62. Interstate commerce cannot be taxed by the State even though the same amount of tax should be laid by the State on commerce carried on wholly within its limits.[159] The right involved is not a State right. “To carry on interstate commerce is not a franchise or 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.”[160] That persons engaged in such commerce are incorporated under the laws of a State and thereby possess facilities for carrying on their business cannot deprive them of their fundamental right as against the State, but Congress, by its power to regulate commerce, may prescribe conditions under which their business is carried on, or by regulation, destroy their business entirely.[161] Thus a State cannot, by a license tax, exclude from its jurisdiction a foreign corporation engaged in interstate commerce, or impose any burdens upon such commerce within its limits.[162] But it is within the police power of a State to protect the lives and health of its people, and to protect property through laws suppressing nuisances; prohibiting manufactures injurious to the public health; prohibiting the manufacture and sale of intoxicating liquors; prohibiting lotteries, gambling, horse-racing, or anything else which the Legislature considers opposed to the public welfare.[163] A local regulation limiting the speed of trains on entering a town or city, or approaching a curve or a bridge, or requiring a train to stop at a particular place, comes within the exercise of the police power of the State.[164]
63. The power of a State over commerce being exclusive only as to commerce strictly internal and within its own boundaries,—that is, within its own jurisdiction,—it follows that “a State can no more regulate or impede commerce among the several States than it can regulate or impede commerce with foreign nations.”[165] Taxation, by a State, of goods coming into it from another State, would destroy freedom of trade within the nation, which Congress has seen fit shall remain undisturbed. This freedom of trade is national in character, and interference with it, by a State, would violate a function and defeat the purpose of nationality: that is, such violation would prevent the people of the United States from realizing their own sovereignty.
64. An illustration of the constitutional use of the power of the State over commerce is afforded by the tax, in Texas, on telegraph messages sent from one place to another exclusively within the State, by private parties, and not by the agents of the government of the United States. The Texas law imposing this tax is not in conflict with the power of Congress to regulate commerce,[166] and therefore was not repugnant to the Constitution of the United States. The line of demarcation as to exercise of the police power by a State is drawn “by the undoubted right of the States of the Union to control their purely internal affairs, in doing which they exercise powers not surrendered to the general government.”[167]
Many State laws regulating its administration of internal affairs are applications of its police power. The police power of the State is of right, and is founded on “the sacred law of self-defense.”[168] But this sacred law applies strictly to the domain of the State—to its own jurisdiction. “It cannot invade the domain of the national government.”[169] A State inspection law is a familiar example of the exercise of its police power, but such a law, working obstruction of interstate commerce, or any limitation of it, though such effect be only incidental, is repugnant to the Constitution.[170] Such repugnancy is effected by a State law levying a tax on tonnage, and is void.[171] But a charge for mooring or landing at a wharf, is not a tax on tonnage, but a charge for services rendered;[172] neither is the tax a tonnage tax when the State imposes a tax on vessels (even if regularly engaged in interstate commerce), the property of persons residing within the jurisdiction of the State, the vessels themselves being part of the mass of property within the State, being moored for long periods at the wharf for repairs and being under the protection of the State. The taxing power is a distinct and separate power from the power to regulate commerce. The right of taxation in a State remains over every subject where it existed before the adoption of the Constitution with the exception only of prohibitions expressed or implied in the Constitution.
The sovereign jurisdiction of the State is not limited; within that jurisdiction it is free to tax. But the powers to tax and to prohibit taxation are given in the Constitution by separate clauses, and these powers are separate and distinct from the power to regulate commerce. From this it follows that the enrolment of a ship or vessel in interstate commerce does not exempt its owner from taxation for his interest in it as property, upon a valuation by State law, as in the case of other personal property.[173]
65. There ever remains the question of the extent of the power of Congress to regulate commerce. American constitutional law as to commerce is largely of what the States may not do. But the enormous power of Congress to regulate commerce, more and more as the years pass,—as the meaning of “national jurisdiction” is defined by the courts of law,—the definition, however, slowly conforming to public opinion,—discloses the extent of the federal power through the commerce clause. Doubtless Congress has made but a beginning in its exercise of this power. Thus it has made lottery tickets articles of commerce, has excluded them from the mails, has assumed plenary authority of the carriage of such articles from State to State, and, by authority of the commerce clause has practically destroyed the lottery business in the United States.[174] The principle here decided is that, under the power to regulate commerce, regulation may take the form of prohibition, and that the power “may be exerted with the effect of excluding particular articles from such commerce.”[175]
In this decision the Court observes, “that the suppression of nuisances injurious to public health or morality is among the most important duties of government,” and quotes an earlier decision as to “the widespread pestilence of lotteries.” It might seem that while exercising its powers under the commerce clause Congress was really exercising the police power of the United States.
66. Of highest importance is the act of Congress of July 2, 1890, and later amendments, known as the Anti-Trust Act, entitled, An “Act to Protect Trade and Commerce against Unlawful Restraints and Monopolies.” The decisions growing out of this act have been made on issues involving the particular questions whether or not restraints and monopolies so-called were such under the act and conflicted with it. The power of Congress, under the commerce clause to prohibit such restraints and monopolies has not been denied. It will be remembered that power to regulate commerce is not power to regulate manufactures. The purpose of the Anti-Trust law[176] is “to destroy the power to place any direct restraint on interstate trade or commerce, when by any combination or conspiracy formed by either natural or artificial persons, such a power has been acquired; and the government may intervene and demand relief as well after the combination is fully organized as while it is in process of formation.”[177] The principle involved here is as to the power of corporations organized under State laws to restrain or to monopolize interstate commerce. The State has no power to create corporations with such powers, and consequently they cannot exercise them lawfully. And like attempts to restrain and monopolize interstate commerce made by individuals is alike unlawful.[178]
67. So, too, where a labor organization sought by a boycott to prevent the manufacture of articles intended for interstate commerce, and to prevent the re-selling of these articles in other States, the combination and plan were held to be restraint of commerce and in violation of the Anti-Trust act.[179] The cases strongly suggest that federal laws to regulate commerce may be essentially police regulations as, notably, laws requiring safety appliances on railroad trains and steamboats; laws regulating hours of labor and child labor; laws requiring arbitration of controversies between employers and employees operating in interstate commerce; the pure food law; the exclusion of lottery tickets from the mails, and the like. The Constitution contains no clause explicitly delegating the police power to the United States, and the exercise of police power by Congress has thus far been quite without exception under the commerce clause. Yet by parity of reasoning, the police power may be included under the power to declare war.
68. There is such a thing as the peace of the United States.[180] The enormous power of Congress under the commerce clause has undoubtedly promoted that peace: “domestic tranquillity” is one of the specified purposes in ordaining and establishing the Constitution. As absence of power to regulate commerce marked the weakness of the Articles of Confederation, so the special inclusion of that power among those delegated to Congress marks the strength of the Constitution.