The nature of the subjects under this power over which Congress has exclusive jurisdiction was first stated by Mr. Justice Curtis in Cooley v. Wardens of the Port of Philadelphia (1851). They are such as "are in their nature national and admit only of one uniform regulation.”

41

As was said by Mr. Justice Field in Mobile County v. Kimball:42

"The uniformity of commercial regulations was necessarily intended only for cases where such uniformity was practicable. Where from its nature or the sphere of its operation, the subject is local or limited, special regulations adapted to the locality could only have been contemplated. State action on such subjects can constitute no interference with the commercial power of Congress, for, when that acts, the state authority is superseded. Any action of Congress upon these subjects of a local nature or operation, unlike its action upon matters affecting all the states and requiring uniformity of regulation, is not to be taken as a declaration that nothing shall be done with respect to them, and is rather to be deemed a declaration that, for the time being and until it sees fit to act, they may be regulated by state authority."

And the learned Justice, after quoting from Gilman v. Philadelphia, "Whether the power in any given case is vested exclusively in the general government, depends upon the nature of the subject to be regulated," observes:

"This doctrine was subsequently recognized in the case of Welton v. Missouri, 91 U. S., 275, in Henderson v. Mayor of New York, 92 U. S., 259, and in many other cases, and it may be considered as expressing the final judgment of the court."

Mr. Justice Bradley, in Robbins v. Shelby County Taxing District, says:

43

"Certain principles have been already established by the decisions of this court. *** Among these are:

"1. The Constitution of the United States has given to Congress the power to regulate commerce, not only with foreign nations, but among the several states; that power is necessarily exclusive whenever the subjects of it are national in their 41 12 How., 299, 319.

42 102 U. S., 691, 698.

48 120 U. S., 489, 492, et seq.

character, or admit of only one uniform system, or plan of regulation."

He cites a number of cases.* 44

"2. Another established doctrine of this court is that where the power of Congress is exclusive, the failure of Congress to make express regulations indicates its will that the subject shall be free from any restrictions or impositions, and *** by the states any regulation * * is repugnant to such freedom."

The doctrine is amply sustained by the cases cited.45

These principles, so stated by Mr. Justice Bradley, including what he says about the police power of the states, to which reference will be made, were adopted, as recently as 1902, Mr. Justice Shiras speaking for a unanimous court, in Caldwell v. North Carolina.48 There are many other cases and through them all runs the clear distinction between local subjects belonging to commerce and subjects embracing mere aids to commerce, which admit of regulation by the states until Congress chooses to act on them, and subjects of national character, which can only be dealt with by the one sovereignty having complete power to promulgate rules co-extensive with the national domain.

It is commerce embracing the latter class of subjects with which we are concerned, and it has been defined frequently in many of the decisions of the Supreme Court cited by Mr. Justice Bradley and in others since. Mr. Justice Field puts it well in Mobile County v. Kimball:47

"Commerce with foreign nations and among the states, strictly considered, consists in intercourse and traffic, including in these terms navigation and the transportation and transit of persons and property, as well as the purchase, sale and exchange of commodities. For the regulation of commerce as thus defined there can be only one system of rules applicable to 44 See Robbins v. Shelby County Taxing District, 120 U. S., at page 45 See Robbins v. Shelby County Taxing District, 120 U. S., at page 493.

492.

the whole country, and the authority which can act for the whole country can alone adopt such a system. Action upon it by separate states is not, therefore, permissible." [Italics mine.]

While it is true, as often argued, that the object of committing this exclusive power to Congress was to prevent conflicting and discriminating State legislation, the disastrous results of which formed one of the strong motives for the formation of the Constitution, and while most of the many decisions on the subject have dealt with such legislation, yet, as was pointed out by Mr. Justice Peckham, in Addyston Pipe & Steel Co. v. U. S., it is only necessary to refer to the Constitution itself, and Chief Justice Marshall's statement of the completeness of this power, to see how far reaching it is. In view of the decisions of the Supreme Court involving the Anti-Trust Law of 1890, the extent to which it may go is startling. That the fathers could not have forseen these results is certain, but they builded better than they knew.

48

Let us apply the facts in the Addyston Pipe case to a situation which might easily arise when a State ought to enforce such an anti-trust law as has been suggested.

Manufacturers of cast iron pipe, one a corporation of Ohio, one in Kentucky, two in Tennessee and two in Alabama, entered into an agreement covering thirty-six states and territories, by which they bound themselves to bid in such a way for contracts as that one of them would, in all probability, get the award as against others not in the combination. Its purpose was to suppress competition and control prices It was held to be a contract in restraint of interstate commerce, all of the judges concurring.

It is not a violent assumption that, if the attorney-general of Ohio should seek in a state court to restrain the Addyston Pipe Company from carrying out such a contract as that, the finding would be that the offense only affected interstate commerce, for that very contract was held in the Addyston Pipe 48 175 U. S., 211, 228.

case to directly affect interstate commerce. tion Mr. Justice Peckham says:49

In that connec

"We conclude that the plain language of the grant to Congress of power to regulate commerce among the several states included power to legislate upon the subjects of those contracts in respect to interstate commerce which directly affect and regulate that commerce."

Even more directly to the point is the language of Chief Justice Fuller in U. S. v. E. C. Knight Co.:50

"Contracts to buy, sell or exchange goods to be transported among the several states *** may be regulated, but this is because they form part of interstate trade or commerce."

Now, as that contract affect that kind of commerce which admits in its regulation of only one rule suitable for the whole country, and that rule is one which Congress alone can promulgate, a state can have no jurisdiction over it, and its law pro tanto is void.

9951

Of course, as Mr. Justice Peckham says, it is not questioned that Congress has no jurisdiction over that commerce "which is wholly within a state, and therefore none over combinations or agreements so far as they relate to a restraint of such trade or commerce.' And so the state court in the case put might well assert its power to deal with a combination affecting commerce within Ohio, but must it not acknowledge its want of power to enforce such a law when interstate commerce is involved?

And he most pertinently observes:

"It is true, as we are informed, that no state legislature has heretofore authorized by affirmative legislation the making of contracts upon the matter of interstate commerce of the nature now under discussion. Nor has it, in terms, condemned them. The reason why no state legislation upon the subject has been enacted has probably been because it was supposed to be a subject over which state legislatures had no jurisdiction."52

49 Addyston Pipe & Steel Co. v. U. S., 175 U. S., 211, 234, 235. 50 156 U. S., 1, 13. See also remarks of Mr. Justice White in Richmond & A. R. R. Co. v. Patterson Tobacco Co., 169 U. S., 311, 314. 51 Addyston Pipe & Steel Co. v. U. S., 175 U. S., 211, 247 52 Addyston Pipe & Steel Co v. U. S., 175 U. S., 211, 232.

The decisions dealing with the sovereign power of a state to raise necessary revenue by taxation present many analogies, and may briefly be referred to.

In Leloup v. Port of Mobile,53 Mr. Justice Bradley lays down a rule of construction of constitutional provisions involving this subject, concurred in by the entire court, reached, as he says, with great caution, and with an anxious desire to place the final conclusion upon the fairest and most just construction of the Constitution in all its parts. It is this:

"No state has the right to lay a tax on interstate commerce in any form, whether by way of duties laid on transportation of the subjects of that, or on the receipts derived from that transportation, or on the occupation or business of carrying it on, and the reason is that such tax is a burden on that commerce, and amounts to a regulation of it, which belongs solely to Congress."

And the rule is amply sustained by the authorities cited.54 The sovereign power of taxation can not, therefore, be asserted by a state over the subjects of interstate commerce which are national in their nature.

It may be urged that the suggested legislation can be justified as an exercise of police power. When forming the Constitution the states reserved all power not therein expressly granted to Congress, and it has frequently been said that the police power is of this nature.

It is the right every government has to provide by appropriate legislation for the comfort, convenience, health, safety and morals of its people.

State statutes to this end have been frequently sustained, and in some cases with unanimity or substantial unanimity, such as laws requiring railroad engineers to take out a state license,55 or to be free from, and to submit to examination for, color blindness,56 prescribing the mode of heating passenger cars,

53 127 U. S., 640, 648.

54 See Leloup v. Port of Mobile, 127 U. S., at page 648.

55 Smith v. Alabama, 124 U. S., 465.

56 Nashville, etc., R. Co. v. Alabama, 128 U. S., 96.

57 New York, N. H. & H. R. R. Co. v. New York, 165 U. S., 628.

57