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nature of the power requires that it should be exercised exclusively by Congress, it must be intended to refer to the subjects of that power and to say they are of [such a nature as to require exclusive legislation by Congress. Now the power to regulate commerce embraces a vast field, containing not only many but exceedingly various subjects, quite unlike in their nature; some imperatively demanding a single uniform rule, operating equally on the commerce of the United States in every port; and some .... as imperatively demanding that diversity which alone can meet the local necessities of navigation. Either absolutely to affirm or deny that the nature of this power requires exclusive legislation by Congress, is to lose sight of the nature of the subjects of this power, and to assent concerning all of them what is really applicable but to a part."*

To return more particularly to the subject of freedom of trade between the several States of the United States, it may be said that that freedom has been sufficiently secured by the interpretation placed by the Courts on the power of Congress to regulate commerce. The several States have tried to limit this freedom of trade in many ways, which are thus classified by Messrs. Quick and Garran :—†

(1) By the imposition of taxes on imported goods, after their entry into the State.

The United States Courts have very frequently had to restrain such attempts by the several States to limit the freedom of trade, made under cover of their right to tax all property within their jurisdiction. The following are instances of State laws-passed with this object-which have been held to be unconstitutional :

A tax on goods coming from other States, unaccompanied by equal taxes on similar local goods; a tax on the earnings of carriers conveying freight and passengers from one State to another; a tax on persons selling goods manufactured outside the taxing State when no similar tax was exacted from goods of a like nature manufactured in that State; a tax on all non-residents who sold liquors; a tax on every ton of freight carried by a railway in and through a State; a tax on all vessels touching the wharves of a State, in so far as it applied to vessels engaged in inter-State business, etc., etc.

(2) By requiring Persons engaged in selling goods introduced or coming from another State to pay for licences to sell.

The following are instances of such State laws declared unconstitutional :

Requiring commercial travellers canvassing, by sample, for the sale of goods at the time outside the State to hold a licence; requiring persons selling goods not the product or manufacture of the vendors to hold a licence; requiring the officers of foreign corporations engaged in inter-State commerce to hold a licence; requiring a telegraph company established by the Federal Legislature to hold a licence, etc., etc.

* Quoted Annot. Const. Australian Comm., p. 530.
Annot. Const. Australian Comm., pp. 846-854.

(3) By restricting the actual introduction of goods from another State, on alleged sanitary or moral grounds, this being done in the pretended exercise of the police power of the State.

Instances of pretended exercise of their police powers by the several States are frequent. But the difficulty of the Court has always been to distinguish between laws passed under a genuine and a pretended exercise of such powers.

The vital test applied by the Court in all these cases of the claim of the several States to exercise their powers of taxation or police regulation over persons within their jurisdiction, in order to determine whether the exercise of those powers is constitutional or not, has been whether the laws to be adjudicated upon make any discrimination between the inhabitants of the State which has passed such a law and those of other States. If there is such discrimination, then, as a general rule, such laws are held to be unconstitutional.

"The problem"-[say Messrs. Quick and Garran]*" which caused such a long controversy in the Supreme Court of the United States, as to whether the power over commerce was exclusive or concurrent, or partly exclusive and partly concurrent, should never arise or occasion any trouble in the interpretation of the Constitution of the [Australian] Commonwealth, in which two principles are clearly and unmistakably established; that on and after the imposition of uniform duties of customs, the power of the Federal Parliament to impose duties of customs and excise, and to grant bounties, becomes absolutely and irrevocably exclusive and this is the limit of its exclusive power; that, as to other matters relating to commerce, the States will continue to exercise concurrent authority and the State laws in respect to such matters will be perfectly valid, until laws inconsistent therewith are passed by the Federal Parliament."

II. CANADA :

The relative powers of taxation reposed by the British North America Act in the Dominion and Provincial Parliaments respectively have already been baldly discussed at the beginning of this chapter.

The sections of that Act in respect to freedom of Inter-State trade require no comment. They are :

Sec. 121. All articles of the growth, produce, or manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.

Sec. 122. The Customs and Excise Laws of each Province shall, subject to the provisions of this Act, continue in force until altered by the Parliament of Canada.

*Annot. Const. Australian Comm., p. 530.

Sec. 123. Where Customs duties are, at the Union, leviable on any goods, wares, or merchandises in any two Provinces, those goods, wares and merchandises may, from and after the Union, be imported from one of those Provinces into the other of them, on proof of payment of the Customs duty leviable thereon in the Province of exportation, and on payment of such further amount (if any) of Customs duty as is leviable thereon in the Province of importation.

Sec. 124. Nothing in this Act shall affect the right of New Brunswick to levy the lumber dues provided in chapter fifteen of title three of the Revised Statutes of New Brunswick, or in any Act amending that Act before or after the Union, and not increasing the amount of such dues; but the lumber of any of the Provinces other than New Brunswick shall not be subject to such dues.

The revenue provisions of the Swiss Federal Constitution are contained in Switzerland. Articles 28 to 32. They require no comment.

United States.

Inter-State
Commission.
United States.

CHAPTER XIV.
RAILWAYS.

The question of the right of the Central Government in a Union of States to regulate railways in the territory of the several States of the Union-whether they belong to the State Government or are owned privately-is one which has occasioned a great deal of controversy.

In the Constitution of the United States there is, of course, no definite provision as to this question of railways; but it has been held by an extensive interpretation of Sub-sec. 3, Sec. 8, Article I., which gives Congress power to regulate commerce among the several States--that the Central Legislature has power to provide for the regulation of railways in the several States. Thus in the case of Railroad Co. vs. Huson [95, U.S. Supreme Ct. Rep., p. 465] Mr. Justice Strong said that "neither the unlimited powers of a State to tax, nor any of its large police powers, can be exercised to such an extent as to work a practical assumption of the powers properly conferred upon Congress by the Constitution. Many acts of a State may indeed affect commerce, without amounting to a regulation of it, in the constitutional sense of the term . . While we unhesitatingly admit that a State may pass laws for the protection of life, liberty, health or property within its borders

..it may not interfere with transportation into or through the State beyond what is absolutely necessary for its self-protection." And it is now admitted that Congress has plenary powers to regulate the rates of inter-State and foreign commerce.*

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"The Constitution of the United States [say Messrs. Quick and Garrant] " contains no clause authorising Congress to appoint an Inter-State Commerce Commission; but such a Commission has been authorised and appointed under and by virtue of the power vested in Congress to regulate commerce. This is a striking illustration of the vastness and elasticity of the commerce power. The first Inter-State Commerce Act was passed on 4th February, 1887; it was amended on 2nd March, 1889; again amended on 10th February, 1891; and finally on 11th February, 1893. The

*Covington and Cincinnati Bridge Co. vs. Kentucky (154, U.S., 204). New York Board of Trade vs. Pennsylvania Ry. Co. (3, Inter-State Commission Rep., 417). Kauffman Milling Co. vs. Missouri Pacific Railroad Co. (3, Inter-State Comm. Rep., 400].

† Annot. Const. Australian Comm., p. 521.

general outlines of this legislation and the principles deducible therefrom will be found discussed in Inter-State Comm. vs. Baltimore and Ohio Railroad Co., 1892, 145 U.S., 263; Inter-State Comm. vs. Brimson, 1894, 154 U.S., 447; Inter-State Comm. vs. Alabama Midland Railway Co., 1896, 5 Inter-State Comm. Rep., 685, and 1897, 168 U.S., 144."

The idea of the Inter-State Commission thus established in the Great Britain. United States was borrowed from England. There, as far back as 1840, powers were given to the Board of Trade with regard to the superintendence of railways. By subsequent legislation these powers were more specifically defined in their application to "undue preferences" and the with-holding of "reasonable facilities" for through traffic; and were transferred to Railway Commissioners, who were themselves replaced in 1888 by the Railway and Canal Commission with greatly enlarged jurisdiction and the power to award damages and without any appeal from its decision on any question of fact or locus standi.

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In the United States, the Act establishing the Inter-State Com- United States. merce Commission gives the Commission power to inquire into the management of the business of all common-carriers subject to the provisions of this Act' [i.e., all common-carriers engaged in inter-State or foreign commerce], to keep itself informed as to the manner and method in which such business is conducted, and to obtain from such carriers full and complete information necessary to enable the Commission to perform the duties and carry out the objects for which it was created. The Commission is further authorised to require the attendance of witnesses and the production of documents and to invoke the aid of the Federal Courts in case of disobedience to its summons. Sec. 13 provides that any person complaining of any act done by a carrier in contravention of the Act may apply to the Commission by petition. The Commission is then to call upon the carrier to satisfy the complaint or answer it. If the carrier does not satisfy the complaint, or if there appears to be reasonable ground for investigating the matters complained of, it is the duty of the Commission to investigate them. The Commission may also investigate any complaint forwarded by the Railroad Commission of any State, or may institute any inquiry on its own motion.

"It is the duty of the Commission to make reports of all investigations, including the findings of fact on which its conclusions are based, and its recommendations, if any, as to what reparation should be made by the carrier to any persons injured; and such findings are in all judicial proceedings prima-facie evidence as to the facts found. If the Commission is satisfied that any carrier has violated the Act, or that any party has sustained injury by such violation, it must forward to the carrier a copy of its report, with a notice to desist from such violation, or to make reparation, or both [Sec. 15]. If a common-carrier violates or disobeys any order of the Commission it is the duty of the Commission, and lawful for any person interested, to apply in a summary way, by petition,

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