial jurisdiction of the United States, but the right of Congress by further enactment to subject such property to confiscation was asserted in the most positive terms. Being an exercise of the war powers of the Government, such confiscation is not affected by the restrictions of the Fifth and Sixth Amendments. Since it has no relation to the personal guilt of the owner, it is immaterial whether the property belongs to an alien, a neutral, or even to a citizen of the United States. The whole doctrine of confiscation is built upon the foundation that it is an instrument of coercion, which, by depriving an enemy of property within the reach of his power, whether within his territory or without it, impairs his ability to resist the confiscating government, while at the same time it furnishes to that government means for carrying on the war. Any property which the enemy can use, either by actual appropriation, or by the exercise of control over the owner, no matter what his nationality, is a proper subject of confiscation. Congress may provide for immediate seizure of property which the President or his agent determines to be enemy property, leaving the question of enemy ownership to be settled later at the suit of a claimant. For these reasons the Confiscation Act of 1862,[1299] and the Trading with the Enemy Act of 1917 and amendments thereto, were held to be within the power of Congress to "make rules concerning captures on land and water."[1300]

PRIZES OF WAR

The power of Congress with respect to prizes is plenary; no one can have any interest in prizes captured except by permission of Congress.[1301] Nevertheless, since International Law is a part of our law, the Court will administer it so long as it has not been modified by treaty or by legislative or executive action. Thus, during the Civil War, the Court found that the Confiscation Act of 1861, and the Supplementary Act of 1863, which, in authorizing the condemnation of vessels, made provision for the protection of interests of loyal citizens, merely created a municipal forfeiture and did not override or displace the law of prize. It decided, therefore, that when a vessel was liable to condemnation under either law, the government was at liberty to proceed under the more stringent rules of International Law, with the result that the citizen would be deprived of the benefit of the protective provisions of the statute.[1302] Similarly, when Cuban ports were blockaded during the Spanish-American War, the Court held, over the vigorous dissent of three of its members, that the rule of International Law exempting unarmed fishing vessels from capture was applicable in the absence of any treaty provision, or other public act of the Government in relation to the subject.[1303]

POLICE REGULATIONS; RENT CONTROL

In enforcing the requirement of due process of law in its modern expanded sense of "reasonable law" the Court has recognized that a war emergency may justify legislation which would otherwise be an unconstitutional invasion of private rights. Shortly after the first world war, it sustained, by a narrow margin, a rent control law for the District of Columbia, which not merely limited the rents which might be charged but which also gave the existing tenants the right to continue in occupancy of their dwellings at their own option, provided they paid rent and performed other stipulated conditions. The Court, while conceding that ordinarily such legislation would transcend constitutional limitations, declared that "a public exigency will justify the legislature in restricting property rights in land to a certain extent without compensation. * * * A limit in time, to tide over a passing trouble, well may justify a law that could not be upheld as a permanent change."[1304] During World War II an apartment house owner who complained that the rentals allowed by the Office of Price Administration did not afford a "fair return" on the property was told by the Court that, "a nation which can demand the lives of its men and women in the waging of * * * war is under no constitutional necessity of providing a system of price control * * * which will assure each landlord a 'fair return' on his property."[1305] Moreover, such rentals may be established without a prior hearing because "national security might not be able to afford the luxuries of litigation and the long delays which preliminary hearings traditionally have entailed. * * * Where Congress has provided for judicial review after the regulations or orders have been made effective it has done all that due process under the war emergency requires."[1306] The more specific clauses of the Bill of Rights yield less readily, however, to the impact of a war emergency. In United States v. Cohen Grocery Company,[1307] the Court held that a statute which penalized the making of "'any unjust or unreasonable rate or charge in handling * * * any necessaries,'" was void on the ground that it set up no "ascertainable standard of guilt" and so was "repugnant to the Fifth and Sixth Amendments * * * which require due process of law and that persons accused of crime shall be adequately informed of the nature and cause of the accusation."[1308]

PERSONAL LIBERTY IN WARTIME

That the power of Congress to punish seditious utterances in time of war is limited by the First Amendment was assumed by the Supreme Court in the series of cases[1309] in which it affirmed convictions for violation of the Espionage Act of 1917.[1310] But in the famous opinion of Justice Holmes in Schenck v. United States,[1311] it held that: "When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right."[1312] A State also has power to make it unlawful to advocate that citizens of the State should not assist in prosecuting a war against public enemies of the United States.[1313] The most drastic restraint of personal liberty imposed during World War II was the detention and relocation of the Japanese residents of the Western States, including those who were native-born citizens of the United States. When various phases of this program were challenged, the Court held that in order to prevent espionage and sabotage, the freedom of movement of such persons could be restricted by a curfew order,[1314] even by a regulation excluding them from a defined area,[1315] but that a citizen of Japanese ancestry whose loyalty was concerned could not be detained against her will in a relocation camp.[1316]

ALIEN ENEMIES

The status of alien enemies was first considered in connection with the passage of the Alien Act of 1798,[1317] whereby the President was authorized to deport any alien or to license him to reside within the United States at any place to be designated by the President. Critics of the measure conceded its constitutionality so far as enemy aliens were concerned, because, as Madison wrote, "The Constitution having expressly delegated to Congress the power to declare war against any nation, and, of course, to treat it and all its members as enemies."[1318] The substance of this early law was reenacted during the first world war. Under it the President is authorized, in time of war, to prescribe "the manner and degree of the restraint to which [alien enemies] shall be subject and in what cases, and upon what security their residence shall be permitted," or to provide for their removal from the United States.[1319] This measure was held valid in Ludecke v. Watkins.[1320]

EMINENT DOMAIN

An often-cited dictum uttered shortly after the Mexican War asserted the right of an owner to compensation for property destroyed to prevent its falling into the hands of the enemy, or for that taken for public use.[1321] In United States v. Russell,[1322] decided following the Civil War, a similar conclusion was based squarely on the Fifth Amendment, although the case did not necessarily involve the point. Finally, in United States v. Pacific Railroad,[1323] also a Civil War case, the Court held that the United States was not responsible for the injury or destruction of private property by military operations, but added that it did not have in mind claims for property of loyal citizens which was taken for the use of the national forces. "In such cases," the Court said, "it has been the practice of the government to make compensation for the property taken. * * *, although the seizure and appropriation of private property under such circumstances by the military authorities may not be within the terms of the constitutional clauses."[1324] Meantime, however, in 1874, a committee of the House of Representatives, in an elaborate report on war claims growing out of the Civil War, had voiced the opinion that the Fifth Amendment embodied the distinction between a taking of property in the course of military operations or other urgent military necessity, and other takings for war purposes, and required compensation of owners in the latter class of cases.[1325] In determining what constitutes just compensation for property requisitioned for war purposes during World War II, the Court has assumed that the Fifth Amendment is applicable to such takings.[1326]

Clause 15. The Congress shall have Power * * * To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.

Clause 16. The Congress shall have Power * * * To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

The Militia Clauses

CALLING OUT THE MILITIA

The States as well as Congress may prescribe penalties for failure to obey the President's call of the militia. They also have a concurrent power to aid the National Government by calls under their own authority, and in emergencies may use the militia to put down armed insurrection.[1327] The Federal Government may call out the militia in case of civil war; its authority to suppress rebellion is found in the power to suppress insurrection and to carry on war.[1328] The act of February 28, 1795,[1329] which delegated to the President the power to call out the militia, was held constitutional.[1330] A militiaman who refused to obey such a call was not "employed in the service of the United States so as to be subject to the article of war," but was liable to be tried for disobedience of the act of 1795.[1331]

REGULATION OF THE MILITIA

The power of Congress over the militia "being unlimited, except in the two particulars of officering and training them, * * *, it may be exercised to any extent that may be deemed necessary by Congress. * * * The power of the State government to legislate on the same subjects, having existed prior to the formation of the Constitution, and not having been prohibited by that instrument, it remains with the States, subordinate nevertheless to the paramount law of the General Government, * * *"[1332] Under the National Defense Act of 1916,[1333] the militia, which hitherto had been an almost purely State institution, was brought under the control of the National Government. The term "militia of the United States" was defined to comprehend "all able-bodied male citizens of the United States and all other able-bodied males who have * * * declared their intention to become citizens of the United States," between the ages of eighteen and forty-five. The act reorganized the National Guard, determined its size in proportion to the population of the several States, required that all enlistments be for "three years in service and three years in reserve," limited the appointment of officers to those who "shall have successfully passed such tests as to * * * physical, moral and professional fitness as the President shall prescribe," and authorized the President in certain emergencies to "draft into the military service of the United States to serve therein for the period of the war unless sooner discharged, any and all members of the National Guard and National Guard Reserve," who thereupon should "stand discharged from the militia."

Clause 17. Congress shall have power * * * To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And

The Seat of Government

The jurisdiction of the United States over the District of Columbia vested on the first Monday of December, 1800.[1334] By the act of February 27, 1801,[1335] the District was divided into two counties and in the following year the city of Washington was erected into a municipality.[1336] The present form of government dates from 1876; all legislative powers with respect to District affairs are retained by Congress, while an executive board of three commissioners vested with ordinance powers is appointed by the President.[1337] As a municipal corporation, the District has the legal capacity to sue and be sued.[1338] But the District Commissioners are merely administrative officers, having only the ministerial powers given them by statute; accordingly they were found to have no power to submit a claim against the District to arbitration.[1339]

NATURE AND EXTENT OF RIGHTS CEDED TO UNITED STATES

In ceding the territory which became the District of Columbia, both Maryland and Virginia provided that the United States should not acquire any right of property in the soil except by transfer by the individual owner. This proviso was held not to prevent the Federal Government from exercising the power of eminent domain within the District.[1340] Under the agreement made between the original proprietors of the land on which the city of Washington was laid out, and the Commissioners appointed by the President to survey, define and locate the district for the seat of government, the United States became the owner in fee of the streets of the city although the trustees never carried out their agreement to convey them.[1341] Both the right of dominion and of property of navigable waters and of the soil under them in the District, which originally had been granted by Charles I, King of England to the Lord Proprietary of Maryland, and to which Maryland succeeded upon the American Revolution, became vested in the United States by the cession from Maryland.[1342]

RETROCESSION OF ALEXANDRIA COUNTY

Originally the District of Columbia embraced the maximum area permitted by the Constitution. In 1846, however, Congress authorized a referendum on the question of retroceding Alexandria County to Virginia, and declared that jurisdiction should be relinquished to that State if a majority of the voters in the county voted in favor of the change. The proposal was approved, whereupon, without any further action by Congress, Virginia declared the county annexed and resumed full jurisdiction over it. Thirty years later, in a suit to recover taxes paid to the State, the Supreme Court called the retrocession "a violation of the Constitution" but held that since Congress had recognized the transfer as a settled fact, a resident of the county was estopped from challenging it.[1343]

CONTINUANCE OF STATE LAWS

Under the act of July 16, 1790,[1344] which provided for the establishment of the seat of government, State laws were continued in operation until Congress created a government for the District. The Supreme Court intimated that this was "perhaps, only declaratory of a principle which would have been in full operation without such declaration."[1345] In 1801 Congress declared that the laws of Virginia and Maryland "as they now exist, shall be and continue in force" in the respective portions of the District ceded by those States.[1346] The only effect of the cession upon individuals was to terminate their State citizenship and the jurisdiction of the State governments over them;[1347] contract obligations were not affected,[1348] and liens on property for debt were continued.[1349]

STATUS OF THE DISTRICT TODAY

Chief Justice Marshall ruled in the early case of Hepburn v. Ellzey[1350] that the District of Columbia is not a State within the meaning of the diversity of citizenship clause of article III. This view was consistently adhered to for nearly a century and a half in the interpretation of later acts of Congress regulating the jurisdiction of federal courts.[1351] In 1940, however, Congress expressly authorized those courts to take jurisdiction of nonfederal controversies between residents of the District of Columbia and citizens of a State. By a five-to-four decision that statute was held constitutional, but the Justices who voted to sustain it were not in agreement as to the grounds of the decision.[1352] Three found it to be an appropriate exercise of the power of Congress to legislate for the District of Columbia without reference to article III.[1353] Six members of the Court rejected this theory, but two of the six joined in upholding the act on another ground which seven of their brethren considered untenable,—namely, that Hepburn v. Ellzey was erroneously decided and that the District of Columbia should be deemed to be a "State" within the meaning of article III, section 2.[1354]

It is not disputed that the District is a part of "the United States," and that its residents are entitled to the privilege of trial by jury, whether in civil or criminal cases,[1355] and of presentment by a grand jury.[1356] Legislation which is restrictive of the rights of liberty and property in the District must find justification in facts adequate to support like legislation by a State in the exercise of its police power.[1357]

LEGISLATIVE POWER OVER DISTRICT OF COLUMBIA

Congress possesses over the District of Columbia the blended powers of a local and national legislature.[1358] Even when legislating for the District, Congress remains the legislature of the Union, with the result that it may give its enactments nation-wide operations so far as is "necessary and proper" in order to make them locally effective. As was pointed out in Cohens v. Virginia,[1359] if a felon escapes from the State in which the crime was committed, the government of such State cannot pursue him into another State and there apprehend him, "but must demand him from the executive power of that other State." On the other hand, a felon escaping from the District of Columbia or any other place subject to the exclusive power of Congress, may be apprehended by the National Government anywhere in the United States. "And the reason," declared Chief Justice Marshall, "is, that Congress is not a local legislature, but exercises this particular power, [of exclusive legislation], like all its other powers, in its high character, as the legislature of the Union."[1360]

TAXATION IN THE DISTRICT

Persons and property within the District of Columbia are subject to taxation by Congress under both the first and seventeenth clauses of this section. A general tax levied throughout the United States may be applied to the District of Columbia upon the same conditions as elsewhere;—e.g., if a direct tax, it must be levied in proportion to the census.[1361] But in laying taxes for District purposes only, "Congress, like any State legislature unrestricted by constitutional provisions, may its discretion wholly exempt certain classes of property from taxation, or may tax them at a lower rate than other property."[1362] It is no impediment to the exercise of either power that residents of the District lack the suffrage and have politically no voice in the expenditure of the money raised by taxation.[1363]

DELEGATION OF LEGISLATIVE POWER TO MUNICIPAL OFFICERS

Congress may delegate to municipal authorities legislative functions which are strictly local in character.[1364] It may confer upon them the power to improve or repair streets, to assess adjacent property therefor,[1365] and to regulate public markets.[1366] It may confirm assessments previously made by the District government without authority of law.[1367] But in Stoutenburgh v. Hennick,[1368] the Court held that Congress would not, and did not intend to, delegate to the District the power to impose a license tax on commercial agents who offered merchandise for sale by sample, since such a license amounted to a regulation of interstate commerce.

COURTS OF THE DISTRICT

In its capacity as a local legislature Congress may create courts for the District of Columbia and may confer upon them powers and duties which lie outside the judicial power vested in "constitutional" courts. On appeal from an order of the District Public Utilities Commission, a court for the District of Columbia may be empowered to modify valuations, rates and regulations established by the Commission and to make such orders as in its judgment the Commission should have made. But inasmuch as the issuance of such orders is a legislative as distinguished from a judicial function, the provision for an appeal from them to the Supreme Court was held unconstitutional.[1369]

Despite the fact that Congress, acting under this clause, imposed nonjudicial duties upon the Supreme Court and the Court of Appeals for the District of Columbia, those tribunals were held to be constitutional courts, established under article III, with the result that the compensation of the judges thereof may not be diminished during their continuance in office.[1370] Since the courts established for the District are courts of the United States, their judgments stand upon the same footing, so far as concerns the obligations created by them, as domestic judgments of the States, wherever rendered and wherever sought to be enforced.[1371]

Authority Over Places Purchased

"PLACES"

This clause has been broadly construed to cover all structures necessary for carrying on the business of the National Government.[1372] It includes post offices,[1373] a hospital and a hotel located in a national park,[1374] and locks and dams for the improvement of navigation.[1375] But it does not cover lands acquired for forests, parks, ranges, wild life sanctuaries or flood control.[1376] Nevertheless the Supreme Court has held that a State may convey, and that Congress may accept, either exclusive or qualified jurisdiction over property acquired within the geographical limits of a State, for purposes other than those enumerated in Clause 17.[1377]

After exclusive jurisdiction over lands within a State has been ceded to the United States, Congress alone has the power to punish crimes committed within the ceded territory.[1378] Private property located thereon is not subject to taxation by the State,[1379] nor can State statutes enacted subsequent to the transfer have any operation therein.[1380] But the local laws in force at the date of cession which are protective of private rights continue in force until abrogated by Congress.[1381]

DURATION OF FEDERAL JURISDICTION

A State may qualify its cession of territory by a condition that jurisdiction shall be retained by the United States only so long as the place is used for specified purposes.[1382] Such a provision operates prospectively and does not except from the grant that portion of a described tract which is then used as a railroad right of way.[1383] In 1892, the Court upheld the jurisdiction of the United States to try a person charged with murder on a military reservation, over the objection that the State had ceded jurisdiction only over such portions of the area as were used for military purposes, and that the particular place on which the murder was committed was used solely for farming. The Court held that the character and purpose of the occupation having been officially established by the political department of the government, it was not open to the Court to inquire into the actual uses to which any portion of the area was temporarily put.[1384] A few years later, however, it ruled that the lease to a city, for use as a market, of a portion of an area which had been ceded to the United States for a particular purpose, suspended the exclusive jurisdiction of the United States.[1385]

Recently the question arose whether the United States retains jurisdiction over a place which was ceded to it unconditionally after it has abandoned the use of the property for governmental purposes and entered into a contract for the sale thereof to private persons. Minnesota asserted the right to tax the equitable interest of the purchaser in such land, and the Supreme Court upheld its right to do so. The majority assumed that "the Government's unrestricted transfer of property to nonfederal hands is a relinquishment of the exclusive legislative power."[1386] In separate concurring opinions Chief Justice Stone and Justice Frankfurter reserved judgment on the question of territorial jurisdiction.[1387]

RESERVATION OF JURISDICTION BY STATES

For more than a century the Supreme Court kept alive, by repeated dicta,[1388] the doubt expressed by Justice Story "whether Congress are by the terms of the Constitution, at liberty to purchase lands for forts, dockyards, etc., with the consent of a State legislature, where such consent is so qualified that it will not justify the 'exclusive legislation' of Congress there. It may well be doubted if such consent be not utterly void."[1389] But when the issue was squarely presented in 1937, the Court ruled that where the United States purchases property within a State with the consent of the latter, it is valid for the State to convey, and for the United States to accept, "concurrent jurisdiction" over such land, the State reserving to itself the right to execute process "and such other jurisdiction and authority over the same as is not inconsistent with the jurisdiction ceded to the United States."[1390] The holding logically renders the second half of Clause 17 superfluous. In a companion case, the Court ruled further that even if a general State statute purports to cede exclusive jurisdiction, such jurisdiction does not pass unless the United States accepts it.[1391]

Clause 18. The Congress shall have Power * * * To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The Coefficient or Elastic Clause

SCOPE OF INCIDENTAL POWERS

That this clause is an enlargement, not a constriction, of the powers expressly granted to Congress, that it enables the lawmakers to select any means reasonably adapted to effectuate those powers, was established by Marshall's classic opinion in McCulloch v. Maryland.[1392] "Let the end be legitimate," he wrote, "let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional."[1393] Moreover, this provision gives Congress a share in the responsibilities lodged in other departments, by virtue of its right to enact legislation necessary to carry into execution all powers vested in the National Government. Conversely, where necessary for the efficient execution of its own powers, Congress may delegate some measure of legislative power to other departments.[1394]

OPERATION OF COEFFICIENT CLAUSE

Practically every power of the National Government has been expanded in some degree by the coefficient clause. Under its authority Congress has adopted measures requisite to discharge the treaty obligations of the nation;[1395] it has organized the federal judicial system and has enacted a large body of law defining and punishing crimes. Effective control of the national economy has been made possible by the authority to regulate the internal commerce of a State to the extent necessary to protect and promote interstate commerce.[1396] Likewise the right of Congress to utilize all known and appropriate means for collecting the revenue, including the distraint of property for Federal taxes,[1397] and its power to acquire property needed for the operation of the government by the exercise of the power of eminent domain,[1398] have greatly extended the range of national power. But the widest application of the necessary and proper clause has occurred in the field of monetary and fiscal controls. Inasmuch as the various specific powers granted by article I, section 8, do not add up to a general legislative power over such matters, the Court has relied heavily upon this clause in sustaining the comprehensive control which Congress has asserted over this subject.[1399]

DEFINITION AND PUNISHMENT OF CRIMES

Although the only crimes which Congress is expressly authorized to punish are piracies, felonies on the high seas, offenses against the law of nations, treason and counterfeiting of the securities and current coin of the United States, its power to create, define and punish crimes and offenses whenever necessary to effectuate the objects of the Federal Government is universally conceded.[1400] Illustrative of the offenses which have been punished under this power are the alteration of registered bonds;[1401] the bringing of counterfeit bonds into the country;[1402] conspiracy to injure prisoners in custody of a United States marshal;[1403] impersonation of a federal officer with intent to defraud;[1404] conspiracy to injure a citizen in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States;[1405] the receipt by government officials of contributions from government employees for political purposes;[1406] advocating, etc., the overthrow of the Government by force.[1407] Part I of Title 18 of the United States Code comprises more than 500 sections defining penal offenses against the United States.

CHARTERING OF BANKS

As an appropriate means for executing "the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies * * *" Congress may incorporate banks and kindred institutions.[1408] Moreover, it may confer upon them private powers which, standing alone, have no relation to the functions of the Federal Government, if those privileges are essential to the effective operation of such corporations.[1409] Where necessary to meet the competition of State banks, Congress may authorize national banks to perform fiduciary functions, even though, apart from the competitive situation, federal instrumentalities might not be permitted to engage in such business.[1410] The Court will not undertake to assess the relative importance of the public and private functions of a financial institution which Congress has seen fit to create. It sustained the act setting up the Federal Farm Loan Banks to provide funds for mortgage loans on agricultural land against the contention that the right of the Secretary of the Treasury, which he had not exercised, to use these banks as depositaries of public funds, was merely a pretext for chartering these banks for private purposes.[1411]

CURRENCY REGULATIONS

Reinforced by the necessary and proper clause, the powers "'to lay and collect taxes, to pay the debts and provide for the common defence and general welfare of the United States,' and 'to borrow money on the credit of the United States and to coin money and regulate the value thereof * * *'";[1412] have been held to give Congress virtually complete control over money and currency. A prohibitive tax on the notes of State banks;[1413] the issuance of treasury notes impressed with the quality of legal tender in payment of private debts[1414] and the abrogation of clauses in private contracts which called for payment in gold coin,[1415] were sustained as appropriate measures for carrying into effect some or all of the foregoing powers.

POWER TO CHARTER CORPORATIONS

In addition to the creation of banks, Congress has been held to have authority to charter a railroad corporation,[1416] or a corporation to construct an interstate bridge,[1417] as instrumentalities for promoting commerce among the States, and to create corporations to manufacture aircraft[1418] or merchant vessels[1419] as incidental to the war power.

COURTS AND JUDICIAL PROCEEDINGS

Inasmuch as the Constitution "delineated only the great outlines of the judicial power * * *, leaving the details to Congress, * * * The distribution and appropriate exercise of the judicial power must * * * be made by laws passed by Congress, * * *"[1420] As a necessary and proper provision for the exercise of the jurisdiction conferred by article III, section 2 Congress may direct the removal from a State to a federal court of a criminal prosecution against a federal officer for acts done under color of federal law,[1421] and may authorize the removal before trial of civil cases arising under the laws of the United States.[1422] It may prescribe the effect to be given to judicial proceedings of the federal courts,[1423] and may make all laws necessary for carrying into execution the judgments of federal courts.[1424] When a territory is admitted as a State, Congress may designate the Court to which the records of the territorial courts shall be transferred, and may prescribe the mode for enforcement and review of judgments rendered by those courts.[1425] In the exercise of other powers conferred by the Constitution, apart from article III, Congress may create legislative courts and "clothe them with functions deemed essential or helpful in carrying those powers into execution."[1426]

SPECIAL ACTS CONCERNING CLAIMS

This clause enables Congress to pass special laws to require other departments of the Government to prosecute or adjudicate particular claims, whether asserted by the Government itself or by private persons. In 1924,[1427] Congress adopted a Joint Resolution directing the President to cause suit to be instituted for the cancellation of certain oil leases alleged to have been obtained from the Government by fraud, and to prosecute such other actions and proceedings, civil and criminal, as were warranted by the facts. This resolution also authorized the appointment of special counsel to have charge of such litigation. Private acts providing for a review of an order for compensation under the Longshoreman's and Harbor Workers' Compensation Act,[1428] or conferring jurisdiction upon the Court of Claims to hear and determine certain claims of a contractor against the Government, in conformity with directions given by Congress, after that court had denied recovery on such claims, have been held constitutional.[1429]

MARITIME LAW

Congress may implement the admiralty and maritime jurisdiction conferred upon the federal courts by revising and amending the maritime law which existed at the time the Constitution was adopted, but in so doing, it cannot go beyond the reach of that jurisdiction.[1430] This power cannot be delegated to the States; hence acts of Congress which purported to make State Workmen's Compensation laws applicable to maritime cases were held unconstitutional.[1431]

Section 9. Clause 1. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

Powers Denied to Congress

GENERAL PURPOSE OF THE SECTION

This section of the Constitution (containing eight clauses restricting or prohibiting legislation affecting the importation of slaves, the suspension of the writ of habeas corpus, the enactment of bills of attainder or ex post facto laws, the levying of taxes on exports, the granting of preference to ports of one State over another, the granting of titles of nobility, etc.,) is devoted to restraints upon the power of Congress and of the National Government,[1432] and in no respect affects the States in the regulation of their domestic affairs.[1433]

The above clause, which sanctioned the importation of slaves by the States for twenty years after the adoption of the Constitution, when considered with the section requiring escaped slaves to be returned to their masters (art. IV, § 1, cl. 3), was held by Chief Justice Taney in Scott v. Sanford,[1434] to show conclusively that such persons and their descendants were not embraced within the term "citizen" as used in the Constitution. Today is interesting only as an historical curiosity.

Clause 2. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

HABEAS CORPUS

Purpose of the Writ

This section, which restricts only the Federal Government and not the States,[1435] is the only place in the Constitution where the writ of habeas corpus is mentioned. The framers took for granted that the courts of the United States would be given jurisdiction to issue this, the greatest of the safeguards of personal liberty embodied in the common law, and the Judiciary Act of 1789[1436] provided for the issuance of the writ according to "the usages and principles of law." At common law the purpose of such a proceeding was to obtain the liberation of persons who were imprisoned without just cause.[1437] While the Supreme Court conceded at an early date that the authority of the federal courts to entertain petitions for habeas corpus derived solely from acts of Congress,[1438] a narrow majority recently asserted the right to expand the scope of the writ by judicial interpretation and to sanction its use for a purpose unknown to the common law, i.e., to bring a prisoner into court to argue his own appeal. Speaking for the majority Justice Murphy declared that: "However, we do not conceive that a circuit court of appeals, in issuing a writ of habeas corpus under § 262 of the Judicial Code, is necessarily confined to the precise forms of that writ in vogue at the common law or in the English judicial system. Section 262 says that the writ must be agreeable to the usages and principles of 'law,' a term which is unlimited by the common law or the English law. And since 'law' is not a static concept, but expands and develops as new problems arise, we do not believe that the forms of the habeas corpus writ authorized by § 262 are only those recognized in this country in 1789, when the original Judiciary Act containing the substance of this section came into existence."[1439]

Errors Which May Be Corrected on Habeas Corpus

The writ of habeas corpus provides a remedy for jurisdictional and constitutional errors at the trial without limit as to time.[1440] It may be used to correct errors of that order made by military as well as by civil courts.[1441] Under the common law and the Act 31 Car. II c. 2 (1679), where a person was detained pursuant to a conviction by a court having jurisdiction of the subject matter, habeas corpus was available only if a want of jurisdiction appeared on the face of the record of the Court which convicted him. A showing in a return to a writ that the prisoner was held under final process based upon a judgment of a court of competent jurisdiction closed the inquiry.[1442] Under the Judiciary Act of 1789[1443] the same rule obtained.[1444] But by the act of February 5, 1867,[1445] Congress extended the writ to all persons restrained of their liberty in violation of the Constitution or a law or treaty of the United States, and required the Court to ascertain the facts and to "dispose of the party as law and justice require." This gave the prisoner a right to have a judicial inquiry in a court of the United States into the very truth and substance of the causes of his detention. The Supreme Court has said that there is "no doubt of the authority of the Congress to thus liberalize the common law procedure on habeas corpus * * *" .[1446]

Habeas Corpus Not a Substitute for Appeal

Since the writ of habeas corpus is appellate in nature, Congress may confer jurisdiction to issue it upon the Supreme Court as well as upon the inferior federal courts.[1447] The proceeding may not, however, be used as a substitute for an appeal or writ of error.[1448] But if special circumstances make it advantageous to use this writ in aid of a just disposition of a cause pending on appeal it may be used for that purpose.[1449] Where facts dehors the record, which are not open to consideration upon appeal, are alleged to show a denial of constitutional rights, a judicial hearing must be granted to ascertain the truth or falsity of the allegations.[1450]

Issuance of the Writ

On application for a writ of habeas corpus, the Court may either issue the writ, and, on the return, dispose of the case, or it may waive the issuing of the writ and consider whether, upon the facts presented in the petition, the prisoner, if brought before it, could be discharged.[1451] The proceeding may not be used to secure an adjudication of a question which, if determined in the prisoner's favor, could not result in his immediate release.[1452] A discharge of a prisoner on habeas corpus is granted only in the exercise of a sound judicial discretion.[1453] While the strict doctrine of res judicata does not apply to this proceeding,[1454] the Court may, in its discretion, dismiss a petition for habeas corpus where the ground on which it is sought had been alleged in a prior application, but the evidence to support it had been unjustifiably withheld for use on a second attempt if the first failed.[1455] Where the Government did not deny the allegation in a prisoner's fourth petition for habeas corpus, but sought dismissal of the proceedings on the ground that the prisoner had abused the writ, the prisoner was held to be entitled to a hearing to determine whether the charge of abusive use of the writ was well founded.[1456]

Suspension of the Privilege

A critical question under this section is who determines with finality whether the circumstances warrant suspension of the privilege of the writ. In England the writ may be suspended only by Act of Parliament,[1457] and in an early case Chief Justice Marshall asserted that the decision as to when public safety calls for this drastic action depends "on political considerations, on which the legislature is to decide."[1458] At the beginning of the Civil War Lincoln authorized the Commanding General of the Army of the United States to suspend the writ along any military line between Philadelphia and Washington.[1459] In Ex parte Merryman,[1460] Chief Justice Taney strongly denounced the President's action and reasserted the proposition that only Congress could suspend the writ. Attorney General Bates promptly challenged Taney's opinion. Noting that in Ex parte Bollman, Marshall did "not speak of suspending the privilege of the writ, but of suspending the powers vested in the Court by the act," he took the position that the constitutional provision was itself the equivalent of an Act of Parliament.[1461] Thereafter, by an express provision of the act of March 3, 1863, Congress declared, "That, during the present rebellion, the President of the United States, whenever, in his judgment, the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States, or any part thereof."[1462] The validity of this statute was assumed in Ex parte Milligan,[1463] but a narrow majority of the Court declared that the suspension of the writ did not authorize the arrest of any one, but simply denied to one arrested the privilege of the writ in order to obtain his liberty.[1464]

Clause 3. No Bill of Attainder or ex post facto Law shall be passed.

BILLS OF ATTAINDER

Historically, the term "bills of attainder" was applied to "such special acts of the legislature as inflict capital punishment upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings." An act which inflicted a milder degree of punishment was called a bill of pains and penalties.[1465] Within the meaning of the Constitution, however, bills of attainder include bills of pains and penalties.[1466] As interpreted by the Supreme Court, this clause prohibits all legislative acts, "no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial * * *"[1467] Two acts of Congress—one which required attorneys practicing in the federal courts to take an oath that they had never given aid to persons engaged in hostility to the United States,[1468] and another which prohibited the payment of compensation to certain named government employees who have been charged with subversive activity,[1469]—have been held unconstitutional on the ground that they amounted to bills of attainder.

EX POST FACTO LAWS

Definition

At the time the Constitution was adopted, many persons understood the terms ex post facto laws, to "embrace all retrospective laws, or laws governing or controlling past transactions, whether * * * of a civil or a criminal nature."[1470] But in the early case of Calder v. Bull,[1471] the Supreme Court decided that the phrase, as used in the Constitution, applies only to penal and criminal statutes. But although it is inapplicable to retroactive legislation of any other kind,[1472] the constitutional prohibition may not be evaded by giving a civil form to a measure which is essentially criminal.[1473] Every law which makes criminal an act which was innocent when done, or which inflicts a greater punishment than the law annexed to the crime when committed, is an ex post facto law within the prohibition of the Constitution.[1474] A prosecution under a temporary statute which was extended before the date originally set for its expiration does not offend this provision even though it is instituted subsequent to the extension of the statute's duration for a violation committed prior thereto.[1475] Since this provision has no application to crimes committed outside the jurisdiction of the United States against the laws of a foreign country, it is immaterial in extradition proceedings whether the foreign law is ex post facto or not.[1476]

What Constitutes Punishment

An act of Congress which prescribed as a qualification for practice before the federal courts an oath that the attorney had not participated in the Rebellion was found unconstitutional since it operated as a punishment for past acts.[1477] But a statute which denied to polygamists the right to vote in a territorial election, was upheld even as applied to a person who had not practiced polygamy since the act was passed, because the law did not operate as an additional penalty for the offense of polygamy but merely defined it as a disqualification of a voter.[1478] A deportation law authorizing the Secretary of Labor to expel aliens for criminal acts committed before its passage is not ex post facto since deportation is not a punishment.[1479] Likewise an act permitting the cancellation of naturalization certificates obtained by fraud prior to the passage of the law was held not to impose a punishment but simply to deprive the alien of his ill-gotten privileges.[1480]

Change in Place or Mode of Trial

A change of the place of trial of an alleged offense after its commission, is not an ex post facto law. If no place of trial was provided when the offense was committed, Congress may designate the place of trial thereafter.[1481] A law which alters the rule of evidence to permit a person to be convicted upon less or different evidence than was required when the offense was committed is invalid,[1482] but a statute which simply enlarges the class of persons who may be competent to testify in criminal cases is not ex post facto as applied to a prosecution for a crime committed prior to its passage.[1483]

Clause 4. No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

DIRECT TAXES

The Hylton Case

The crucial problem under this section is to distinguish "direct" from other taxes. In its opinion in Pollock v. Farmers' Loan and Trust Co., we find the Court declaring: "It is apparent * * * that the distinction between direct and indirect taxation was well understood by the framers of the Constitution and those who adopted it."[1484] Against this confident dictum may be set the following brief excerpt from Madison's Notes on the Convention: "Mr. King asked what was the precise meaning of direct taxation? No one answered."[1485] The first case to come before the Court on this issue was Hylton v. United States,[1486] which was decided early in 1796. Congress had levied, according to the rule of uniformity, a specific tax upon all carriages, for the conveyance of persons, which shall be kept by, or for any person, for his own use, or to be let out for hire, or for the conveying of passengers. In a fictitious statement of facts, it was stipulated that the carriages involved in the case were kept exclusively for the personal use of the owner and not for hire. The principal argument for the constitutionality of the measure was made by Hamilton, who treated it as an "excise tax,"[1487] while Madison both on the floors of Congress and in correspondence attacked it as "direct" and so void, inasmuch as it was levied without apportionment.[1488] The Court, taking the position that the direct tax clause constituted in practical operation an exception to the general taxing powers of Congress, held that no tax ought to be classified as "direct" which could not be conveniently apportioned, and on this basis sustained the tax on carriages as one on their "use" and therefore an "excise." Moreover, each of the judges advanced the opinion that the direct tax clause should be restricted to capitation taxes and taxes on land, or that at most, it might cover a general tax on the aggregate or mass of things which generally pervade all the States, especially if an assessment should intervene; while Justice Paterson, who had been a member of the Federal Convention, testified to his recollection that the principal purpose of the provision had been to allay the fear of the Southern States lest their Negroes and lands should be subjected to a specific tax.[1489]

From the Hylton to the Pollock Case

The result of the Hylton case was not challenged until after the Civil War. A number of the taxes imposed to meet the demands of that war were assailed during the postwar period as direct taxes, but without result. The Court sustained successively as "excises" or "duties," a tax on an insurance company's receipts for premiums and assessments;[1490] a tax on the circulating notes of State banks,[1491] an inheritance tax on real estate,[1492] and finally a general tax on incomes.[1493] In the last case, the Court took pains to state that it regarded the term "direct taxes" as having acquired a definite and fixed meaning-to-wit, capitation taxes, and taxes on hand.[1494] Then, almost one hundred years after the Hylton case, the famous case of Pollock v. Farmers' Loan and Trust Company[1495] arose under the Income Tax Act of 1894.[1496] Undertaking to correct "a century of error" the Court held, by a vote of five-to-four, that a tax on income from property was a direct tax within the meaning of the Constitution and hence void because not apportioned according to the census.

Restriction of the Pollock Decision

The Pollock decision encouraged taxpayers to challenge the right of Congress to levy by the rule of uniformity numerous taxes which had always been reckoned to be excises. But the Court evinced a strong reluctance to extend the doctrine to such exactions. Purporting to distinguish taxes levied "because of ownership" or "upon property as such" from those laid upon "privileges,"[1497] it sustained as "excises" a tax on sales on business exchanges;[1498] a succession tax which was construed to fall on the recipients of the property transmitted, rather than on the estate of the decedent,[1499] and a tax on manufactured tobacco in the hands of a dealer, after an excise tax had been paid by the manufacturer.[1500] Again, in Thomas v. United States,[1501] the validity of a stamp tax on sales of stock certificates was sustained on the basis of a definition of "duties, imposts and excises." These terms, according to the Chief Justice, "were used comprehensively to cover customs and excise duties imposed on importation, consumption, manufacture and sale of certain commodities, privileges, particular business transactions, vocations, occupations and the like."[1502] On the same day it ruled, in Spreckels Sugar Refining Co. v. McClain,[1503] that an exaction denominated a special excise tax imposed on the business of refining sugar and measured by the gross receipts thereof, was in truth an excise and hence properly levied by the rule of uniformity. The lesson of Flint v. Stone Tracy Co.[1504] is the same. Here what was in form an income tax was sustained as a tax on the privilege of doing business as a corporation, the value of the privilege being measured by the income, including income from investments. Similarly, in Stanton v. Baltic Mining Co.[1505] a tax on the annual production of mines was held to be "independently of the effect of the operation of the Sixteenth Amendment * * * not a tax upon property as such because of its ownership, but a true excise levied on the results of the business of carrying on mining operations."[1506]

A convincing demonstration of the extent to which the Pollock decision had been whittled down by the time the Sixteenth Amendment was adopted is found in Billings v. United States.[1507] In challenging an annual tax assessed for the year 1909 on the use of foreign built yachts—a levy not distinguishable in substance from the carriage tax involved in the Hylton case as construed by the Supreme Court-counsel did not even suggest that the tax should be classed as a direct tax. Instead, he based his argument that the exaction constituted a taking of property without due process of law upon the premise that it was an excise, and the Supreme Court disposed of the case upon the same assumption.

In 1921 the Court cast aside the distinction drawn in Knowlton v. Moore between the right to transmit property on the one hand and the privilege of receiving it on the other, and sustained an estate tax as an excise. "Upon this point" wrote Justice Holmes for a unanimous court, "a page of history is worth a volume of logic."[1508] This proposition being established, the Court has had no difficulty in deciding that the inclusion in the computation of the estate tax of property held as joint tenants,[1509] or as tenants by the entirety,[1510] or the entire value of community property owned by husband and wife,[1511] or the proceeds of insurance upon the life of the decedent,[1512] did not amount to direct taxation of such property. Similarly it upheld a graduated tax on gifts as an excise, saying that it was "a tax laid only upon the exercise of a single one of those powers incident to ownership, the power to give the property owned to another."[1513] In vain did Justice Sutherland, speaking for himself and two associates, urge that "the right to give away one's property is as fundamental as the right to sell it or, indeed, to possess it."[1514]

Miscellaneous

The power of Congress to levy direct taxes is not confined to the States which are represented in that body. Such a tax may be levied in proportion to population in the District of Columbia.[1515] A penalty imposed for nonpayment of a direct tax is not a part of the tax itself and hence is not subject to the rule of apportionment. Accordingly, the Supreme Court sustained the penalty of fifty percent which Congress exacted for default in the payment of the direct tax on land in the aggregate amount of twenty million dollars which was levied and apportioned among the States during the Civil War.[1516]

Clause 5. No Tax or Duty shall be laid on Articles exported from any State.

TAXES ON EXPORTS

This prohibition applies only to the imposition of duties on goods by reason of exportation.[1517] The word "export" signifies goods exported to a foreign country, not to an unincorporated territory of the United States.[1518] A general tax laid on all property alike, including that intended for export, is not within the prohibition, if it is not levied on goods in course of exportation nor because of their intended exportation.[1519] Where the sale to a commission merchant for a foreign consignee was consummated by delivery of the goods to an exporting carrier, the sale was held to be a step in the exportation and hence exempt from a general tax on sales of such commodity.[1520] The giving of a bond for exportation of distilled liquor is not the commencement of exportation so as to exempt from an excise tax spirits which were not exported pursuant to such bond.[1521] A tax on the income of a corporation derived from its export trade is not a tax on "articles exported" within the meaning of the Constitution.[1522]

Stamp Taxes

A stamp tax imposed on foreign bills of lading,[1523] charter parties,[1524] or marine insurance policies,[1525] is in effect a tax or duty upon exports, and so void; but an act requiring the stamping of all packages of tobacco intended for export in order to prevent fraud was held not to be forbidden as a tax on exports.[1526]

Clause 6. No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another.

THE "NO PREFERENCE" CLAUSE

The limitations imposed by this section were designed to prevent preferences as between ports on account of their location in different States. They do not forbid such discriminations as between individual ports. Acting under the commerce clause, Congress may do many things which benefit particular ports and which incidentally result to the disadvantage of other ports in the same or neighboring States. It may establish ports of entry, erect and operate lighthouses, improve rivers and harbors, and provide structures for the convenient and economical handling of traffic.[1527] A rate order of the Interstate Commerce Commission which allowed an additional charge to be made for ferrying traffic across the Mississippi to cities on the east bank of the river was sustained over the objection that it gave an unconstitutional preference to ports in Texas.[1528] Although there were a few early intimations that this clause was applicable to the States as well as to Congress,[1529] the Supreme Court declared emphatically in 1886 that State legislation was unaffected by it.[1530] After more than a century the Court confirmed, over the objection that this clause was offended, the power which the First Congress had exercised[1531] in sanctioning the continued supervision and regulation of pilots by the States.[1532] Alaska is not deemed to be a State within the meaning of this clause.[1533]

Clause 7. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

APPROPRIATIONS

This clause is a limitation upon the power of the executive department and does not restrict Congress in appropriating moneys in the Treasury.[1534] That body may recognize and pay a claim of an equitable, moral or honorary nature. Where it directs a specific sum to be paid to a certain person, neither the Secretary of the Treasury nor any court has discretion to determine whether the person is entitled to receive it.[1535] In making appropriations to pay claims arising out of the Civil War, the Court held that it was lawful to provide that certain persons, i.e., those who had aided the rebellion, should not be paid out of the funds made available by the general appropriation, but that such persons should seek relief from Congress.[1536] The Court has also recognized that Congress has a wide discretion as to the extent to which it shall prescribe details of expenditures for which it appropriates funds and has approved the frequent practice of making general appropriations of large amounts to be allotted and expended as directed by designated government agencies. Citing as an example the act of June 17, 1902[1537] where all moneys received from the sale and disposal of public lands in a large number of States and territories were set aside as a special fund to be expended under the direction of the Secretary of the Interior upon such projects as he determined to be practicable and advisable for the reclamation of arid and semi-arid lands within those States and territories, the Court declared: "The constitutionality of this delegation of authority has never been seriously questioned."[1538]

PAYMENT OF CLAIMS

No officer of the Federal Government is authorized to pay a debt due from the United States, whether reduced to judgment or not, without an appropriation for that purpose.[1539] After the Civil War, a number of controversies arose out of attempts by Congress to restrict the payment of the claims of persons who had aided the Rebellion, but had thereafter received a pardon from the President. The Supreme Court held that Congress could not prescribe the evidentiary effect of a pardon in a proceeding in the Court of Claims for property confiscated during the Civil War,[1540] but that where the confiscated property had been sold and the proceeds paid into the Treasury, a pardon did not of its own force authorize the restoration of such proceeds.[1541] It was within the competence of Congress to declare that the amounts due to persons thus pardoned should not be paid out of the Treasury and that no general appropriation should extend to their claims.[1542]

Clause 8. No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

In 1871 the Attorney General of the United States ruled that: "A minister of the United States abroad is not prohibited by the Constitution from rendering a friendly service to a foreign power, even that of negotiating a treaty for it, provided he does not become an officer of that power, but the acceptance of a formal commission, as minister plenipotentiary, creates an official relation between the individual thus commissioned and the government which in this way accredits him as its representative, which is prohibited by this clause of the Constitution."[1543]

Section 10. No State Shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

Powers Denied to the States

TREATIES, ALLIANCES OR CONFEDERATIONS

At the time of the Civil War this clause was one of the provisions upon which the Court relied in holding that the Confederation formed by the seceding States could not be recognized as having any legal existence.[1544] Today, its practical significance lies in the limitations which it implies upon the power of the States to deal with matters having a bearing upon international relations. In the early case of Holmes v. Jennison,[1545] Chief Justice Taney invoked it as a reason for holding that a State had no power to deliver up a fugitive from justice to a foreign State. Recently the kindred idea that the responsibility for the conduct of foreign relations rests exclusively with the Federal Government prompted the Court to hold that, since the oil under the three mile marginal belt along the California coast might well become the subject of international dispute and since the ocean, including this three mile belt, is of vital consequence to the nation in its desire to engage in commerce and to live in peace with the world, the Federal Government has paramount rights in and power over that belt, including full dominion over the resources of the soil under the water area.[1546] In Skiriotes v. Florida,[1547] the Court, on the other hand, ruled that this clause did not disable Florida from regulating the manner in which its own citizens may engage in sponge fishing outside its territorial waters. Speaking for a unanimous Court, Chief Justice Hughes declared: "When its action does not conflict with federal legislation, the sovereign authority of the State over the conduct of its citizens upon the high seas is analogous to the sovereign authority of the United States over its citizens in like circumstances."[1548]

BILLS OF CREDIT

Within the sense of the Constitution, bills of credit signify a paper medium of exchange, intended to circulate between individuals; and between the Government and individuals, for the ordinary purposes of society. It is immaterial whether the quality of legal tender is imparted to such paper. Interest bearing certificates, in denominations not exceeding ten dollars, which were issued by loan offices established by the State of Missouri, and made receivable in payment of taxes or other moneys due to the State, and in payment of the fees and salaries of State officers, were held to be bills of credit whose issuance was banned by this section.[1549] The States are not forbidden, however, to issue coupons receivable for taxes,[1550] nor to execute instruments binding themselves to pay money at a future day for services rendered or money borrowed.[1551] Bills issued by State banks are not bills of credit;[1552] it is immaterial that the State is the sole stockholder of the bank,[1553] that the officers of the bank were elected by the State legislature,[1554] or that the capital of the bank was raised by the sale of State bonds.[1555]

LEGAL TENDER

Relying on this clause, which applies only to the States and not to the Federal Government,[1556] the Supreme Court has held that where the marshal of a State court received State bank notes in payment and discharge of an execution, the creditor was entitled to demand payment in gold or silver.[1557] Since, however, there is nothing in the Constitution which prohibits a bank depositor from consenting when he draws a check, that payment may be made by draft, a State law which provided that checks drawn on local banks should, at the option of the bank, be payable in exchange drafts was held valid.[1558]

BILLS OF ATTAINDER

Statutes passed after the Civil War with the intent and result of excluding persons who had aided the Confederacy from following certain callings, by the device of requiring them to take an oath that they had never given such aid, were held invalid as being bills of attainder, as well as ex post facto laws.[1559]

EX POST FACTO LAWS

Scope of Provision

This clause, like the cognate restriction imposed on the Federal Government by section 9, relates only to penal and criminal legislation and not to civil laws which affect private rights adversely.[1560] It is directed only against legislative action and does not touch erroneous or inconsistent decisions by the courts.[1561] Even though a law is ex post facto and invalid as to crimes committed prior to its enactment, it is nonetheless valid as to subsequent offenses.[1562] If it mitigates the rigor of the law in force at the time the crime was committed,[1563] or if it merely penalizes the continuance of conduct which was lawfully begun before its passage, the statute is not ex post facto. Thus measures penalizing the failure of a railroad to cut drains through existing embankments,[1564] or making illegal the continued possession of intoxicating liquors which were lawfully acquired,[1565] have been held valid.

Denial of Future Privileges to Past Offenders

The right to practice a profession may be denied to one who was convicted of an offense before the statute was enacted if the offense may reasonably be regarded as a continuing disqualification for the profession. Without offending the Constitution, a statute making it a misdemeanor to practice medicine after conviction of a felony may be enforced against a person so convicted before the act was passed.[1566] But the test oath prescribed after the Civil War, whereby office holders, teachers, or preachers were required to swear that they had not participated in the Rebellion, were held invalid on the ground that it had no reasonable relation to fitness to perform official or professional duties, but rather was a punishment for past offenses.[1567] A similar oath required of suitors in the courts also was held void.[1568]

Changes in Punishment

Statutes which changed an indeterminate sentence law to require a judge to impose the maximum sentence, whereas formerly he could impose a sentence between the minimum and maximum;[1569] abolished a rule which prevented a subsequent conviction of first-degree murder after a jury had found the accused guilty in the second-degree by a verdict which had been set aside;[1570] required criminals sentenced to death to be kept thereafter in solitary confinement,[1571] or allowed a warden to fix, within limits of one week, and keep secret the time of execution,[1572] were held to be ex post facto as applied to offenses committed prior to their enactment. But laws providing heavier penalties for new crimes thereafter committed by habitual criminals;[1573] changing the punishment from hanging to electrocution, fixing the place therefor in the penitentiary, and permitting the presence of a greater number of invited witnesses;[1574] or providing for close confinement of six to nine months in the penitentiary, in lieu of three to six months in jail prior to execution, and substituting the warden for the sheriff as hangman, have been sustained.[1575]

Changes in Procedure

An accused person does not have a right to be tried in all respects in accordance with the law in force when the crime charged was committed.[1576] The mode of procedure may be changed so long as the substantial rights of the accused are not curtailed.[1577] Laws shifting the place of trial from one county to another,[1578] increasing the number of appellate judges and dividing the appellate court into divisions,[1579] granting a right of appeal to the State,[1580] changing the method of selecting and summoning jurors,[1581] making separate trials for persons jointly indicted a matter of discretion for the trial court rather than a matter of right,[1582] and allowing a comparison of handwriting experts[1583] have been sustained over the objection that they were ex post facto. The contrary conclusion was reached with respect to the application to felonies committed before a Territory was admitted to the Union, of the provision in the State constitution which permitted the trial of criminal cases by a jury of eight persons, instead of the common law jury of twelve which was guaranteed by the Sixth Amendment during the period of territorial government.[1584]

OBLIGATION OF CONTRACTS

Definition of Terms

"Law."—The term comprises statutes, constitutional provisions,[1585] municipal ordinances,[1586] and administrative regulations having the force and operation of statutes.[1587] How is it as to judicial decisions? Not only does the abstract principle of the separation of powers forbid the idea that the courts "make" law, but the word "pass" in the above clause seems to confine it to the formal and acknowledged methods of exercise of the law-making function. Accordingly, the Court has frequently said that the clause does not cover judicial decisions, however erroneous, or whatever their effect on existing contract rights.[1588] Nevertheless, there are important exceptions to this rule which are hereinafter set forth.

Status of Judicial Decisions.—Also, while the highest State court usually has final authority in determining the construction as well as the validity of contracts entered into under the laws of the State, and the national courts will be bound by their decision of such matters, nevertheless, for reasons which are fairly obvious, this rule does not hold when the contract is one whose obligation is alleged to have been impaired by State law.[1589] Otherwise, the challenged State authority could be vindicated through the simple device of a modification or outright nullification by the State court of the contract rights in issue. Likewise, the highest State court usually has final authority in construing State statutes and determining their validity in relation to the State constitution. But this rule too has had to bend to some extent to the Supreme Court's interpretation of the obligation of contracts clause.[1590]

Suppose the following situation: (1) a municipality, acting under authority conferred by a State statute, has issued bonds in aid of a railway company; (2) the validity of this statute has been sustained by the highest State court; (3) later the State legislature passes an act to repeal certain taxes to meet the bonds; (4) it is sustained in doing so by a decision of the highest State court holding that the statute authorizing the bonds was unconstitutional ab initio. In such a case the Supreme Court would take an appeal from the State court and would reverse the latter's decision of unconstitutionally because of its effect in rendering operative the act to repeal the tax.[1591]

Suppose further, however, that the State court has reversed itself on the question of the constitutionality of the bonds in a suit by a creditor for payment without there having been an act of repeal. In this situation, as the cases stand today, the Supreme Court will still afford relief if the case is one between citizens of different States, which reaches it via a lower federal court.[1592] This is because in cases of this nature the Court formerly felt free to determine questions of fundamental justice for itself. Indeed, in such a case, the Court has apparently in the past regarded itself as free to pass upon the constitutionality of the State law authorizing the bonds even though there has been no prior decision by the highest State court sustaining them, the idea being that contracts entered into simply on the faith of the presumed constitutionality of a State statute are entitled to this protection.[1593]

In other words, in cases of which it has jurisdiction because of diversity of citizenship, the Court has held that the obligation of contracts is capable of impairment by subsequent judicial decisions no less than by subsequent statutes and that it is able to prevent such impairment. In cases, on the other hand, of which it obtains jurisdiction only on the constitutional ground, and by appeal from a State court, it has always adhered in terms to the doctrine that the word "laws" as used in article I, section 10, does not comprehend judicial decisions. Yet even in these cases, it will intervene to protect contracts entered into on the faith of existing decisions from an impairment which is the direct result of a reversal of such decisions, but there must be in the offing, as it were, a statute of some kind—one possibly many years older than the contract rights involved—on which to pin its decision.[1594]

In 1922 Congress, through an amendment to the Judicial Code, endeavored to extend the reviewing power of the Supreme Court to suits involving "'* * * the validity of a contract wherein it is claimed that a change in the rule of law or construction of statutes by the highest court of a State applicable to such contract would be repugnant to the Constitution of the United States * * *'" This appeared to be an invitation to the Court to say frankly that the obligation of a contract can be impaired as well by a subsequent decision as by a subsequent statute. The Court, however, declined the invitation in an opinion by Chief Justice Taft which reviewed many of the cases covered in the preceding paragraphs. Dealing with the Gelpcke and adherent decisions, Chief Justice Taft said: "These cases were not writs of error to the Supreme Court of a State. They were appeals or writs of error to federal courts where recovery was sought upon municipal or county bonds or some other form of contracts, the validity of which had been sustained by decisions of the Supreme Court of a State prior to their execution, and had been denied by the same court after their issue or making. In such cases the federal courts exercising jurisdiction between citizens of different States held themselves free to decide what the State law was, and to enforce it as laid down by the State Supreme Court before the contracts were made rather than in later decisions. They did not base this conclusion on Article I, § 10, of the Federal Constitution, but on the State law as they determined it, which, in diverse citizenship cases, under the third Article of the Federal Constitution they were empowered to do. Burgess v. Seligman, 107 U.S. 20 (1883)."[1595] While doubtless this was an available explanation in 1924, the decision in 1938 in Erie Railroad Co. v. Tompkins, 304 U.S. 64, so cuts down the power of the federal courts to decide diversity of citizenship cases according to their own notions of "general principles of common law" as to raise the question whether the Court will not be required eventually to put Gelpcke and its companions and descendants squarely on the obligation of contracts clause, or else abandon them.

"Obligation."—A contract is analyzable into two elements: the agreement, which comes from the parties, and the obligation which comes from the law and makes the agreement binding on the parties. The concept of obligation is an importation from the Civil Law and its appearance in the contracts clause is supposed to have been due to James Wilson, a graduate of Scottish universities and a Civilian. Actually the term as used in the contracts clause has been rendered more or less superfluous by the doctrine that the law in force when a contract is made enters into and comprises a part of the contract itself.[1596] Hence the Court sometimes recognizes the term in its decisions applying the clause, sometimes ignores it. In Sturges v. Crowninshield,[1597] decided in 1819, Marshall defines "obligation of contract" as "the law which binds the parties to perform their agreement"; but a little later the same year he sets forth the points presented for consideration in Trustees of Dartmouth College v. Woodward[1598] to be: "1. Is this contract protected by the Constitution of the United States? 2. Is it impaired by the acts under which the defendant holds?"[1599] The word "obligation" undoubtedly does carry the implication that the Constitution was intended to protect only executory contracts—i.e., contracts still awaiting performance; but as is indicated in a moment, this implication was early rejected for a certain class of contracts, with immensely important result for the clause.

"Impair."—"The obligations of a contract," says Chief Justice Hughes for the Court in Home Building and Loan Association v. Blaisdell,[1600] "are impaired by a law which renders them invalid, or releases or extinguishes them * * * and impairment, * * *, has been predicated of laws which without destroying contracts derogate from substantial contractual rights."[1601] But he straight-away adds: "Not only are existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order. The policy of protecting contracts against impairment presupposes the maintenance of a government by virtue of which contractual relations are worth while,—a government which retains adequate authority to secure the peace and good order of society. This principle of harmonizing the constitutional prohibition with the necessary residuum of State power has had progressive recognition in the decisions of this Court."[1602] In short, the law from which the obligation stems must be understood to include Constitutional Law and, moreover, a "progressive" Constitutional Law.[1603]

"Contracts," Extended to Cover Public Contracts.—Throughout the first century of government under the Constitution, according to Benjamin F. Wright, the contract clause had been considered in almost forty per cent of all cases involving the validity of State legislation, and of these the vast proportion involved legislative grants of one type or other, the most important category being charters of incorporation.[1604] Nor does this numerical prominence of such grants in the cases overrate their relative importance from the point of view of public interest. The question consequently arises whether the clause was intended to be applied solely in protection of private contracts, or in the protection also of public grants or, more broadly, in protection of public contracts, in short, those to which a State is party?

Writing late in life, Madison explained the clause by allusion to what had occurred "in the internal administration of the States," in the years immediately preceding the Constitutional Convention, in regard to private debts. "A violation of contracts," said he, "had become familiar in the form of depreciated paper made a legal tender, of property substituted for money, and installment laws, and the occlusions of the courts of justice."[1605] He had, in fact, written to the same effect in The Federalist, while the adoption of the Constitution was pending.[1606]

The broader view of the intended purpose of the clause is, nevertheless, not without considerable support. For one thing, the clause departs from the comparable provision in the Northwest Ordinance (1787) in two respects: First, in the presence of the word "obligation"; secondly, in the absence of the word "private"; and there is good reason for believing that Wilson may have been responsible for both alterations, inasmuch as two years earlier he had denounced a current proposal to repeal the Bank of North America's Pennsylvania charter, in the following words: "If the act for incorporating the subscribers to the Bank of North America shall be repealed in this manner, a precedent will be established for repealing, in the same manner, every other legislative charter in Pennsylvania. A pretence, as specious as any that can be alleged on this occasion, will never be wanting on any future occasion. Those acts of the State, which have hitherto been considered as the sure anchors of privilege and of property, will become the sport of every varying gust of politics, and will float wildly backwards and forwards on the irregular and impetuous tides of party and faction."[1607]

Furthermore, in its first important constitutional case, that of Chisholm v. Georgia,[1608] the Court ruled that its original jurisdiction extended to an action in assumpsit brought by a citizen of South Carolina against the State of Georgia. This construction of the federal judicial power was, to be sure, promptly repealed by the Eleventh Amendment, but without affecting the implication that the contracts protected by the Constitution included public contracts.

One important source of this diversity of opinion is to be found in that ever welling spring of constitutional doctrine in early days, the prevalence of Natural Law notions and the resulting vague significance of the term "law." In Sturges v. Crowninshield, as we saw, Marshall defined the obligation of contracts as "the law which binds the parties to perform their undertaking." Whence, however, comes this law? If it comes from the State alone, which Marshall was later to deny even as to private contracts,[1609] then it is hardly possible to hold that the States' own contracts are covered by the clause, which manifestly does not create an obligation for contracts but only protects such obligation as already exists. But if, on the other hand, the law furnishing the obligation of contracts comprises Natural Law and kindred principles, as well as law which springs from State authority, then, inasmuch as the State itself is presumably bound by such principles, the State's own obligations, so far as harmonious with them, are covered by the clause.

Fletcher v. Peck

Fletcher v. Peck,[1610] which was decided in 1810, has the double claim to fame that it was the first case in which the Supreme Court held a State enactment to be in conflict with the Constitution,[1611] and also the first case to hold that the contracts clause protected public grants. By an act passed on January 7, 1795, the Georgia Legislature directed the sale to four land companies of public lands comprising most of what are now the States of Alabama and Mississippi. As soon became known, the passage of the measure had been secured by open and wholesale bribery. So when a new legislature took over in the winter of 1795-1796, almost its first act was to revoke the sale made the previous year.

Meantime, however, the land companies had disposed of several millions of acres of their holdings to speculators and prospective settlers, and following the rescinding act some of these took counsel with Alexander Hamilton as to their rights. In an opinion which was undoubtedly known to the Court when it decided Fletcher v. Peck, Hamilton characterized the repeal as contravening "the first principles of natural justice and social policy," especially so far as it was made, "to the prejudice * * * of third persons * * * innocent of the alleged fraud or corruption; * * * [Moreover, he added,] the Constitution of the United States, article first, section tenth, declares that no State shall pass a law impairing the obligations of contract. This must be equivalent to saying no State shall pass a law revoking, invalidating, or altering a contract. Every grant from one to another, whether the grantor be a State or an individual, is virtually a contract that the grantee shall hold and enjoy the thing granted against the grantor, and his representatives. It, therefore, appears to me that taking the terms of the Constitution in their large sense, and giving them effect according to the general spirit and policy of the provisions, the revocation of the grant by the act of the legislature of Georgia may justly be considered as contrary to the Constitution of the United States, and, therefore null. And that the courts of the United States, in cases within their jurisdiction, will be likely to pronounce it so."[1612] In the debate to which the "Yazoo Land Frauds," as they were contemporaneously known, gave rise in Congress, Hamilton's views were quoted frequently.

So far as it invokes the obligation of contracts clause, Marshall's opinion in Fletcher v. Peck performs two creative acts. He recognizes that an obligatory contract is one still to be performed—in other words, is an executory contract; also that a grant of land is an executed contract—a conveyance. But, he asserts, every grant is attended by "an implied contract" on the part of the grantor not to claim again the thing granted. Thus, grants are brought within the category of contracts having continuing obligation and so within article I, § 10. But the question still remained of the nature of this obligation. Marshall's answer to this can only be inferred from his statement at the end of his opinion. The State of Georgia, he says, "was restrained" from the passing of the rescinding act "either by general principles which are common to our free institutions, or by particular provisions of the Constitution of the United States."[1613]

New Jersey v. Wilson

The protection thus thrown about land grants was presently extended, in the case of New Jersey v. Wilson,[1614] to a grant of immunity from taxation which the State of New Jersey had accorded certain Indian lands; and several years after that, in the Dartmouth College Case,[1615] to the charter privileges of an eleemosynary corporation.

Corporate Charters, Different Ways of Regarding

There are three ways in which the charter of a corporation may be regarded. In the first place, it may be thought of simply as a license terminable at will by the State, like a liquor-seller's license or an auctioneer's license, but affording the incorporators, so long as it remains in force, the privileges and advantages of doing business in the form of a corporation. Nowadays, indeed, when corporate charters are usually issued to all legally qualified applicants by an administrative officer who acts under a general statute, this would probably seem to be the natural way of regarding them were it not for the Dartmouth College decision. But in 1819 charters were granted directly by the State legislatures in the form of special acts, and there were very few profit-taking corporations in the country.[1616] The later extension of the benefits of the Dartmouth College decision to corporations organized under general law took place without discussion.

Secondly, a corporate charter may be regarded as a franchise constituting a vested or property interest in the hands of the holders, and therefore as forfeitable only for abuse or in accordance with its own terms. This is the way in which some of the early State courts did regard them at the outset.[1617] It is also the way in which Blackstone regards them in relation to the royal prerogative, although not in relation to the sovereignty of Parliament; and the same point of view finds expression in Story's concurring opinion in Dartmouth College v. Woodward, as it did also in Webster's argument in that case.[1618]

The Dartmouth College Case

The third view is the one formulated by Chief Justice Marshall in his controlling opinion in Trustees of Dartmouth College v. Woodward.[1619] This is that the charter of Dartmouth College, a purely private institution, was the outcome and partial record of a contract between the donors of the college, on the one hand, and the British Crown, on the other, which contract still continued in force between the State of New Hampshire, as the successor to the Crown and Government of Great Britain, and the trustees, as successors to the donors. The charter, in other words, was not simply a grant—rather it was the documentary record of a still existent agreement between still existent parties.[1620] Taking this view, which he developed with great ingenuity and persuasiveness, Marshall was able to appeal to the obligation of contracts clause directly, and without further use of his fiction in Fletcher v. Peck of an executory contract accompanying the grant.

A difficulty still remained, however, in the requirement that a contract must, before it can have obligation, import consideration, that is to say, must be shown not to have been entirely gratuitous on either side. Nor was the consideration which induced the Crown to grant a charter to Dartmouth College a merely speculative one. It consisted of the donations of the donors to the important public interest of education. Fortunately or unfortunately, in dealing with this phase of the case, Marshall used more sweeping terms than were needful. "The objects for which a corporation is created," he wrote, "are universally such as the government wishes to promote. They are deemed beneficial to the country; and this benefit constitutes the consideration, and in most cases, the sole consideration of the grant." In other words, the simple fact of the charter having been granted imports consideration from the point of view of the State.[1621] With this doctrine before it, the Court in Providence Bank v. Billings,[1622] and again in Charles River Bridge Company v. Warren Bridge Company,[1623] admitted, without discussion of the point, the applicability of the Dartmouth College decision to purely business concerns.

Classes of Cases Under the Clause

The cases just reviewed produce two principal lines of decisions stemming from the obligation of contracts clause: first, public grants; second, private executory contracts. The chief category of the first line of cases consists, in turn, of those involving corporate privileges, both those granted directly by the States and those granted by municipalities by virtue of authority conferred upon them by the State;[1624] while private debts, inclusive of municipal debts, exhaust for the most part the second line.

Public Grants

Municipal Corporations.—Not all grants by a State constitute "contracts" within the sense of article I, section 10. In his Dartmouth College decision Chief Justice Marshall conceded that "if the act of incorporation be a grant of political power, if it creates a civil institution, to be employed in the administration of the government, * * *, the subject is one in which the legislature of the State may act according to its own justment," unrestrained by the Constitution[1625]—thereby drawing a line between "public" and "private" corporations which remained undisturbed for more than half a century.[1626] It has been subsequently held many times that municipal corporations are mere instrumentalities of the State for the more convenient administration of local governments, whose powers may be enlarged, abridged, or entirely withdrawn at the pleasure of the legislature.[1627] The same principle applies, moreover, to the property rights which the municipality derives either directly or indirectly from the State. This was first held as to the grant of a franchise to a municipality to operate a ferry, and has since then been recognized as the universal rule.[1628] As was stated in a case decided in 1923: "The distinction between the municipality as an agent of the State for governmental purposes and as an organization to care for local needs in a private or proprietary capacity," while it limits the legal liability of municipalities for the negligent acts or omissions of its officers or agents, does not, on the other hand, furnish ground for the application of constitutional restraints against the State in favor of its own municipalities.[1629] Thus no contract rights are impaired by a statute removing a county seat, even though the former location was by law to be "permanent" when the citizens of the community had donated land and furnished bonds for the erection of public buildings.[1630] Likewise a statute changing the boundaries of a school district, giving to the new district the property within its limits which had belonged to the former district, and requiring the new district to assume the debts of the old district, does not impair the obligation of contracts.[1631] Nor was the contracts clause violated by State legislation authorizing State control over insolvent communities through a Municipal Finance Commission.[1632]

Public Offices.—On the same ground of public agency, neither appointment nor election to public office creates a contract in the sense of article I, section 10, whether as to tenure, or salary, or duties, all of which remain, so far as the Constitution of the United States is concerned, subject to legislative modification or outright repeal.[1633] Indeed there can be no such thing in this country as property in office, although the common law sustained a different view which sometimes found reflection in early cases.[1634] When, however, services have once been rendered, there arises an implied contract that they shall be compensated at the rate which was in force at the time they were rendered.[1635] Also, an express contract between the State and an individual for the performance of specific services falls within the protection of the Constitution. Thus a contract made by the governor pursuant to a statute authorizing the appointment of a commissioner to conduct, over a period of years, a geological, mineralogical, and agricultural survey of the State, for which a definite sum had been authorized, was held to have been impaired by repeal of the statute.[1636] But a resolution of a New Jersey local board of education reducing teachers' salaries for the school year 1933-1934, pursuant to an act of the legislature authorizing such action, was held not to impair the contract of a teacher who, having served three years, was by earlier legislation exempt from having his salary reduced except for inefficiency or misconduct.[1637] Similarly, it was held that an Illinois statute which reduced the annuity payable to retire teachers under an earlier act did not violate the contracts clause, since it had not been the intention of the earlier act to propose a contract but only to put into effect a general policy.[1638] On the other hand, the right of one, who had become a "permanent teacher" under the Indiana Teachers Tenure Act of 1927, to continued employment was held to be contractual and to have been impaired by the repeal in 1933 of the earlier act.[1639]

Revocable Privileges Versus "Contracts": Tax Exemptions.—From a different point of view, the Court has sought to distinguish between grants of privileges, whether to individuals or to corporations, which are contracts and those which are mere revocable licenses, although on account of the doctrine of presumed consideration mentioned earlier, this has not always been easy to do. In pursuance of the precedent set in New Jersey v. Wilson,[1640] the legislature of a State "may exempt particular parcels of property or the property of particular persons or corporations from taxation, either for a specified period or perpetually, or may limit the amount or rate of taxation, to which such property shall be subjected," and such an exemption is frequently a contract within the sense of the Constitution. Indeed this is always so when the immunity is conferred upon a corporation by the clear terms of its charter.[1641] When, on the other hand, an immunity of this sort springs from general law, its precise nature is more open to doubt, as a comparison of decisions will serve to illustrate.

In Piqua Branch of the State Bank v. Knoop,[1642] a closely divided Court held that a general banking law of the State of Ohio which provided that companies complying therewith and their stockholders should be exempt from all but certain taxes, was, as to a bank organized under it and its stockholders, a contract within the meaning of article I, section 10. "The provision was not," the Court said, "a legislative command nor a rule of taxation until changed, but a contract stipulating against any change, from the nature of the language used and the circumstances under which it was adopted."[1643] When, however, the State of Michigan pledged itself, by a general legislative act, not to tax any corporation, company, or individual undertaking to manufacture salt in the State from water there obtained by boring on property used for this purpose and, furthermore, to pay a bounty on the salt so manufactured, it was held not to have engaged itself within the constitutional sense. "General encouragements," said the Court, "held out to all persons indiscriminately, to engage in a particular trade or manufacture, whether such encouragement be in the shape of bounties or drawbacks, or other advantage, are always under the legislative control, and may be discontinued at any time."[1644] So far as exemption from taxation is concerned the difference between these two cases is obviously slight; but the later one is unquestionable authority for the proposition that legislative bounties are repealable at will.

Furthermore, exemptions from taxation have in certain cases been treated as gratuities repealable at will, even when conferred by specific legislative enactments. This would seem always to be the case when the beneficiaries were already in existence when the exemption was created and did nothing of a more positive nature to qualify for it than to continue in existence.[1645] Yet the cases are not always easy to explain in relation to each other, except in light of the fact that the Court's wider point of view has altered from time to time.[1646]

Vested Rights.—Lastly, the term "contracts" is used in the contracts clause in its popular sense of an agreement of minds. The clause therefore does not protect vested rights that are not referable to such an agreement between the State and an individual, such as the right to recovery under a judgment. The individual in question may have a case under the Fourteenth Amendment, but not one under article I, section 10.[1647]

Reservation of the Right to Alter and Repeal

So much for the meaning of the word "contract" when public grants are meant. It is next in order to consider four principles or doctrines whereby the Court has itself broken down the force of the Dartmouth College decision in great measure in favor of State legislative power. By the logic of the Dartmouth College decision itself the State may reserve in a corporate charter the right to "amend, alter, and repeal" the same, and such reservation becomes a part of the contract between the State and the incorporators, the obligation of which is accordingly not impaired by the exercise of the right.[1648] Later decisions recognize that the State may reserve the right to amend, alter, and repeal by general law, with the result of incorporating the reservation in all charters of subsequent date.[1649] There is, however, a difference between a reservation by a statute and one by constitutional provision. While the former may be repealed as to a subsequent charter by the specific terms thereof, the latter may not.[1650]

The Right to Reserve: When Limited.—Is the right which is reserved by a State to "amend" or "alter" a charter without restriction? When it is accompanied, as it generally is, by the right to "repeal," one would suppose that the answer to this question was self-evident. None the less, there are a number of judicial dicta to the effect that this power is not without limit, that it must be exercised reasonably and in good faith, and that the alterations made must be consistent with the scope and object of the grant, etc.[1651] Such utterances amount, apparently, to little more than an anchor to windward, for while some of the State courts have applied tests of this nature to the disallowance of legislation, it does not appear that the Supreme Court of the United States has ever done so.[1652]

Quite different is it with the distinction pointed out in the cases between the franchises and privileges which a corporation derives from its charter and the rights of property and contract which accrue to it in the course of its existence. Even the outright repeal of the former does not wipe out the latter or cause them to escheat to the State. The primary heirs of the defunct organization are its creditors; but whatever of value remains after their valid claims are met goes to the former shareholders.[1653] By the earlier weight of authority, on the other hand, persons who contract with companies whose charters are subject to legislative amendment or repeal do so at their own risk: any "such contracts made between individuals and the corporation do not vary or in any manner change or modify the relation between the State and the corporation in respect to the right of the State to alter, modify, or amend such a charter, * * *"[1654] But later holdings becloud this rule.[1655]

Corporations As Persons Subject To The Law.—But suppose the State neglects to reserve the right to amend, alter, or repeal—is it, then, without power to control its corporate creatures? By no means. Private corporations, like other private persons, are always presumed to be subject to the legislative power of the State; from which it follows that immunities conferred by charter are to be treated as exceptions to an otherwise controlling rule. This principle was recognized by Chief Justice Marshall in the case of Providence Bank v. Billings,[1656] in which he held that in the absence of express stipulation or reasonable implication to the contrary in its charter, the bank was subject to the taxing power of the State, notwithstanding that the power to tax is the power to destroy.

Corporations and the Police Power.—And of course the same principle is equally applicable to the exercise by the State of its police powers. Thus, in what was perhaps the leading case before the Civil War, the Supreme Court of Vermont held that the legislature of that State had the right, in furtherance of the public safety, to require chartered companies operating railways to fence in their tracks and provide cattle yards. In a matter of this nature, said the Court, corporations are on a level with individuals engaged in the same business, unless, from their charter, they can prove the contrary.[1657] Since then the rule has been applied many times in justification of State regulation of railroads,[1658] and even of the application of a State prohibition law to a company which had been chartered expressly to manufacture beer.[1659]

The Strict Construction of Public Grants

Long, however, before the cases last cited were decided, the principle which they illustrate had come to be powerfully reinforced by two others, the first of which is that all charter privileges and immunities are to be strictly construed as against the claims of the State; or as it is otherwise often phrased, "nothing passes by implication in a public grant."

The Charles River Bridge Case.—The leading case is that of the Charles River Bridge Company v. Warren Bridge Company,[1660] which was decided shortly after Chief Justice Marshall's death by a substantially new Court. The question at issue was whether the charter of the complaining company, which authorized it to operate a toll bridge, stood in the way of the State's permitting another company of later date to operate a free bridge in the immediate vicinity. Inasmuch as the first company could point to no clause in its charter which specifically vested it with an exclusive right, the Court held the charter of the second company to be valid on the principle just stated. Justice Story, who remained from the old Bench, presented a vigorous dissent, in which he argued cogently, but unavailingly, that the monopoly claimed by the Charles River Bridge Company was fully as reasonable an implication from the terms of its charter and the circumstances surrounding its concession as perpetuity had been from the terms of the Dartmouth College charter and the environing transaction.

The Court was in fact making new law, because it was looking at things from a new point of view. This was the period when judicial recognition of the Police Power began to take on a doctrinal character. It was also the period when the railroad business was just beginning. Chief Justice Taney's opinion evinces the influence of both these developments. The power of the State to provide for its own internal happiness and prosperity was not, he asserted, to be pared away by mere legal intendments; nor was its ability to avail itself of the lights of modern science to be frustrated by obsolete interests such as those of the old turnpike companies, the charter privileges of which, he apprehended, might easily become a bar to the development of transportation along new lines.[1661]

Applications of the Strict Construction Rule.—The rule of strict construction has been reiterated by the Court many times. A good illustration is afforded by the following passage from its opinion in Blair v. Chicago,[1662] decided nearly seventy years after the Charles River Bridge Case: "Legislative grants of this character should be in such unequivocal form of expression that the legislative mind may be distinctly impressed with their character and import, in order that the privileges may be intelligently granted or purposely withheld. It is a matter of common knowledge that grants of this character are usually prepared by those interested in them, and submitted to the legislature with a view to obtain from such bodies the most liberal grant of privileges which they are willing to give. This is one among many reasons why they are to be strictly construed. * * * 'The principle is this, that all rights which are asserted against the State must be clearly defined, and not raised by inference or presumption; and if the charter is silent about a power, it does not exist. If, on a fair reading of the instrument, reasonable doubts arise as to the proper interpretation to be given to it, those doubts are to be solved in favor of the State; and where it is susceptible of two meanings, the one restricting and the other extending the powers of the corporation, that construction is to be adopted which works the least harm to the State.'"[1663]

Strict Construction of Tax Exemptions.—An excellent illustration of the operation of the rule in relation to tax exemptions is furnished by the derivative doctrine that an immunity of this character must be deemed as intended solely for the benefit of the corporation receiving it and hence may not, in the absence of express permission by the State, be passed on to a successor.[1664] Thus, where two companies, each exempt from taxation, were permitted by the legislature to consolidate the new corporation was held to be subject to taxation.[1665] Again, a statute which granted a corporation all "the rights and privileges" of an earlier corporation was held not to confer the latter's "immunity" from taxation.[1666] Yet again, a legislative authorization of the transfer by one corporation to another of the former's "estate, property, right, privileges, and franchises" was held not to clothe the later company with the earlier one's exemption from taxation.[1667]

Furthermore, an exemption from taxation is to be strictly construed even in the hands of one clearly entitled to it. So the exemption conferred by its charter on a railway company was held not to extend to branch roads constructed by it under a later statute.[1668] Also, a general exemption of the property of a corporation from taxation was held to refer only to the property actually employed in its business.[1669] Also, the charter exemption of the capital stock of a railroad from taxation "for ten years after completion of the said road" was held not to become operative until the completion of the road.[1670] So also the exemption of the campus and endowment fund of a college was held to leave other lands of the college, though a part of its endowment, subject to taxation.[1671] Likewise, provisions in a statute that bonds of the State and its political subdivisions are not to be taxed and shall not be taxed were held not to exempt interest on them from taxation as income of the owners.[1672]

Strict Construction and the Police Power.—The police power, too, has frequently benefited from the doctrine of strict construction, although, for a reason pointed out below, this recourse is today seldom, if ever, necessary in this connection. Some of the more striking cases may be briefly summarized. The provision in the charter of a railway company permitting it to set reasonable charges still left the legislature free to determine what charges were reasonable.[1673] On the other hand, when a railway agreed to accept certain rates for a specified period, it thereby foreclosed the question of the reasonableness of such rates.[1674] The grant to a company of the right to supply a city with water for twenty-five years was held not to prevent a similar concession to another company by the same city.[1675] The promise by a city in the charter of a water company not to make a similar grant to any other person or corporation was held not to prevent the city itself from engaging in the business.[1676] A municipal concession to a water company which was to run for thirty years and which was accompanied by the provision that the "said company shall charge the following rates," was held not to prevent the city from reducing such rates.[1677] But more broadly, the grant to a municipality of the power to regulate the charges of public service companies was held not to bestow the right to contract away this power.[1678] Indeed, any claim by a private corporation that it received the rate-making power from a municipality must survive a two-fold challenge: first, as to the right of the municipality under its charter to make such a grant; secondly, as to whether it has actually done so; and in both respects an affirmative answer must be based on express words and not on implication.[1679]

The Doctrine of Inalienable State Powers

The second of the doctrines mentioned above whereby the principle of the subordination of all persons, corporate and individual alike, to the legislative power of the State has been fortified, is the doctrine that certain of the State's powers are inalienable, and that any attempt by a State to alienate them, upon any consideration whatsoever, is ipso facto void, and hence incapable of producing a "contract" within the meaning of article I, section 10. One of the earliest cases to assert this principle occurred in New York in 1826. The corporation of the City of New York, having conveyed certain lands for the purposes of a church and cemetery together with a covenant for quiet enjoyment, later passed a by-law forbidding their use as a cemetery. In denying an action against the city for breach of covenant, the State court said the defendants "had no power as a party, [to the covenant] to make a contract which should control or embarrass their legislative powers and duties."[1680]

The Eminent Domain Power Inalienable.—The Supreme Court first applied similar doctrine in 1848 in a case involving a grant of exclusive right to construct a bridge at a specified locality. Sustaining the right of the State of Vermont to make a new grant to a competing company, the Court held that the obligation of the earlier exclusive grant was sufficiently recognized in making just compensation for it; and that corporate franchises, like all other forms of property, are subject to the overruling power of eminent domain.[1681] This reasoning was reinforced by an appeal to the theory of State sovereignty, which was held to involve the corollary of the inalienability of all the principal powers of a State.

The subordination of all charter rights and privileges to the power of eminent domain has been maintained by the Court ever since; not even an explicit agreement by the State to forego the exercise of the power will avail against it.[1682] Conversely, the State may revoke an improvident grant of the public petitionary without recourse to the power of eminent domain, such a grant being inherently beyond the power of the State to make. So when the legislature of Illinois in 1869 devised to the Illinois Central Railroad Company, its successors and assigns, the State's right and title to nearly a thousand acres of submerged land under Lake Michigan along the harbor front of Chicago, and four years later sought to repeal the grant, the Court, in a four-to-three decision, sustained an action by the State to recover the lands in question. Said Justice Field, speaking for the majority: "Such abdication is not consistent with the exercise of that trust which requires the government of the State to preserve such waters for the use of public. The trust devolving upon the State for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. * * * Any grant of the kind is necessarily revocable, and the exercise of the trust by which the property was held by the State can be resumed at any time."[1683] The case affords an interesting commentary on Fletcher v. Peck.[1684]

The Taxing Power Not Inalienable.—On the other hand, repeated endeavors to subject tax exemptions to the doctrine of inalienability though at times supported by powerful minorities on the Bench, have always failed.[1685] As recently as January, 1952, the Court ruled that the Georgia Railway Company was entitled to seek an injunction in the federal courts against an attempt by Georgia's Revenue Commission to compel it to pay ad valorem taxes contrary to the terms of its special charter issued in 1833. To the argument that this was a suit contrary to the Eleventh Amendment it returned the answer that the immunity from Federal jurisdiction created by the Amendment "does not extend to individuals who act as officers without constitutional authority."[1686]

The Police Power; When Inalienable.—The leading case involving the police power is Stone v. Mississippi, 101 U.S. 814, decided in 1880. In 1867 the legislature of Mississippi chartered a company to which it expressly granted the power to conduct a lottery. Two years later the State adopted a new Constitution which contained a provision forbidding lotteries; and a year later the legislature passed an act to put this provision into effect. In upholding this act and the constitutional provision on which it was based, the Court said: "The power of governing is a trust committed by the people to the government, no part of which can be granted away. The people, in their sovereign capacity, have established their agencies for the preservation of the public health and the public morals, and the protection of public and private rights," and these agencies can neither give away nor sell their discretion. All that one can get by a charter permitting the business of conducting a lottery "is suspension of certain governmental rights in his favor, subject to withdrawal at will."[1687]

The Court shortly afterward applied the same reasoning in a case in which was challenged the right of Louisiana to invade the exclusive privilege of a corporation engaged in the slaughter of cattle in New Orleans by granting another company the right to engage in the same business. Although the State did not offer to compensate the older company for the lost monopoly, its action was sustained on the ground that it had been taken in the interest of the public health.[1688] When, however, the City of New Orleans, in reliance on this precedent, sought to repeal an exclusive franchise which it had granted a company for fifty years to supply gas to its inhabitants, the Court interposed its veto, explaining that in this instance neither the public health, the public morals, nor the public safety was involved.[1689]

Later decisions, nonetheless, apply the principle of inalienability broadly. To quote from one: "It is settled that neither the 'contract' clause nor the 'due process' clause has the effect of overriding the power to the State to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; that this power can neither be abdicated nor bargained away, and is inalienable even by express grant; and all contract and property rights are held subject to its fair exercise."[1690] Today, indeed, it scarcely pays a company to rely upon its charter privileges or upon special concessions from a State in resisting the application to it of measures claiming to have been enacted by the police power thereof. For if this claim is sustained by the Court, the obligation of the contract clause will not avail; while if it is not, the due process of law clause of the Fourteenth Amendment will furnish a sufficient reliance. That is to say, the discrepancy which once existed between the Court's theory of an overriding police power in these two adjoining fields of Constitutional Law is today apparently at an end. Indeed, there is usually no sound reason why rights based on public grant should be regarded as more sacrosanct than rights which involve the same subject matter but are of different provenience.

Private Contracts

Scope of the Term.—The term "private contracts" is, naturally, not all-inclusive. A judgment, though granted in favor of a creditor, is not a contract in the sense of the Constitution;[1691] nor is marriage.[1692] And whether a particular agreement is a valid contract is a question for the courts, and finally for the Supreme Court, when the protection of the contract clause is invoked.[1693]

Source of the Obligation.—The question of the nature and source of the obligation of a contract, which went by default in Fletcher v. Peck and the Dartmouth College case, with such vastly important consequences, had eventually to be met and answered by the Court in connection with private contracts. The first case involving such a contract to reach the Supreme Court was Sturges v. Crowninshield[1694] in which a debtor sought escape behind a State insolvency act of later date than his note. The act was held inoperative; but whether this was because of its retroaction in this particular case or for the broader reason that it assumed to excuse debtors from their promises, was not at the time made clear. As noted earlier, Chief Justice Marshall's definition on this occasion of the obligation of a contract as the law which binds the parties to perform their undertakings was not free from ambiguity, owing to the uncertain connotation of the term law.

Ogden v. Saunders.—These obscurities were finally cleared up for most cases in Ogden v. Saunders,[1695] in which the temporal relation of the statute and the contract involved was exactly reversed—the former antedating the latter. Marshall contended, but unsuccessfully, that the statute was void, inasmuch as it purported to release the debtor from that original, intrinsic obligation which always attaches under natural law to the acts of free agents. "When," he wrote, "we advert to the course of reading generally pursued by American statesmen in early life, we must suppose that the framers of our Constitution were intimately acquainted with the writings of those wise and learned men whose treatises on the laws of nature and nations have guided public opinion on the subjects of obligation and contract," and that they took their views on these subjects from those sources. He also posed the question of what would happen to the obligation of contracts clause if States might pass acts declaring that all contracts made subsequently thereto should be subject to legislative control.[1696]

For the first and only time majority of the Court abandoned the Chief Justice's leadership. Speaking by Justice Washington it held that the obligation of private contracts is derived from the municipal law—State statutes and judicial decisions—and that the inhibition of article I, section 10, is confined to legislative acts made after the contracts affected by them, with one exception. For by a curiously complicated line of reasoning it was also held in this same case that when the creditor is a nonresident, then a State may not by an insolvent law rights under a contract, albeit one of later date.

With the proposition established that the obligation of a private contract comes from the municipal law in existence when the contract is made, a further question presents itself, namely, what part of the municipal law is referred to? No doubt, the law which determines the validity of the contract itself is a part of such law. Also, the law which interprets the terms used in the contract, or which supplies certain terms when others are used; as for instance, constitutional provisions or statutes which determine what is "legal tender" for the payment of debts; or judicial decisions which construe the term "for value received" as used in a promissory note, and so on. In short, any law which at the time of the making of a contract goes to measure the rights and duties of the parties to it in relation to each other enters into its obligation.

Remedy a Part of the Obligation

Suppose, however, that one of the parties to a contract fails to live up to his obligation as thus determined. The contract itself may now be regarded as at an end; but the injured party, nevertheless, has a new set of rights in its stead, those which are furnished him by the remedial law, including the law of procedure. In the case of a mortgage, he may foreclose; in the case of a promissory note, he may sue; in certain cases, he may demand specific performance. Hence the further question arises, whether this remedial law is to be considered a part of the law supplying the obligation of contracts. Originally, the predominating opinion was negative, since as we have just seen, this law does not really come into operation until the contract has been broken. Yet it is obvious that the sanction which this law lends to contracts is extremely important—indeed, indispensable. In due course it became the accepted doctrine that that part of the law which supplies one party to a contract with a remedy if the other party does not live up to his agreement, as authoritatively interpreted, entered into the "obligation of contracts" in the constitutional sense of this term, and so might not be altered to the material weakening of existing contracts. In the court's own words, "Nothing can be more material to the obligation than the means of enforcement. Without the remedy the contract may, indeed, in the sense of the law, be said not to exist, and its obligation to fall within the class of those moral and social duties which depend for their fulfillment wholly upon the will of the individual. The ideas of validity and remedy are inseparable, * * *"[1697]

Establishment Of The Rules.—This rule was first definitely announced in 1843 in the case of Bronson v. Kinzie.[1698] Here an Illinois mortgage giving the mortgagee an unrestricted power of sale in case of the mortgagor's fault was involved, along with a later act of the legislature which required mortgaged premises to be sold for not less than two-thirds of the appraised value, and allowed the mortgagor a year after the sale to redeem them. It was held that the statute, in altering the preexisting remedies to such an extent, violated the constitutional prohibition, and hence was void. The year following a like ruling was made in the case of McCracken v. Hayward[1699] as to a statutory provision that personal property should not be sold under execution for less than two-thirds of its appraised value.

Qualifications Of The Rule.—But the rule illustrated by these cases does not signify that a State may make no changes in its remedial or procedural law which affect existing contracts. "Provided," the Court has said, "a substantial or efficacious remedy remains or is given, by means of which a party can enforce his rights under the contract, the Legislature may modify or change existing remedies or prescribe new modes of procedure."[1700] Thus States are constantly remodelling their judicial systems and modes of practice unembarrassed by the obligation of contracts clause.[1701] The right of a State to abolish imprisonment for debt was early asserted.[1702] Again the right of a State to shorten the time for the bringing of actions has been affirmed even as to existing causes of action, but with the proviso added that a reasonable time must be left for the bringing of such actions.[1703] On the other hand, a statute which withdrew the judicial power to enforce satisfaction of a certain class of judgments by mandamus was held invalid.[1704] In the words of the Court: "Every case must be determined upon its own circumstances;"[1705] and it later added: "In all such cases the question becomes, * * *, one of reasonableness, and of that the legislature is primarily the judge."[1706]

The Municipal Bond Cases.—There is one class of cases resulting from the doctrine that the law of remedy constitutes a part of the obligation of a contract to which a special word is due. This comprises cases in which the contracts involved were municipal bonds. While a city is from one point of view but an emanation from the government's sovereignty and an agent thereof, when it borrows money it is held to be acting in a corporate or private capacity, and so to be suable on its contracts. Furthermore, as was held in the leading case of Von Hoffman v. Quincy,[1707] "where a State has authorized a municipal corporation to contract and to exercise the power of local taxation to the extent necessary to meet its engagements, the power thus given cannot be withdrawn until the contract is satisfied." In this case the Court issued a mandamus compelling the city officials to levy taxes for the satisfaction of a judgment on its bonds in accordance with the law as it stood when the bonds were issued.[1708] Nor may a State by dividing an indebted municipality among others enable it to escape its obligations. In such a case the debt follows the territory, and the duty of assessing and collecting taxes to satisfy it devolves upon the succeeding corporations and their officers.[1709] But where a municipal organization has ceased practically to exist through the vacation of its offices, and the government's function is exercised once more by the State directly, the Court has thus far found itself powerless to frustrate a program of repudiation.[1710] However, there is no reason why the State should enact the role of particeps criminis in an attempt to relieve its municipalities of the obligation to meet their honest debts. Thus in 1931, during the Great Depression, New Jersey created a Municipal Finance Commission with power to assume control over its insolvent municipalities. To the complaint of certain bondholders that this legislation impaired the contract obligations of their debtors, the Court, speaking by Justice Frankfurter, pointed out that the practical value of an unsecured claim against a city is "the effectiveness of the city's taxing power," which the legislation under review was designed to conserve.[1711]

Private Contracts and the Police Power

The increasing subjection of public grants to the State's police power has been previously pointed out. That purely private contracts should be in any stronger situation in this respect would obviously be anomalous in the extreme. In point of fact, the ability of private parties to curtail governmental authority by the easy devise of contracting with one another is, with an exception to be noted, even less than that of the State to tie its own hands by contracting away its own powers. So, when it was contended in an early Pennsylvania case, than an act prohibiting the issuance of notes by unincorporated banking associations was violative of the obligation of contracts clause because of its effect upon certain existing contracts of members of such associations, the State Supreme Court answered: "But it is said, that the members had formed a contract between themselves, which would be dissolved by the stoppage of their business; and what then? Is that such a violation of contracts as is prohibited by the Constitution of the United States? Consider to what such a construction would lead. Let us suppose, that in one of the States there is no law against gaming, cock-fighting, horse-racing or public masquerades, and that companies should be formed for the purpose of carrying on these practices; * * *" Would the legislature then be powerless to prohibit them? The answer returned, of course, was no.[1712]

The prevailing doctrine is stated by the Supreme Court of the United States in the following words: "It is the settled law of this court that the interdiction of statutes impairing the obligation of contracts does not prevent the State from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected. * * * In other words, that parties by entering into contracts may not estop the legislature from enacting laws intended for the public good."[1713]

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, § 1256. See also ibid. §§ 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 § 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. § 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. § 51 (1946), superseded by 62 Stat. 696 (1948); 18 U.S.C. § 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: §§ 443, 448-458 (1907).

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

[130] Ibid. 369-370.

[131] Hinds' Precedents of the House of Representatives, I: §§ 474-477 (1907).

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

[133] Hinds' Precedents of the House of Representatives, I: § 414 (1907).

[134] Ibid. §§ 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, § 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: §§ 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: § 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: § 2910-2915 (1907); Cannon's Precedents of the House of Representatives, VI: §§ 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, § 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, § 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 (§ 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: § 493 (1907); Cannon's Precedents of the House of Representatives, VI: §§ 63, 64 (1936).

[191] Hinds' Precedents of the House of Representatives, I: §§ 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, § 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: § 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, § 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, § 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 § 400; 488 § 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 § 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 §§ 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 § 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 § 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 résumé 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).

And, the protagonists of this view continued, if the public health, safety, morals, and general welfare must depend solely upon the police powers of the States, they must in modern conditions, often fail of realization in this country. With goods flowing over State lines in ever-increasing quantities, and people in ever-increasing numbers, how was it possible to regard the States as watertight compartments? At least, then, when local legislative programs break down on account of the division of the country into States, it becomes the clear duty of Congress to adopt supplementary legislation to remedy the situation. In doing so, it is not undermining the Federal System; it is supporting it, by making it viable in modern conditions. The assemblage of the States in one Union was never intended to put one State at the mercy of another. If, however, well considered programs of legislation are rendered abortive in a State in consequence of the flow of commerce into it from other States, then it becomes the duty—certainly it is within the discretion of Congress—which alone can govern commerce among the States, to supply the required relief. See especially Assistant Attorney General Maury's argument. In re Rapier, 143 U.S. 110, 127-129 (1892).

In this connection the advocates of this view cited discussion contemporaneous with Jefferson's Embargo, and under the embargo itself, as supporting their position. In the case of the Brigantine William the validity of the embargo was challenged before the United States District Court of Massachusetts on the ground that the power to regulate commerce did not embrace the power to prohibit it. Judge Davis answered: "It will be admitted that partial prohibitions are authorized by this expression; and how shall the degree, or extent, of the prohibition be adjusted, but by the discretion of the National Government, to whom the subject appears to have been committed? * * * The power to regulate commerce is not to be confined to the adoption of measures, exclusively beneficial to commerce itself, or tending to its advancement; but, in our national system, as in all modern sovereignties, it is also to be considered as an instrument for other purposes of general policy and interest. * * * the national right, or power, under the Constitution, to adapt regulations of commerce to other purposes, than the mere advancement of commerce, appears to be unquestionable. * * * The situation of the United States, in ordinary times, might render legislative interferences, relative to commerce, less necessary; but the capacity and power of managing and directing it, for the advancement of great national purposes, seems an important ingredient of sovereignty." And in confirmation of this argument Judge Davis cited the clause of § 9 of article I of the Constitution interdicting a prohibition of the slave trade till 1808. This clause clearly proves that those who framed the Constitution perceived that "under the power of regulating commerce, Congress would be authorized to abridge it, in favour of the great principles of humanity and justice." Fed. Cas. No. 16,700, 614, 621 (1808).

The embargo, to be sure, operated on foreign commerce; but that there is any difference between Congress's power in relation to foreign and to interstate commerce the advocates of the view under consideration denied. The power to "regulate" is the power which belongs to Congress as to the one as well as to the other; and if this comprehends the power to prohibit in the one case, it must equally, by acknowledged principles of statutory construction, comprehend it in the other case as well. Nor in fact, the argument continued, does it make any difference, by approved principles of statutory construction, what purposes the framers of the Constitution may have immediately in mind when they gave Congress power to regulate commerce among the States; the governing consideration is that they gave Congress the power, to be exercised in accordance with its judgment of what are proper occasions for its use. "The reasons which may have caused the framers of the Constitution to repose the power to regulate interstate commerce in Congress do not, however, affect or limit the extent of the power itself." Justice Peckham for the Court in Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 228 (1899).

References

See especially the arguments of counsel In re Rapier, 143 U.S. 110 (1892); Champion v. Ames (Lottery Case), 188 U.S. 321 (1903); Hammer v. Dagenhart, 247 U.S. 251 (1918); 3 Selected Essays on Constitutional Law, 103, 138, 165, 295, 314, 336. Indeed, regulation of interstate commerce by Congress may take the form of a positive adoption by it of a regime of State regulation in the form of statutes (e.g., pilotage) or of administrative regulations in some degree (as in the Motor Carrier Act of 1935); or Congress may "regulate" through the device of divestment of a subject matter of its interstate character, thus indirectly causing State laws to apply, as was done by the Wilson Act of 1890 in respect to intoxicating liquors, or by the McCarran Act of 1945 following the United States v. South-Eastern Underwriters Association, 322 U.S. 533 (1944), in respect to the insurance business. In a sense, Congress may delegate to the States its power to regulate interstate commerce.

[488] 23 Stat. 31.

[489] 32 Stat. 791.

[490] 33 Stat. 1264.

[491] 33 Stat. 1269.

[492] 37 Stat. 315.

[493] 39 Stat. 1165.

[494] Illinois Central R. Co. v. McKendree, 203 U.S. 514 (1906). See also United States v. DeWitt, 9 Wall. 41 (1870). Of the nature of a quarantine act is the Federal Firearms Act of 1938 (52 Stat 1250).

[495] Champion v. Ames (The Lottery Case), 188 U.S. 321 (1903).

[496] 28 Stat 963.

[497] 143 U.S. 110 (1892).

[498] Champion v. Ames (The Lottery Case), 188 U.S. 321 (1903).

[499] 9 Wheat. 1, 227 (1824).

[500] 114 U.S. 622, 630 (1885).

[501] 26 Stat. 313 (1890); 37 Stat. 699 (1913), "The Webb-Kenyon Act."

[502] 31 Stat. 188 (1900).

[503] 45 Stat. 1084 (1929), "The Hawes-Cooper Act."

[504] 36 Stat. 825 (1910), "The Mann Act."

[505] 41 Stat. 324 (1919).

[506] 47 Stat. 326 (1932).

[507] 48 Stat. 794 (1934).

[508] 48 Stat. 979 (1934).

[509] 54 Stat. 686 (1940).

[510] Hoke v. United States, 227 U.S. 308, 322 (1913). In Caminetti v. United States, 242 U.S. 470 (1917) the act was held to apply to the case of transportation of a woman for immoral purposes, although no commercial motive was present; and in Cleveland v. United States, 329 U.S. 14 (1946), to the transportation of a plural wife by the member of a religious sect a tenet of which is polygamy.

[511] United States v. Hill, 248 U.S. 420, 425 (1919).

[512] 247 U.S. 251 (1918).

[513] 39 Stat. 675 (1916).

[514] 247 U.S. at 275.

[515] Ibid. 271-272.

[516] 267 U.S. 432 (1925).

[517] 41 Stat. 324 (1919).

[518] 267 U.S. at 436-439. See also Kentucky Whip & Collar Co. v. Illinois C.R. Co., 299 U.S. 334 (1937).

[519] United States v. Darby, 312 U.S. 100, 116-117 (1941).

[520] Roland Co. v. Walling, 326 U.S. 657, 669 (1946).

[521] Polish Alliance v. Labor Board, 322 U.S. 643, 650 (1944). Cf. the opinion of Chief Justice Vinson for the Court in Bus Employees v. Wisconsin Board, 340 U.S. 383 (1951).

[522] Federalist No. 32.

[523] 9 Wheat. 1, 11, 226 (1824).

[524] Madison, IV, Letters and Other Writings, 14-15 (Philadelphia, 1865).

[525] 9 Wheat. 1, 203.

[526] 9 Wheat. at 210-211.

[527] 9 Wheat. at 13-14; also ibid. 16.

[528] 9 Wheat. 17-18, 209.

[529] 12 Wheat. 419 (1827).

[530] 12 How. 299 (1851).

[531] Congressional regulation of commerce, however, does not have to be uniform. The uniformity rule is a test of the invalidity of State legislation affecting commerce, not the validity of Congressional legislation regulating commerce. Clark Distilling Co. v. W.M.R. Co., 242 U.S. 311, 327 (1917); Currin v. Wallace, 306 U.S. 1, 14 (1939); Prudential Ins. Co. v. Benjamin, 328 U.S. 408 (1946).

[532] Simpson v. Shepard, 230 U.S. 352 (1913).

[533] Ibid. 400-402.

[534] McCarroll v. Dixie Greyhound Lines, 309 U.S. 176, 188-189 (1940). F.D.G. Ribble's State and National Power Over Commerce (Columbia University Press, 1937) is an excellent study both of the Court's formulas and of the arbitral character of its task in this field of Constitutional Law. On the latter point, see especially Chapters X and XII. The late Chief Justice Stone took repeated occasion to stress the "balancing" and "adjusting" role of the Court when applying the commerce clause in relation to State power. See his words in South Carolina State Highway Dept. v. Barnwell Bros., 303 U.S. 177, 184-192 (1938); California v. Thompson, 313 U.S. 109, 113-116 (1941); Parker v. Brown, 317 U.S. 341, 362-363 (1943); and Southern Pacific v. Arizona, 325. U.S. 761, 766-770 (1945). See also Justice Black for the Court in United States v. South-Eastern Underwriters Assoc., 322 U.S. 533, 548-549 (1944).

[535] 12 Wheat. 419 (1827).

[536] Compare, for example, May v. New Orleans, 178 U.S. 496 (1900); and the recent case of Hooven & Allison Co. v. Evatt, 324 U.S. 652 (1945). In the latter case the benefits of the original package doctrine were extended to imports from the Philippine Islands title to which did not vest in the importer until their arrival in the United States.

[537] Freeman v. Hewit, 329 U.S. 249, 251 (1946).

[538] Philadelphia & R.R. Co. v. Pennsylvania (State Freight Tax Case), 15 Wall. 232 (1873).

[539] Headnotes. Said the Court: "The rule has been asserted with great clearness, that whenever the subjects over which a power to regulate commerce is asserted are in their nature national, or admit of one uniform system or plan of regulation, they may justly be said to be of such a nature as to require exclusive legislation by Congress. Surely transportation of passengers or merchandise through a State, or from one State to another, is of this nature. It is of national importance that over that subject there should be but one regulating power, for if one State can directly tax persons or property passing through it, or tax them indirectly by levying a tax upon their transportation, every other may, and thus commercial intercourse between States remote from each other may be destroyed." 15 Wall. at 279-280, citing Cooley v. Port Wardens, 12 How. 299 (1851); Gilman. v. Philadelphia, 3 Wall. 713 (1866); Crandall v. Nevada, 6 Wall. 35, 42 (1868).

[540] 116 U.S. 517 (1886).

[541] Ibid. 527.

[542] Heisler v. Thomas Colliery Co., 260 U.S. 245 (1922).

[543] 262 U.S. 172 (1923).

[544] Ibid. 178. See also Diamond Match Co. v. Ontonagon 188 U.S. 82 (1903).

[545] Hope Natural Gas Co. v. Hall, 274 U.S. 284 (1927). See also American Manufacturing Co. v. St. Louis, 250 U.S. 459 (1919) in which there was imposed a license tax on manufacture of goods computed upon the amount of sales of the goods.

[546] 286 U.S. 165 (1932).

[547] Coverdale v. Arkansas-Louisiana Pipe Line Co., 303 U.S. 604 (1938).

[548] Toomer v. Witsell, 334 U.S. 385 (1948).

[549] Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282 (1921). Here a Tennessee corporation, in pursuance of its practice of purchasing grain in Kentucky to be transported to and used in its Tennessee mill, made a contract for the purchase of wheat, to be delivered in Kentucky on the cars of a public carrier, intending to forward it as soon as delivery was made. It was held that the transaction was in interstate commerce, notwithstanding the contract was made and to be performed in Kentucky; and that the possibility that the purchaser might change its mind after delivery and sell the grains in Kentucky or consign it to some other place in that State did not affect the essential character of the transaction. Interstate commerce, said the Court, "is not confined to transportation from one State to another, but comprehends all commercial intercourse between different States and all the component parts of that intercourse." Ibid. 290. Followed in Lemke v. Farmers Grain Co., 258 U.S. 50 (1922); and Flanagan v. Federal Coal Co., 267 U.S. 222 (1925).

[550] Eureka Pipe Line Co. v. Hallanan, 257 U.S. 265 (1921).

[551] United Fuel Gas Co. v. Hallanan, 257 U.S. 277 (1921).

[552] Ibid. 281. See also State Tax Commission v. Interstate Natural Gas Co., 284 U.S. 41 (1931) holding invalid a State privilege tax imposed on a foreign corporation selling to distributors in the State natural gas piped in from another State, whose only activity was the use of a thermometer and meter and reduction of pressure to permit vendee to draw off the gas. "The work done by the plaintiff is done upon the flowing gas to help the delivery and seems to us plainly to be an incident to the interstate commerce between Louisiana and Mississippi." Ibid. 44.

[553] 12 Wheat. 419 (1827).

[554] Ibid. 449.

[555] 8 Wall. 123 (1860).

[556] Ibid. 140.

[557] 114 U.S. 622 (1885). See also Pittsburgh & S. Coal Co. v. Bates, 156 U.S. 577 (1895).

[558] 114 U.S. at 632-633.

[559] Ibid. 634.

[560] See Wagner v. Covington, 251 U.S. 95 (1919).

[561] Brimmer v. Rebman, 138 U.S. 78 (1891); Patapsco Guano Co. v. Board of Agriculture, 171 U.S. 345 (1898); Red "C" Oil Mfg. Co. v. Board of Agriculture, 222 U.S. 380 (1912); Savage v. Jones, 225 U.S. 501 (1912); Foote & Co. v. Stanley, 232 U.S. 494 (1914).

[562] Standard Oil Co. v. Graves, 249 U.S. 389 (1919); Askren v. Continental Oil Co., 252 U.S. 444 (1920); Bowman v. Continental Oil Co., 256 U.S. 642 (1921); Texas Co. v. Brown, 258 U.S. 466 (1922).

[563] Sonneborn Bros. v. Cureton, 262 U.S. 506 (1923). Reviewing cases. Cf. Phipps v. Cleveland Refining Co., 261 U.S. 449 (1923).

[564] See pp. [178], [238-239].

[565] Eastern Air Transport, Inc. v. South Carolina Tax Comm'n., 285 U.S. 147, 153 (1932).

[566] Rast v. Van Deman and Lewis, 240 U.S. 342 (1916). See also Tanner v. Little, 240 U.S. 369 (1916), and Pitney v. Washington, 240 U.S. 387 (1916) upholding a Washington statute imposing a prohibitive license tax upon merchants using trading stamps or coupons redeemable in merchandise.

[567] Howe Machine Co. v. Gage, 100 U.S. 676 (1880); Emert v. Missouri, 156 U.S. 296 (1895); Singer Sewing Machine Co. v. Brickell, 233 U.S. 304 (1914); Wagner v. City of Covington, 251 U.S. 95 (1919); Caskey Baking Co. v. Virginia, 313 U.S. 117 (1941).

[568] 197 U.S. 60 (1905). See also Armour Packing Co. v. Lacy, 200 U.S. 226 (1906).

[569] 91 U.S. 275 (1876); see also Ward v. Maryland, 12 Wall. 418 (1871).

[570] See Cook v. Pennsylvania, 97 U.S. 566 (1878); Guy v. Baltimore, 100 U.S. 434 (1880); Tiernan v. Rinker, 102 U.S. 123 (1880); Howe Machine Co. v. Gage, 100 U.S. 676 (1880); Webber v. Virginia, 103 U.S. 344 (1881); Walling v. Michigan, 116 U.S. 446 (1886); Darnell & Son Co. v. Memphis, 208 U.S. 113 (1908), where was held void a property tax on lumber which discriminated in favor of the local product: Bethlehem Motor Corp. v. Flynt, 256 U.S. 421 (1921), where a license tax on distributors was held to be invalidated by the provision made for a rebate under conditions that could be met only by manufacturers within the taxing State.

[571] Coe v. Errol, 116 U.S. 517 (1886).

[572] Ibid. 525.

[573] General Oil Co. v. Crain, 209 U.S. 211 (1908).

[574] American Steel & Wire Co. v. Speed, 192 U.S. 500 (1904); Bacon v. Illinois, 227 U.S. 504 (1913); Susquehanna Coal Co. v. South Amboy, 228 U.S. 665 (1913); Minnesota v. Blasius, 290 U.S. 1 (1933); Independent Warehouses v. Scheele, 331 U.S. 70 (1947).

[575] Nashville, C. & St. L.R. Co. v. Wallace, 288 U.S. 249 (1933).

[576] Edelman v. Boeing Air Transport, Inc., 289 U.S. 249 (1933). The Court also upheld a tax on the sale of gasoline for use by an air transport line in conducting interstate transportation across the State in Eastern Air Transport, Inc. v. South Carolina Tax Comm., 285 U.S. 147 (1932).

[577] Southern Pacific Co. v. Gallagher, 306 U.S. 167 (1939).

[578] Pacific Telephone & Telegraph Co. v. Gallagher, 306 U.S. 182 (1939).

[579] Southern Pacific Co. v. Gallagher, 306 U.S. 167 (1939), as formulated in the headnotes; see also Monamotor Oil Co. v. Johnson, 292 U.S. 86 (1934).

[580] Bingaman v. Golden Eagle Western Lines, 297 U.S. 626 (1936); McCarroll v. Dixie Greyhound Lines, 309 U.S. 176 (1940). In Helson v. Kentucky, 279 U.S. 245 (1929), the Court held that gasoline purchased in Illinois and used in an Illinois-Kentucky ferry could not be taxed by Kentucky, being, as it were, a part of the ferry, an instrument of commerce between the two States. See also Kelley v. Rhoads, 188 U.S. 1 (1903); Champlain Realty Co. v. Brattleboro, 260 U.S. 366 (1922); Hughes Bros. Timber Co. v. Minnesota, 272 U.S. 469 (1926); Carson Petroleum Co. v. Vial, 279 U.S. 95 (1929).

[581] 120 U.S. 489 (1887).

[582] Corson v. Maryland, 120 U.S. 502 (1887); Asher v. Texas, 128 U.S. 129 (1888); Stoutenburgh v. Hennick, 129 U.S. 141 (1889); Brennan v. Titusville, 153 U.S. 289 (1894); Stockard v. Morgan, 185 U.S. 27 (1902); Crenshaw v. Arkansas, 227 U.S. 389 (1913); Rogers v. Arkansas, 227 U.S. 401 (1913); Stewart v. Michigan, 232 U.S. 665 (1914); Western Oil Refining Co. v. Lipscomb, 244 U.S. 346 (1917); Cheney Bros. v. Massachusetts, 246 U.S. 147 (1918).

[583] Caldwell v. North Carolina, 187 U.S. 622 (1903).

[584] Norfolk & W.R. Co. v. Sims, 191 U.S. 441 (1903).

[585] Rearick v. Pennsylvania, 203 U.S. 507 (1906); Dozier v. Alabama, 218 U.S. 124 (1910); Davis v. Virginia, 236 U.S. 697 (1915).

[586] 203 U.S. at 512.

[587] Real Silk Hosiery Mills v. Portland, 268 U.S. 325 (1925).

[588] Heyman v. Hays, 236 U.S. 178 (1915). See also Hump Hairpin Co. v. Emmerson, 258 U.S. 290 (1922), holding that business done by a corporation through orders which were approved in a State where its tangible property and offices were located, but which were first taken by its salesmen in other States, was interstate, although the tax involved was sustained.

[589] Ficklen v. Shelby County Taxing District, 145 U.S. 1, 21 (1892).

[590] New York ex rel. Hatch v. Reardon, 204 U.S. 152 (1907); Cf. Nathan v. Louisiana, 8 How. 73 (1850).

[591] Ware v. Mobile County, 209 U.S. 405 (1908). See also Brodnax v. Missouri, 219 U.S. 285 (1911).

[592] 222 U.S. 210 (1911).

[593] 233 U.S. 16 (1914).

[594] Ibid. 23. See also Superior Oil v. Mississippi ex rel. Knox, 280 U.S. 390 (1930).

[595] Chassaniol v. Greenwood, 291 U.S. 584 (1934).

[596] Wiloil Corp. v. Pennsylvania, 294 U.S. 169, 173 (1935); see also Minnesota v. Blasius, 290 U.S. 1 (1933).

[597] 309 U.S. 33 (1940).

[598] Best & Co. v. Maxwell. 311 U.S. 454, 455 (1940).

[599] 300 U.S. 577 (1937). Cf. Hinson v. Lott, 8 Wall. 148 (1869). Here was involved a tax of fifty cents per gallon on all spiritous liquors brought into the State. Comparing the tax with a similar one imposed upon liquors manufactured in the State, the Court upheld the statute. "The taxes were complementary and were intended to effect equality."

[600] 300 U.S. at 583-584. Some subsequent use tax cases in the Henneford pattern are the following: Bacon & Sons v. Martin was decided in a unanimous per curiam opinion. It involved a Kentucky statute which imposed a tax "on the 'receipt' of cosmetics in the State by any Kentucky retailer" equal to twenty per cent of the invoice price plus transportation cost, if any to the Kentucky dealer. The Kentucky court held that "the imposition of the tax against the retailer is not on the act of receiving the cosmetics, but on the sale and use thereof, after the retailer has received them." On this interpretation the Supreme Court sustained the tax. Obviously, other things being equal, there is little difference between a tax on receiving and a tax on possession a moment later. 305 U.S. 380 (1939). In Felt & Tarrant Manufacturing Co. v. Gallagher, 306 U.S. 62 (1939), a California use tax was upheld applicable to a nonresident corporation which solicited orders from California purchasers through agents for whom it hired offices in the State and took orders subject to the vendor's approval. In Nelson v. Sears, Roebuck & Company and Nelson v. Montgomery Ward & Company, 312 U.S. 359 and 373 (1941) it was held that a foreign corporation which maintained retail stores in Iowa could be validly required to collect an Iowa use tax in respect of mail orders sent by Iowa purchasers to out-of-state branches of the corporation and filled by direct shipment by mail or common carrier from those branches to the purchasers. In General Trading Company v. State Tax Commission, 322 U.S. 335 (1944), also involving the Iowa tax, it was held that a company carrying on no operations in Iowa other than the solicitation of orders by traveling salesmen was liable for collection of the tax on goods sold to Iowa residents, even though the corporation was not licensed to do business in the State and the orders were forwarded for acceptance to Minnesota where they were filled by direct shipment to Iowa customers.

[601] 309 U.S. 33 (1940).

[602] Ibid. 53-54.

[603] Ibid. 57, citing Ficklen v. Shelby County Taxing District, 145 U.S. 1 (1892); Howe Machine Co. v. Gage, 100 U.S. 676 (1880); and Wagner v. Covington, 251 U.S. 95 (1919). In the first it was held that the Robbins case did not apply to a firm of agents and brokers maintaining an office and samples throughout the year in the taxing district. The other two cases were totally irrelevant.

[604] 309 U.S. 70 and 430.

[605] Ibid. 414.

[606] 322 U.S. 327 (1944).

[607] Ibid. 330.

[608] Ibid. 332.

[609] 327 U.S. 416 (1946).

[610] Ibid. 417-418.

[611] Ibid. 435.

[612] Memphis Steam Laundry v. Stone, 342 U.S. 389 (1952).

[613] Norton Co. v. Dept. of Revenue, 340 U.S. 534 (1951), although decided by a closely divided Court, further confirms this impression.

[614] 9 Wheat. 1, 217-219 (1824).

[615] Smith v. Turner (Passenger Cases), 7 How. 283 (1849).

[616] Henderson v. Mayor of New York, 92 U.S. 259 (1876); New York v. Compagnie Générale Transatlantique, 107 U.S. 59 (1883).

[617] 6 Wall. 35 (1868).

[618] Ibid. 49.

[619] 114 U.S. 196 (1885).

[620] Ibid. 203.

[621] See Covington & C. Bridge Co. v. Kentucky, 154 U.S. 204 (1894); also Edwards v. California, 314 U.S. 160 (1941), the decision in which represents the exact inverse of that in the Crandall Case, being based by the majority on the commerce clause, while several of the Justices preferred to put it on the broader grounds invoked by Justice Miller in the Crandall Case.

[622] Western Union Telegraph Company v. Texas, 105 U.S. 460 (1882) State Freight Tax Case, 15 Wall. 232 (1873) and Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U.S. 1 (1878) were the precedents principally relied on.

[623] 8 Wall. 168 (1869).

[624] Ibid. 181.

[625] Ibid. 182.

[626] 15 Wall. 232, 233-234, 278-279 (1873).

[627] 127 U.S. 640 (1888).

[628] Ibid. 645.

[629] Crutcher v. Kentucky, 141 U.S. 47 (1891).

[630] Ibid. 57.

[631] 266 U.S. 555 (1925).

[632] 268 U.S. 203 (1925); followed in Cudahy Packing Co. v. Hinkle, 278 U.S. 460 (1929). Cf., however, Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 255 (1938).

[633] Anglo-Chilean Nitrate Sales Corp. v. Alabama, 288 U.S. 218 (1933).

[634] Cooney v. Mountain States Telephone & Telegraph Co., 294 U.S. 384 (1935).

[635] Fisher's Blend Station v. State Tax Commission, 297 U.S. 650, 656 (1936).

[636] Puget Sound Stevedoring Co. v. Tax Commission of Washington, 302 U.S. 90 (1937).

[637] Adams Mfg. Co. v. Storen, 304 U.S. 307 (1938).

[638] McCarroll v. Dixie Greyhound Lines, 309 U.S. 176 (1940). See also the following cases in which the Court found a tax to be an unconstitutional interference with the interstate commerce privilege: Tax on maintenance of office in Pennsylvania for use of stockholders, officers, employees, and agents of railroad not operating in Pennsylvania but a link in a line operating therein, Norfolk & W.R. Co. v. Pennsylvania, 136 U.S. 114 (1890); license tax on sale of liquor as applied to a sale out of State by mail, Heyman v. Hays, 236 U.S. 178 (1915); tax on pipe lines transporting oil or gas produced in State but which might pass out of State, Eureka Pipe Line Co. v. Hallanan, 257 U.S. 265 (1921); United Fuel Gas Co. v. Hallanan, 257 U.S. 277 (1921); Kentucky tax on gasoline purchased in Illinois and used in an Illinois-Kentucky ferry, Helson & Randolph v. Kentucky, 279 U.S. 245 (1929); tax laid on privilege of operating a bus in interstate commerce because not imposed solely as compensation for use of highways or to defray expenses of regulating motor traffic, Interstate Transit, Inc. v. Lindsey, 283 U.S. 183 (1931); tax on gas pipe line whose only activity in State was the use of a thermometer and reduction of pressure to permit a vendee to draw off gas, State Tax Commission v. Interstate Natural Gas Co., 284 U.S. 41 (1931)—but see East Ohio Gas Co. v. Tax Commission, 283 U.S. 465 (1931); gasoline tax imposed per gallon of gasoline imported by interstate carriers as fuel for use in their vehicles within the State as well as in their interstate travel, Bingaman v. Golden Eagle Western Lines, 297 U.S. 626 (1936). See also, for reiteration of the basic rule that the commerce clause forbids States to tax the privilege of engaging in interstate commerce, Gwin, White & Prince v. Henneford, 305 U.S. 434, 438-439 (1939). In California v. Thompson, 313 U.S. 109 (1941), the Court, overruling Di Santo v. Pennsylvania, 273 U.S. 34 (1927), sustained, as not a "revenue measure," but "a measure to safeguard the traveling public by motor vehicle," who are "particularly unable" to protect themselves against overreaching by those "engaged in a business notoriously subject to abuses," a California statute requiring that agents for this type of transportation take out a license for both their interstate and their intrastate business.

[639] 216 U.S. 1 (1910). Cf. Osborne v. Florida, 164 U.S. 650 (1897), involving an express business; in Pullman Company v. Adams, 189 U.S. 420 (1903); and in Allen v. Pullman's Palace Car Co., 191 U.S. 171 (1903). Here State taxes levied on the local business of companies engaged also in interstate commerce were sustained "on the assumption" that the companies in question were free to abandon their local business.

[640] See also Pullman Co. v. Kansas ex rel. Coleman, 216 U.S. 56 (1910); Ludwig v. Western Union Teleg. Co., 216 U.S. 146 (1910); Atchison, T. & S.F.R. Co. v. O'Connor, 223 U.S. 280, 285 (1912).

[641] 245 U.S. 178 (1917). Cf. Baltic Mining Co. v. Massachusetts, 231 U.S. 68 (1914); Kansas City Ry. v. Kansas, 240 U.S. 227 (1916); and Kansas City, M. & B.R. Co. v. Stiles, 242 U.S. 111 (1916). In each of these a tax like that involved in Looney v. Crane was sustained, in the first two because the statute set a maximum limit to the tax; in the third because the amount collected under the act was held to be "reasonable." The ideology of these decisions is clearly opposed to that of the cases treated in the text. The rule in Looney v. Crane Co. was held not applicable in the case of a West Virginia corporation doing business in Illinois and owning practically all of its property there. An Illinois tax on the local business, which was measured by the total capitalization of the company was sustained, it being shown further that the tax was little more than it would have been if levied at the same rate directly on the property of the company that was in Illinois. Hump Hairpin Mfg. Co. v. Emmerson, 258 U.S. 290 (1922).

[642] 246 U.S. 135 (1918). See also Locomobile Co. of America v. Massachusetts, 246 U.S. 146 (1918); Cheney Brothers Co. v. Massachusetts, 246 U.S. 147 (1918); Union Pacific R.R. Co. v. Pub. Service Comm., 248 U.S. 67 (1918).

[643] 246 U.S. at 141.

[644] 277 U.S. 163 (1928).

[645] Ibid. 171.

[646] 294 U.S. 384 (1935).

[647] 297 U.S. 403 (1936).

[648] Ibid. 415. Headnote 6.

[649] 8 Wall. 168, 181 (1869). See also Bank of Augusta v. Earle, 13 Pet. 519 (1839); and Security Mut. L. Ins. Co. v. Prewitt, 202 U.S. 246 (1906).

[650] See Atlantic Lumber Co. v. Commissioner, 298 U.S. 553 (1936); Southern Natural Gas Corp. v. Alabama, 301 U.S. 148 (1937); Atlantic Refining Co. v. Virginia, 302 U.S. 22 (1937); Coverdale v. Arkansas-Louisiana Pipe Line Co., 303 U.S. 604 (1938); Ford Motor Co. v. Beauchamp, 308 U.S. 331 (1939); Treasury of Indiana v. Wood Corp., 313 U.S. 62 (1941); Wheeling Steel Corp. v. Glander, 337 U.S. 562, 571 (1949); Cf. however, James v. Dravo Contracting Co., 302 U.S. 134 (1937); Memphis Natural Gas Co. v. Stone, 335 U.S. 80, 85-86 (1948).

[651] Philadelphia & R.R. Co. v. Pennsylvania (State Freight Tax Case), 15 Wall. 232 (1873).

[652] Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 418 (1946).

[653] 12 Wheat. 419 (1827).

[654] Philadelphia & R.R. Co. v. Pennsylvania, 15 Wall. 284 (1873).

[655] Philadelphia & S. Mail S.S. Co. v. Pennsylvania, 122 U.S. 326 (1887).

[656] Western Union Tel. Co. v. Massachusetts, 125 U.S. 530 (1888).

[657] Ibid. 547.

[658] See Railroad Co. v. Peniston, 18 Wall. 5, 30-31 (1873).

[659] Pullman's Palace Car Co. v. Pennsylvania, 141 U.S. 18 (1891).

[660] Ibid. 26.

[661] 165 U.S. 194; upon rehearing 166 U.S. 185 (1897).

[662] 166 U.S. at 220.

[663] See Justice Holmes' language in Galveston, Harrisburg, & S.A. Ry. Co. v. Texas, 210 U.S. 217, 225, 227 (1908). See also Cudahy Packing Co. v. Minnesota 246 U.S. 450 (1918); and Pullman Co. v. Richardson, 261 U.S. 330 (1923); and Virginia v. Imperial Coal Sales Co., 293 U.S. 15 (1934).

[664] Pullman's Palace Car Co. v. Pennsylvania, 141 U.S. 18 (1891).

[665] Pittsburgh, C.C. & St. L.R. Co. v. Backus, 154 U.S. 421 (1894); Cleveland, C.C. & St. L.R. Co. v. Backus, 154 U.S. 439 (1894).

[666] Western Union Teleg. Co. v. Taggart, 163 U.S. 1 (1896). See also Western Union Teleg. Co. v. Massachusetts, 125 U.S. 530 (1888).

[667] Adams Express Co. v. Ohio, 165 U.S. 194 (1897), upon rehearing 166 U.S. 185 (1897).

[668] Great Northern Railway Co. v. Minnesota, 278 U.S. 503 (1929).

[669] Nashville, C. & St. L. Railway v. Browning, 310 U.S. 362 (1910).

[670] Ibid. 366, citing Union Tank Line Co. v. Wright, 249 U.S. 275 (1919); Wallace v. Hines, 253 U.S. 66 (1920); Southern R. Co. v. Kentucky, 274 U.S. 76 (1927).

[671] Atlantic Lumber Co. v. Commissioner, 298 U.S. 553 (1936). Cf. Alpha Portland Cement Co. v. Massachusetts, 268 U.S. 203 (1925).

[672] 142 U.S. 217 (1891).

[673] Ibid. 227-228.

[674] Citing Pickard v. Pullman Southern Car Co., 117 U.S. 34 (1886); Leloup v. Port of Mobile, 127 U.S. 640 (1888); Crutcher v. Kentucky, 141 U.S. 47 (1891); Philadelphia & S. Mail Steamship Co. v. Pennsylvania, 122 U.S. 326 (1887).

[675] Galveston, Harrisburg & S.A.R. Co. v. Texas, 210 U.S. 217 (1908).

[676] Ibid. 226.

[677] Postal Telegraph Cable Co. v. Adams, 155 U.S. 688, 697 (1895). See also Illinois Central R. Co. v. Minnesota, 309 U.S. 157 (1940), in which was sustained a five percent gross earnings tax on all railroads operating in the State, payable in lieu of all other taxes and found to have "a fair relation to the property employed in the State."

[678] New Jersey Bell Telephone Co. v. State Bd. of Taxes & Assessments, 280 U.S. 338 (1930).

[679] Bass, Ratcliff & Gretton v. State Tax Com., 266 U.S. 271 (1924).

[680] Matson Navigation Co. v. State Board, 297 U.S. 441 (1936). See also International Shoe Co. v. Shartel, 279 U.S. 429 (1929).

[681] Ford Motor Co. v. Beauchamp, 308 U.S. 331 (1939).

[682] International Harvester Co. v. Evatt, 329 U.S. 416 (1947).

[683] Galveston, Harrisburg & San Antonio R. Co. v. Texas, 210 U.S. 217 (1908).

[684] Wallace v. Hines, 253 U.S. 66 (1920).

[685] See pp. [194], [202]. See also Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662 (1949) for an extensive review and evaluation of cases.

[686] Illinois Central R. Co. v. Minnesota, 309 U.S. 157 (1940). See also Wisconsin and Michigan Ry. v. Powers, 191 U.S. 379 (1903); United States Express Co. v. Minnesota, 223 U.S. 335 (1912). See [note 13] to Justice Rutledge's opinion in Freeman v. Hewit, 329 U.S. at pp. 265-266.

[687] Western Live Stock v. Bureau of Revenue, 303 U.S. 250 (1938). See also United States Express Co. v. Minnesota, 223 U.S. 335 (1912); Dept. of Treasury of Indiana v. Wood Corp., 313 U.S. 62 (1941); Dept. of Treasury of Indiana v. Mfg. Co., 313 U.S. 252 (1941); Harvester Co. v. Dept. of Treasury, 322 U.S. 340 (1944).

[688] Western Live Stock v. Bureau of Revenue, 303 U.S. 250 (1938).

[689] Meyer v. Wells, Fargo & Co., 223 U.S. 298 (1912); also the following note.

[690] Philadelphia & S. Mail S.S. Co. v. Pennsylvania, 122 U.S. 326 (1887); Ratterman v. Western Union Teleg. Co., 127 U.S. 411 (1888); Western Union Teleg. Co. v. Alabama Board of Assessment (Seay), 132 U.S. 472 (1889); Adams Mfg. Co. v. Storen, 304 U.S. 307 (1938); Gwin, White & Prince v. Henneford, 305 U.S. 434 (1939). Cf. Fargo v. Michigan (Fargo v. Stevens), 121 U.S. 230 (1887), as explained in Western Live Stock v. Bureau of Revenue, 303 U.S. 250 (1938).

[691] Lockhart, Gross Receipts Taxes on Interstate Transportation and Communication, 57 Harvard L. Rev. 40, 65, 66 (1943); Galveston, H. & S.A.R. Co. v. Texas, 210 U.S. 217 (1908); New Jersey Bell Teleph. Co. v. State Bd. of Taxes and Assessments, 280 U.S. 338 (1930). But Cf. Nashville, C. and St. L. Ry. v. Browning, 310 U.S. 362 (1940). In both the Galveston and New Jersey Telephone Company cases, although the taxable events all occurred within the taxing State, the possibility of multiple taxation was nevertheless present. See also Puget Sound Stevedoring Co. v. State Tax Commission, 302 U.S. 90 (1937), the decision in which might have been rested upon the clause of the Constitution forbidding the States to tax exports. See also Richfield Oil Corp. v. State Board of Equalization, 329 U.S. 69 (1946).

[692] Fisher's Blend Station v. State Tax Comm., 297 U.S. 650 (1936); Western Live Stock v. Bureau of Revenue, 303 U.S. 250 (1938).

[693] See p. [193].

[694] See pp. [150-160].

[695] See p. [189].

[696] 303 U.S. 250 (1938).

[697] Ibid. 254.

[698] Ibid. 255-256.

[699] 305 U.S. 434 (1939).

[700] Ibid. 439-440.

[701] 305 U.S. at 455 (1939).

[702] See McCarroll v. Dixie Greyhound Lines, Inc., 309 U.S. 176, 188-189 (1940).

[703] Freeman v. Hewit, 329 U.S. 249 (1946).

[704] 329 U.S. 249.

[705] The Court relied particularly on Adams Mfg. Co. v. Storen, 304 U.S. 307 (1938) in which the multiple taxation test had been used.

[706] Justice Black dissented without opinion. Justice Douglas, speaking also for Justice Murphy, contended that the sale had been local, and that the only interstate agency employed had been the mails, an argument which squares badly with the attitude of the same Justices in United States v. South-Eastern Underwriters Assoc., 322 U.S. 533 (1944).

[707] 330 U.S. 422 (1947), reaffirming Puget Sound Stevedoring Co. v. Tax Comm., 302 U.S. 90 (1937).

[708] 330 U.S. at 433.

[709] Justices Murphy, Douglas, and Rutledge thought the decision correct as to receipts from foreign commerce. Speaking for them, Justice Douglas made an effort to resurrect Maine v. Grand Trunk R. Co., 142 U.S. 217 (1891). Justice Black dissented without opinion.

[710] 334 U.S. 653.

[711] Ibid. 663, citing Western Live Stock v. Bureau of Revenue, 303 U.S. 250 (1938); and Ratterman v. Western Union Teleg. Co., 127 U.S. 411 (1888).

[712] 335 U.S. 80.

[713] 337 U.S. 662, 666, 677-678, 680.

[714] See supra, pp. [196], [204-207].

[715] 247 U.S. 321 (1918).

[716] Ibid. 328-329.

[717] Shaffer v. Carter, 252 U.S. 37 (1920).

[718] Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113 (1920); Bass, Ratcliff & Gretton v. State Tax Commission, 266 U.S. 271 (1924).

[719] Hans Rees' Sons v. North Carolina, 283 U.S. 123, 132, 133 (1931). In this case a North Carolina tax was assessed on the income of a New York corporation, which bought leather, manufactured it in North Carolina, and sold its products at wholesale and retail in New York. The Court observed: "The difficulty of making an exact apportionment is apparent and hence, when the State has adopted a method not intrinsically arbitrary, it will be sustained until proof is offered of an unreasonable and arbitrary application in particular cases." The decisions in the Underwood and Bass cases, supra, "are not authority for the conclusion that where a corporation manufactures in one State and sells in another, the net profits of the entire transaction, as a unitary enterprise, may be attributed, regardless of evidence, to either State."

[720] Atlantic Coast Line v. Daughton, 262 U.S. 413 (1923).

[721] Matson Nav. Co. v. State Board, 297 U.S. 441 (1936). See also Butler Bros. v. McColgan, 315 U.S. 501 (1942), where the tax was sustained under the Fourteenth Amendment.

[722] Memphis Gas Co. v. Beeler, 315 U.S. 649 (1942).

[723] Ibid. 656-657

[724] Spector Motor Service v. O'Connor, 340 U.S. 602 (1951).

[725] 114 U.S. 196 (1885).

[726] Hays v. Pacific Mail S.S. Co., 17 How. 596 (1855).

[727] Packet Co. v. Keokuk, 95 U.S. 80 (1877); see also Transportation Co. v. Parkersburg, 107 U.S. 691 (1883).

[728] Ayer & L. Tie Co. v. Kentucky, 202 U.S. 409 (1906). For a résumé of the rules for taxing vessels see Northwest Airlines v. Minnesota, 322 U.S. 292, 314-315 (1944), note 2.

[729] Old Dominion S.S. Co. v. Virginia, 198 U.S. 299 (1905): a vessel enrolled in New York at domicile of owner, but operating wholly in Virginia, was held taxable in Virginia.

[730] 336 U.S. 169 (1949).

[731] Northwest Airlines v. Minnesota, 322 U.S. 292 (1944).

[732] He also invoked New York Central and H.R.R. Co. v. Miller, 202 U.S. 584 (1906), where although 12 to 64 per cent of the rolling stock of the railroad was outside of New York throughout the tax year, New York was nevertheless allowed to tax it all because no part was in any other State throughout the year. The case is atypical, a constitutional sport; cf. Union Refrigerator Transit Co. v. Kentucky, 199 U.S. 194 (1905).

[733] 322 U.S. at 301-302.

[734] "The apportionment theory is a mongrel one, a cross between desire not to interfere with State taxation and desire at the same time not utterly to crush out interstate commerce. It is a practical, but rather illogical, device to prevent duplication of tax burdens on vehicles in transit. It is established in our decisions and has been found more or less workable with more or less arbitrary formulae of apportionment. Nothing either in theory or in practice commends it for transfer to air commerce."—Ibid. 306.

[735] Ibid. 308.

[736] Pullman's Palace Car Co. v. Pennsylvania, 141 U.S. 18 (1891).

[737] 322 U.S. 309.

[738] 235 U.S. 610 (1915).

[739] Ibid. 622.

[740] Hendrick v. Maryland, 235 U.S. 610 (1915).

[741] Kane v. New Jersey, 242 U.S. 160 (1916).

[742] Morf v. Bingaman, 298 U.S. 407 (1936).

[743] Ingels v. Morf, 300 U.S. 290 (1937).

[744] Clark v. Poor, 274 U.S. 554 (1927); Hicklin v. Coney, 290 U.S. 109 (1933).

[745] Interstate Busses Corp. v. Blodgett, 276 U.S. 245 (1928); Continental Baking Co. v. Woodring, 286 U.S. 352 (1932).

[746] Aero Mayflower Transit Co. v. Georgia Pub. Serv. Commission, 295 U.S. 285 (1935).

[747] Interstate Transit v. Lindsey, 283 U.S. 183 (1931). Cf. Sprout v. South Bend, 277 U.S. 163 (1928).

[748] See Dixie Ohio Express Co. v. State Rev. Comm., 306 U.S. 72 (1939); also Clark v. Paul Gray, Inc., 306 U.S. 583 (1939); Aero Mayflower Transit Co. v. Board of R.R. Commrs., 332 U.S. 495, 503-504 (1947). Here was sustained a State statute imposing a flat tax of $10 annually upon each vehicle operated by a motor carrier over the State's highways, and a fee of one half of one per cent of the carrier's gross operating revenue from its operations within the State, with an annual minimum of $15 per vehicle, in consideration of the use of the highways and in addition to all other motor vehicle license fees and taxes. This was held, as applied to a carrier engaged solely in interstate commerce, not to burden such commerce unconstitutionally, although the proceeds went into the State's general fund subject to appropriation for other than highway purposes. (Opinion by Rutledge, J., all concurring.) While a "State may not discriminate against or exclude such interstate traffic generally in the use of its highways, * * * [it is not] required to furnish those facilities to it free of charge or indeed on equal terms with other traffic not inflicting similar destructive effects. * * * Interstate traffic equally with intrastate may be required to pay a fair share of the cost and maintenance reasonably related to the use made of the highways." Ibid., headnote 6.

[749] 339 U.S. 542 (1950).

[750] Ibid. 561.

[751] Justice Roberts for the Court in Great Northern R. Co. v. Washington, 300 U.S. 154, 159-161 (1937).

[752] Charlotte, C. & A.R. Co. v. Gibbes, 142 U.S. 386 (1892); New York ex rel. New York Electric Lines Co. v. Squire, 145 U.S. 175, 191 (1892).

[753] Atlantic & P. Teleg. Co. v. Philadelphia, 190 U.S. 160 (1903); Mackay Teleg. & Cable Co. v. Little Rock, 250 U.S. 94, 99 (1919).

[754] Western U. Teleg. Co. v. New Hope, 187 U.S. 419, 425 (1903); Pure Oil Co. v. Minnesota, 248 U.S. 158, 162 (1918).

[755] New Mexico ex rel. McLean v. Denver & R.G.R. Co., 203 U.S. 38, 55 (1906). Cf. Red "C" Oil Mfg. Co. v. Board of Agriculture, 222 U.S. 380, 393 (1912); Western U. Teleg. Co. v. New Hope, 187 U.S. 419 (1903).

[756] Brimmer v. Rebman, 138 U.S. 78, 83 (1891); Postal Teleg. & Cable Co. v. Taylor, 192 U.S. 64 (1904); Pure Oil Co. v. Minnesota, 248 U.S. 158, 162 (1918).

[757] Atlantic & P. Teleg. Co. v. Philadelphia, 190 U.S. 160, 164 (1903); Postal Teleg. Cable Co. v. Taylor, 192 U.S. 64, 69 (1904); Foote & Co. v. Stanley, 232 U.S. 494, 503, 504 (1914).

[758] Foote & Co. v. Stanley, 232 U.S. 494, 505 (1914); Lugo v. Suazo, 59 F. (2d) 386 (1932).

[759] Western U. Teleg. Co. v. New Hope, 187 U.S. 419, 425 (1903); Foote & Co. v. Stanley, 232 U.S. 494, 507 (1914).

[760] Postal Teleg. Cable Co. v. New Hope, 192 U.S. 55 (1904); Foote & Co. v. Stanley, 232 U.S. 494, 508 (1914).

[761] 10 Stat. 112. Sustained in Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421 (1856).

[762] Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. 518 (1852).

[763] Transportation Co. v. Parkersburg, 107 U.S. 691, 701 (1883).

[764] 322 U.S. 533 (1944).

[765] 59 Stat. 33 (1945).

[766] 328 U.S. 408 (1946).

[767] Ibid. 429-430, 434-435.

[768] See pp. [163-172].

[769] 9 Wheat. 1 (1824).

[770] Ibid. 203.

[771] 12 Wheat. 419 (1827).

[772] Ibid. 443-444.

[773] Cf. 12 Wheat. at 439-440.

[774] 11 Pet. 102 (1837).

[775] Smith v. Turner (Passenger Cases), 7 How. 283 (1849).

[776] Henderson v. New York, 92 U.S. 259 (1876).

[777] Ibid. 272.

[778] Chy Lung v. Freeman, 92 U.S. 275 (1876).

[779] Compagnie Francaise de Navigation v. Bd. of Health, 186 U.S. 380, 398, (1902). See also Morgan's L. & T.R.S.S. Co. v. Bd. of Health, 118 U.S. 455 (1886); Louisiana v. Texas, 176 U.S. 1, 21 (1900).

[780] 211 U.S. 31, 36-37 (1908).

[781] As to concessions by the Court to the practical necessities of enforcement, see also Bayside Fish Flour Co. v. Gentry, 297 U.S. 422 (1936); and Whitfield v. Ohio, 297 U.S. 431 (1936).

[782] 325 U.S. 761, 766-767.

[783] Ibid. 767; citing: Minnesota Rate Cases, 230 U.S. 352, 399, 400 (1913); South Carolina Highway Dept. v. Barnwell Bros., 303 U.S. 177, 187 (1938), et seq.; California v. Thompson, 313 U.S. 109, 113, 114 (1941) and cases cited; Parker v. Brown, 317 U.S. 341, 359, 360 (1943).

[784] 325 U.S. at 767; citing: Cooley v. Board of Wardens, 12 How. at 319 (1851); South Carolina Highway Dept. v. Barnwell Bros., 303 U.S. at 185; California v. Thompson, 313 U.S. at 113; Duckworth v. Arkansas, 314 U.S. 390, 394 (1941); Parker v. Brown, 317 U.S. at 362, 363.

[785] 325 U.S. at 767; citing: South Carolina Highway Dept. v. Barnwell Bros., 303 U.S. at 188 and cases cited; Lone Star Gas Co. v. Texas, 304 U.S. 224, 238 (1938); Milk Board v. Eisenberg Co., 306 U.S. 346, 351 (1939); Maurer v. Hamilton, 309 U.S. 598, 603 (1940); California v. Thompson, 313 U.S. 113, 114 and cases cited.

[786] 325 U.S. at 767, 768; citing: Cooley v. Board of Wardens, 12 How. at 319 (1851); Leisy v. Hardin, 135 U.S. 100, 108, 109 (1890); Minnesota Rate Cases, 230 U.S. at 399, 400 (1913); Edwards v. California, 314 U.S. 160, 176 (1941).

[787] 325 U.S. at 768; citing: Brown v. Maryland, 12 Wheat. 419, 447 (1827); Minnesota Rate Cases, 230 U.S. at 399, 400; Pennsylvania v. West Virginia, 262 U.S. 553, 596 (1923); Baldwin v. Seelig, 294 U.S. 511, 522 (1935); South Carolina Highway Dept. v. Barnwell Bros., 303 U.S. at 185 (1938).

[788] 325 U.S. at 768; citing: Welton v. Missouri, 91 U.S. 275, 282 (1876); Hall v. DeCuir, 95 U.S. 485, 490 (1878); Brown v. Houston, 114 U.S. 622, 631 (1885); Bowman v. Chicago & N.W.R. Co., 125 U.S. 465, 481, 482 (1888); Leisy v. Hardin, 135 U.S. at 109; In re Rahrer, 140 U.S. 545, 559, 560 (1891); Brennan v. Titusville, 153 U.S. 289, 302 (1894); Covington & C. Bridge Co. v. Kentucky, 154 U.S. 204, 212 (1894); Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 479 (1939); Dowling, Interstate Commerce and State Power, 27 Va. Law Rev. 1 (1940).

[789] 325 U.S. at 769; citing: Parker v. Brown. 317 U.S. at 362 (1943); Terminal Railroad Assn. v. Brotherhood, 318 U.S. 1, 8 (1943); see Di Santo v. Pennsylvania, 273 U.S. 34, 44 (1927) (and compare California v. Thompson, 313 U.S. 109 (1941)); Illinois Gas Co. v. Public Service Co., 314 U.S. 498, 504, 505 (1942).

[790] 325 U.S. at 769; citing: Cooley v. Board of Wardens, 12 How. 299 (1851); Kansas City Southern R. Co. v. Kaw Valley District, 233 U.S. 75, 79 (1914); South Covington R. Co. v. Covington, 235 U.S. 537, 546 (1915); Missouri, K. & T.R. Co. v. Texas, 245 U.S. 484, 488 (1918); St. Louis & S.F.R. Co. v. Public Service Comm'n., 254 U.S. 535, 537 (1921): Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 10 (1928); Gwin, White & Prince v. Henneford, 305 U.S. 434, 441 (1939); McCarroll v. Dixie Lines, 309 U.S. 176 (1940).

[791] 325 U.S. at 769; citing: In re Rahrer, 140 U.S. at 561, 562 (1891); Adams Express Co. v. Kentucky, 238 U.S. 190, 198 (1915); Rosenberger v. Pacific Express Co., 241 U.S. 48, 50, 51 (1916); Clark Distilling Co. v. Western Maryland R. Co., 242 U.S. 311, 325, 326 (1917); Whitfield v. Ohio, 297 U.S. 431, 438-440 (1936); Kentucky Whip & Collar Co. v. Illinois Central R. Co., 299 U.S. 334, 350, 351 (1937); Hooven & Allison Co. v. Evatt, 324 U.S. 652, 679 (1945).

[792] 325 U.S. at 769, 770; citing: Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 230 (1899); Louisville & Nashville R. Co. v. Mottley, 219 U.S. 467 (1911); Houston, E. & W.T.R. Co. v. United States, 234 U.S. 342 (1914); American Express Co. v. Caldwell, 244 U.S. 617, 626 (1917); Illinois Central R. Co. v. Public Utilities Comm'n., 245 U.S. 493, 506 (1918); New York v. United States, 257 U.S. 591, 601 (1922); Louisiana Public Service Comm'n. v. Texas & N.O.R. Co., 284 U.S. 125, 130 (1931); Pennsylvania R. Co. v. Illinois Brick Co., 297 U.S. 447, 459, (1936).

[793] 325 U.S. at 770; citing: Gwin, White & Prince v. Henneford, 305 U.S. 434, 441 (1939).

[794] 325 U.S. at 770; citing: Terminal Railroad Assn. v. Brotherhood, 318 U.S. 1, 8 (1943); Southern R. Co. v. King, 217 U.S. 524 (1910).

[795] Peik v. Chicago & N.W.R. Co., 94 U.S. 164 (1877).

[796] Wabash, St. L. & P.R. Co. v. Illinois, 118 U.S. 557 (1886).

[797] 24 Stat. 379 (1887).

[798] Wisconsin Railroad Com. v. Chicago, B. & Q.R.R. Co., 257 U.S. 563 (1922).

[799] Gladson v. Minnesota, 166 U.S. 427 (1897); followed in Lake Shore & M.S.R. Co. v. Ohio ex rel. Lawrence, 173 U.S. 285 (1899), in which an Ohio statute requiring that "each company shall cause three, each way, of its regular trains carrying passengers, * * * Sundays excepted, to stop at a station, city or village, containing three thousand inhabitants, for a time sufficient to receive and let off passengers; * * *" was sustained.

[800] Illinois Central R.R. Co. v. Illinois, 163 U.S. 142, 153 (1896).

[801] Chicago, Burlington & Quincy R.R. Co. v. Wisconsin R.R. Com., 237 U.S. 220, 226 (1915); St. Louis & San Francisco R. Co. v. Public Service Com., 254 U.S. 535, 536-537 (1921).

[802] St. Louis & San Francisco R. Co. v. Public Service Com., 261 U.S. 369, 371 (1923).

[803] Wisconsin, Minnesota & Pacific R.R. v. Jacobson, 179 U.S. 287 (1900).

[804] Missouri P.R. Co. v. Larabee Flour Mills Co., 211 U.S. 612 (1909).

[805] McNeill v. Southern R. Co., 202 U.S. 543 (1906).

[806] St. Louis S.W.R. Co. v. Arkansas, 217 U.S. 136 (1910).

[807] See e.g. The Court's language in Hannibal & St. L.R. Co. v. Husen, 95 U.S. 465, 470 (1878); New York, N.H. & H.R. Co. v. New York, 165 U.S. 628, 631 (1897); Lake Shore & M.S.R. Co. v. Ohio ex rel. Lawrence, 173 U.S. 285, 292 (1899); Hennington v. Georgia, 163 U.S. 299 (1896); Simpson v. Shepard (Minnesota Rate Cases), 230 U.S. 352, 402-410 (1913).

[808] Smith v. Alabama, 124 U.S. 465 (1888); see also Nashville, C. & St. L.R. Co. v. Alabama, 128 U.S. 96 (1888); McCall v. California, 136 U.S. 104 (1890); Missouri, K. & T.R. Co. v. Haber, 109 U.S. 613, 633 (1898).

[809] New York, N.H. & H.R. Co. v. New York, 165 U.S. 628 (1807). See also Chicago, M. & St. P.R. Co. v. Solan, 169 U.S. 133, 137 (1898).

[810] Erb v. Morasch, 177 U.S. 584 (1900).

[811] Erie R.R. Co. v. Public Utility Commrs., 254 U.S. 394 (1921).

[812] Atchison, T. & S.F.R. Co. v. R.R. Comm., 283 U.S. 380 (1931).

[813] Chicago, R.I. & P.R. Co. v. Arkansas, 219 U.S. 453 (1911).

[814] Ibid, 453, 466. See also St. Louis, I.M. & S. Co. v. Arkansas, 240 U.S. 518 (1916); Missouri P.R. Co. v. Norwood, 283 U.S. 249 (1931).

[815] Terminal Railroad Assn. v. Brotherhood, 318 U.S. 1 (1943).

[816] 163 U.S. 299 (1896). In South Covington R. Co. v. Covington, 235 U.S. 537 (1915), the Court sustained a municipal ordinance which prohibits the company from allowing passengers to ride on the rear or front platforms without suitable barriers, and requires that the cars be kept clean and ventilated and fumigated. However, provisions of the ordinance that cars shall never be permitted to fall below a certain temperature and regulating the number of passengers to be carried in the cars were held to be unreasonable and violative of the commerce clause. There was no unconstitutional interference with interstate commerce by a municipal ordinance which directed a railway company to remove its tracks from a busy street intersection. Denver & R.G.R. Co. v. Denver, 250 U.S. 241 (1919).

[817] Chicago, M. & St. P.R. Co. v. Solan, 169 U.S. 133 (1898); Richmond & A.R. Co. v. Patterson Tobacco Co., 169 U.S. 311 (1898).

[818] 325 U.S. 761, 779-780 (1945).

[819] Kansas City Southern R. Co. v. Kaw Valley Drainage Dist., 233 U.S. 75, 79 (1914).

[820] 244 U.S. 310 (1917).

[821] Cf. Southern R. Co. v. King, 217 U.S. 524 (1910), where the crossings were fewer and the burden to interstate commerce was shown not to be unduly heavy.

[822] 302 U.S. 1, 15 (1937).

[823] 325 U.S. 761, 771-776.

[824] 328 U.S. 373, 380, 386 (1946).

[825] Hendrick v. Maryland, 235 U.S. 610 (1915); Kane v. New Jersey, 242 U.S. 160 (1916).

[826] Sproles v. Binford, 286 U.S. 374 (1932). See also Morris v. Duby, 274 U.S. 135 (1927).

[827] South Carolina State Highway Dept. v. Barnwell Bros. Inc., 303 U.S. 177 (1938).

[828] 289 U.S. 92 (1933).

[829] 309 U.S. 598 (1940).

[830] 306 U.S. 79 (1939).

[831] Eichholz v. Public Service Com. of Missouri, 306 U.S. 268 (1939), citing Cooley v. Board of Wardens, 12 How. 299 (1851).

[832] Railway Express Agency v. New York, 336 U.S. 106 (1949).

[833] Ibid. 111. For a more extreme application of this idea by a narrowly divided Court, in a quite special situation, see Buck et al. v. California, 342 U.S. 99 (1952).

[834] Continental Baking Co. v. Woodring, 286 U.S. 352 (1932); Stephenson v. Binford, 287 U.S. 251 (1932); Hicklin v. Coney, 290 U.S. 169 (1933).

[835] Michigan Pub. Utilities Com. v. Duke, 266 U.S. 570 (1925). See also Smith v. Cahoon, 283 U.S. 553 (1931); and Continental Baking Co. v. Woodring, 286 U.S. 352 (1932).

[836] Buck v. Kuykendall, 267 U.S. 307 (1925). See also, Bush & Sons Co. v. Maloy, 267 U.S. 317 (1925); Interstate Busses Corp. v. Holyoke Street R. Co., 273 U.S. 45 (1927).

[837] 273 U.S. 34 (1927). See also McCall v. California, 136 U.S. 104 (1890). In the former case, agents soliciting patronage for steamship lines were involved; in the latter, an agent soliciting patronage for a particular railway line.

[838] California v. Thompson, 313 U.S. 109, 115-116 (1941).

[839] 9 Wheat. 1 (1824).

[840] 2 Pet. 245, 252 (1829).

[841] 12 How. 299 (1851).

[842] Foster v. Davenport, 22 How. 244 (1859); Sinnot v. Davenport, 22 How. 227 (1859). See also Lord v. Steamship Co., 102 U.S. 541 (1881).

[843] Foster v. Master & Wardens of Port of New Orleans, 94 U.S. 246 (1877).

[844] Ibid. 247.

[845] Northern Transp. Co. v. Chicago, 99 U.S. 635, 643 (1879); Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1 (1888); Illinois v. Economy Power Light Co., 234 U.S. 497 (1914).

[846] Economy Light and Power Co. v. United States, 256 U.S. 113 (1921).

[847] Harman v. Chicago, 147 U.S. 396, 412 (1893).

[848] 302 U.S. 1 (1937).

[849] Ibid. 10.

[850] 333 U.S. 28 (1948).

[851] Hall v. De Cuir, 95 U.S. 485 (1878).

[852] 2 Pet. 245 (1829).

[853] Pound v. Turck, 95 U.S. 459 (1878); Lindsay & Phelps Co. v. Mullen, 176 U.S. 126 (1900).

[854] 3 Wall. 713 (1866).

[855] Ibid. 729. See also, Escanaba & L.M. Transp. Co. v. Chicago, 107 U.S. 678 (1883); and Cardwell v. American River Bridge Co., 113 U.S. 205 (1885).

[856] 119 U.S. 543 (1886).

[857] Ibid. 548-549.

[858] Packet Co. v. Keokuk, 95 U.S. 80 (1877); Ouachita Packet Co. v. Aiken, 121 U.S. 444 (1887).

[859] Prosser v. Northern P.R. Co., 152 U.S. 59 (1894). See also Sands v. Manistee R. Imp. Co., 123 U.S. 288 (1887); Gring v. Ives, 222 U.S. 365 (1912).

[860] Cases cited in [note 7] above; Parkersburg & O. Transp. Co. v. Parkersburg, 107 U.S. 691 (1883).

[861] Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 215 (1885); Conway v. Taylor, 1 Black 603 (1862); Wiggins Ferry Co. v. East St. Louis, 107 U.S. 365 (1883).

[862] Mayor and Board of Aldermen of Vidalia v. McNeely, 274 U.S. 676 (1927). See also Helson v. Kentucky, 279 U.S. 245, 249 (1929).

[863] Covington & C. Bridge Co. v. Kentucky, 154 U.S. 204 (1894).

[864] Port Richmond and Bergen Point Ferry Co. v. Bd. of Chosen Freeholders, 234 U.S. 317 (1914).

[865] New York Central & H.R.R. Co. v. Bd. of Chosen Freeholders, 227 U.S. 248 (1913).

[866] Wilmington Transp. Co. v. R.R. Com., 236 U.S. 151 (1915).

[867] Western U. Teleg. Co. v. Pendleton, 122 U.S. 347 (1887).

[868] Western U. Teleg. Co. v. Foster, 247 U.S. 105 (1918).

[869] Western U. Teleg. Co. v. Crovo, 220 U.S. 364 (1911).

[870] Western U. Teleg. Co. v. Commercial Milling Co., 218 U.S. 406 (1910).

[871] Western U. Teleg. Co. v. Brown, 234 U.S. 542 (1914).

[872] Essex v. New England Teleg. Co., 239 U.S. 313 (1915).

[873] Pensacola Teleg. Co. v. Western U. Teleg. Co., 96 U.S. 1 (1878).

[874] Western Union Teleg. Co. v. Richmond, 224 U.S. 160 (1912). See also Postal Teleg. Cable Co. v. Richmond, 249 U.S. 252 (1919).

[875] Northwestern Bell Teleph. Co. v. Nebraska State R. Com., 297 U.S. 471 (1936).

[876] Bell Tel. Co. v. Pennsylvania Public Util. Com., 309 U.S. 30 (1940).

[877] Missouri ex rel. Barrett v. Kansas Natural Gas Co., 265 U.S. 298 (1924).

[878] Public Utilities Com. v. Attleboro Steam & Electric Co., 273 U.S. 83 (1927).

[879] Pennsylvania Natural Gas Co. v. Public Serv. Com., 252 U.S. 23 (1920); Public Utilities Com. v. Landon, 249 U.S. 236 (1919).

[880] Panhandle Eastern Pipe Lines Co. v. Public Serv. Com., 332 U.S. 507 (1947).

[881] Panhandle Co. v. Michigan Comm'n., 341 U.S. 329 (1951).

[882] Peoples Natural Gas Co. v. Public Serv. Com., 270 U.S. 550 (1926).

[883] East Ohio Gas Co. v. Tax Com. of Ohio, 283 U.S. 465 (1931).

[884] Western Distributing Co. v. Public Serv. Com. of Kansas, 285 U.S. 119 (1932).

[885] Arkansas Louisiana Gas Co. v. Dept. of Public Utilities, 304 U.S. 61 (1938).

[886] Lone Star Gas Co. v. Texas, 304 U.S. 224 (1938).

[887] Cities Service Co. v. Peerless Co., 340 U.S. 179 (1950).

[888] Union Brokerage Co. v. Jensen, 322 U.S. 202 (1944). See also International Harvester Co. v. Kentucky, 234 U.S. 579 (1914); Sioux Remedy Co. v. Cope, 235 U.S. 197 (1914); Interstate Amusement Co. v. Albert, 239 U.S. 560 (1916).

[889] 322 U.S. at 207-209.

[890] Sioux Remedy Co. v. Cope, 235 U.S. 197 (1914).

[891] International Milling Co. v. Columbia T. Co., 292 U.S. 511 (1934).

[892] Natural Gas Pipeline Co. v. Slattery, 302 U.S. 300 (1937).

[893] Engel v. O'Malley, 219 U.S. 128 (1911).

[894] Merrick v. Halsey & Co., 242 U.S. 568 (1917). See also Hall v. Geiger-Jones Co., 242 U.S. 539 (1917); Caldwell v. Sioux Falls Stock Yards Co., 242 U.S. 559 (1917).

[895] Hartford Accident & Indemnity Co. v. Illinois ex rel. McLaughlin, 298 U.S. 155 (1936), citing Cargill Co. v. Minnesota, 180 U.S. 452, 470 (1901); Simpson v. Shepard (Minnesota Rate Case), 230 U.S. 352, 410 (1913); Hall v. Geiger-Jones Co., 242 U.S. 539, 557 (1917); Federal Compress & Warehouse Co. v. McLean, 291 U.S. 17 (1934).

[896] Davis v. Cleveland, C.C. & St. L. Co., 217 U.S. 157 (1910).

[897] Martin v. West, 222 U.S. 191 (1911).

[898] The "Winnebago," 205 U.S. 354, 362 (1907).

[899] Justice Hughes for the Court in Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352, 406 (1913).

[900] Ibid. 408.

[901] Railroad Co. v. Husen, 95 U.S. 465 (1878).

[902] Kimmish v. Ball, 129 U.S. 217 (1889).

[903] Smith v. St. Louis & S.W.R. Co., 181 U.S. 248 (1901).

[904] Ibid. 255. Morgan's S.S. Co. v. Louisiana Bd. of Health, 118 U.S. 455 (1886) is cited.

[905] Hebe Co. v. Shaw, 248 U.S. 297 (1919).

[906] Hygrade Provision Co. v. Sherman, 266 U.S. 497 (1925).

[907] Mintz v. Baldwin, 289 U.S. 346 (1933).

[908] Pacific States Box & Basket Co. v. White, 296 U.S. 176 (1935).

[909] Bayside Fish Flour Co. v. Gentry, 297 U.S. 422 (1936).

[910] Highland Farms Dairy, Inc. v. Agnew, 300 U.S. 608 (1937).

[911] Bourjois, Inc. v. Chapman, 301 U.S. 183 (1937).

[912] Clason v. Indiana, 306 U.S. 439 (1939).

[913] Milk Control Bd. v. Eisenberg Farm Products, 306 U.S. 346 (1939).

[914] Patapsco Guano Co. v. North Carolina, 171 U.S. 345 (1898).

[915] Savage v. Jones, 225 U.S. 501 (1912); followed in Corn Products Refining Co. v. Eddy, 249 U.S. 427 (1919).

[916] Pure Oil Co. v. Minnesota, 248 U.S. 158 (1918).

[917] Mutual Film Corp. v. Hodges, 236 U.S. 248 (1915).

[918] Minnesota v. Barber, 136 U.S. 313 (1890); see also Brimmer v. Rebman, 138 U.S. 78 (1891).

[919] 136 U.S. at 322. See also pp. 328-329.

[920] Voight v. Wright, 141 U.S. 62 (1891).

[921] Hale v. Bimco Trading Co., 306 U.S. 375 (1939).

[922] Dean Milk Co. v. Madison, 340 U.S. 349 (1951).

[923] 12 Wheat. 419 (1827).

[924] Ibid. 449.

[925] Woodruff v. Parham, 8 Wall. 123 (1869). There were later some departures from the rule, apparently due to inattention, in cases involving oil. See Standard Oil v. Graves, 249 U.S. 389 (1919); Askren v. Continental Oil Co., 252 U.S. 444 (1920); Bowman v. Continental Oil Co., 256 U.S. 642 (1921) and Texas Co. v. Brown, 258 U.S. 466 (1922). These cases were "qualified," and in fact disavowed in Sonneborn Bros. v. Cureton, 262 U.S. 506, 520 (1923). Cf. the contemporary case of Wagner v. Covington, 251 U.S. 95 (1912) where the true rule is followed.

[926] Mugler v. Kansas, 123 U.S. 623 (1887).

[927] Kidd v. Pearson, 128 U.S. 1 (1888).

[928] 125 U.S. 465 (1888).

[929] Leisy & Co. v. Hardin, 135 U.S. 100 (1890).

[930] 26 Stat. 313 (1890); sustained in In re Rahrer, 140 U.S. 545 (1891).

[931] Rhodes v. Iowa, 170 U.S. 412 (1898).

[932] 37 Stat. 699 (1913); sustained in Clark Distilling Co. v. Western Md. Ry. Co., 242 U.S. 311 (1917).

[933] Austin v. Tennessee, 179 U.S. 343 (1900).

[934] 155 U.S. 461 (1894).

[935] 135 U.S. 100 (1890).

[936] 155 U.S. at 474.

[937] Schollenberger v. Pennsylvania, 171 U.S. 1 (1898).

[938] Collins v. New Hampshire, 171 U.S. 30 (1898).

[939] See [note 1] above.

[940] State Board v. Young's Market Co., 299 U.S. 59 (1936); Finch & Co. v. McKittrick, 305 U.S. 395 (1939); Brewing Co. v. Liquor Comm'n., 305 U.S. 391 (1939); Ziffrin, Inc. v. Reeves, 308 U.S. 132 (1939).

[941] Duckworth v. Arkansas, 314 U.S. 390 (1941); followed in Carter v. Virginia, 321 U.S. 131 (1944). Justice Jackson would have preferred to rest the decision on the Twenty-first Amendment instead of "what I regard as an unwise extension of State power over interstate commerce," 314 U.S. at 397; and appears to have converted Justice Frankfurter. See latter's opinion in 321 U.S. at 139-143.

[942] 297 U.S. 431 (1936).

[943] 45 Stat 1084 (1929).

[944] 297 U.S. at 440. See also Justice Cardozo's remarks in Baldwin v. Seelig, 294 U.S. 511, 526-527 (1935).

[945] Cf. Plumley v. Massachusetts, 155 U.S. 461 (1894); Savage v. Jones, 225 U.S. 501 (1912); Corn Products Refining Co. v. Eddy, 249 U.S. 427 (1919).

[946] Elkison v. Deliesseline, 8 Fed. Cas. No. 4366 (1823).

[947] For interesting particulars see 2 Charles Warren, The Supreme Court in United States History, 84-87.

[948] 1 Op. Atty. Gen. 659.

[949] 2 Op. Atty. Gen. 426.

[950] 11 Pet. 102 (1837).

[951] Smith v. Turner (Passenger Cases), 7 How. 283 (1849).

[952] Crandall v. Nevada, 6 Wall. 35 (1868).

[953] 314 U.S. 160 (1941).

[954] Ibid. 172.

[955] Ibid. 173. Justice Cardozo's words, quoted by Justice Byrnes, occur in Baldwin v. Seelig, 294 U.S. 511, 523 (1935). Justice Byrnes' answer to another argument of the State, based on historical conceptions of the word "indigent," was, "poverty and immorality are not synonymous."

[956] See especially Justice Douglas' forceful opinion. 314 U.S. 177-181.

[957] 161 U.S. 519 (1896).

[958] Hudson County Water Co. v. McCarter, 209 U.S. 349 (1908).

[959] 221 U.S. 229 (1911).

[960] Ibid. 255-256.

[961] 262 U.S. 553 (1923).

[962] 237 U.S. 52 (1915).

[963] Ibid. 61.

[964] 258 U.S. 50, 61 (1922).

[965] 258 U.S. 50 (1922); 66 L. Ed. 458, Hd. 2.

[966] See pp. [193-195].

[967] 291 U.S. 502 (1934); followed in Hegeman Farms Corp. v. Baldwin, 293 U.S. 163 (1934).

[968] 294 U.S. 511 (1935).

[969] Milk Control Bd. v. Eisenberg Farm Products, 306 U.S. 346 (1939).

[970] Ibid. 352.

[971] Hood v. Du Mond, 336 U.S. 525, 535 (1949).

[972] Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1 (1928).

[973] Ibid. 13.

[974] Toomer v. Witsell, 334 U.S. 385 (1948). Other features of the South Carolina act were found to violate article IV, section 2. See p. [690].

[975] Bayside Fish Flour Co. v. Gentry, 297 U.S. 422 (1936).

[976] Ibid. 426, citing Silz v. Hesterberg, 211 U.S. 31, 39 (1908).

[977] 34 Stat. 584 (1906).

[978] Chicago, I. & L.R. Co. v. United States, 219 U.S. 486 (1911).

[979] Southern R. Co. v. Reid, 222 U.S. 424 (1912); Southern R. Co. v. Burlington Lumber Co., 225 U.S. 99 (1912).

[980] Chicago, R.I. & P.R. Co. v. Hardwick Farmers Elevator Co., 226 U.S. 426 (1913).

[981] St. Louis, I.M. & S.R. Co. v. Edwards, 227 U.S. 265 (1913).

[982] Yazoo & M.V.R. Co. v. Greenwood Grocery Co., 227 U.S. 1 (1913). In this case the severity of the regulation furnished additional reason for its disallowance.

[983] 226 U.S. 491 (1913). For the Court's reiteration of the formula governing such cases, see ibid. 505-506. See also Barrett v. New York, 232 U.S. 14 (1914); Chicago, R.I. & P.R. Co. v. Cramer, 232 U.S. 490 (1914); Atchison, T. & S.F.R. Co. v. Harold, 241 U.S. 371 (1916); Missouri P.R. Co. v. Porter, 273 U.S. 341 (1927). A year before the enactment of the Carmack Amendment the Court had held that the imposition by a State upon the initial or any connecting carrier of the duty of tracing the freight and informing the shipper in writing when, where, how, and by which carrier the freight was lost, damaged, or destroyed, and of giving the names of the parties and their official position, by whom the truth of the facts set out in the information could be established, was, when applied to interstate commerce, a violation of the commerce clause. Central of Georgia R. Co. v. Murphey, 196 U.S. 194, 202 (1905). The Court's opinion definitely invited Congress to deal with the subject, as it does in the Carmack Amendment.

[984] 35 Stat. 65 (1908); 36 Stat. 291 (1910).

[985] 34 Stat. 1415 (1907).

[986] 27 Stat. 531 (1893); 32 Stat. 943 (1903).

[987] Mondou v. New York, N.H. & H.R. Co. (Second Employers' Liability Cases), 223 U.S. 1 (1912); Southern R. Co. v. Railroad Com., 236 U.S. 439 (1915).

[988] Erie R. Co. v. New York, 233 U.S. 671 (1914).

[989] 26 Stat. 414 (1890).

[990] Crossman v. Lurman, 192 U.S. 189 (1904).

[991] 34 Stat. 768 (1906); Savage v. Jones, 225 U.S. 501 (1912), citing Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U.S. 613 (1898); Reid v. Colorado, 187 U.S. 137 (1902); Asbell v. Kansas, 209 U.S. 251 (1908); Southern Ry. Co. v. Reid, 222 U.S. 424, 442 (1912).

[992] McDermott v. Wisconsin, 228 U.S. 115 (1913).

[993] Ibid. 137.

[994] Armour & Co. v. North Dakota, 240 U.S. 510 (1916).

[995] 37 Stat. 315 (1912); 39 Stat. 1165 (1917).

[996] Oregon-Washington R. & Nav. Co. v. Washington, 270 U.S. 87 (1926).

[997] 44 Stat. 250 (1926).

[998] Mintz v. Baldwin, 289 U.S. 346 (1933).

[999] 32 Stat. 791 (1903); 33 Stat. 1264 (1905).

[1000] Townsend v. Yeomans, 301 U.S. 441 (1937).

[1001] 49 Stat. 731 (1935).

[1002] Allen-Bradley Local v. Employment Relations Board, 315 U.S. 740 (1942).

[1003] 49 Stat. 449 (1935).

[1004] Quoting Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 611 (1926).

[1005] Parker v. Brown, 317 U.S. 341 (1943).

[1006] 50 Stat. 246 (1937).

[1007] 317 U.S. at 368.

[1008] Ibid. 362.

[1009] Union Brokerage Co. v. Jensen, 322 U.S. 202 (1944).

[1010] Ibid. 211.

[1011] Panhandle Eastern Pipe Line Co. v. Public Serv. Com. of Indiana, 332 U.S. 507 (1947); Rice v. Chicago Board of Trade, 331 U.S. 247 (1947).

[1012] 52 Stat. 821 (1938).

[1013] 49 Stat. 1491 (1936).

[1014] 49 Stat. 543 (1935); 54 Stat. 919-920 (1940).

[1015] California v. Zook, 336 U.S. 725 (1949).

[1016] 52 Stat. 821 (1938).

[1017] Illinois Gas Co. v. Public Service Co., 314 U.S. 498 (1942).

[1018] 26 U.S.C.A. § 2320-2327.

[1019] Cloverleaf Co. v. Patterson, 315 U.S. 148 (1942). Four Justices, speaking by Chief Justice Stone dissented, on the basis of Mintz v. Baldwin, 289 U.S. 346 (1933); Kelly v. Washington ex rel. Foss Co., 302 U.S. 1 (1937); and Welch Co. v. New Hampshire, 306 U.S. 79 (1939).

[1020] 39 Stat. 486 (1916); amended by 46 Stat. 1463 (1931).

[1021] Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947).

[1022] See [note 1] above.

[1023] Interstate Natural Gas Co. v. Federal Power Com., 331 U.S. 682 (1947).

[1024] 49 U.S.C.A. 5.

[1025] Schwabacher v. United States, 334 U.S. 182 (1948).

[1026] Seaboard Air Line R. Co. v. Daniel, 333 U.S. 118 (1948).

[1027] Hill v. Florida, 325 U.S. 538 (1945).

[1028] 49 Stat. 449 (1935).

[1029] 325 U.S. at 542.

[1030] Auto Workers v. Wisconsin Board, 336 U.S. 245 (1949).

[1031] 49 Stat. 449 (1935); 61 Stat. 136 (1947).

[1032] Algoma Plywood & Veneer Co. v. Wisconsin Bd., 336 U.S. 301 (1949).

[1033] Automobile Workers v. O'Brien, 339 U.S. 454 (1950); Bus Employees v. Wisconsin Board, 340 U.S. 383 (1951).

[1034] United States v. Kagama, 118 U.S. 375, 384 (1886); Cf. United States v. Holliday, 3 Wall. 407 (1866).

[1035] 16 Stat. 544, 566; R.S. 2079.

[1036] See United States v. Sandoval, 231 U.S. 28 (1914).

[1037] See Perrin v. United States, 232 U.S. 478 (1914); Johnson v. Gearlds, 234 U.S. 422 (1914); Dick v. United States, 208 U.S. 340 (1908).

[1038] United States v. Nice, 241 U.S. 591 (1916), overruling Re Heff, 197 U.S. 488, 509 (1905).

[1039] United States v. Sandoval, 231 U.S. 28 (1914).

[1040] United States v. Holliday, 3 Wall. 407, 419 (1866).

[1041] Ex parte Webb, 225 U.S. 663 (1912).

[1042] Boyd v. Nebraska, 143 U.S. 135, 162 (1892).

[1043] 10 How. 393 (1857).

[1044] Ibid. 417, 419.

[1045] Mackenzie v. Hare, 239 U.S. 299, 311 (1915).

[1046] 66 Stat. 163; Public Law 414, 82d Cong., 2d Sess. (1952).

[1047] Ibid. tit. III, § 301. The first category comprises, it should be noted, those who are citizens by the opening clause of Amendment XIV, which embodies Chief Justice Marshall's holding in Gassies v. Ballon, that a citizen of the United States, residing in any State of the Union, is a citizen of that State. 6 Pet. 761, 762 (1832).

[1048] 66 Stat. 163; tit. III, §§ 302-307. These categories illustrate collective naturalization. "Instances of collective naturalization by treaty or by statute are numerous." Boyd v. Nebraska, 143 U.S. 135, 162 (1892). See also Elk v. Wilkins, 112 U.S. 94 (1884).

[1049] 57 Stat. 600.

[1050] 66 Stat. 163, tit. III, § 311.

[1051] Ibid. § 313 (a) (4-6).

[1052] Ibid. § 313 (c).

[1053] 66 Stat. 163, § 337 (a). In United States v. Schwimmer, 279 U.S. 644 (1929); and United States v. Macintosh, 283 U.S. 605 (1931) it was held, by a divided Court, that clauses (3) and (4) of the oath, as previously prescribed, required the candidate for naturalization to be ready and willing to bear arms for the United States, but these holdings were overruled in Girouard v. United States, 328 U.S. 61 (1946).

[1054] 66 Stat. 163, § 340 (a); see also Johannessen v. United States, 225 U.S. 227 (1912).

[1055] Ibid. § 340 (c). For cancellation proceedings under the Nationality Act of 1910 (54 Stat. 1158, § 338); see Schneiderman v. United States, 320 U.S. 118 (1943); Baumgartner v. United States 322 U.S. 665 (1944), where district court decisions ordering cancellation were reversed on the ground that the Government had not discharged the burden of proof resting upon it. Knauer v. United States, 328 U.S. 654 (1946) represents a less rigid view.

[1056] Osborn v. Bank of the United States, 9 Wheat. 738, 827 (1824).

[1057] 328 U.S. 654 (1946).

[1058] Ibid. 658.

[1059] Johannessen v. United States, 225 U.S. 227 (1912) and Knauer v. United States, 328 U.S. 654, 673 (1946).

[1060] 66 Stat. 163, tit. III, § 352 (a).

[1061] Perkins v. Elg, 307 U.S. 325, 329, 334 (1939). Naturalization has a retroactive effect and removes all liability to forfeiture of land held while an alien (Osterman v. Baldwin, 6 Wall. 116, 122 (1867)); the subsequent naturalization of an alien who takes land by grant or by location on public land relates back and obviates every consequence of his alien disability (Manuel v. Wulff, 152 U.S. 505, 511 (1894); Doe ex dem. Governeur's Heirs v. Robertson, 11 Wheat. 332, 350 (1826)). A certificate of naturalization, while conclusive as a judgment of citizenship, cannot be introduced in a distinct proceeding as evidence of residence, age or good character of the person naturalized (Mutual Ben. L. Ins. Co. v. Tisdale, 91 U.S. 238 (1876)).

[1062] Chirac v. Chirac, 2 Wheat. 259, 269 (1817).

[1063] Holmgren v. United States, 217 U.S. 509 (1910), where it was also held that Congress may provide for the punishment of false swearing in such proceedings in State court. Ibid. 520.

[1064] Spragins v. Houghton, 3 Ill. 377 (1840); Stewart v. Foster, 2 Binney's (Pa.) 110 (1809).

[1065] Shanks v. Dupont, 3 Pet. 242, 240 (1830).

[1066] 15 Stat. 223; 8 U.S.C.A. § 800.

[1067] MacKenzie v. Hare, 239 U.S. 299, 309, 311-312 (1915). In this case, a now obsolete statute (34 Stat. 1228), known as the Citizenship Act of 1907, which divested the citizenship of a woman marrying an alien, was upheld as constitutional. Under the Act of June 27, 1952, these conditions comprise the following: (1) Obtaining naturalization in a foreign State; (2) Taking an oath of allegiance to a foreign State; (3) Serving in the armed forces of a foreign State without authorization and with consequent acquisition of foreign nationality; (4) Assuming public office under the government of a foreign State, for which only nationals of that State are eligible; (5) Voting in an election or participating in a plebiscite in a foreign State; (6) Formal renunciation of citizenship before an American foreign service officer abroad; (7) Conviction and discharge from the armed services for desertion in time of war; (8) Conviction of treason or an attempt at forceful overthrow of the United States; (9) Formal renunciation of citizenship within the United States in time of war, subject to approval by the Attorney General; (10) Fleeing or remaining outside the United States in time of war or proclaimed emergency in order to evade military training; (11) Residence by a naturalized citizen, subject to certain exceptions, for two to three years in the country of his birth or in which he formerly was a national or for five years in any other foreign State, and (12) Minor children, of naturalized citizens losing citizenship by such foreign residence, also lose their United States citizenship if they acquire the nationality of a foreign State; but not until they attain the age of 25 without having acquired permanent residence in the United States. 66 Stat. 163; Tit. III §§ 349-357.

[1068] Chinese Exclusion Case, 130 U.S. 581, 603, 604 (1889); See also Fong Yue Ting v. United States, 149 U.S. 698, 705 (1893); Japanese Immigrant Case, 189 U.S. 86 (1903); Turner v. Williams, 194 U.S. 279 (1904); Bugajewitz v. Adams, 228 U.S. 585 (1913); Hines v. Davidowitz, 312 U.S. 52 (1941).

[1069] 66 Stat. 163; Tit. II, § 212.

[1070] Ibid. § 212 (a) (28) (F).

[1071] 54 Stat. 670.

[1072] Hines v. Davidowitz, 312 U.S. 52, 69-70.

[1073] 66 Stat. 163; Tit. II, §§ 261-266.

[1074] 338 U.S. 537 (1950).

[1075] 59 Stat. 659.

[1076] 338 U.S. at 543.

[1077] Carlson v. Landon, 342 U.S. 524 (1952).

[1078] 54 Stat. 670.

[1079] Harisiades v. Shaughnessy, 342 U.S. 580, 587 (1952).

[1080] 8 U.S.C, § 156 C was the provision in question.

[1081] United States v. Spector, 343 U.S. 169 (1952).

[1082] Keller v. United States, 213 U.S. 138 (1909).

[1083] Ibid. 149-150. For the requirements of due process of law in the deportation of alien, see p. [852] ([Amendment V]).

[1084] Adams v. Storey, 1 Fed. Cas. No. 66 (1817).

[1085] 2 Stat. 19 (1800).

[1086] Story's Commentaries, II, 1113 (Cooley's ed. 1873).

[1087] 186 U.S. 181 (1902).

[1088] Continental Illinois Nat. Bank & Trust Co. v. Chicago, R.I. & P.R. Co., 294 U.S. 648, 670 (1935).

[1089] United States v. Bekins, 304 U.S. 27 (1938), distinguishing Ashton v. Cameron County Water Improv. Dist., 298 U.S. 513 (1936).

[1090] In re Reiman, Fed. Cas. No. 11,673 (1874), cited with approval in Continental Illinois Nat. Bank & Trust Co. v. Chicago, R.I. & P.R. Co., 294 U.S. 648, 672 (1935).

[1091] Continental Illinois Nat. Bank & Trust Co. v. Chicago, R.I. & P.R. Co., 294 U.S. 648 (1935).

[1092] Wright v. Mountain Trust Bank, 300 U.S. 440 (1937); Adair v. Bank of America Assn., 303 U.S. 350 (1938).

[1093] Wright v. Union Central Insurance Co., 304 U.S. 502 (1938).

[1094] 294 U.S. 648 (1935).

[1095] Ibid. 671.

[1096] Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 589, 602 (1935).

[1097] Ashton v. Cameron County Water Improvement District, 298 U.S. 513 (1936). But see United States v. Bekins, 304 U.S. 27 (1938).

[1098] Chicago Title & Trust Co. v. 4136 Wilcox Bldg. Corp., 302 U.S. 120 (1937).

[1099] Re Klein, 1 How. 277 (1843); Hanover Nat. Bank v. Moyses, 186 U.S. 181 (1902).

[1100] United States v. Bekins, 304 U.S. 27 (1938).

[1101] Stellwagen v. Clum, 245 U.S. 605 (1918); Hanover Nat. Bank v. Moyses, 186 U.S. 181, 190 (1902).

[1102] Hanover Nat. Bank v. Moyses, 186 U.S. 181, 184 (1902).

[1103] Sturges v. Crowninshield, 4 Wheat. 122, 199 (1819); Ogden v. Saunders, 12 Wheat. 212, 368 (1827).

[1104] Tua v. Carriere, 117 U.S. 201 (1886); Butler v. Goreley, 146 U.S. 303, 314 (1892).

[1105] Sturges v. Crowninshield, 4 Wheat. 122 (1819).

[1106] Ogden v. Saunders, 12 Wheat. 212, 358 (1827); Denny v. Bennett, 128 U.S. 489, 498 (1888); Brown v. Smart, 145 U.S. 454 (1892).

[1107] Re Watts, 190 U.S. 1, 27 (1903); International Shoe Co. v. Pinkus, 278 U.S. 261, 264 (1929).

[1108] International Shoe Co. v. Pinkus, 278 U.S. 261, 265 (1929).

[1109] Kalb v. Feuerstein, 308 U.S. 433 (1940).

[1110] Stellwagen v. Clum, 245 U.S. 605, 615 (1918).

[1111] Reitz v. Mealey, 314 U.S. 33 (1941).

[1112] New York v. Irving Trust Co., 288 U.S. 329 (1933).

[1113] McCulloch v. Maryland, 4 Wheat. 316 (1819).

[1114] Veazie Bank v. Fenno, 8 Wall. 533 (1869).

[1115] Ibid. 548.

[1116] Merchants Nat. Bank v. United States, 101 U.S. 1 (1880).

[1117] Nortz v. United States, 294 U.S. 317 (1935).

[1118] Legal Tender Cases, 12 Wall. 457, 549 (1871); Juilliard v. Greenman, 110 U.S. 421, 449 (1884).

[1119] Legal Tender Cases, 12 Wall. 457 (1871).

[1120] Norman v. Baltimore & O.R. Co., 294 U.S. 240 (1935).

[1121] Ling Su Fan v. United States, 218 U.S. 302 (1910).

[1122] United States v. Marigold, 9 How. 560, 568 (1850).

[1123] Fox v. Ohio, 5 How. 410 (1847).

[1124] United States v. Marigold, 9 How. 560, 568 (1850).

[1125] Ibid.

[1126] Baender v. Barnett, 255 U.S. 224 (1921).

[1127] Knox v. Lee (Legal Tender Cases), 12 Wall. 457, 536 (1871).

[1128] McCulloch v. Maryland, 4 Wheat. 316, 407 (1819); Osborn v. Bank of United States, 9 Wheat. 738, 861 (1824); Farmers' & Mechanics' Nat. Bank v. Dearing, 91 U.S.C. 29, 33 (1875); Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 208 (1921).

[1129] Legal Tender Cases, 12 Wall. 457, 540-547 (1871).

[1130] Perry v. United States, 294 U.S. 330, 353 (1935).

[1131] Ibid. 361.

[1132] United States v. Railroad Bridge Co., Fed. Cas. No. 16,114 (1855).

[1133] Searight v. Stokes, 3 How. 151, 166 (1845).

[1134] 91 U.S. 367 (1876).

[1135] Ex parte Jackson, 96 U.S. 727, 732 (1878).

[1136] Searight v. Stokes, 3 How. 151, 169 (1845).

[1137] Re Debs, 158 U.S. 564, 599 (1895).

[1138] 2 Cong. Globe 4, 10 (1835).

[1139] Ibid. 298. On this point his reasoning would appear to be vindicated by such decisions, as Bowman v. Chicago & N.W.R. Co., 125 U.S. 465 (1888) and Leisy v. Hardin, 135 U.S. 100 (1890) denying the right of the States to prevent the importation of alcoholic beverages from other States.

[1140] 96 U.S. 727 (1878).

[1141] Ibid. 732.

[1142] Public Clearing House v. Coyne, 194 U.S. 497 (1904), followed in Donaldson v. Read Magazine, 333 U.S. 178 (1948).

[1143] 194 U.S. at 506.

[1144] Lewis Publishing Co. v. Morgan, 229 U.S. 288, 316 (1913).

[1145] 255 U.S. 407 (1921).

[1146] Hannegan v. Esquire, Inc., 327 U.S. 146, 155 (1946).

[1147] 49 Stat. 803, 812, 813 (1935), 15 U.S.C. 79d, 79e (1946).

[1148] Electric Bond & Share Co. v. Securities and Exchange Comm'n., 303 U.S. 419 (1938).

[1149] Ibid. 442.

[1150] Pensacola Teleg. Co. v. Western U. Teleg. Co., 90 U.S. 1 (1878).

[1151] Illinois C.R. Co. v. Illinois ex rel. Butler, 163 U.S. 142 (1896).

[1152] Gladson v. Minnesota, 166 U.S. 427 (1897).

[1153] Price v. Pennsylvania R. Co., 113 U.S. 218 (1885); Martin v. Pittsburgh & L.E.R. Co., 203 U.S. 284 (1906).

[1154] Railway Mail Assn. v. Corsi, 326 U.S. 88 (1945).

[1155] United States v. Kirby, 7 Wall. 482 (1869).

[1156] Johnson v. Maryland, 254 U.S. 51 (1920).

[1157] Pennock v. Dialogue, 2 Pet. 1, 17, 18 (1829).

[1158] Wheaton v. Peters, 8 Pet. 591, 656, 658 (1834).

[1159] Kendall v. Winsor, 21 How. 322, 328 (1859); Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147 (1950).

[1160] Evans v. Jordan, 9 Cr. 199 (1815); Bloomer v. McQuewan, 14 How. 539, 548 (1852); Bloomer v. Millinger, 1 Wall. 340, 350 (1864); Eunson v. Dodge, 18 Wall. 414, 416 (1873).

[1161] Brown v. Duchesne, 19 How. 183, 195 (1857).

[1162] Seymour v. Osborne, 11 Wall. 516, 549 (1871). Cf. Union Paper Collar Co. v. Van Dusen, 23 Wall. 530, 563 (1875); Reckendorfer v. Faber, 92 U.S. 347, 356 (1876).

[1163] Smith v. Nichols, 21 Wall. 112, 118 (1875).

[1164] Rubber-Tip Pencil Co. v. Howard, 20 Wall. 498, 507 (1874); Clark Thread Co. v. Willimantic Linen Co., 140 U.S. 481, 489 (1891).

[1165] Funk Bros. Seed Co. v. Kalo Co., 333 U.S. 127, 130 (1948). Cf. Dow Chemical Co. v. Halliburton Co., 324 U.S. 320 (1945); Cuno Corp. v. Automatic Devices Corp., 314 U.S. 84, 89 (1941).

[1166] Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327 (1945); Marconi Wireless Teleg. Co. v. United States, 320 U.S. 1 (1943).

[1167] Keystone Mfg. Co. v. Adams, 151 U.S. 139 (1894); Diamond Rubber Co. v. Consolidated Tire Co., 220 U.S. 428 (1911).

[1168] Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147 (1950). An interesting concurring opinion was filed by Justice Douglas for himself and Justice Black: "It is not enough," says Justice Douglas, "that an article is new and useful. The Constitution never sanctioned the patenting of gadgets. Patents serve a higher end—the advancement of science. An invention need not be as startling as an atomic bomb to be patentable. But it has to be of such quality and distinction that masters of the scientific field in which it falls will recognize it as an advance." Ibid. 154-155. He then quotes the following from an opinion of Justice Bradley's given 70 years ago:

"It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities to lawsuits and vexatious accountings for profits made in good faith. (Atlantic Works v. Brady, 107 U.S. 192, 200 (1882))." Ibid. 155.

The opinion concludes: "The attempts through the years to get a broader, looser conception of patents than the Constitution contemplates have been persistent. The Patent Office, like most administrative agencies, has looked with favor on the opportunity which the exercise of discretion affords to expand its own jurisdiction. And so it has placed a host of gadgets under the armour of patents—gadgets that obviously have had no place in the constitutional scheme of advancing scientific knowledge. A few that have reached this Court show the pressure to extend monopoly to the simplest of devices:

"Hotchkiss v. Greenwood, 11 How. 248 (1850): Doorknob made of clay rather than metal or wood, where different shaped doorknobs had previously been made of clay.

"Rubber-Tip Pencil Co. v. Howard, 20 Wall. 498 (1874): Rubber caps put on wood pencils to serve as erasers.

"Union Paper Collar Co. v. Van Dusen, 23 Wall. 530 (1875): Making collars of parchment paper where linen paper and linen had previously been used.

"Brown v. Piper, 91 U.S. 37 (1875): A method for preserving fish by freezing them in a container operating in the same manner as an ice cream freezer.

"Reckendorfer v. Faber, 92 U.S. 347 (1876): Inserting a piece of rubber in a slot in the end of a wood pencil to serve as an eraser.

"Dalton v. Jennings, 93 U.S. 271 (1876): Fine thread placed across open squares in a regular hairnet to keep hair in place more effectively.

"Double-Pointed Tack Co. v. Two Rivers Mfg. Co., 109 U.S. 117 (1883): Putting a metal washer on a wire staple.

"Miller v. Foree, 116 U.S. 22 (1885): A stamp for impressing initials in the side of a plug of tobacco.

"Preston v. Manard, 116 U.S. 661 (1886): A hose reel of large diameter so that water may flow through hose while it is wound on the reel.

"Hendy v. Miners' Iron Works, 127 U.S. 370 (1888): Putting rollers on a machine to make it moveable.

"St. Germain v. Brunswick, 135 U.S. 227 (1890): Revolving cue rack.

"Shenfield v. Nashawannuck Mfg. Co., 137 U.S. 56 (1890): Using flat cord instead of round cord for the loop at the end of suspenders.

"Florsheim v. Schilling, 137 U.S. 64 (1890): Putting elastic gussets in corsets.

"Cluett v. Claflin, 140 U.S. 180 (1891): A shirt bosom or dickie sewn onto the front of a shirt.

"Adams v. Bellaire Stamping Co., 141 U.S. 539 (1891): A lantern lid fastened to the lantern by a hinge on one side and a catch on the other.

"Patent Clothing Co. v. Glover, 141 U.S. 560 (1891): Bridging a strip of cloth across the fly of pantaloons to reinforce them against tearing.

"Pope Mfg. Co. v. Gormully Mfg. Co., 144 U.S. 238 (1892): Placing rubber hand grips on bicycle handlebars.

"Knapp v. Morss, 150 U.S. 221 (1893): Applying the principle of the umbrella to a skirt form.

"Morgan Envelope Co. v. Albany Perforated Wrapping Paper Co., 152 U.S. 425 (1894): An oval rather than cylindrical toilet paper roll, to facilitate tearing off strips.

"Dunham v. Dennison Mfg. Co., 154 U.S. 103 (1894): An envelope flap which could be fastened to the envelope in such a fashion that the envelope could be opened without tearing.

"The patent involved in the present case belongs to this list of incredible patents which the Patent Office has spawned. The fact that a patent as flimsy and as spurious as this one has to be brought all the way to this Court to be declared invalid dramatically illustrates how far our patent system frequently departs from the constitutional standards which are supposed to govern." Ibid. 156-158.

[1169] "Inventive genius"—Justice Hunt in Reckendorfer v. Faber, 92 U.S. 347, 357 (1875); "Genius or invention"—Chief Justice Fuller in Smith v. Whitman Saddle Co., 148 U.S. 674, 681 (1893); "Intuitive genius"—Justice Brown in Potts v. Creager, 155 U.S. 597, 607 (1895); "Inventive genius"—Justice Stone in Concrete Appliances Co. v. Gomery, 269 U.S. 177, 185 (1925); "Inventive genius"—Justice Roberts in Mantle Lamp Co. v. Aluminum Co., 301 U.S. 544, 546 (1937); Justice Douglas in Cuno Corp. v. Automatic Devices Corp., 314 U.S. 84, 91 (1941); "the flash of creative genius, not merely the skill of the calling." See also [Note 2] above.

[1170] See [Note 7] above.

[1171] Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147 (1950); Mahn v. Harwood, 112 U.S. 354, 358 (1884).

[1172] Evans v. Eaton, 3 Wheat. 454, 512 (1818).

[1173] United States v. Duell, 172 U.S. 576, 586-589 (1899). See also Butterworth v. Hoe, 112 U.S. 50 (1884).

[1174] Wheaton v. Peters, 8 Pet. 591, 660 (1834); Holmes v. Hurst, 174 U.S. 82 (1899). Cf. E. Burke Inlow, The Patent Clause (1950) Chaps. III and IV, for evidence of a judicial recognition of an inventor's inchoate right to have his invention patented.

[1175] Wheaton v. Peters, 8 Pet. 591, 662 (1834); Evans v. Jordan, 9 Cr. 199 (1815).

[1176] Kalem Co. v. Harper Bros. 222 U.S. 55 (1911).

[1177] Baker v. Selden, 101 U.S. 99, 105 (1880).

[1178] Stevens v. Gladding, 17 How. 447 (1855).

[1179] Ager v. Murray, 105 U.S. 126 (1882).

[1180] James v. Campbell, 104 U.S. 356, 358 (1882). See also United States v. Burns, 12 Wall. 246, 252 (1871); Cammeyer v. Newton, 94 U.S. 225, 234 (1877); Hollister v. Benedict Manufacturing Co., 113 U.S. 59, 67 (1885); United States v. Palmer, 128 U.S. 262, 271 (1888); Belknap v. Schild, 161 U.S. 10, 16 (1896).

[1181] McClurg v. Kingsland, 1 How. 202, 206 (1843).

[1182] Bloomer v. McQuewan, 14 How. 539, 553 (1852).

[1183] See Motion Picture Co. v. Universal Film Co., 243 U.S. 502 (1917); Morton Salt Co. v. Suppiger Co., 314 U.S. 488 (1942); United States v. Masonite Corp., 316 U.S. 265 (1942); and United States v. New Wrinkle, Inc., 342 U.S. 371 (1952), where the Justices divide 6 to 3 as to the significance for the case of certain leading precedents. See also Inlow, The Patent Clause, Chap. V.

[1184] Patterson v. Kentucky, 97 U.S. 501 (1879).

[1185] Allen v. Riley, 203 U.S. 347 (1906): Woods & Sons v. Carl, 203 U.S. 358 (1906); Ozan Lumber Co. v. Union County Bank, 207 U.S. 251 (1907).

[1186] Fox Film Corp. v. Doyal, 280 U.S. 123 (1932)—overruling Long v. Rockwood, 277 U.S. 142 (1928).

[1187] 100 U.S. 82 (1879).

[1188] Ibid. 94.

[1189] Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884).

[1190] Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 252 (1903).

[1191] Kent, Commentaries, 1-2, (12th ed. 1873).

[1192] XIX Journals of the Continental Congress 315, 361 (1912). XX Id. 762, XXI id. 1136-1137, 1158.

[1193] Article IX.

[1194] Madison, Journal of the Constitutional Convention, II, 82 (Hunt's ed. 1908).

[1195] Ibid. 185-186, 372.

[1196] United States v. Smith, 5 Wheat. 153, 160, 162 (1820). See also The Marianna Flora, 11 Wheat. 1, 40-41 (1826); United States v. Brig Malek Abhel, 2 How. 210, 232 (1844).

[1197] 317 U.S. 1, 27 (1942).

[1198] Ibid. 28.

[1199] United States v. Arjona, 120 U.S. 479, 487, 488 (1887).

[1200] United States v. Flores, 3 F. Supp. 134 (1932).

[1201] 289 U.S. 137, 149-150 (1933).

[1202] United States v. Furlong, 5 Wheat. 184, 200 (1920).

[1203] The Federalist No. 23.

[1204] Penhallow v. Doane, 3 Dall. 54 (1795).

[1205] 4 Wheat. 316 (1819).

[1206] Ibid. 407. Emphasis supplied.

[1207] Ex parte Milligan, 4 Wall. 2, 139 (1866) (dissenting opinion); see also Miller v. United States, 11 Wall. 268, 305 (1871); and United States v. Macintosh, 283 U.S. 605, 622 (1931).

[1208] 58 Cong. Globe, 37th Cong., 1st sess., App. 1 (1861).

[1209] Hamilton v. Dillin, 21 Wall. 73, 86 (1875).

[1210] Northern P.R. Co. v. North Dakota, 250 U.S. 135, 149 (1919).

[1211] Home Bldg. & Loan Assoc. v. Blaisdell, 290 U.S. 398 (1934).

[1212] Northern P.R. Co. v. North Dakota, 250 U.S. 135, 149 (1919).

[1213] 299 U.S. 304 (1936).

[1214] Ibid. 316, 318.

[1215] 334 U.S. 742 (1948).

[1216] Ibid. 757-758.

[1217] Ibid. 755.

[1218] II Madison Journal of the Constitutional Convention 82 (Hunt's ed. 1908).

[1219] Ibid. 188.

[1220] 11 Annals of Congress 11 (1801).

[1221] Works of Alexander Hamilton, VII, 746 (Hamilton's ed. 1851). Cf. Bas v. Tingy, 4 Dall. 37 (1800).

[1222] 2 Stat. 129, 130 (1802). Emphasis supplied.

[1223] The Prize Cases, 2 Bl. 635, 668 (1863).

[1224] Ibid. 683, 688.

[1225] 12 Wall. 700 (1872).

[1226] Ibid. 702.

[1227] I Blackstone, Commentaries 263, (Wendell's ed. 1857).

[1228] II Story, Commentaries, § 1187 (4th ed. 1873).

[1229] 25 Op. Atty. Gen. 105, 108 (1904).

[1230] 40 Op. Atty. Gen. 555 (1948).

[1231] 61 Stat. 405 (1947).

[1232] H.J. Res. 298, 80th Cong., 2d sess. (1948).

[1233] Selective Draft Law Cases, 245 U.S. 366, 380 (1918); Cox v. Wood, 247 U.S. 3 (1918).

[1234] 245 U.S. at 385.

[1235] Ibid. 386-388. The measure was upheld by a State court, Kneedler v. Lane, 45 Pa. 238 (1863).

[1236] Selective Draft Law Cases, 245 U.S. 366, 381, 382 (1918)

[1237] Butler v. Perry, 240 U.S. 328, 333 (1916).

[1238] 245 U.S. 366 (1918).

[1239] Ibid. 390.

[1240] United States v. Williams, 302 U.S. 46 (1937). See also In re Grimley, 137 U.S. 147, 153 (1890); In re Morrissey, 137 U.S. 157 (1890).

[1241] Wissner v. Wissner, 338 U.S. 655, 660 (1950).

[1242] McKinley v. United States, 249 U.S. 397 (1919).

[1243] Dynes v. Hoover, 20 How. 65, 79 (1858).

[1244] Ex parte Milligan, 4 Wall. 2, 123, 138-139 (1866). Ex parte Quirin, 317 U.S. 1, 40 (1942).

[1245] Wade v. Hunter, 336 U.S. 684, 687 (1949).

[1246] Dynes v. Hoover, 20 How. 65, 82 (1858).

[1247] Swaim v. United States, 165 U.S. 553 (1897); Carter v. Roberts, 177 U.S. 496 (1900); Hiatt v. Brown, 339 U.S. 103 (1950).

[1248] Mullan v. United States, 212 U.S. 516 (1909); Smith v. Whitney, 116 U.S. 167, 177 (1886); Hiatt v. Brown, 339 U.S. 103 (1950).

[1249] Clark, Emergency Legislation Passed Prior to December 1917, 211 (1918).

[1250] Ibid. 214

[1251] Ibid. 250, 332, 380, 438, 497.

[1252] Ibid. 420, 466, 535, 595, 636, 823. Many of these were soon suspended or repealed. Ibid. 458, 553, 601, 733.

[1253] Ibid. 482, 543, 963, 969.

[1254] Ibid. 916.

[1255] Ibid. 280.

[1256] Hepburn v. Griswold, 8 Wall. 603, 617 (1870).

[1257] Ibid. 626.

[1258] Knox v. Lee (Legal Tender Cases), 12 Wall. 457, 540 (1871).

[1259] 40 Stat. 276 (1917).

[1260] Ibid. 272.

[1261] Ibid. 411.

[1262] Ibid. 451 (1918).

[1263] Ibid. 904.

[1264] 55 Stat. 236 (1941).

[1265] 56 Stat. 176 (1942).

[1266] Ibid. 23.

[1267] 57 Stat. 163 (1943).

[1268] Lichter v. United States, 334 U.S. 742, 754-756, 765, 766 (1948). See also United States v. Bethlehem Steel Corp., 315 U.S. 289, 305 (1942); Clallam County v. United States, 263 U.S. 341 (1923); Sloan Shipyards v. United States Fleet Corp., 258 U.S. 549 (1922).

[1269] Lichter v. United States, 334 U.S. 742, 779 (1948).

[1270] 245 U.S. 366, 389 (1918).

[1271] Yakus v. United States, 321 U.S. 414, 424 (1944).

[1272] 21 Wall. 73 (1875).

[1273] Ibid. 96-97. Cf. United States v. Chemical Foundation, 272 U.S. 1 (1926).

[1274] 320 U.S. 81 (1943).

[1275] Ibid. 91-92, 104.

[1276] Ibid. 104.

[1277] 334 U.S. 742 (1948).

[1278] Ibid. 778-779.

[1279] Ibid. 782-783.

[1280] Story Commentaries on the Constitution, II, § 1185 (4th ed., 1873).

[1281] 297 U.S. 288 (1936).

[1282] 39 Stat. 166 (1916).

[1283] 297 U.S. 288, 327-328 (1936).

[1284] 60 Stat. 755 (1946).

[1285] Stewart v. Kahn, 11 Wall. 493, 507 (1871). See also Mayfield v. Richards, 115 U.S. 137 (1885).

[1286] 251 U.S. 146, 163 (1919). See also Ruppert v. Caffey, 251 U.S. 264 (1920).

[1287] Block v. Hirsh, 256 U.S. 135 (1921).

[1288] Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924).

[1289] 333 U.S. 138 (1948). See also Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111 (1947).

[1290] 333 U.S. 138, 143-144 (1948).

[1291] Ludecke v. Watkins, 335 U.S. 160, 170 (1948).

[1292] 100 U.S. 158 (1880).

[1293] Ibid. 170.

[1294] 4 Wall. 2 (1866).

[1295] Ibid. 127.

[1296] Ibid. 132, 138.

[1297] 327 U.S. 304 (1946).

[1298] 8 Cr. 110 (1814). See also Conrad v. Waples, 96 U.S. 279, 284 (1878).

[1299] Miller v. United States, 11 Wall. 268 (1871).

[1300] Stoehr v. Wallace, 255 U.S. 239 (1921); Central Union Trust Co. v. Garvan, 254 U.S. 554 (1921); United States v. Chemical Foundation, 272 U.S. 1 (1926); Silesian-American Corp. v. Clark, 332 U.S. 469 (1947); Cities Service Co. v. McGrath, 342 U.S. 330 (1952).

[1301] The "Siren," 13 Wall. 389 (1871).

[1302] The "Hampton," 5 Wall. 372, 376 (1867).

[1303] The "Paquete Habana," 175 U.S. 677, 700, 711 (1900).

[1304] Block v. Hirsh, 256 U.S. 135, 156, 157 (1921).

[1305] Bowles v. Willingham, 321 U.S. 503, 519 (1944).

[1306] Ibid. 521.

[1307] 255 U.S. 81 (1921).

[1308] Ibid. 89.

[1309] Schenck v. United States, 249 U.S. 47 (1919); Debs v. United States, 249 U.S. 211 (1919); Sugarman v. United States, 249 U.S. 182 (1919); Frohwerk v. United States, 249 U.S. 204 (1919); Abrams v. United States, 250 U.S. 616 (1919).

[1310] 40 Stat. 217 (1917); amended by 40 Stat. 553 (1918).

[1311] 249 U.S. 47 (1919).

[1312] Ibid. 52.

[1313] Gilbert v. Minnesota, 254 U.S. 325 (1920).

[1314] Hirabayashi v. United States, 320 U.S. 81 (1943).

[1315] Korematsu v. United States, 323 U.S. 214 (1944).

[1316] Ex parte Endo, 323 U.S. 283 (1944).

[1317] 1 Stat. 577 (1798).

[1318] Writings of James Madison, VI, 360-361 (Hunt's ed., 1906).

[1319] 40 Stat. 531 (1918).

[1320] 335 U.S. 160 (1948).

[1321] Mitchell v. Harmony, 13 How. 115, 134 (1852).

[1322] 13 Wall. 623, 627 (1871).

[1323] 120 U.S. 227 (1887).

[1324] Ibid. 239.

[1325] H.R. Rep. No. 262, 43d Cong., 1st sess., 39-40 (1874).

[1326] United States v. Commodities Trading Corp., 339 U.S. 121 (1950); United States v. Toronto Nav. Co., 338 U.S. 396 (1949); Kimball Laundry Co. v. United States, 338 U.S. 1 (1949); United States v. Cors, 337 U.S. 325 (1949); United States v. John J. Felin & Co., 334 U.S. 624 (1948); United States v. Petty Motor Co., 327 U.S. 372 (1946); United States v. General Motors Corp., 323 U.S. 373 (1945).

[1327] Moore v. Houston, 3 S. & R. (Pa.) 169 (1817), affirmed in Houston v. Moore, 5 Wheat. 1 (1820).

[1328] Texas v. White, 7 Wall. 700 (1869); Tyler v. Defrees, 11 Wall. 331 (1871).

[1329] 1 Stat. 424 (1795).

[1330] Martin v. Mott, 12 Wheat. 19, 32 (1827).

[1331] Houston v. Moore, 5 Wheat. 1 (1820); Martin v. Mott, 12 Wheat. 19 (1827).

[1332] Houston v. Moore, 5 Wheat. 1, 16 (1820).

[1333] 39 Stat. 166, 197 (1916).—By the act of June 28, 1947 (61 Stat. 191, 192) the age of enlistment in the National Guard was lowered to 17 years.

[1334] United States v. Hammond, 1 Cr. C.C. 15 (1801).

[1335] 2 Stat. 103 (1801).

[1336] 2 Stat. 195 (1802).

[1337] 20 Stat. 102 (1878).

[1338] Metropolitan R. Co. v. District of Columbia, 132 U.S. 1, 9 (1889).

[1339] District of Columbia v. Bailey, 171 U.S. 161 (1898).

[1340] Shoemaker v. United States, 147 U.S. 282, 299 (1893).

[1341] Morris v. United States, 174 U.S. 196 (1899).

[1342] United States ex rel. Greathouse v. Dern, 289 U.S. 352, 354 (1933); Smoot Sand & Gravel Corp. v. Washington Airport, 283 U.S. 348 (1931); Maryland v. West Virginia, 217 U.S. 577 (1910); Marine R. & Coal Co. v. United States, 257 U.S. 47 (1921); Morris v. United States, 174 U.S. 196 (1899).

[1343] Phillips v. Payne, 92 U.S. 130 (1876).

[1344] 1 Stat. 139 (1790).

[1345] United States v. Simms, 1 Cr. 252, 256 (1803).

[1346] 2 Stat. 103, 104 (1801). See Tayloe v. Thomson, 5 Pet. 358, 368 (1831); Ex parte Watkins, 7 Pet. 568 (1833); Stelle v. Carroll, 12 Pet. 201, 205 (1838); Van Ness v. Bank of United States, 13 Pet. 17 (1839); United States v. Eliason, 16 Pet. 291, 301 (1842).

[1347] Reily v. Lamar, 2 Cr. 344, 356 (1805).

[1348] Korn v. Mutual Assur. Soc., 6 Cr. 192, 199 (1810).

[1349] Mutual Assur. Soc. v. Watts, 1 Wheat. 279 (1816).

[1350] Hepburn v. Ellzey, 2 Cr. 445, 452 (1805); see also Serè v. Pitot, 6 Cr. 332, 336 (1810); New Orleans v. Winter, 1 Wheat. 91, 94 (1816). The District has been held to be a "State" within the terms of a treaty regulating the inheritance of property within the "States of the Union." De Geofroy v. Riggs, 133 U.S. 258 (1890).

[1351] Barney v. Baltimore, 6 Wall. 280 (1868); Hooe v. Jamieson, 166 U.S. 395 (1897); Hooe v. Werner, 166 U.S. 399 (1897).

[1352] National Mut. Ins. Co. v. Tidewater Transfer Co., Inc., 337 U.S. 582 (1949).

[1353] Ibid. 588-600 (opinion of Justice Jackson, with whom Justices Black and Burton concurred).

[1354] Ibid. 604 (opinion of Justice Rutledge, with whom Justice Murphy concurred).

[1355] Callan v. Wilson, 127 U.S. 540 (1888); Capital Traction Co. v. Hof, 174 U.S. 1 (1899).

[1356] United States v. Moreland, 258 U.S. 433 (1922).

[1357] Wight v. Davidson, 181 U.S. 371, 384 (1901); Cf. Adkins v. Children's Hospital, 261 U.S. 525 (1923) overruled by West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).

[1358] Kendall v. United States ex rel. Stokes, 12 Pet. 524, 619 (1838); Shoemaker v. United States, 147 U.S. 282, 300 (1893); Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 435 (1932); O'Donoghue v. United States 289 U.S. 516, 518 (1933).

[1359] 6 Wheat. 264 (1821).

[1360] Ibid. 428.

[1361] Loughborough v. Blake, 5 Wheat. 317 (1820).

[1362] Gibbons v. District of Columbia, 116 U.S. 404, 408 (1886); Welch v. Cook, 97 U.S. 541 (1879).

[1363] Loughborough v. Blake, 5 Wheat. 317, 320 (1820); Heald v. District of Columbia, 259 U.S. 114 (1922).

[1364] Thompson v. Roe ex dem. Carroll, 22 How. 422, 435 (1860); Stoutenburgh v. Hennick, 129 U.S. 141, 147 (1889).

[1365] Willard v. Presbury, 14 Wall. 676, 680 (1870); Briscoe v. Rudolph, 221 U.S. 547 (1911).

[1366] Washington Market Co. v. District of Columbia, 172 U.S. 361, 367 (1899).

[1367] Mattingly v. District of Columbia, 97 U.S. 687, 690 (1878).

[1368] 129 U.S. 141, 148 (1889).

[1369] Keller v. Potomac Electric Power Co., 261 U.S. 428 (1923).

[1370] O'Donoghue v. United States, 289 U.S. 516 (1933).

[1371] Embry v. Palmer, 107 U.S. 3 (1883).

[1372] James v. Dravo Contracting Co., 302 U.S. 134, 143 (1937).

[1373] Battle v. United States, 209 U.S. 36 (1908).

[1374] Arlington Hotel Co. v. Fant, 278 U.S. 439 (1929).

[1375] James v. Dravo Contracting Co, 302 U.S. 134, 143 (1937).

[1376] Collins v. Yosemite Park Co., 304 U.S. 518, 530 (1938).

[1377] Ibid. 528.

[1378] Battle v. United States, 209 U.S. 36 (1908); Johnson v. Yellow Cab Co., 321 U.S. 383 (1944); Bowen v. Johnston, 306 U.S. 19 (1939).

[1379] Surplus Trading Co. v. Cook, 281 U.S. 647 (1930).

[1380] Western Union Teleg. Co. v. Chiles, 214 U.S. 274 (1909); Arlington Hotel Co. v. Fant, 278 U.S. 439 (1929); Pacific Coast Dairy v. Dept. of Agri., 318 U.S. 285 (1943).

[1381] Chicago, R.I. & P.R. Co. v. McGlinn, 114 U.S. 542, 545 (1885); James Stewart & Co. v. Sadrakula, 309 U.S. 94 (1940).

[1382] Palmer v. Barrett, 162 U.S. 399 (1896).

[1383] United States v. Unzeuta, 281 U.S. 138 (1930).

[1384] Benson v. United States, 146 U.S. 325, 331 (1892).

[1385] Palmer v. Barrett, 162 U.S. 399 (1896).

[1386] S.R.A., Inc. v. Minnesota, 327 U.S. 558, 564 (1946).

[1387] Ibid. 570, 571.

[1388] Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 532 (1885); United States v. Unzeuta, 281 U.S. 138, 142 (1930); Surplus Trading Co. v. Cook, 281 U.S. 647, 652 (1930).

[1389] United States v. Cornell, 25 Fed. Cas. No. 14,867 (1819).

[1390] James v. Dravo Contracting Co., 302 U.S. 134, 145 (1937).

[1391] Silas Mason Co. v. Tax Commission of Washington, 302 U.S. 186 (1937). See also Atkinson v. State Tax Commission, 303 U.S. 20 (1938).

[1392] 4 Wheat. 316 (1819).

[1393] Ibid. 420. This decision had been clearly foreshadowed fourteen years earlier by Marshall's opinion in United States v. Fisher, 2 Cr. 358, 396 (1805). Upholding an act which gave priority to claims of the United States against the estate of a bankrupt he wrote: "The government is to pay the debt of the Union, and must be authorized to use the means which appear to itself most eligible to effect that object. It has, consequently, a right to make remittances, by bills or otherwise, and to take those precautions which will render the transaction safe."

[1394] See pp. [74-82], supra.

[1395] Neely v. Henkel, 180 U.S. 109, 121 (1901). See also Missouri v. Holland, 252 U.S. 416 (1920).

[1396] See p. [426], supra.

[1397] Den ex dem. Murray v. Hoboken Land & Improvement Co., 18 How. 272, 281 (1856).

[1398] Kohl v. United States, 91 U.S. 367, 373 (1876); United Slates v. Fox, 94 U.S. 315, 320 (1877).

[1399] See pp. [110-117], [266-267].

[1400] United States v. Fox, 95 U.S. 670, 672 (1878); United States v. Hall, 98 U.S. 343, 357 (1879); United States v. Worrall, 2 Dall. 384, 394 (1790); McCulloch v. Maryland, 4 Wheat. 316 (1819). That this power has been freely exercised is attested by the 180 pages of the United States Code (1950 ed.) devoted to Title 18, entitled "Criminal Code and Criminal Procedure." In addition numerous regulatory measures prescribe criminal penalties for infractions thereof.

[1401] Ex parte Carll, 106 U.S. 521 (1883).

[1402] United States v. Marigold, 9 How. 560, 567 (1850).

[1403] Logan v. United States, 144 U.S. 263 (1892).

[1404] United States v. Barnow, 239 U.S. 74 (1915).

[1405] Ex parte Yarbrough, 110 U.S. 651 (1884); United States v. Waddell, 112 U.S. 76 (1884); In re Quarles, 158 U.S. 532, 537 (1895); Motes v. United States, 178 U.S. 458 (1900); United States v. Mosley, 238 U.S. 383 (1915). See also Rakes v. United States, 212 U.S. 55 (1909).

[1406] Ex parte Curtis, 106 U.S. 371 (1882).

[1407] The Alien Registration Act of 1940, 54 Stat. 670, 18 U.S.C.A. § 2385.

[1408] McCulloch v. Maryland, 4 Wheat. 316, 407 (1819).

[1409] Osborn v. Bank of the United States, 9 Wheat. 738, 862 (1824). See also Pittman v. Home Owners' Loan Corp., 308 U.S. 21 (1939).

[1410] First Nat. Bank v. Fellows ex rel. Union Trust Co., 244 U.S. 416 (1917); Burnes Nat. Bank v. Duncan, 265 U.S. 17 (1924).

[1411] Smith v. Kansas City Title and Trust Co., 255 U.S. 180 (1921).

[1412] Juilliard v. Greenman, 110 U.S. 421, 449 (1884).

[1413] Veazie Bank v. Fenno, 8 Wall. 533 (1869).

[1414] Juilliard v. Greenman, 110 U.S. 421 (1884). See also Legal Tender Cases, 12 Wall. 457 (1871).

[1415] Norman v. Baltimore & O.R. Co., 294 U.S. 240, 303 (1935).

[1416] Pacific Railroad Removal Cases (Union P.R. Co. v. Myers), 115 U.S. 1, 18 (1885); California v. Central P.R. Co., 127 U.S. 1, 39 (1888).

[1417] Luxton v. North River Bridge Co., 153 U.S. 525 (1894).

[1418] Clallam County v. United States, 263 U.S. 341 (1923).

[1419] Sloan Shipyards v. United States Fleet Corp., 258 U.S. 549 (1922). In 1944, the Congressional Joint Committee on Nonessential Federal Expenditures reported that there were then in existence one hundred government corporations, including subsidiaries and quasi-private corporations in which the Government had some special contractual or proprietary interest. S. Doc. No. 227, 78th Cong., 2d sess. 2 (1944).

[1420] Rhode Island v. Massachusetts, 12 Pet. 657, 721 (1838).

[1421] Tennessee v. Davis, 100 U.S. 257, 263 (1880).

[1422] Chicago & Northwestern R. Co. v. Whitton, 13 Wall. 270, 287 (1872).

[1423] Embry v. Palmer, 107 U.S. 3 (1883).

[1424] Bank of United States v. Halstead, 10 Wheat. 51, 53 (1825).

[1425] United States Exp. Co. v. Kountze Bros., 8 Wall. 342, 350 (1860).

[1426] Ex parte Bakelite Corp., 279 U.S. 438, 449 (1929).

[1427] 43 Stat. 5 (1924). See Sinclair v. United States, 279 U.S. 263 (1929).

[1428] Paramino Lumber Co. v. Marshall, 309 U.S. 370 (1940).

[1429] Pope v. United States, 323 U.S. 1 (1944).

[1430] Detroit Trust Company v. The "Thomas Barium," 293 U.S. 21 (1934).

[1431] Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920); Washington v. Dawson & Co., 264 U.S. 219 (1924).

[1432] Barron v. Baltimore, 7 Pet. 243 (1833); Morgan's L. & T.R. & S.S. Co. v. Louisiana Board of Health, 118 U.S. 455, 467 (1886).

[1433] Munn v. Illinois, 94 U.S. 113, 135 (1877); Johnson v. Chicago & P. Elevator Co., 119 U.S. 388, 400 (1886).

[1434] 19 How. 393, 411 (1857).

[1435] Gasquet v. Lapeyre, 242 U.S. 367 (1917).

[1436] 1 Stat. 73, 81 (1789).

[1437] Ex parte Watkins, 3 Pet. 193, 202 (1830).

[1438] Ex parte Bollman, 4 Cr. 75, 101 (1807).

[1439] Price v. Johnston, 334 U.S. 266, 282 (1948).

[1440] United States v. Smith, 331 U.S. 469, 475 (1947).

[1441] Gusik v. Schilder, 339 U.S. 977 (1950).

[1442] Frank v. Mangum, 237 U.S. 309, 330 (1915).

[1443] 1 Stat. 73, 81 (1789).

[1444] Ex parte Watkins, 3 Pet. 193, 202 (1830); Ex parte Kearney, 7 Wheat. 38 (1822).

[1445] 14 Stat. 385 (1867).

[1446] Frank v. Mangum, 237 U.S. 309, 331 (1915).

[1447] Ex parte Bollman, 4 Cr. 75 (1807).

[1448] Adams v. United States ex rel. McCann, 317 U.S. 269, 274 (1942); Glasgow v. Moyer, 225 U.S. 420, 428 (1912); Matter of Gregory, 219 U.S. 210, 213 (1911).

[1449] Adams v. United States ex rel. McCann, 317 U.S. 269, 274 (1942).

[1450] Walker v. Johnston, 312 U.S. 275 (1941); Waley v. Johnston, 316 U.S. 101 (1942).

[1451] Ex parte Milligan, 4 Wall. 2, 110 (1866).

[1452] McNally v. Hill, 293 U.S. 131 (1934).

[1453] Goto v. Lane, 265 U.S. 393 (1924).

[1454] Salinger v. Loisel, 265 U.S. 224 (1924).

[1455] Wong Doo v. United States, 265 U.S. 239 (1924).

[1456] Price v. Johnston, 334 U.S. 266, 294 (1948).

[1457] Corwin, The President, Office and Powers, 178 (3d ed., 1948).

[1458] Ex parte Bollman, 4 Cr. 75, 101 (1807).

[1459] Messages and Papers of the Presidents, VII, 3219 (1897).

[1460] Fed. Cas. No. 9, 487 (1861).

[1461] 10 Op. Atty. Gen. 74, 89 (1861-1863).

[1462] 12 Stat. 755 (1863).

[1463] 4 Wall. 2 (1866).

[1464] Ibid. 114.

[1465] Story, Commentaries on the Constitution, II, § 1344 (4th ed., 1873).

[1466] Cummings v. Missouri, 4 Wall. 277, 323 (1867).

[1467] United States v. Lovett, 328 U.S. 303, 315 (1946).

[1468] Ex parte Garland, 4 Wall. 333, 377 (1867).

[1469] United States v. Lovett, 328 U.S. 303 (1946).

[1470] Story, Commentaries on the Constitution, II, § 1345.

[1471] 3 Dall. 386, 393 (1798).

[1472] Bankers Trust Co. v. Blodgett, 260 U.S. 647, 652 (1923).

[1473] Burgess v. Salmon, 97 U.S. 381 (1878).

[1474] Calder v. Bull, 3 Dall. 386, 390 (1798); Ex parte Garland, 4 Wall. 333, 377 (1867); Burgess v. Salmon, 97 U.S. 381, 384 (1878).

[1475] United States v. Powers, 307 U.S. 214 (1939).

[1476] Neely v. Henkel, 180 U.S. 109, 123 (1901). Cf. In re Yamashita, 327 U.S. 1, 26 (1946) (dissenting opinion of Justice Murphy); Hirota v. MacArthur, 338 U.S. 197, 199 (1948) (concurring opinion of Justice Douglas).

[1477] Ex parte Garland, 4 Wall. 333 (1867).

[1478] Murphy v. Ramsey, 114 U.S. 15 (1885).

[1479] Mahler v. Eby, 264 U.S. 32 (1924); Bugajewitz v. Adams, 228 U.S. 585 (1913).

[1480] Johannessen v. United States, 225 U.S. 227 (1912).

[1481] Cook v. United States, 138 U.S. 157, 183 (1891).

[1482] Calder v. Bull, 3 Dall. 386, 390 (1798).

[1483] Hopt v. Utah, 110 U.S. 574, 589 (1884).

[1484] 157 U.S. 429, 573 (1895).

[1485] 2 Madison, The Constitutional Convention, 208 (Hunt's ed., 1908).

[1486] 3 Dall. 171 (1796).

[1487] 7 Hamilton's Works, 845, 848 (Hamilton's ed., 1851). "If the meaning of the word excise is to be sought in the British statutes, it will be found to include the duty on carriages, which is there considered as an excise, and then must necessarily be uniform and liable to apportionment; consequently, not a direct tax." Ibid.

[1488] 4 Annals of Congress, 730 (1794); 2 Madison's Writings, 14, (Library of Congress ed., 1865) (Letter to Thomas Jefferson, May 11, 1794).

[1489] 3 Dall. 171, 177 (1796).

[1490] Pacific Ins. Co. v. Soule, 7 Wall. 433 (1869).

[1491] Veazie Bank v. Fenno, 8 Wall. 533 (1869).

[1492] Scholey v. Rew, 23 Wall. 331 (1875).

[1493] Springer v. United States, 102 U.S. 586 (1881).

[1494] Ibid. 602.

[1495] 157 U.S. 429 (1895); 158 U.S. 601 (1895).

[1496] 28 Stat. 509 (1894).

[1497] Stanton v. Baltic Mining Co., 240 U.S. 103 (1916); Knowlton v. Moore, 178 U.S. 41, 80 (1900).

[1498] Nicol v. Ames, 173 U.S. 509 (1899).

[1499] Knowlton v. Moore, 178 U.S. 41 (1900).

[1500] Patton v. Brady, 184 U.S. 608 (1902).

[1501] 192 U.S. 363 (1904).

[1502] Ibid. 370.

[1503] 192 U.S. 397 (1904).

[1504] 220 U.S. 107 (1911).

[1505] 240 U.S. 103 (1916).

[1506] Ibid. 114.

[1507] 232 U.S. 261 (1914).

[1508] New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).

[1509] Phillips v. Dime Trust & Safe Deposit Co., 284 U.S. 160 (1931).

[1510] Tyler v. United States, 281 U.S. 497 (1930).

[1511] Fernandez v. Wiener, 326 U.S. 340 (1945).

[1512] Chase National Bank v. United States, 278 U.S. 327 (1929).

[1513] Bromley v. McCaughn, 280 U.S. 124, 136 (1929). See also Helvering v. Bullard, 303 U.S. 297 (1938).

[1514] Bromley v. McCaughn, 280 U.S. 124, 140 (1929).

[1515] Loughborough v. Blake, 5 Wheat. 317 (1820).

[1516] De Treville v. Smalls, 98 U.S. 517, 527 (1879).

[1517] Turpin & Bro. v. Burgess, 117 U.S. 504, 507 (1886). Cf. Almy v. California, 24 How. 169, 174 (1861).

[1518] Dooley v. United States, 183 U.S. 151, 154 (1901).

[1519] Cornell v. Coyne, 192 U.S. 418, 428 (1904); Turpin & Bro. v. Burgess, 117 U.S. 504, 507 (1886).

[1520] Spalding & Bros. v. Edwards, 262 U.S. 66 (1923).

[1521] Thompson v. United States, 142 U.S. 471 (1892).

[1522] Peck & Co. v. Lowe, 247 U.S. 165 (1918); National Paper & Type Co. v. Bowers, 266 U.S. 373 (1924).

[1523] Fairbank v. United States, 181 U.S. 283 (1901).

[1524] United States v. Hvoslef, 237 U.S. 1 (1915).

[1525] Thames & Mersey Ins. Co. v. United States, 237 U.S. 19 (1915).

[1526] Pace v. Burgess, 92 U.S. 372 (1876); Turpin & Bro. v. Burgess, 117 U.S. 504, 505 (1886).

[1527] Louisiana Public Service Comm'n. v. Texas & N.O.R. Co., 284 U.S. 125, 131 (1931); Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 433 (1856); South Carolina v. Georgia, 93 U.S. 4 (1876). In Williams v. United States, 255 U.S. 336 (1921) the argument that an act of Congress which prohibited interstate transportation of liquor into States whose laws prohibited manufacture or sale of liquor for beverage purposes was repugnant to this clause was rejected as plainly wanting in merit.

[1528] Louisiana Public Service Comm'n. v. Texas & N.O.R. Co., 284 U.S. 125, 132 (1931).

[1529] Smith v. Turner (Passenger Cases), 7 How. 283, 414 (1849) (opinion of Justice Wayne); cf. Cooley v. Board of Port Wardens, 12 How. 299, 314 (1851).

[1530] Morgan's L. & T.R. & S.S. Co. v. Louisiana Bd. of Health, 118 U.S. 455, 467 (1886). See also Munn v. Illinois, 94 U.S. 113, 135 (1877); Johnson v. Chicago & P. Elevator Co., 119 U.S. 388, 400 (1886).

[1531] 1 Stat. 53, 54 (1789).

[1532] Thompson v. Darden, 198 U.S. 310 (1905).

[1533] Alaska v. Troy, 258 U.S. 101 (1922).

[1534] Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937); Knote v. United States, 95 U.S. 149, 154 (1877).

[1535] United States v. Price, 116 U.S. 43 (1885); United States v. Realty Co., 163 U.S. 427, 439 (1896); Allen v. Smith, 173 U.S. 389, 393 (1899).

[1536] Hart v. United States, 118 U.S. 62, 67 (1886).

[1537] 32 Stat. 388 (1902).

[1538] Cincinnati Soap Co. v. United States, 301 U.S. 308, 322 (1937).

[1539] Reeside v. Walker, 11 How. 272 (1851).

[1540] United States v. Klein, 13 Wall. 128 (1872).

[1541] Knote v. United States, 95 U.S. 149, 154 (1877); Austin v. United States, 155 U.S. 417, 427 (1894).

[1542] Hart v. United States, 118 U.S. 62, 67 (1886).

[1543] 13 Op. Atty. Gen. 538 (1871).

[1544] Williams v. Bruffy, 96 U.S. 176, 183 (1878).

[1545] 14 Pet. 540 (1840).

[1546] United States v. California, 332 U.S. 19 (1947).

[1547] 313 U.S. 69 (1941).

[1548] Ibid. 78-79.

[1549] Craig v. Missouri, 4 Pet. 410, 425 (1830); Byrne v. Missouri, 8 Pet. 40 (1834).

[1550] Poindexter v. Greenhow, 114 U.S. 270 (1885); Chaffin v. Taylor, 116 U.S. 567 (1886).

[1551] Houston & T.C.R. Co. v. Texas, 177 U.S. 66 (1900).

[1552] Briscoe v. Bank of Kentucky, 11 Pet. 257 (1837).

[1553] Darrington v. Bank of Alabama, 13 How. 12, 15 (1851); Curran v. Arkansas, 15 How. 304, 317 (1853).

[1554] Briscoe v. Bank of Kentucky, 11 Pet. 257 (1837).

[1555] Woodruff v. Trapnall, 10 How. 190, 205 (1851).

[1556] Legal Tender Cases, 110 U.S. 421, 446 (1884).

[1557] Gwin v. Breedlove, 2 How. 29, 38 (1844). See also Griffin v. Thompson, 2 How. 244 (1844).

[1558] Farmers & Merchants Bank v. Federal Reserve Bank, 262 U.S. 649, 659 (1923).

[1559] Cummings v. Missouri, 4 Wall. 277, 323 (1867); Klinger v. Missouri, 13 Wall. 257 (1872); Pierce v. Carskadon, 16 Wall. 234, 239 (1873). See p. [317], supra, and p. [327], post.

[1560] Calder v. Bull, 3 Dall. 386, 390 (1798); Watson v. Mercer, 8 Pet. 88, 110 (1834); Baltimore & S.R. Co. v. Nesbit, 10 How. 395, 401 (1850); Carpenter v. Pennsylvania, 17 How. 456, 463 (1855); Loche v. New Orleans, 4 Wall. 172 (1867); Orr v. Gilman, 183 U.S. 278, 285 (1902); Kentucky Union Co. v. Kentucky, 219 U.S. 140 (1911).

[1561] Frank v. Mangum, 237 U.S. 300, 344 (1915); Ross v. Oregon, 227 U.S. 150, 161 (1913).

[1562] Jaehne v. New York, 128 U.S. 189, 190 (1888).

[1563] Rooney v. North Dakota, 196 U.S. 319, 325 (1905).

[1564] Chicago & A.R. Co. v. Tranbarger, 238 U.S. 67 (1915).

[1565] Samuels v. McCurdy, 267 U.S. 188 (1925).

[1566] Hawker v. New York, 170 U.S. 189, 190 (1898). See also Reetz v. Michigan, 188 U.S. 505, 509 (1903); Lehmann v. State Board of Public Accountancy, 263 U.S. 394 (1923).

[1567] Cummings v. Missouri, 4 Wall. 277, 316 (1867).

[1568] Pierce v. Carskadon, 16 Wall. 234 (1873).

[1569] Lindsey v. Washington, 301 U.S. 397 (1937).

[1570] Kring v. Missouri, 107 U.S. 221 (1883).

[1571] Holden v. Minnesota, 137 U.S. 483, 491 (1890).

[1572] Ex parte Medley, 134 U.S. 160, 171 (1890).

[1573] Gryger v. Burke, 334 U.S. 728 (1948); McDonald v. Massachusetts, 180 U.S. 311 (1901); Graham v. West Virginia, 224 U.S. 616 (1912).

[1574] Malloy v. South Carolina, 237 U.S. 180 (1915).

[1575] Rooney v. North Dakota, 196 U.S. 319, 324 (1905).

[1576] Gibson v. Mississippi, 162 U.S. 565, 590 (1896).

[1577] Duncan v. Missouri, 152 U.S. 377, 382 (1894).

[1578] Gut v. Minnesota, 9 Wall. 35, 37 (1870).

[1579] Duncan v. Missouri, 152 U.S. 377 (1894).

[1580] Mallett v. North Carolina, 181 U.S. 589, 593 (1901).

[1581] Gibson v. Mississippi, 162 U.S. 565, 588 (1896).

[1582] Beazell v. Ohio, 269 U.S. 167 (1925).

[1583] Thompson v. Missouri, 171 U.S. 380, 381 (1898).

[1584] Thompson v. Utah, 170 U.S. 343 (1898).

[1585] Dodge v. Woolsey, 18 How. 331 (1856); Railroad Co. v. McClure, 10 Wall. 511 (1871); New Orleans Gaslight Co. v. Louisiana Light & Heat Producing & Mfg. Co., 115 U.S. 650 (1885); Bier v. McGehee, 148 U.S. 137, 140 (1893).

[1586] New Orleans Waterworks Co. v. Rivers, 115 U.S. 674 (1885); Walla Walla v. Walla Walla Water Co., 172 U.S. 1 (1898); Vicksburg v. Vicksburg Waterworks Co., 202 U.S. 453 (1906); Atlantic Coast Line R. Co. v. Goldsboro, 232 U.S. 548 (1914); Cuyahoga River Power Co. v. Akron, 240 U.S. 462 (1916).

[1587] The above; also Grand Trunk Western R. Co. v. Railroad Commission, 221 U.S. 400 (1911); Louisville & N.R. Co. v. Garrett, 231 U.S. 298 (1913); Appleby v. Delaney, 271 U.S. 403 (1926).

[1588] Central Land Co. v. Laidley, 159 U.S. 103 (1895). See also New Orleans Waterworks Co. v. Louisiana Sugar Ref. Co., 125 U.S. 18 (1888); Hanford v. Davies, 163 U.S. 273 (1896); Ross v. Oregon, 227 U.S. 150 (1913); Detroit United R. Co. v. Michigan, 242 U.S. 238 (1916); Long Sault Development Co. v. Call, 242 U.S. 272 (1916); McCoy v. Union Elev. Co., 247 U.S. 354 (1918); Columbia R. Gas & E. Co. v. South Carolina, 261 U.S. 236 (1923); Tidal Oil Co. v. Flanagan, 263 U.S. 444 (1924).

[1589] Jefferson Branch Bank v. Skelly, 1 Bl. 436, 443 (1862); Bridge Proprietors v. Hoboken Co., 1 Wall. 116, 145 (1863); Wright v. Nagle, 101 U.S. 791, 793 (1880); and McGahey v. Virginia, 135 U.S. 662, 667 (1890); Scott v. McNeal, 154 U.S. 34, 45 (1894); Stearns v. Minnesota, 179 U.S. 223, 232-233 (1900); Coombes v. Getz, 285 U.S. 434, 441 (1932); Atlantic C.L.R. Co. v. Phillips, 332 U.S. 168, 170 (1947).

[1590] McCullough v. Virginia, 172 U.S. 102 (1898); Houston & Texas Central R.R. Co. v. Texas, 177 U.S. 66, 76, 77 (1900); Hubert v. New Orleans, 215 U.S. 170, 175 (1909); Carondelet Canal Co. v. Louisiana, 233 U.S. 362, 376 (1914); Louisiana Ry. & Nav. Co. v. New Orleans, 235 U.S. 164, 171 (1914).

[1591] State Bank of Ohio v. Knoop, 16 How. 369 (1854), and Ohio Life Insurance & Trust Co. v. Debolt, 16 How. 416 (1854) are the leading cases. See also Jefferson Branch Bank v. Skelly, 1 Bl. 436 (1862); Louisiana v. Pilsbury, 105 U.S. 278 (1882); McGahey v. Virginia, 135 U.S. 662 (1890); Mobile & Ohio R.R. Co. v. Tennessee, 153 U.S. 486 (1894); Bacon v. Texas, 163 U.S. 207 (1896); McCullough v. Virginia, 172 U.S. 102 (1898).

[1592] Gelpcke v. Dubuque, 1 Wall. 175, 206 (1864); Havemeyer v. Iowa County, 3 Wall. 294 (1866); Thompson v. Lee County, 3 Wall. 327 (1866); Kenosha v. Lamson, 9 Wall. 477 (1870); Olcott v. Fond du Lac County, 16 Wall. 678 (1873); Taylor v. Ypsilanti, 105 U.S. 60 (1882); Anderson v. Santa Anna, 116 U.S. 356 (1886); Wilkes County v. Coler, 180 U.S. 506 (1901).

[1593] Great Southern Fire Proof Hotel Co. v. Jones, 193 U.S. 532, 548 (1904).

[1594] Sauer v. New York, 206 U.S. 536 (1907); Muhlker v. New York & H.R. Co., 197 U.S. 544, 570 (1905).

[1595] Tidal Oil Company v. Flanagan, 263 U.S. 444, 450, 451-452 (1924).

[1596] Walker v. Whitehead, 16 Wall. 314 (1873); Wood v. Lovett, 313 U.S. 362, 370 (1941).

[1597] 4 Wheat. 122, 197 (1819); see also Curran v. Arkansas, 15 How. 304 (1853).

[1598] 4 Wheat. 518 (1819).

[1599] Ibid. 627.

[1600] 290 U.S. 398 (1934).

[1601] Ibid. 431.

[1602] Ibid. 435.

[1603] "The Blaisdell decision represented a realistic appreciation of the fact that ours is an evolving society and that the general words of the contract clause were not intended to reduce the legislative branch of government to helpless impotency." Justice Black, in Wood v. Lovett, 313 U.S. 362, 383 (1941).

[1604] Wright, The Contract Clause of the Constitution, 95 (Cambridge, 1938).

[1605] Farrand, Records, III, 548.

[1606] The Federalist, No. 44.

[1607] Works of James Wilson, I, 567, (Andrews, ed., 1896).

[1608] 2 Dall. 410 (1793).

[1609] Ogden v. Saunders, 12 Wheat. 213, 338 (1827).

[1610] 6 Cr. 87 (1810).

[1611] In Ware v. Hylton, 3 Dall. 199 (1797) the Court had earlier set aside an act of Virginia as being in conflict with the Treaty of Peace, of 1783, with Great Britain.

[1612] As given by Professor Wright in his treatise, The Contract Clause of the Constitution, 22. Professor Wright dates Hamilton's pamphlet, 1796.

[1613] 6 Cr. 87, 139 (1810). Justice Johnson, in his concurring opinion, relied exclusively on general principles. "I do not hesitate to declare, that a State does not possess the power of revoking its own grants. But I do it, on a general principle, on the reason and nature of things; a principle which will impose laws even on the Deity." Ibid. 143. See also his words in Satterlee v. Matthewson, 2 Pet. 380, 686 (1829); and those of the North Carolina Supreme Court in Barnes v. Barnes, 8 Jones L. 53 (N.C.) 366 (1861), quoted in Thomas Henry Calvert. The Constitution and the Courts, I, 948 (Northport, L.I., 1924). In both these opinions it is asseverated that the contracts clause has been made to do the work of "fundamental principles."

[1614] 7 Cr. 164 (1812). The exemption from taxation which was involved in this case was held in 1886 to have lapsed through the acquiescence for sixty years of the owners of the lands in the imposition of taxes upon these. Given v. Wright, 117 U.S. 648 (1886).

[1615] Dartmouth College v. Woodward, 4 Wheat. 518 (1819).

[1616] It was not until well along in the eighteenth century that the first American business corporation was created: "This was the New London Society United for Trade and Commerce, which was chartered in Connecticut in 1732. It had, however, an early demise. Following this was a second Connecticut charter, namely, for building 'Union Wharf,' on 'Long Wharf,' at New Haven. A similar company, 'The Proprietors of Boston Pier,' or 'The Long Wharf in the Town of Boston in New England,' was chartered by the Massachusetts General Court in 1772. In 1768 the Pennsylvania Assembly incorporated 'The Philadelphia Contributionship for the Insuring of Houses from Loss by Fire.' Alone of the colonial business corporations it has had a continuous existence to the present day.

"Apparently the only other business corporations of the colonies were companies for supplying water. One was incorporated in Massachusetts in 1652, and three in Rhode Island in 1772 and 1773. Alongside of these corporations, and, indeed, preceding them, were a large number of unincorporated associations, partnerships, societies, groups of 'undertakers,' 'companies,' formed for a great variety of business purposes. In the eye of the law all of them were probably mere partnerships or tenancies in common. Whaling and fishing companies, so-called, were numerous. There were a number of mining companies, chiefly for producing iron or copper. There were some manufacturing companies, but they were not numerous. Banking institutions were represented notably by the 'Bank of Credit Lumbard,' promoted in Boston by John Blackwell and authorized by the General Court in 1686, and by the 'Land Bank or Manufacturing Scheme' in the same colony in 1739-41.

"In addition to these there were a few insurance companies, a number of companies formed for the Indian trade, numerous land companies, large and small, a number of associations for erecting bridges, building or repairing roads, and improving navigation of small streams or rivers. Besides these there were a few colonial corporations not easily classed, such as libraries, chambers of commerce, etc.

"During the Revolution few corporations of any sort were chartered. After the conclusion of peace the situation was materially altered. Capital had accumulated during the war. The disbanding of the army set free a labor supply, which was rapidly increased by throngs of immigrants. The day was one of bold experimentation, enthusiastic exploitation of new methods, eager exploration of new paths, confident undertaking of new enterprises. Everything conspired to bring about a considerable extension of corporate enterprise in the field of business before the end of the eighteenth century, notably after the critical period of disunion and Constitution-making has passed. Prior to 1801 over three hundred charters were granted for business corporations; 90 per cent. of them after 1789. Judged by twentieth-century standards these seem few, indeed, but neither in the colonies nor in the mother country was there precedent for such a development." 105 The Nation 512 (New York, Nov. 8, 1917), reviewing Joseph Stancliffe Davis, Essays in the Earlier History of American Corporations (2 vols., Harvard University Press, 1917).

[1617] In 1806 Chief Justice Parsons of the Supreme Judicial Court of Massachusetts, without mentioning the contracts clause, declared that rights legally vested in a corporation cannot be "controuled or destroyed by a subsequent statute, unless a power be reserved to the legislature in the act of incorporation," Wales v. Stetson, 2 Mass. 143 (1806). See also Stoughton v. Baker et al., 4 Mass. 522 (1808) to like effect; cf. Locke v. Dane, 9 Mass. 360 (1812) in which it is said that the purpose of the contracts clause was to "provide against paper money and insolvent laws." Together these holdings add up to the conclusion that the reliance of the Massachusetts court was on "fundamental principles," rather than the contracts clause.

[1618] 4 Wheat., especially at 577-595 (Webster's argument); ibid. 666 (Story's opinion). See also Story's opinion for the Court in Terrett v. Taylor, 9 Cr. 43 (1815).

[1619] 4 Wheat. 518 (1819).

[1620] Ibid. 627.

[1621] 4 Wheat. at 637; see also Home of the Friendless v. Rouse, 8 Wall. 430, 437 (1869).

[1622] 4 Pet. 514 (1830).

[1623] 11 Pet. 420 (1837).

[1624] Note the various cases to which municipalities are parties.

[1625] 4 Wheat. at 629.

[1626] In Munn v. Illinois, 94 U.S. 113 (1877) a category of "business affected with a public interest" and whose property is "impressed with a public use" was recognized. A corporation engaged in such a business becomes a "quasi-public" corporation, the power of the State to regulate which is larger than in the case of a purely private corporation. Inasmuch as most corporations receiving public franchises are of this character, the final result of Munn v. Illinois was to enlarge the police power of the State in the case of the most important beneficiaries of the Dartmouth College decision.

[1627] Meriwether v. Garrett, 102 U.S. 472 (1880); Covington v. Kentucky, 173 U.S. 231 (1899); Hunter v. Pittsburgh, 207 U.S. 161 (1907).

[1628] East Hartford v. Hartford Bridge Co., 10 How. 511 (1851); Hunter v. Pittsburgh, 207 U.S. 161 (1907).

[1629] Trenton v. New Jersey, 262 U.S. 182, 191 (1923).

[1630] Newton v. Mahoning County, 100 U.S. 548 (1880).

[1631] Attorney General ex rel. Kies v. Lowrey, 199 U.S. 233 (1905).

[1632] Faitoute Iron & Steel Co. v. Asbury Park, 316 U.S. 502 (1942). In this case the contracts involved were municipal bonds, and hence "private" contracts; but the overruling power of the State in relation to its municipalities was one of the grounds invoked by the Court in sustaining the legislation. See Ibid. 509. "'A municipal corporation * * * is a representative not only of the State, but is a portion of its governmental power. * * * The State may withdraw these local powers of government at pleasure, and may, through its legislature or other appointed channels, govern the local territory as it governs the State at large. It may enlarge or contract its powers or destroy its existence.'" United States v. Baltimore & O.R. Co., 17 Wall. 322, 329 (1873); and see Hunter v. Pittsburgh, 207 U.S. 161 (1907).

[1633] Butler v. Pennsylvania, 10 How. 402 (1850); Fisk v. Police Jury, 116 U.S. 131 (1885); Dodge v. Board of Education, 302 U.S. 74 (1937); Mississippi Use of Robertson v. Miller, 276 U.S. 174 (1928).

[1634] Butler v. Pennsylvania, 10 How. 420 (1850). Cf. Marbury v. Madison, 1 Cr. 137 (1803); Hoke v. Henderson, 15 N.C., (4 Dev.) 1 (1833). See also United States v. Fisher, 109 U.S. 143 (1883); United States v. Mitchell, 109 U.S. 146 (1883); Crenshaw v. United States, 134 U.S. 99 (1890).

[1635] Fisk v. Police Jury, 116 U.S. 131 (1885); Mississippi Use of Robertson v. Miller, 276 U.S. 174 (1928).

[1636] Hall v. Wisconsin, 103 U.S. 5 (1880). Cf. Higginbotham v. Baton Rouge, 306 U.S. 535 (1939).

[1637] Phelps v. Board of Education, 300 U.S. 319 (1937).

[1638] Dodge v. Board of Education, 302 U.S. 74 (1937).

[1639] Indiana ex rel. Anderson v. Brand 303 U.S. 95 (1938).

[1640] 7 Cr. 164 (1812).

[1641] Delaware Railroad Tax, 18 Wall. 206, 225 (1874); Pacific R. Co. v. Maguire, 20 Wall. 36, 43 (1874); Humphrey v. Pegues, 16 Wall. 244, 249 (1873); Home of Friendless v. Rouse, 8 Wall. 430, 438 (1869).

[1642] 16 How. 369 (1854).

[1643] Ibid. 382-383.

[1644] Salt Co. v. East Saginaw, 13 Wall. 373, 379 (1872). See also Welch v. Cook, 97 U.S. 541 (1879); Grand Lodge, F. & A.M. v. New Orleans, 166 U.S. 143 (1897); Wisconsin & M.R. Co. v. Powers, 191 U.S. 379 (1903). Cf. Ettor v. Tacoma, 228 U.S. 148 (1913), in which it was held that the repeal of a statute providing for consequential damages caused by changes of grades of streets could not constitutionally affect an already accrued right to compensation.

[1645] See Christ Church v. Philadelphia County, 24 How. 300, 302 (1861); Seton Hall College v. South Orange, 242 U.S. 100 (1916).

[1646] Compare the above case with Home of Friendless v. Rouse, 8 Wall. 430, 437 (1869); also Illinois Central R. Co. v. Decatur, 147 U.S. 190 (1893) with Wisconsin & M.R. Co. v. Powers, 191 U.S. 379 (1903).

[1647] Crane v. Hahlo, 258 U.S. 142, 145-146 (1922); Louisiana ex rel. Folsom v. New Orleans, 109 U.S. 285, 288 (1883); Morley v. Lakeshore & M.S.R. Co., 146 U.S. 162, 169 (1892). That the obligation of contracts clause did not protect vested rights merely as such was stated by the Court as early as Satterlee v. Matthewson, 2 Pet. 380, 413 (1829); and again in the Charles River Bridge Co. v. Warren Bridge Co., 11 Pet. 420, 539-540 (1837).

[1648] See Story's opinion. 4 Wheat. at 712.

[1649] Home of Friendless v. Rouse, 8 Wall. 430, 438 (1869); Pennsylvania College Cases, 13 Wall. 190, 213 (1872); Miller v. New York, 15 Wall. 478 (1873); Murray v. Charleston, 96 U.S. 432 (1878); Greenwood v. Union Freight R. Co., 105 U.S. 13 (1882); Chesapeake & O.R. Co. v. Miller, 114 U.S. 176 (1885); Louisville Water Co. v. Clark, 143 U.S. 1 (1892).

[1650] New Jersey v. Yard, 95 U.S. 104, 111 (1877).

[1651] See Holyoke Water Power Co. v. Lyman, 15 Wall. 500, 520 (1873), following Fisheries v. Holyoke Water Power Co., 104 Mass. 446, 451 (1870); also Shields v. Ohio, 95 U.S. 319 (1877); Fair Haven & W.R. Co. v. New Haven, 203 U.S. 379 (1906); Berea College v. Kentucky, 211 U.S. 45 (1908). See also Lothrop v. Stedman, 15 Fed. Cas. No. 8,519 (1875), where the principles of natural justice are thought to set a limit to the power. Earlier is Zabriskie v. Hackensack & N.Y.R. Co., 18 N.J. Eq. 178 (1867) where it is said that a new charter may not be substituted; also Allen v. McKean, 1 Fed. Cas. No. 229 (1833) in which a federal court set aside a Maine statute somewhat like the one involved in the Dartmouth College case, on the ground that it went beyond the power of mere alteration. In this case, however, only the right to alter had been reserved, in the charter itself, and not the right to repeal.

[1652] See in this connection the cases cited by Justice Sutherland in his opinion for the Court in Phillips Petroleum Co. v. Jenkins, 297 U.S. 629 (1936).

[1653] Curran v. Arkansas, 15 How. 304 (1853); Shields v. Ohio, 95 U.S. 319 (1877); Greenwood v. Union Freight R. Co., 105 U.S. 13 (1882); Adirondack R. Co. v. New York, 176 U.S. 335 (1900); Stearns v. Minnesota, 179 U.S. 223 (1900); Chicago, M. & St. P.R. Co. v. Wisconsin, 238 U.S. 491 (1915); Coombes v. Getz, 285 U.S. 434 (1932).

[1654] Pennsylvania College Cases, 13 Wall. 190, 218 (1872). See also Calder v. Michigan, 218 U.S. 591 (1910).

[1655] Lakeshore & M.S.R. Co. v. Smith, 173 U.S. 684, 690 (1899); Coombes v. Getz, 285 U.S. 434 (1932). Both these decisions cite Greenwood v. Union Freight R. Co., 105 U.S. 13, 17 (1882), but without apparent justification.

[1656] 4 Pet. 514 (1830).

[1657] Thorpe v. Rutland & Burlington Railroad Co., 27 Vt. 140 (1854).

[1658] Thus a railroad may be required, at its own expense and irrespective of benefits to itself, to eliminate grade crossings in the interest of public safety, (New York & N.E.R. Co. v. Bristol, 151 U.S. 556 (1894)); to make highway crossings reasonably safe and convenient for public use, (Great Northern R. Co. v. Minnesota, 246 U.S. 434 (1918)); to repair viaducts, (Northern Pac. R. Co. v. Minnesota, 208 U.S. 583 (1908)); and to fence its right of way, (Minneapolis & St. L.R. Co. v. Emmons, 149 U.S. 364 (1893)). Though a railroad company owns the right of way along a street, the city may require it to lay tracks to conform to the established grade; to fill in tracks at street intersections; and to remove tracks from a busy street intersection, when the attendant disadvantages and expense are small and the safety of the public appreciably enhanced, (Denver & R.G.R. Co. v. Denver, 250 U.S. 241 (1919)).

Likewise the State, in the public interest, may require a railroad to reestablish an abandoned station, even though the railroad commission had previously authorized its abandonment on condition that another station be established elsewhere, a condition which had been complied with, (New Haven & N. Co. v. Hamersley, 104 U.S. 1 (1881)). It may impose upon a railroad liability for fire communicated by its locomotives, even though the State had previously authorized the company to use said type of locomotive power, (St. Louis & S.F.R. Co. v. Mathews, 165 U.S. 1, 5 (1897)); and it may penalize the failure to cut drains through embankments so as to prevent flooding of adjacent lands, (Chicago & A.R. Co. v. Tranbarger, 238 U.S. 67 (1915)).

[1659] Boston Beer Co. v. Massachusetts, 97 U.S. 25 (1878). See also Fertilizing Co. v. Hyde Park, 97 U.S. 659 (1878); and Hammond Packing v. Arkansas, 212 U.S. 322, 345 (1909).

[1660] 11 Pet. 420 (1837).

[1661] 11 Pet. at 548-553.

[1662] 201 U.S. 400 (1906).

[1663] Ibid. 471-472, citing The Binghamton Bridge, 3 Wall. 51, 75 (1865).

[1664] Memphis & L.R.R. Co. v. Berry, 112 U.S. 609, 617 (1884). See also Picard v. East Tennessee, Virginia & Georgia R. Co., 130 U.S. 637, 641 (1889); Louisville & N.R. Co. v. Palmes, 109 U.S. 244, 251 (1883); Morgan v. Louisiana, 93 U.S. 217 (1876); Wilson v. Gaines, 103 U.S. 417 (1881); Norfolk & W.R. Co. v. Pendleton, 156 U.S. 667, 673 (1895).

[1665] Railroad Co. v. Georgia, 98 U.S. 359, 365 (1879).

[1666] Phoenix F. & M. Insurance Co. v. Tennessee, 161 U.S. 174 (1896).

[1667] Rochester R. Co. v. Rochester, 205 U.S. 236 (1907); followed in Wright v. Georgia R. & Bkg. Co., 216 U.S. 420 (1910); and New York Rapid Transit Co. v. City of New York, 303 U.S. 573 (1938). Cf. Tennessee v. Whitworth, 117 U.S. 139 (1886) the authority of which is respected in the preceding case.

[1668] Chicago, B. & K.C.R. Co. v. Missouri ex rel. Guffey, 120 U.S. 569 (1887).

[1669] Ford v. Delta & Pine Land Co., 164 U.S. 662 (1897).

[1670] Vicksburg, S. & P.R. Co. v. Dennis, 116 U.S. 665 (1886).

[1671] Millsaps College v. Jackson, 275 U.S. 129 (1927).

[1672] Hale v. Iowa State Board of Assessment, 302 U.S. 95 (1937).

[1673] Stone v. Farmers' Loan & Trust Co. (Railroad Commission Cases), 116 U.S. 307, 330 (1886) extended in Southern Pacific Co. v. Campbell, 230 U.S. 537 (1913) to cases in which the word "reasonable" does not appear to qualify the company's right to prescribe tolls. See also American Toll Bridge Co. v. Railroad Com. of California et al., 307 U.S. 486 (1939).

[1674] Georgia R. & Power Co. v. Decatur, 262 U.S. 432 (1923). See also Southern Iowa Electric Co. v. Chariton, 255 U.S. 539 (1921).

[1675] Walla Walla v. Walla Walla Water Co., 172 U.S. 1, 15 (1898).

[1676] Skaneateles Water Works Co. v. Skaneateles, 184 U.S. 354 (1902); Knoxville Water Co. v. Knoxville, 200 U.S. 22 (1906); Madera Water Works v. Madera, 228 U.S. 454 (1913).

[1677] Rogers Park Water Co. v. Fergus, 180 U.S. 624 (1901).

[1678] Home Telephone Co. v. Los Angeles, 211 U.S. 265 (1908); Wyandotte Gas Co. v. Kansas, 231 U.S. 622 (1914).

[1679] See also Puget Sound Traction, Light & P. Co. v. Reynolds, 244 U.S. 574 (1917). "Before we can find impairment of a contract we must find an obligation of the contract which has been impaired. Since the contract here relied upon is one between a political subdivision of a state and private individuals, settled principles of construction require that the obligation alleged to have been impaired be clearly and unequivocally expressed." Justice Black for the Court in Keefe v. Clark, 322 U.S. 393, 396-397 (1944).

[1680] Corporation of Brick Church v. Mayor et al., 5 Cowen (N.Y.) 538, 540 (1826).

[1681] West River Bridge Co. v. Dix, 6 How. 507 (1848). See also Backus v. Lebanon, 11 N.H. 19 (1840); White River Turnpike Co. v. Vermont Cent. R. Co., 21 Vt. 590 (1849); and Bonaparte v. Camden & A.R. Co., 3 Fed. Cas. No. 1,617 (1830); cited in Calvert I, 960-961.

[1682] Pennsylvania Hospital v. Philadelphia, 245 U.S. 20 (1917).

[1683] Illinois Central Railroad v. Illinois, 146 U.S. 387, 453, 455 (1892).

[1684] See pp. [335-336].

[1685] See especially Home of the Friendless v. Rouse, 8 Wall. 430 (1869), and Washington University v. Rouse, 8 Wall. 439 (1869).

[1686] Georgia Railway Co. v. Redwine, 342 U.S. 299, 305-06 (1952). The Court distinguishes In re Ayers, 123 U.S. 443 (1887) on the ground that the action there was barred "as one in substance directed against the State to obtain specific performance of a contract with the State". 342 U.S. 305.

[1687] Stone v. Mississippi, 101 U.S. 814, 820 (1880).

[1688] Butcher's Union Co. v. Crescent City Co., 111 U.S. 746 (1884).

[1689] New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 630 (1885).

[1690] Atlantic Coast Line R. Co. v. Goldsboro, 232 U.S. 548, 558 (1914). See also Chicago & A.R. Co. v. Tranbarger, 238 U.S. 67 (1915); also Pennsylvania Hospital v. Philadelphia, 245 U.S. 20 (1917), where the police power and eminent domain are treated on the same basis in respect of inalienability; also Wabash R. Co. v. Defiance, 167 U.S. 88, 97 (1897); Home Telephone Co. v. Los Angeles, 211 U.S. 265 (1908); and Calvert I, 962.

[1691] Morley v. Lake Shore & M.S.R. Co., 146 U.S. 162 (1892); New Orleans v. New Orleans Waterworks Co., 142 U.S. 79 (1891); Missouri & A. Lumber & Min. Co. v. Greenwood Dist, 249 U.S. 170 (1919). But cf. Livingston v. Moore, 7 Pet. 469, 549 (1833); and Garrison v. New York, 21 Wall. 196, 203 (1875), suggesting that a different view was earlier entertained in the case of judgments in actions of debt.

[1692] Maynard v. Hill, 125 U.S. 190 (1888); Dartmouth College v. Woodward, 4 Wheat. 518, 629 (1819). Cf. Andrews v. Andrews, 188 U.S. 14 (1903). The question whether a wife's rights in the community property under the laws of California were of a contractual nature was raised but not determined in Moffitt v. Kelly, 218 U.S. 400 (1910).

[1693] New Orleans v. New Orleans Waterworks Co., 142 U.S. 79 (1891); Zane v. Hamilton County, 189 U.S. 370, 381 (1903).

[1694] 4 Wheat. 122 (1819). For the first such case in a Federal Circuit Court, see Charles Warren, The Supreme Court in United States History, I, 67 (Boston, 1922).

[1695] 12 Wheat. 213 (1827).

[1696] Ibid. 353-354.

[1697] Von Hoffman v. Quincy, 4 Wall. 535, 552 (1867).

[1698] 1 How. 311 (1843).

[1699] 2 How. 608 (1844).

[1700] Oshkosh Waterworks Co. v. Oshkosh, 187 U.S. 437, 439 (1903); New Orleans & L.R. Co. v. Louisiana, 157 U.S. 219 (1895).

[1701] Antoni v. Greenhow, 107 U.S. 769 (1883).

[1702] The right was unheld in Mason v. Haile, 12 Wheat. 370 (1827); and again in Vial v. Penniman (Penniman's Case), 103 U.S. 714 (1881). On early English and Colonial law touching the subject, see argument of counsel in Sturges v. Crowninshield, 4 Wheat. 122, 140-145 (1819).

[1703] McGahey v. Virginia, 135 U.S. 662 (1890).

[1704] Louisiana ex rel. Ranger v. New Orleans, 102 U.S. 203 (1880).

[1705] Von Hoffman v. Quincy, 4 Wall. 535, 554 (1867).

[1706] Antoni v. Greenhow, 107 U.S. 769, 775.—Illustrations of changes in remedies, which have been sustained, may be seen in the following cases: Jackson ex dem. Hart v. Lamphire, 3 Pet. 280 (1830); Hawkins v. Barney, 5 Pet. 457 (1831); Crawford v. Branch Bank of Alabama, 7 How. 279 (1849); Curtis v. Whitney, 13 Wall. 68 (1872); Cairo & F.R. Co. v. Hecht, 95 U.S. 168 (1877); Terry v. Anderson, 95 U.S. 628 (1877); Tennessee v. Sneed, 96 U.S. 69 (1877); South Carolina v. Gaillard, 101 U.S. 433 (1880); Louisiana v. New Orleans, 102 U.S. 203 (1880); Connecticut Mut. L. Ins. Co. v. Cushman, 108 U.S. 51 (1883); Vance v. Vance, 108 U.S. 514 (1883); Gilfillan v. Union Canal Co., 109 U.S. 401 (1883); Hill v. Merchants' Mut. Ins. Co., 134 U.S. 515 (1890); New Orleans City & Lake R. Co. v. Louisiana, 157 U.S. 219 (1895); Red River Valley Nat. Bank v. Craig, 181 U.S. 548 (1901); Wilson v. Standefer, 184 U.S. 399 (1902); Oshkosh Waterworks Co. v. Oshkosh, 187 U.S. 437 (1903); Waggoner v. Flack, 188 U.S. 595 (1903); Bernheimer v. Converse, 206 U.S. 516 (1907); Henley v. Myers, 215 U.S. 373 (1910); Selig v. Hamilton, 234 U.S. 652 (1914); Security Sav. Bank v. California, 263 U.S. 282 (1923); United States Mortgage Co. v. Matthews, 293 U.S. 232 (1934).

Compare the following cases, where changes in remedies were deemed to be of such a character as to interfere with substantial rights: Wilmington & W.R. Co. v. King, 91 U.S. 3 (1875); Memphis v. United States, 97 U.S. 293 (1878); Poindexter v. Greenhow, 114 U.S. 269, 270, 298, 299 (1885); Effinger v. Kenney, 115 U.S. 566 (1885); Fisk v. Jefferson Police Jury, 116 U.S. 131 (1885); Bradley v. Lightcap, 195 U.S. 1 (1904); Bank of Minden v. Clement, 256 U.S. 126 (1921).

[1707] Von Hoffman v. Quincy, 4 Wall. 535, 554-555 (1867).

[1708] See also Louisiana ex rel. Nelson v. St. Martin's Parish, 111 U.S. 716 (1884).

[1709] Mobile v. Watson, 116 U.S. 289 (1886); Graham v. Folsom, 200 U.S. 248 (1906).

[1710] Heine v. Levee Commissioners, 19 Wall. 655 (1874). Cf. Virginia v. West Virginia, 246 U.S. 565 (1918).

[1711] Faitoute Iron & Steel Co. v. Asbury Park, 316 U.S. 502, 510 (1942). Alluding to the ineffectiveness of purely judicial remedies against defaulting municipalities, Justice Frankfurter says: "For there is no remedy when resort is had to 'devices and contrivances' to nullify the taxing power which can be carried out only through authorized officials. See Rees v. City of Watertown, 19 Wall. 107, 124 (1874). And so we have had the spectacle of taxing officials resigning from office in order to frustrate tax levies through mandamus, and officials running on a platform of willingness to go to jail rather than to enforce a tax levy (see Raymond, State and Municipal Bonds, 342-343), and evasion of service by tax collectors, thus making impotent a court's mandate. Yost v. Dallas County, 236 U.S. 50, 57 (1915)." 316 U.S. at 511.

[1712] Myers v. Irwin, 2 Sergeant and Rawle's (Pa.), 367, 371 (1816); also, to same effect, Lindenmuller v. The People, 33 Barbour (N.Y.), 548 (1861). See also Brown v. Penobscot Bank, 8 Mass. 445 (1812).

[1713] Manigault v. Springs, 199 U.S. 473, 480 (1905).

[1714] Jackson v. Lamphire, 3 Pet. 280 (1830). See also Phalen v. Virginia, 8 How. 163 (1850).

[1715] Stone v. Mississippi, 101 U.S. 814 (1880).

[1716] Boston Beer Co. v. Massachusetts, 97 U.S. 25 (1878).

[1717] New York C.R. Co. v. White, 243 U.S. 188 (1917). In this and the preceding two cases the legislative act involved did not except from its operation existing contracts.

[1718] Manigault v. Springs, 199 U.S. 473 (1905).

[1719] Portland Railway, Light & Power Co. v. Railroad Comm. of Oregon, 229 U.S. 397 (1913).

[1720] Midland Realty Co. v. Kansas City Power & Light Co., 300 U.S. 109 (1937).

[1721] Hudson County Water Co. v. McCarter, 209 U.S. 349 (1908).

[1722] Brown (Marcus) Holding Co. v. Feldman, 256 U.S. 170, 198 (1921); followed in Levy Leasing Co. v. Siegel, 258 U.S. 242 (1922).

[1723] Chastleton Corp. v. Sinclair, 264 U.S. 543, 547-548 (1924).

[1724] 290 U.S. 398 (1934).

[1725] Ibid. 442, 444. See also Veix v. Sixth Ward Building and Loan Assn. of Newark, 310 U.S. 32 (1940) in which was sustained a New Jersey statute, amending, in view of the Depression, the law governing building and loan associations. The authority of the State to safeguard the vital interests of the people, said Justice Reed, "is not limited to health, morals and safety. It extends to economic needs as well." Ibid. 38-39.

[1726] See especially Edwards v. Kearzey, 96 U.S. 595 (1878); and Barnitz v. Beverly, 163 U.S. 118 (1896).

[1727] 290 U.S. 398 (1934). As to conditions surrounding the enactment of moratorium statutes in 1933, see New York Times of January 22, 1933, sec. II, pp. 1-2.

[1728] Worthen Co. v. Thomas, 292 U.S. 426 (1934); Worthen Co. v. Kavanaugh, 295 U.S. 56 (1935).

[1729] 295 U.S. at 62.

[1730] East New York Savings Bank v. Hahn, 326 U.S. 230, 235 (1945).

[1731] Honeyman v. Jacobs, 306 U.S. 539 (1939). See also Gelfert v. National City Bank, 313 U.S. 221 (1941).

[1732] 313 U.S. at 233-234.

[1733] One reason for this is indicated in the following passage from Justice Field's opinion for the Court in Paul v. Virginia, decided in 1869: "At the present day corporations are multiplied to an almost indefinite extent. There is scarcely a business pursued requiring the expenditure of large capital, or the union of large numbers, that is not carried on by corporations. It is not too much to say that the wealth and business of the country are to a great extent controlled by them." 8 Wall. 168, 181-182.

[1734] Wright, The Contract Clause, 91-100.

[1735] Perry v. United States, 294 U.S. 330 (1935); Louisville Joint Stock Bank v. Radford, 295 U.S. 555 (1935). The Court has pointed out, what of course, is evident on a reading of the Constitution, that the contract clause is a limitation on the powers of the States and not of the United States. Central P.R. Co. v. Gallatin (Sinking Fund Cases), 99 U.S. 700, 718 (1879). See also Mitchell v. Clark, 110 U.S. 633, 643 (1884); Legal Tender Cases, 12 Wall. 457, 529 (1871); Continental Ill. Nat. Bank & Trust Co. v. Chicago, R.I. & P.R. Co., 294 U.S. 648 (1935); St. Anthony Falls Water Power Co. v. Board of Water Commissioners, 168 U.S. 349, 372 (1897); Dubuque, S.C.R. Co. v. Richmond, 19 Wall. 584 (1874); New York v. United States, 257 U.S. 591 (1922). Cf. however, Hepburn v. Griswold, 8 Wall. 603, 623 (1870); and Central Pacific R.R. Co. v. Gallatin (Sinking Fund Cases), 99 U.S. 700, 737 (1879).

[1736] See, e.g., Neblett et al. v. Carpenter, et al., 305 U.S. 297 (1938); Asbury Hospital v. Cass County, 326 U.S. 207 (1945); Connecticut Mutual L. Ins. Co. v. Moore, 333 U.S. 541 (1948). For a notable case in which the obligations clause was mustered into service, by rather heroic logic, to do work that was afterwards put upon the due process clause, see State Tax On Foreign-Held Bonds, 15 Wall. 300 (1873).

[1737] Hooven & Allison Co. v. Evatt, 324 U.S. 652, 673 (1945).

[1738] Woodruff v. Parham, 8 Wall. 123 (1869).

[1739] 12 Wheat. 419 (1827).

[1740] Ibid. 441.

[1741] May & Co. v. New Orleans, 178 U.S. 496, 502 (1900).

[1742] Ibid. 501; Gulf Fisheries Co. v. MacInerney, 276 U.S. 124 (1928); McGoldrick v. Gulf Oil Corp., 309 U.S. 414 (1940).

[1743] Low v. Austin, 13 Wall. 29 (1872); May & Co. v. New Orleans, 178 U.S. 496 (1900).

[1744] Hooven & Allison Co. v. Evatt, 324 U.S. 652, 667 (1945).

[1745] Ibid. 664.

[1746] Canton R. Co. v. Rogan, 340 U.S. 511 (1951).

[1747] Brown v. Maryland, 12 Wheat. 419, 447 (1827).

[1748] Anglo-Chilean Nitrate Sales Corp. v. Alabama, 288 U.S. 218 (1933).

[1749] Low v. Austin, 13 Wall. 29, 33 (1872).

[1750] Cook v. Pennsylvania, 97 U.S. 566, 573, (1878).

[1751] Crew Levick Co. v. Pennsylvania, 245 U.S. 292 (1917).

[1752] Cooley v. Board of Port Wardens, 12 How. 299, 313 (1851).

[1753] Waring v. Mobile, 8 Wall. 110, 122 (1869). See also Pervear v. Massachusetts, 5 Wall. 475, 478 (1867); Schollenberger v. Pennsylvania, 171 U.S. 1, 24 (1898).

[1754] Gulf Fisheries Co. v. MacInerney, 276 U.S. 124 (1928).

[1755] Nathan v. Louisiana, 8 How. 73, 81 (1850).

[1756] Mager v. Grima, 8 How. 490 (1850).

[1757] Brown v. Maryland, 12 Wheat. 419, 441 (1827); Hooven & Allison Co. v. Evatt, 324 U.S. 652 (1945).

[1758] New York ex rel. Burke v. Wells, 208 U.S. 14 (1908).

[1759] Selliger v. Kentucky, 213 U.S. 200 (1909); cf. Almy v. California, 24 How. 169, 174 (1861).

[1760] Bowman v. Chicago & N.W.R. Co., 125 U.S. 465, 488 (1888).

[1761] 107 U.S. 38 (1883).

[1762] Ibid. 55.

[1763] Patapsco Guano Co. v. North Carolina Bd. of Agriculture, 171 U.S. 345, 301 (1898). For a discussion of the limitations on State power to pass inspection laws resulting from the commerce clause, see pp. [183], [237].

[1764] Bowman v. Chicago & N.W.R. Co., 125 U.S. 465, 488-489 (1888).

[1765] Clyde Mallory Lines v. Alabama ex rel. State Docks Commission, 296 U.S. 261, 265 (1935); Cannon v. New Orleans, 20 Wall. 577, 581 (1874); Wheeling, P. & C. Transportation Co. v. Wheeling, 99 U.S. 273, 283 (1879).

[1766] Keokuk Northern Line Packet Co. v. Keokuk, 95 U.S. 80 (1877); Parkersburg & Ohio River Transportation Co. v. Parkersburg, 107 U.S. 691 (1883); Ouachita Packet Co. v. Aiken, 121 U.S. 444 (1887).

[1767] Cooley v. Board of Port Wardens, 12 How. 299, 314 (1851); Ex parte McNiel, 13 Wall. 236 (1872); Inman Steamship Co. v. Tinker, 94 U.S. 238, 243 (1877); Northwestern Union Packet Co. v. St. Louis, 100 U.S. 423 (1880); Vicksburg v. Tobin, 100 U.S. 430 (1880); Cincinnati, P.B.S. & P. Packet Co. v. Catlettsburg, 105 U.S. 559 (1882).

[1768] Huse v. Glover, 119 U.S. 543, 549 (1886).

[1769] Southern S.S. Co. v. Portwardens, 6 Wall. 31 (1867).

[1770] Peete v. Morgan, 19 Wall. 581 (1874).

[1771] Morgan's L. & T.R. & S.S. Co. v. Board of Health, 118 U.S. 455, 462 (1886).

[1772] Wiggins Ferry Co. v. East St. Louis, 107 U.S. 365 (1883). See also Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 212 (1885); Philadelphia & S. Mail Steamship Co. v. Pennsylvania, 122 U.S. 326, 338 (1887); Osborne v. Mobile, 16 Wall. 479, 481 (1873).

[1773] Cox v. Lott (State Tonnage Tax Cases), 12 Wall. 204, 217 (1871).

[1774] Luther v. Borden, 7 How. 1, 45 (1849).

[1775] Presser v. Illinois, 116 U.S. 252 (1886).

[1776] Poole v. Fleeger, 11 Pet 185, 209 (1837).

[1777] Hinderlider v. La Plata Co., 304 U.S. 92, 104 (1938).

[1778] Frankfurter and Landis, The Compact Clause of the Constitution—A Study in Interstate Adjustments, 34 Yale Law Journal, 685, 691 (1925).

[1779] Article IX.

[1780] Article VI.

[1781] 14 Pet. 540 (1840).

[1782] Ibid. 570, 571, 572.

[1783] 148 U.S. 503, 518 (1893). See also Stearns v. Minnesota, 179 U.S. 223, 244 (1900); also reference in next note, at pp. 761-762.

[1784] See Leslie W. Dunbar, Interstate Compacts and Congressional Consent, 36 Virginia Law Review, 753 (October, 1950).

[1785] Frankfurter and Landis, The Compact Clause of the Constitution—A Study in Interstate Adjustments, 34 Yale Law Journal, 685, 735 (1925); Frederick L. Zimmerman and Mitchell Wendell, Interstate Compacts Since 1925 (1951), 8 Book of States, 26 (1950-1951).

[1786] 48 Stat. 909 (1934).

[1787] 8 Book of the States, 45 (1950-1951).

[1788] 7 U.S.C. § 515; 15 U.S.C. § 717j; 16 U.S.C. §§ 552, 667a; 33 U.S.C. §§ 11, 567-567b.

[1789] Green v. Biddle, 8 Wheat. 1, 85 (1823).

[1790] Virginia v. Tennessee, 148 U.S. 503 (1893).

[1791] Virginia v. West Virginia, 11 Wall. 39 (1871).

[1792] Wharton v. Wise, 153 U.S. 155, 173 (1894).

[1793] James v. Dravo Contracting Co., 302 U.S. 134 (1937). See also Arizona v. California, 292 U.S. 341, 315 (1934).

[1794] 332 U.S. 631 (1948).

[1795] On the activities of the Board, in which representatives of both races participate and from which both races have benefited, see Remarks of Hon. Spessard L. Holland of Florida. Cong. Rec., 81st Cong., 2d sess., v. 96, p. 465-470.

[1796] Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 433 (1856).

[1797] St. Louis & S.F.R. Co. v. James, 161 U.S. 545, 562 (1896).

[1798] Poole v. Fleeger, 11 Pet. 185, 209 (1837); Rhode Island v. Massachusetts, 12 Pet. 657, 725 (1838).

[1799] Hinderlider v. La Plata Co., 304 U.S. 92, 104, 106 (1938).

[1800] Green v. Biddle, 8 Wheat. 1, 13 (1823); Virginia v. West Virginia, 246 U.S. 565 (1918). See also Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. 518, 566 (1852); Olin v. Kitzmiller, 259 U.S. 260 (1922).

[1801] Virginia v. West Virginia, 246 U.S. 565, 601 (1918).

[1802] Dyer v. Sims, 341 U.S. 22 (1951). The case stemmed from mandamus proceedings brought to compel the auditor of West Virginia to pay out money to a commission which had been created by a compact between West Virginia and other States to control pollution of the Ohio River. The decision of the Supreme Court of Appeals of West Virginia denying mandamus was reversed by the Supreme Court, and the case remanded. The opinion of the Court, by Justice Frankfurter, reviews and revises the West Virginia Court's interpretation of the State constitution, thereby opening up, temporarily at least, a new field of power for judicial review. Justice Reed, challenging this extension of judicial review, thought the issue determined by the Supremacy Clause. Justice Jackson urged that the compact power was "inherent in sovereignty" and hence was limited only by the requirement of congressional consent. Justice Black concurred in the result without opinion.

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