navigation, plain inhibitions to the exercise of that power in a particular way, it is a proof that those who made these exceptions, and prescribed these inhibitions, understood the power to which they applied as being granted. "The ninth section of the first article declares that 'no preference shall be given, by any regulation of commerce or revenue, to the ports of one state over those of another.' This clause cannot be understood as applicable to those laws only which are passed for the purpose of revenue, because it is expressly applied to commercial regulations and the most obvious preference which can be given one port over another, in regulating commerce, relates to navigation, but the subsequent part of the sentence is still more explicit. It is, 'nor shall vessels bound to or from one state, be obliged to enter, clear, or pay duties in another.' These words have a direct reference to navigation. "The universally acknowledged power of the government to impose embargoes must also be considered as showing that all America is united in that construction which comprehends navigation in the word 'commerce.' Gentlemen have said, in argument, that this is a branch of the war-making power, and that an embargo is an instrument of war, not a regulation of trade. That it may be and often is, used as an instrument of war, cannot be denied. An embargo may be imposed for the purpose of facilitating the equipment or manning of a fleet, or for the purpose of concealing the progress of an expedition preparing to sail from a particular port. In these, and in similar cases, it is a military instrument, and partakes of the nature of war. But all embargoes are not of this description. They are sometimes resorted to without a view to war, and with a single view to commerce. In such case an embargo is no more a war measure than a merchantman is a ship of war, because both are vessels which navigate the ocean with sails and seamen." Transportation not only is commerce, but it is an essential element always to be found in cases of interstate commerce. Transportation is the means by which commerce is carried on; without transportation there could be no commerce between nations or among the states. In every case which has been held to be within the constitutional grant to Congress, actual transportation, either of persons or property, appears to be the characteristic of foreign commerce and of commerce among the states.1 In a later case than Gibbons vs. Ogden, the Supreme Court said: "Transportation for others, as an independent business, is commerce, irrespective of the purpose to sell or retain the goods which the owner may entertain with regard to them after they shall have been delivered." 15 The control of Congress over transportation gives to it a like power of regulation over those appliances or instrumentalities by which transportation is affected. The early cases on this point were mainly concerned with regulations affecting steamboats, 16 but in the later cases it has been railroads whose regulation generally 14 Prentice and Egan's Commerce Clause of the Federal Constitution, citing Steamship Co. vs. Pennsylvania, 122 U. S., 326339; Von Holst, Constitutional Law of U. S., p. 138; United States vs. E. C. Knight Co., 156 U. S., 1; Philadelphia, etc., S. S. Co., vs. Pennsylvania, "Hawley vs. Kansas City Southern was attempted." As an incident to their control over railroads it has been held that Congress has the power to authorize the construction of a railroad,18 or to grant a right of way to a railroad.19 Telegraph lines are so intimately connected with commerce in their use, that their regulation is held to be a regulation of commerce, and as such to be within the power of Congress.20 The same rule applies to telephone lines according to State decisions, there being as yet no Federal adjudication of the question.21 The handling and slaughtering of animals is commerce.22 In their regulation of commerce Congress has the same power over corporations that it has over individuals.23 This necessarily results from the fact that the United States Constitution makes no acknowledgment of corporations as artificial persons, and under it they can only be regarded, at least in theory, as aggregations of individuals. The power to regulate commerce includes the power to declare what articles are legal subjects of commerce.24 SECTION 69. WHAT COMMERCE DOES NOT INCULDE. While the courts have given a very broad meaning to the term commerce, still not every transaction. involving the payment of money is commerce. "See Reading R. R. Co. vs. Penn sylvania, 15 Wallace, 284; 18 California vs. Central Pacific R. 10 Cherokee Nation vs. Southern Kansas R. Co., 135 U. S., 642. 30 Lelamp vs. Mobile, 127 U. S., 645; Western Union Telegraph Co. vs. Jarnes, 162 U. S., 634; Western Union Telegraph Co. vs. Alabama State Bank of 21 Central Union Telegraph Co. vs. 23 Crutcher vs. Kent, 141 U. S., 57; 24 Bowman vs. Railway Co., 125 U. S., 465; Leisy vs. Hardin, 135 U. S., 100, United States vs. Papper, 98 Federal Reporter, 427. Insurance is not commerce. This subject is deserving of especial attention, here, in view of the present agitation for the national regulation of insurance companies. The only ground upon which the Federal Government could assume such regulation would be as a regulation of interstate commerce, and the decisions of the United States courts have, without exception, held that insurance is not commerce. In the leading case of this subject, Paul vs. Virginia,25 Mr. Justice Field in delivering the opinion of the Court, said: "Issuing a policy of insurance is not a transaction of commerce. The policies are simple contracts of indemnity against loss by fire, entered into between the corporation and the insured, for a consideration paid by the latter. These contracts are not articles of commerce in any proper meaning of the word. They are not subjects of trade and barter offered in the market as something having an existence and value independent of the parties to them. They are not commodities to be shipped or forwarded from one state to another, and then put up for sale. They are like other personal contracts between parties which are completed by their signature and the transfer of the consideration. Such contracts are not interstate transactions, though the parties may be domiciled in different states. The policies do not take effect-are not executed contracts-until delivered by the agent in Virginia. They are then, local transactions and are governed by the local law. They do not constitute a part of the commerce between the states any more than a contract for the purchase and sale of goods in Virginia by a citizen of New York, whilst in Virginia would constitute a portion of such commerce." In the Liverpool and London Life and Fire Insur 25 8 Wallace, 168. ance Company vs. Massachusetts,20 the Court reaffirmed the decision in Paul vs. Virginia, and in Berry vs. Mobile Life Insurance Company," this doctrine was applied to life insurance contracts. This last case also decided that the fact that the parties were domiciled in different states was immaterial. This principle that insurance is not commerce was affirmed by the Supreme Court for the last time (to date) in New York Life Insurance Company vs. Cravens 28 decided in 1900. The United States Government cannot restrain a state, from passing such insurance regulations as it deems proper, or even from discriminating against foreign insurance companies. A statute of the State of New York provided that when the laws of other states imposed upon insurance companies incorporated under the laws of New York as a condition to their doing business in such states, greater burdens than were imposed by the laws of New York upon similar companies of such other states doing business in New York, then the same burdens should be imposed upon the companies of such other states doing business in New York as were by the laws of such states imposed upon New York companies. The Supreme Court decided that this law was not unconstitutional under the fourteenth amendment to the Constitution of the United States providing that no state shall "deny to any person within its jurisdiction the equal protection of its laws." 29 The mere production or manufacture of commodities are not acts of commerce. In Kidd vs. Pearson 30 the constitutionality of the Iowa law prohibiting the manufacture of intoxicating liquors within the limits of the state was attacked, on the ground that 28 10 Wallace, 566. 27 3 Fed. Cas. No. 1, 358. 28 178 U. S., 401. 29 Fire Association of Philadelphia vs. New York, 119 U. S., 110. So 128 U. S., 1. |