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 Earl of Frederick Edwin Smith Birkenhead

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.

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]

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 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 "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.

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.

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]

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]

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]

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]

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]

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]

[1] 4 Wheat. 316, 405 (1819).

[2] See pp. 378-379.

[3] 206 U.S. 46, 82 (1907).

[4] 4 Wheat. at 407.

[7] 2 Story, Commentaries, § 1256. See also ibid. §§ 1286 and 1330.

[8] 1 Pet. 511 (1828).

[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).

[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).

[69] 143 U.S. 649 (1892).

[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).

[102] 273 U.S. 135, 178 (1927).

[103] 279 U.S. 263 (1929).

[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).

[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).

[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).

[164] Hinds' Precedents of the House of Representatives, IV: § 2895-2905 (1907).

[165] 144 U.S. 1 (1892).

[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).

[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).

[186] 4 Mass. 1 (1808).

[187] Kilbourn v. Thompson, 103 U.S. 168, 203, 204 (1881).

[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).

[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).

[248] Ibid. 589-590.

[250] Wilmette Park District v. Campbell, 338 U.S. 411 (1949).

[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.

[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).

[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).

[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).

[303] 2 Madison, Notes on the Constitutional Convention, 81 (Hunt's ed. 1908).

[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).

[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).

[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).

[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).

[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.