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that is, where it begins and ends in a State, and does not cross State lines, except in case it be incident to, or inseparable from, commerce, Inter-State, when the same becomes Commerce Inter-State, the greater including the less.
Commerce, beginning in one State, crossing the State line, passing into another State, then recrossing the State line passing back into and ending in the State where the same began, is not commerce Inter-State.
Commerce Intra-State has, in the past, attracted but little attention.
Commerce Inter-State is that commerce which is not exclusively local or internal to a State ; that is, commerce beginning and ending in a State, but that commerce which crosses State lines, extending from one State to another, and which concerns more States than one, and comprehends every character of commercial intercourse which is not local or internal to a State, but which crosses State lines, extending from one State to another, and which concerns more States than one, including the selling and purchasing in one State, for delivery in another State, of any production or commodity, and the transportation of persons and property on land and on water, and communication by telegraph and telephone, and the facilities, appliances, instrumentalities and means, and the intelligence, the care, the labor, the agent and the object of operations by which, and for which, the same is conducted, where it crosses State lines, extending from one State to another, and concerns more States than one, and includes Commerce Intra-State, where the same is incident to and inseparable from Commerce Inter-State, when the same becomes Commerce Inter-State, the greater including the less.
Commerce, beginning in one State, crossing the State line, passing into another State, then recrossing the State line, passing back into and ending in the State wherein the same began, is Commerce Inter-State.
Commerce Inter-State, for a long time, attracted little attention, but of late years, and especially at the present time, it has become a subject of general public interest.
COMMERCE: ITS REGULATION AND TAXATION. When the people composing the American colonies withdrew their allegiance to the British government, all political power originally inherent in them reverted to, became, and was again invested in them. Afterwards they chose to delegate all such power to the States, except such parts thereof as was expressly delegated to the l’nited States, or that was expressly or impliedly withheld from the States and from the United States.
The power delegated to the States was supreme, subject to no restrictions or limitations except such as were imposed by the State constitutions, the United States constitution, or by the laws and treaties made under it.
The States and the United States became and were but different agents and representatives of the people, with different powers for different purposes, such powers and purposes being so nicely adjusted that the same could be exercised by cach, to the fullest extent, with perfect harmony, and without one trespassing upon the other.
There was withheld from the States, and expressly delegated to Congress, the power “to regulate commerce with foreign nations, and among the several States, and with the Indian tribes."
There was also withheld from the States and from the United States the power to lay taxes or duties on articles expor ed from any State, or to give preference, by any regulation of commerce or revenue, to the ports of one State over those of another, or to require any vessel bound to or from one State to enter, clear or pay duties in another.
Respecting the subjects of the regulation of commerce with foreign nations and with the Indian tribes, there exists no practical necessity for discussion in this paper; consequently only the subjects of the regulation of commerce “ among the several States," and of the laying of taxes and duties upon the same, will receive attention.
The suject thus to be regulated was Commerce "among the several States."
Commerce “among the several States” has been interpreted to mean that commerce which is not exclusively local or internal to a State ; that is, commerce beginning and ending in a State; but that commerce which crosses State lines, extending into more States than one-that commerce which concerns more States than one, Commerce Inter-State, and it may include Commerce Intra-State, when the same is incident to and inseparable f.om Commerce Inter-State.
All power having been delegated to the States not expressly delegated to the United States, or expressly or impliedly withheld, it follows that the States have full control over Commerce Intra-State ; may prescribe rules and regulations gov. erning the same, and the facilities, appliances, instrumentalities and means by which it is conducted ; may lay taxes or duties on such commerce and on such facilities, appliances, instrumentalities and means; may prescribe the compensation or charges to be paid for conducting such commerce, and may promote and protect, or may burden, obstruct or destroy, such commerce.
However, the fact should not be overlooked that Commerce Intra-State is that commerce which is exclusively local or internal to a State, and not incident to, or inseparable from Commerce Inter-State.
The States have no power to interfere with Commerce Inter-State, or with the facilities, appliances, instrumentalities and means by which the same is conducted, except it be the power to lay taxes or duties in some form, upon such facilities, appliances, instrumentalities and means, at the home, domicile and place of business of the person, company or corporation conducting such commerce : Prorided, however, that the situs for the purpose of taxation of such facilities, appliances instrumentalities and means, shall be actually within the jurisdiction of the taxing power; also a mere police power, to be exercised only in the protection of the health and morals of the people, and in the protection of property.
With the exception stated, a tax or duty laid upon the facilities, appliances, instrumentalities and means by which Commerce Inter-State is conducted, would be a tax or duty upon such commerce, and consequently void.
The power vested in Congress to regulate Commerce Inter-State, is not a general power, but is an erpress power. It is full power over the subject for the purpose expressed. It is complete in itself. It is exclusive, absolute, plenary and supreme, and can be exercised to its fullest extent, subject, however, to the restrictions and limitations contained in the United States Constitution, or in the laws and treaties made under it.
The power vested in Congress to regulate Commerce Inter-State, is the power to prescribe all necessary rules and regulations to govern the same, and includes the power to prescribe all necessary rules and regulations to promote and protect
to protect the rights of persons and property while in transitu Inter-State; to prevent the laying of taxes or duties on articles exported from any State; to prevent any preference being given to the ports of one State over those of another; to prevent vessels bound to or from one State, being required to enter, clear or pay duties in another State.
It would seem to be a question that is at least open to debate, as to whether or not the power vested in Congress to regulate Commerce Inter-State, includes the power to lay taxes or duties upon such commerce, or upon the facilities, appliances, instrumentalities and means by which the same is conducted; or to directly or indirectly prescribe the compensation or charges to be paid for conducting it'; or to in any manner burden, obstruet or destroy such commerce.
If Congress has the power to lay taxes or duties upon Commerce Inter-State, or upon the facilities, appliances, instrumentalities and means by which such commerce is conducted, or to directly or indirectly prescribe the compensation or charges to be paid for conducting the same, then it has the power to burden, obstruct or destroy it; and the protection of such commerce, and the facilities, appliances, insrumentalities and means by which the same is conducted, would depend wholly upon the discretion and moderation of Congress. In that event, if Congress should take action that would burden, obstruct or destroy such commerce, or the facilities, appliances, instrumentalities, and means by which the same
is conducted, or that would be oppressive to the persons, companies or corporations conducting such commerce, there would be no relief. The courts could not interfere.
On the other hand, if Congress has not such power, then such commerce would be free, and no present constituted power could, in any manner or form, lawfully burden, obstruct or destroy the same.
The question of whether or not there was withheld from the United States the power to lay taxes or duties upon Commerce Inter-State, or upon the facilities, appliances, instrumentalities and means by which the same is conducted; also the power to directly or indirectly prescribe the compensation or charges to be paid for conducting such commerce, consequently the power to burden, obstruct or destroy the same, is, at the present time, of much importance.
If such power was so withheld, then the same was reserved to the people, who still retain it, and who can only part with it through the medium of an amendment to the Constitution of the United States.
On June 15, 1866, Congress, by a preamble, recited the fact that the Constitution of the United States conferred upon Congress the power to regulate commerce among the several States, to establish post roads, and to raise and support armies, and thereupon, by enactment, declared that every railroad company in the United States whose road is operated by steam, its successors and assigns, be authorized to carry upon and over its road, boats, bridges and ferries all passengers, troops, government supplies, mails, freight and property, on their way from any State to another State, and to receive compensation therefor, and to connect with other roads of other States, so as to form continuous lines for transportation.
Such preamble and enactment does not appear to have been an attempt to regulate commerce "among the several States;" consequently, it is somewhat difficult to conceive the purpose of the same, unless it was an attempt to promote and assist such commerce; and even for that purpose it would appear to have been wholly unnecessary.
It would seem to have been more the intention to withhold from the States all power to interfere with commerce Inter-State, than that Congress should take action respecting the same. Such is quite evident, in view of the fact that Congress took no action regarding the subject, except as stated, for a period of one hundred years, during which time commerce flourished, and, consequently, the United States prospered as no country ever before prospered.
Non-action by Congress in prescribing rules and regulations to govern commerce Inter-State is, in effect, a declaration that the existing usages and customs governing the same are satisfactory, and that such commerce shall continue free from governmental interference.
Commerce Inter-State, free and unburdened by governmental regulations, restrictions and limitations, has been the motive power of progress. One-fifth of the entire wealth of the United States is represented by the facilities, appliances, instrumentalities and means by which such commerce is conducted.
That a great commerce should produce prosperity and result in the accumulation and concentration of wealth, is not strange.
The extensive commerce in which King Solomon was engaged produced much prosperity and wealth. It is said that King Solomon became so rich in worldly goods that he made “silver to be in Jerusalem as stones, and cedars as the sycamore trees that were in the vale for abundance."
Less than two years ago, Congress, for the first time, took action respecting the regulation of commerce Inter-State, and with adjacent foreign countries, by enacting what is known as “The Inter-State Commerce Law.” The law embraces only that branch of commerce Inter-State, and with adjacent foreign countries, which relates to transportation. Respecting the constitutionality of such law, its general practical effect, whether or not it tends to promote and protect, or to burden, obstruct or destroy such commerce, and the necessity, or otherwise, for any law upon the subject, it is not the purpose of this paper to deal.
In conclusion, it is only necessary to refer to the result of the past, by saying that, from a commercial standpoint, the United States, with many navigable rivers; with large lakes ; with an immense gulf; with a great ocean on the east and on the west ; with numerous sail and steam craft afloat; with one hundred and fifty thousand (150,000) miles of railroads in operation ; with four hundred thousand (400,000) miles of telegraph and telephone lines in use; with a national commerce of twenty billions of dollars ($20,000,000,000) per annum; with a national wealth of fifty billions of dollars ($30,000,000,000); with a national population of sixty millions (60,000,000) of people,--and capable of maintaining a population of a billion (1,000,000,000) of people,-is to-day the brightest star in the galaxy of nations.
The United States is the synonym for life, for energy, for enterprise, for progression, and for national greatness, and within less than one hundred years, yea, more, within less than fifty years, has done more to advance and develop the material interests of mankind than all other countries through all past ages.
The future of such phenomenal growth, of such a national commerce, of such a national wealth, of such a national population, of such a national greatness, can only be measured by such a nation's requirements.
By L. L. COBURN.
READ BEFORE THE ILLINOIS STATE BAR ASSOCIATION, AT ITS TWELFTH ANNUAL
MEETING, HELD AT SPRINGFIELD, JANUARY 8 AND 9, 1889.
Mr. President and Gentlemen of the Association:
There are many kinds of law. All of the different kinds are important, and probably necessary to secure citizens the blessings of liberty, and the full enjoyment of their rights to acquire and hold property. One of the fundamental principles of all civilized governments is to fully protect each and every of its citizens in the ownership and enjoyment of the fruits of his or her labor. If a person produces anything by mental or physical labor which is of value, that thing, whether it be material or ideal, becomes property; the person producing it is entitled to keep it and enjoy it, or to receive an equivalent in value for it. The person producing it is entitled to the thing which he produces, and to enjoy it or to receive an equivalent in value for it, whether it be a material thing produced, or whether it be mere ideas, or partly ideal and partly material.
The artisan, by his labor, makes a machine by simply duplicating what is before him, with no new ideas. He has the full property right to keep and enjoy or sell the material thing produced, and the law protects him in that right.
The author, by his labor, produces new ideas as the fruit of his labor, and is entitled to the possession and enjoyment, or the right to sell the property so produced, and the law should protect him in his possession and enjoyment and sale as fully and to the same extent that the artisan is protected in the enjoyment of the fruits of his labor.
The inventor must have new ideas which he can embody in practical form, and produce something which is new and useful, combining in the fruits of his labor new ideas, with the ability to produce a new and useful material thing. If his mental labor consists in a new discovery of a principle or an art, he must combine with that discovery the method by which the new discovery can be made useful. The inventor, therefore, combines the labor of the author with the labor of the artisan. The law protects the artisan in his ownership of the particular machine or thing which he makes, to do what he pleases with it, but does not prevent others from making other machines or things identically like it, and own what they make, because the machine or thing which the artisan made was all that he produced. There were no new ideas in it.
The author has an exclusive right to the use of the new ideas which he produces as the fruit of his labor, as much as the mechanic to the machine or thing which he produced He therefore has not only the right to the property of a single book which may make, or cause be made, but the right to prevent others from making other books like it.