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country, have been authorized in Her Majesty's Indian Empire. Forms of procedure unknown to the English common law have there been established and acted upon, and to throw the least doubt upon the validity of powers conveyed by those words would be of widely mischievous consequence." (10 App. Ca. 678, 1885.)

51. (i.) Trade and commerce162 with other countries, and among the States 163:

UNITED STATES.-To regulate commerce with foreign nations and among the several States and with the Indian tribes.-Const. Art. I. sec. 8, subs. 2.

CANADA.-The Regulation of trade and commerce.-B.N.A. Act, s. 91-2.

HISTORICAL NOTE.-Earl Grey's Committee of the Privy Council in 1849 proposed to give the General Assembly power with respect to "The imposition of dues or other charges on shipping in every port or harbour" (p. 85, supra). Wentworth's Constitutional Committee in 1853 specified "The coasting trade;" and the Bill attached to Wentworth's memorial in 1857 specified Navigation of connecting rivers." (Pp. 91,

94, supra.)

The sub-clause in the Commonwealth Bill of 1891 was worded "The regulation of trade and commerce with other countries, and among the several States." In Committee, the questions of railway gauges and railway tariffs were discussed. (Conv. Deb., Syd., 1891, pp. 662-70.) The same words were adopted at the Adelaide session, 1897. At the Sydney session, the liquor question was discussed (see Notes, sec. 113). (Conv. Deb., Syd., 1897, pp. 1037-65.) At the Melbourne session, after the second report, the river question was discussed (see Notes, sec. 100). (Conv. Deb., Melb., pp. 1947-90.) After the fourth report, the words "the regulation of," and the word "several," were omitted.

$ 162 “Trade and Commerce."

PRELIMINARY DEFINITION.--Trade means the act or business of exchanging commodities by barter, or by buying and selling for money; commerce; traffic; barter. It comprehends every species of exchange or dealing, either in the produce of land, in manufactures, in bills, or in money, but it is chiefly used to denote the barter or purchase and sale of goods, wares, and merchandise, either by wholesale or retail. (Webster's Internat. Dict.) Commerce means the exchange or buying and selling of commodities; especially the exchange of merchandise on a large scale between different places or communities; extended trade or traffic. (Webster's Internat. Dict.) The courts of the United States have, in a series of decisions, defined commerce to be both intercourse and traffic, and the regulation of commerce to be the prescribing of the rules by which intercourse and traffic shall be governed. (Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196.) The object of investing the Federal Parliament with the power to deal with trade and commerce, was to secure uniform legislation, where such uniformity is practicable, against conflicting State legislation. (Western Union Telegraph

Co. v. Pendleton, 122 U.S. 347.) The object is to secure uniformity against discriminating State legislation. (Welton v. Missouri, 91 U.S. 275.) Commerce includes all commercial traffic and intercourse. (Gibbons v. Ogden, 9 Wheat. 1; The Daniel Ball, 10 Wall. 557.) Sale is an ingredient of Commerce. (Brown v. Maryland, 12 Wheat. 419; Leisy v. Hardin, 135 U.S 100.) It means intercourse for the purpose of trade of all descriptions. (Corfield v. Coryell, 4 Wash. 371.) It comprehends everything that is grown, produced, or manufactured. (Welton v. Missouri, supra.) It extends to persons who conduct it as well as the means and instrumentalities used. (Cooley v. Port Wardens, 12 How. 299.) It includes vessels, railways, and other conveyances used in the transport of merchantable goods, as well as the goods themselves. (The Brig Wilson v. United States, 1 Brock. 423.) It embraces navigation and shipping.

(Cooley v. Port Wardens, supra); including free navigation of the navigable waters of the several States. (Corfield v. Coryell, supra. It covers the right to improve navigable waters (South Carolina v. Georgia, 93 U.S. 4); and to remove nuisances and obstructions interfering with navigation. (Miller v. Mayor of New York, 109 U.S. 385.) It embraces railways, highways, and navigable waters along and over which commerce flows. (Willson v. Blackbird Creek Marsh Co., 2 Pet. 245.) It includes the freights and fares charged for transport. (State Freight Tax Cases, 15 Wall 232.) It includes passengers. (Passenger Cases, 7 How. 283.) Bills of exchange are instruments of commerce. (Nathan v. Louisiana, 8 How. 73.) Sending a telegraph message is commerce. (Western Union Telegraph Co. ". Alabama, 132 U.S. 472.) The power to regulate commerce is held in the United States to imply the power to construct railways, to promote and carry commerce. (California v. Central Pacific R. Co., 127 U.S. 1. See cases collected, Prentice and Egan's Commerce Clause of the Federal Constitution, U.S. [1898], p. 43.)

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The power of the Congress of the United States is "to regulate trade and commerce." The power of the Parliament of Canada extends to "the regulation of trade and commerce. In this Constitution the words "the regulation of " have been omitted, and the Federal Parliament has been given power to make laws "in respect of trade and commerce." It has been held by the Privy Council that the power of the Parliament of Canada to regulate trade does not imply the power to prohibit trade. (Att.-Gen. for Ontario v. Att.-Gen. for Canada [1896], App. Ca. 363; and see note, § 163 infra, “Does Regulation Include Prohibition?"; The omission of the words "the regulation of" can certainly not be held to narrow the scope of the power, and may perhaps in some degree extend it.

AIDS TO THE COMMERCE POWER.-There are several important sections in Chapter IV. of this Constitution, which strongly re-enforce the grant of power over commerce contained in this sub-section. By section 98 the power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of any State. By section 101 the Federal Parliament is authorized to appoint an Inter-State Commission, with such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder. By section 102 the Parliament may, by any law with respect to trade or commerce, forbid, as to railways, any preference or discrimination by any State, or by any authority constituted under a State, if such preference or discrimination is undue and unreasonable, or unjust to any State.

LIMITS OF THE COMMERCE POWER.-The Federal power over commerce is not absolute or universal or unrestricted; it is subject to certain limitations and prohibitions, which will be found enumerated in the next note.

§ 163.

"With Other Countries and Among the States." LIMITS OF THE COMMERCE POWER.-The power of the Federal Parliament to legislate concerning trade and commerce, whilst unbounded as regards the subject matter, is limited as regards its area and operation. Unlike the Parliament of Canada, whose commercial power is expressed by the words "trade and commerce," without qualification, the Parliament of the Commonwealth, like the Congress of the United States, can only deal with trade and commerce "with other countries and among the States." It therefore embraces inter-state trade and commerce, and foreign trade and commerce, but it cannot invade the domain occupied by the internal trade and commerce of a State. Commerce among the States is traffic, transportation and intercourse, between two points situated in different States. (Wabash, St. Louis and Pacific R. Co. v. Illinois, 118 U.S. 557.) Commerce among the States is commerce which begins in one State and ends in other, and it may pass through one or many States in its operation. (Gibbons v. Ogden, 9 Wheat. 1.) Freight carried from points without a State to points within

that State, or vice versa, is as much commerce among the several States as is freight taken up at points without the State and carried across it to points in other States. (Fargo v. Michigan, 121 U.S. 230.) The regulation of inter-state and foreign commerce is vested in the Federal Parliament, both as against the States and as against the other departments of the Federal Government. (Robbins v. Shelby Taxing District, 120 U.S. 489. See also Notes, § 427, infra.)

In addition to the constitutional limitations of the Federal power over commerce, expressed by the words "with other countries and among the States," the Federal power is subject to several other limitations and prohibitions. By section 92, trade, commerce, and intercourse among the States become absolutely free on the imposition of uniform duties of customs; so that the Federal Parliament, whilst it may assist and facilitate inter-state freetrade, is disabled from interfering with, or impairing the rule of, inter-state commercial freedom. By section 99 the Commonwealth is prohibited from giving preference to one State over another State, by any regulation of trade,

commerce, or revenue.

CONTROL OF DOMESTIC COMMERCE OF STATES.-The control of the internal trade and commerce, which begins and ends in a State, and which does not cross its limits, is reserved exclusively to the State; it is beyond Federal control, and the right of regulating it, in each State, belongs to the State alone. (License Cases, 5 How. 504.) To this exclusive reservation of power over domestic trade and commerce of the States there is one notable exception; they cannot impose duties of excise on commodities produced or manufactured within their borders; the right of imposing duties of excise is exclusively vested in the Federal Parliament. (See sec. 90.)

on.

COMMERCE FURTHER DISCUSSED.--Commerce is said to be the interchange of goods between nations or individuals, and transportation is the means by which it is carried There could be no commerce without transportation. (Philadelphia Steamship Co. v. Pennsylvania, 122 U.S. 326.) Actual transportation is the characteristic of inter-state and foreign commerce. The Federal authority over commerce extends to places, such as ports and harbours, in which vessels receive and discharge their frieght; to means and instrumentalities by which commerce is transported, such as ships and railways, and to the subjects of commercial intercourse such as commodities. (Von Holst, Const. Law, pp. 144-146.)

TRANSPORTATION.-Federal control over the transportation of commerce embraces every agency employed in the movement of commerce, by land or by water, such as roads, stage coaches, railways, bridges, ships, navigable waters, ports and harbours All these are means or instruments by or through which the subjects of commerce are transferred, in order to facilitate exchange and intercourse. A ship is not commerce, but it is one of the chief means by which commerce is conducted. A railroad is not commerce, but it is one of the most important agencies by which commerce is transported. Telegraphs and telephones are instruments of commerce. Foreign or inter-state bills of exchange are instruments of commerce. (Nathan v. Louisiana, 8 How. 73.) The Federal control over commerce necessarily implies control of the means and instrumentalities of commerce. Accordingly it has been decided in the United States that the Federal power over commerce give the Federal legislature authority

To establish or authorize the establishment of a bridge which obstructs the navigation of a river, or to order the removal of such a bridge, if its removal is necessary for the preservation of freedom of commerce. (Pennsylvania v. Wheeling Bridge Co., 18 How. 421; The Clinton Bridge, 10 Wall. 454; Miller v. Mayor of New York, 109 U.S. 385; Bridge Co. v. United States, 105 U.S. 470.)

To regulate boats carrying inter-state freight and passengers between two points within the same State. (The Daniel Ball, 10 Wall. 557.)

To regulate the liability, or immunity from liability, for accidents, of the owners of boats, plying the high seas between two points in the same State. (Lord v. Steamship Co., 102 U.S. 541.)

To improve the navigation of ports, harbours, and rivers. (Wisconsin v. Duluth, 96 U.S. 379.)

To establish railroads in order to promote inter-state commerce.

Central Pacific R. Co, 127 U.S. 1.)

(California v.

To establish telegraph companies authorized to carry on inter-state telegraphic business. (Pensacola Telegraph Co. v. Western Union Tel. Co., 96 U.S.

1; Western Union Telegraph Co. v. Alabama, 132 U.S. 472.)

To regulate liens on vessels. (White's Bank v. Smith, 7 Wall. 646.)

To grant corporations carrying on inter-state trade the right of eminent domain through a State. (Winconsin v. Duluth, 96 U.S. 379.)

TRAVEL.-The movement and personal intercourse of individuals engaged in commerce, or entitled to be so engaged, is a branch of commerce. The arrival and departure of passengers from one State to another, and the embarkation and disembarkation of passengers by sea, is also a branch of commerce. (Passenger Cases, 7 How. 283; Welton v. Missouri, 91 U.S. 275; Mobile v. Kimball, 102 U.S. 691.)

THE SUBJECTS OF COMMERCE.-Commodities, ordinarily intended and fit to be exchanged, are the usual subjects of commerce. The question whether an article is or is not a subject of commerce has to be determined by the usages of the commercial world; it does not depend upon the declaration of any State. (Bowman v. Chicago, &c., R. Co. 125 U S. 465; Leisy v. Hardin, 135 U.S. 100.) Passengers from one State to another, or from foreign States to federal jurisdiction, are subjects of the commerce power.

WHAT ARE NOT SUBJECTS OF COMMERCE. -All commodities are not always the subjects of commerce; they, at certain stages, may lose that quality. Of course land, not being transportable, could never become the subject of commerce. At the same time certain things, though capable of being transported and exchanged, do not come within the true definition of commerce. Thus meat, at one time, may be a fit article of commerce; if it becomes putrid it ceases to be merchantable; it loses its commercial quality and passes beyond the domain of the commercial power. Obscene books and noxious drugs, though capable of being exchanged, are not subjects of commerce. (Preston v. Finley, 72 Fed Rep. 850.) Indecent publications and articles may be excluded from Federal mails by Federal authority, and their transportation may be forbidden either by Federal or State authority. The maxim is that there can be no commerce in disease, pestilence, crime, pauperism and immorality. (Per Chief Justice Taney in License Cases [liquor], 5 How. 585; Railroad Co. v. Husen, 95 U.S. 465.) Passengers, goods, or animals infected with disease, and passengers who are known to be criminals, paupers, idiots, lunatics, or persons likely to become a public charge on a State, are not subjects of commerce; hence they may be excluded from a State by State legislation in the exercise of its reserved police power. (See authorities collected, Prentice and Egan, Commerce Clause, p. 56.) As a further illustration, it may be mentioned that a corpse is not property, and is not capable of being a legitimate subject of commerce. (Re Wong Yung Quy, 6 Sawy. 442.) Banks and insurance companies are not commercial institutions. (See Federal Commerce.)

PRODUCTION AND MANUFACTURE.-The growth, production and manufacture of commodities, and their preparation for transit, do not constitute commerce. Commerce only begins where manufacture and production end. (Kidd v. Pearson, 128 U.S. 1.) The mere fact that commodities have been manufactured, and are intended for other States or countries, does not bring them within federal protection and control. (Prentice and Egan, Commerce Clause, p. 55.) Hence a State may forbid the manufacture of commodities such as intoxicating liquors and oleomargarine, provided that such prohibition is not in conflict with the exercise of any other federal power, such as a law offering bounties for production or export. (See note, § 456.)

OCCUPATIONS NOT WITHIN FEDERAL CONTROL.-It has been decided in the United States that the following occupations do not come within federal commerce: the business of a building and loan association, loaning money, dealing in foreign lands, conducting a manufacturing establishment in another State, mining, practicing medicine in connection with the sale of imported drugs.

WHEN FEDERAL CONTROL OVER COMMERCE BEGINS.-Commerce does not come within Federal protection or control until its transportation from one State to another, or from a State to a foreign country, has begun. Even preparation for exportation is not sufficient. The deposit of logs in a river running within one State, in order to ship them into another State, does not mark the beginning of Federal jurisdiction. (Coe v. Errol, 116 U.S. 517; Pace v. Burgess, 92 U.S. 372.) Other cases seem to suggest that inter-state commerce begins with negotiations and contracts looking to transportation m ong the States (Walling v. Michigan, 116 U.S. 446; Robbins v. Shelby Taxing District, 120 U.S. 489.) When the products of the farm or the forest are collected and brought in from the surrounding country to a town or station serving as an entrepot for that particular region, whether on a river or a line of railroad, such products are not yet exports, nor are they in process of exportation, nor is exportation begun until they are committed to the common carrier for transportation out of the State to the State of their destination, or have started on their ultimate passage to that State. (Per Mr. Justice Bradley in Coe v. Errol, 116 U.S. 517; see, however, note, 427 infra.) DURATION OF FEDERAL CONTROL. As long as the goods are in transitu they remain the subjects of Federal commerce. (The Daniel Ball, 10 Wall. 557.) A transhipment of freight which has once started upon its passage to another State does not break up the carriage so as to bring it within the control of a single State.

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INTERRUPTION OF TRANSIT.-Goods and passengers in course of transportation from one State to another do not lose their inter-state character by a temporary stoppage in an intermediate State. Having once started on their passage from a State to a State, they do not break their carriage by a transhipment in an intermediate State, so as to bring them within the taxing power of that State. (The Daniel Ball, 10 Wall. 557.) Where coal was shipped in Pennsylvania by a company to its agents in New Jersey, in which State it was assorted and reshipped to New York as advice of sales was received, it was held that the temporary delay in New Jersey had not terminated its transit so as to subject it to State taxation in New Jersey. (State v. Engle, 34 New Jers. L. 435.) In Kelley v. Rhoads (51 Pac. Rep. [Wyo.] 593), the validity of a tax collected by the State of Wyoming, on a flock of sheep which was being driven from Utah through Wyoming to Nebraska, was questioned. The court recognized the principle that “ no tax could be laid upon property in transit from one State to another, but, if the sheep were brought into the State to find grazing grounds, inter-state transportation ceased when the grazing grounds were found. The question upon which the validity of the tax depended was, therefore, a question of purpose-whether the grazing was incidental to the transportation, or whether the transportation was incidental to the grazing. It is not true that every time a person drives his herds into a State, intending, at some future period, to pass from it into another State, his cattle are wholly beyond State jurisdiction. It would be possible under such a rule, by selecting a circuitous route, to avoid taxation upon grazing animals." (Prentice and Egan, Commerce Clause, p. 64.) "In considering the question of situs in such cases, it is necessary to look to the course and method of travel, the character of the live-stock and of the territory grazed upon, the time employed, possibly the time of year, and all other considerations which would throw light upon the purpose of the owner; and where, upon such examination, it is found that property is kept within the State for some other purpose than that of transportation, the original movement must be considered as abandoned." (Id.)

THE END OF TRANSIT.-Goods and passengers, subjects of Federal commerce, having once started on their passage, remain subject to Federal control and entitled to Federal protection until the end of the transit, and until they are lost and intermingled in the

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