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INTERSTATE COMMERCE

Sulla dictator (Appian, Bell. civ. i. 98). In 55, 53 and 52 interreges are again found, the last-mentioned being on the occasion when Pompey was elected sole consul.

The most noteworthy use of the term “Interregnum” in post-classical times is that of the Great Interregnum in German history between the death of Conrad IV. (1254) and the election of Rudolf of Habsburg (1273). See Germany: History.

INTERSTATE COMMERCE. The phrase “interstate commerce,” as used in the United States, denotes commerce between the citizens of different states of the Union. The words “interstate” and “intrastate” are not found in the constitution nor, until comparatively recently, in decisions of the courts or in legislative acts (probably being first used officially in 1887 in the Interstate Commerce Act). The constitution of 1789 uses the phrase “commerce among the states,” and the first official decision interpreting the phrase says that “it may very properly be restricted to that commerce which concerns more states than one” (Chief Justice Marshall in Gibbons v. Ogden, 9 Wheaton 194). Commerce among the states is there distinguished from “commerce which is completely internal, which is carried on between man and man in a state, or between parts of the same state, and which does not extend to or affect other states.” It was declared (Lehigh case, 145 U.S. 192) that commerce between two persons in the same state is not interstate even when there is a temporary deviation to the soil of another state; but later (Hanley case, 187 U.S. 617, distinguishing the Lehigh case) it was declared that as to transportation, such commerce is interstate. The courts have interpreted commerce to denote not merely a mutual selling or traffic, but as “a term of the largest import,” including intercourse for the purposes of trade in any and all its forms (Gibbons v. Ogden, 9 Wheaton 194, and Welton v. Missouri, 91 U.S. 280). Thus have been included not only the actions of trading, navigation, transportation, and communication, but also the instruments and agents employed, including even telegraph messages and, in the extremest cases, lottery tickets.[1]

The decision of the question where federal control of interstate traffic ends and state control begins has been one of great practical difficulty. In general it has been held that whenever a commodity begins to move as an article of trade from one state to another, commerce in that commodity between the states has begun. Mere intention to ship goods does not make them subjects of interstate commerce, but they must actually be put in motion or committed to the carrier for that purpose (Coe v. Errol, 116 U.S. 517). As a practical guide in deciding when state control should be resumed, the court as early as 1827 (Brown v. Maryland) laid down the “original package rule,” that the taxing power of the state should begin when the original package in which the goods had been imported into the state had been broken up or sold. The injustice of allowing goods to be held thus, for long periods escaping local taxation, led to a modification of the rule in 1868 (Woodruff v. Parkham, 8 Wall. 123), and such goods after reaching their destination may be taxed as property in common with other property in the state.[2]

Reason for Federal Control of Interstate Commerce.—Immediately after the close of the War of American Independence in 1783 appeared the separatist tendencies and local jealousies usual in a confederation. The Congress of the Confederation had no power to levy tariff duties or to regulate commerce between the states, and the separate states freely and recklessly exercised their rights in this matter. Though commerce at that time was comparatively unimportant, the results of this restrictive policy were most unfortunate. The Annapolis Convention of 1786 was called by the Virginia legislature to take into consideration the trade of the United States and to consider how far a uniform system in their commercial relations might be necessary to the common interests and their permanent harmony. This conference resulted in the call of the Philadelphia Convention of 1787, which framed the present Constitution. Chief Justice Marshall, in one of the early cases on this subject (Brown v. Maryland, 12 Wheaton 419, in 1827), said in words often since quoted: “It may be doubted whether any of the evils proceeding from the feebleness of the federal government contributed more to that great revolution which introduced the present system than the deep and general conviction that commerce ought to be regulated by Congress.”

Every year has increased the importance of the congressional power of regulating commerce. At the time of the adoption of the Constitution, each neighbourhood supplied nearly all its needs by its own industry, but improving means of transportation and communication have multiplied the commercial ties between the citizens of the various states. This change went on slowly untO 1830, more rapidly between 1830 and 1860, and at an ever-hastening pace after the Civil War. Until 1824 no case involving directly the consideration of this power reached the United States Supreme Court. From 1824 to 1840 the Supreme Court decided an average of one-third of a case a year; from 1841 to 1860, an average of three-fourths of a case; from 1861 to 1870, an average of one case; from 1871 to 1880, an average of nearly six cases; from 1881 to 1890, an average of more than seven cases; and from 1891 to 1900, an average of more than ten cases. The decisions have not been entirely uniform, and there were some decisions too contradictory to be explained by any ingenuity. The Supreme Court itself has said (Fargo v. Michigan, 121 U.S. 230) that “it may be admitted that the court has not always employed the same language, and that all of the judges of the court who have written opinions for it may not have meant precisely the same thing.” Though in the period just preceding the Civil War the doctrine of states' rights tended to weaken somewhat the federal power, the broad outlines of the interpretation by Chief Justice Marshall laid down in 1824 in Gibbons v. Ogden remain to-day almost undimmed.

Interstate Commerce in the Federal Constitution.—Freedom of trade, without discrimination, between the citizens of all the states was in the main ensured by one brief sentence, usually called the “commerce clause” of the federal constitution:— “The Congress shall have power . . . to regulate commerce with foreign nations, and among the several states, and with the Indian tribes” (Art. 1, sec. 8, clause 3). Hardly less important is the 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” (Art. 1, sec. 8, clause 18). To the same end of freedom of commerce, Congress is limited in that “no tax or duty shall be laid on articles exported from any state,” and “no preference shall be given by any regulation of commerce or revenue to the

  1. The lottery tickets were included only by a divided court (Lottery Cases, 188 U.S. 321) four judges emphatically dissenting. The moral issue doubtless influenced a decision so difficult to reconcile with other opinions of the court, which otherwise had held regularly that commerce involves the physical movement of persons or things and does not include the contractual relations between citizens incident to commercial intercourse. Not all things incidental to commerce are included in it, and it has been held that the following are not included: bills of exchange (in 1850, Nathan v. Louisiana, 8 How. 73), trade marks (in 1879, trade mark cases, 100 U.S. 82), insurance (in 1869, Paul v. Virginia, 8 Wall. 168), and manufacturing (in 1895, U.S. v. Knight Co., 156 U.S. 1). In the last-named case, which concerned a combination of sugar refineries controlling a large proportion of the product of the country, it was said that commerce succeeds manufacture and is not a part of it. The relation of the manufacturer to interstate and foreign commerce being thus only incidental and indirect, the business is subject to state control. By a series of decisions the transportation of persons has been decided to be commerce. (In 1848, passenger cases, 7 How. 283. In 1867, Crandall v. Nevada 6 Wall. 35. In 1875, Henderson v. the Mayor of New York, 92 U.S. 259, &c.).
  2. The question arose with reference to the police power of the state in those states prohibiting the liquor traffic, and in 1889 it was held (Leisy v. Hardin) that, in the absence of legislation by Congress, the right to sell goods taken into a state was unrestricted. This made it impossible for a state to exclude the importation of liquors to be sold within its territory, but this difficulty was remedied by the Wilson Original Package Bill of 1890, which made liquor subject to the police powers of the state to which it was carried.