possessed over them is such that the authority to prohibit is as to them but the exertion of the power to regulate.

"In each of these instances the use of interstate transportation was necessary to the accomplishment of harmful results. In other words, although the power over interstate transportation was to regulate, that could only be accomplished by prohibiting the use of the facilities of interstate commerce to effect the evil intended.

"This element is wanting in the present case. The thing intended to be accomplished by this statute is the denial of the facilities of interstate commerce to those manufacturers in the States who employ children within the prohibited ages. The act in its effect does not regulate transportation among the States, but aims to standardize the ages at which children may be employed in mining and manufacturing within the States. The goods shipped are of themselves harmless.”

Thus the doctrine is not that prohibition of the interstate movement of certain commodities can never be a regulation of interstate commerce. Indeed, it is admitted that in some cases it may be. In the Lottery Case it had been broadly contended that the power to regulate did not include the power to prohibit certain articles; but as Mr. Justice Holmes stated in the Child Labor Case:

"It would not be argued to-day that the power to regulate does not include the power to prohibit. Regulation means the prohibition of something. . . . At all events it is established by the Lottery Case and others that have followed it that a law is not beyond the regulative power of Congress merely because it prohibits certain transportation out and out."

The doctrine of the majority opinion is that the prohibition of the interstate transportation of harmful commodities is a regulation of interstate commerce, whereas the prohibition of the interstate transportation of harmless goods is not. Whether or not the regulation is of transportation across state lines, therefore, depends not upon whether the journey is from one state to another, but upon the character of the goods.

The doctrine thus set forth, however, does not take into account, and the majority opinion did not discuss, the many cases in which prohibitions of interstate transportation of harmless commodities have been expressly held to be regulations of interstate commerce. Section 6 of the Sherman Anti-Trust Act of July, 1890,17 pro

17 C. 647, 26 Stat. 209.

hibits the transportation of trust-made goods across state lines. The contention that Congress has no power to deal with legitimate articles of commerce was squarely but unsuccessfully pressed by counsel in United States v. American Tobacco Co.18

The Commodities Clause, in language a simple prototype of section I of the Child Labor Law, makes it unlawful for any railroad company "to transport from any State . . . to any other State

Ι

any article or commodity . . . in which it may have any interest, direct or indirect." 19 The statute was sustained in Delaware & Hudson Co. v. United States,20 with reference to the transportation of coal, a commodity harmless in and of itself.

The Supreme Court decisions have been even more express and to the point. In a series of cases not considered in the majority opinion, state statutes prohibiting the movement of commercial commodities across state lines have been held invalid precisely because they were regulations of the interstate movement of innocuous commodities.21

In the Husen Case the Missouri statute provided that "no Texas, Mexican, or Indian cattle shall be driven or otherwise conveyed into or remain in any county of this State. . . ." The court said: 22

"It is a plain regulation of inter-state commerce, a regulation extending to prohibition . . that the transportation of property from one State to another is a branch of inter-state commerce is undeniable, and no attempt has been made in this case to deny it."

The case has been repeatedly followed and approved.23

In Leisy v. Hardin,24 an Iowa statute held invalid prohibited the sale in the original package of intoxicating liquors brought from outside the state. The ground was that liquor was at that time a legitimate article of commerce. The court said:

25

"That ardent spirits, distilled liquors, ale and beer are subjects of exchange, barter and traffic, like any other commodity in which a right of

21 Railroad v. Husen, 95 U. S. 465 (1877); Leisy v. Hardin, 135 U. S. 100 (1890); Schollenberger v. Pennsylvania, 171 U. S. 1 (1898).

22 Page 469.

23 Reid v. Colorado, 187 U. S. 137 (1902); M. K. & T. Ry. Co. v. Haber, 169 U. S. 613 (1898); Asbell v. Kansas, 209 U. S. 251 (1908).

24

135 U. S. 100 (1890).

25

135 U. S. 110 (1890).

traffic exists, and are so recognized by the usages of the commercial world, the laws of Congress and the decisions of courts, is not denied. Being thus articles of commerce, can a State, in the absence of legislation on the part of Congress, prohibit their importation from abroad or from a sister State?"

The court continued as follows: 26

"To concede to a State the power to exclude, directly or indirectly, articles so situated, without congressional permission, is to concede to a majority of the people of a State, represented in the state legislature, the power to regulate commercial intercourse between the States, by determining what shall be its subjects, when that power was distinctly granted to be exercised by the people of the United States, represented in Congress, and its possession by the latter was considered essential to that more perfect Union which the Constitution was adopted to create."

The last quotation is approved in Schollenberger v. Pennsylvania,27 holding void a state statute which forbade the sale of oleomargarine in the original package which was brought into the state from without. On page twenty-five the court said that the statute substantially prohibited the introduction of a pure article and thereby interfered with interstate commerce.28

On the basis of these decisions, state courts have been clear that state statutes, prohibiting shipment into the state from other states of convict-made goods, are invalid.29 Yet, following the Child Labor Law Case, the Congressional prohibition of importation of convict-made goods, which has stood since the act of August 27, 1894,30 is ultra vires, since the goods are harmless.

Let the subject matter be child-made goods, and let the words of the statute prohibit their transportation across state lines; the goods, the journey, and the governing rule the same; if a state legislature enacts the act, it is a regulation of interstate commerce

26 Page 125.

27 171 U. S. 1 (1898).

28 Brimmer v. Rebman, 138 U. S. 78 (1891), Voight v. Wright, 141 U. S. 62 (1891), and Minnesota v. Barber, 136 U. S. 313 (1809), are cases of state regulations of interstate commerce in sound commodities such as wholesome beef and wheat flour, with the additional element that the regulations substantially discriminated against interstate commerce, an element entirely wanting in the Husen, Schollenberger, and Leisy cases.

29 People v. Hawkins, 157 N. Y. 1, 51 N. E. 257 (1898); Opinion of the Justices, 211 Mass. 604 (1912).

30 C. 349, 28 Stat. 509, 552.

and invalid, whereas if Congress is the enacting body, it is not a regulation of interstate commerce, and invalid.

It is difficult to believe that the adoption of the Constitution has left this great void of governmental authority. If in the distribution of powers between state and nation a large part of the power to regulate interstate commerce has been lost a weakness in the federal system hitherto unsuspected is developed. Prior to 1787 the states individually were all-powerful to prohibit, by impost, embargo, or otherwise, the importation from other states of any kind of commodity. Sovereign authority has always been understood to embrace power to prohibit for commercial reasons the importation from other states of harmless articles.31 Conspicuous illustrations of the exercise of such power by the original states between 1783 and 1787 were in the embargoes against commodities brought by British vessels, a matter referred to hereinafter in another connection. There is highest evidence of the existence of such power. The Articles of Confederation state:

"Art. 9. Sec. 1. The United States, in Congress assembled, shall have the sole and exclusive right and power of . . . entering into treaties. and alliances; provided that no treaty of commerce shall be made, whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods, or commodities, whatsoever."

It was largely because the power was exercised by each state against harmless products of other states with the selfish view of the effect of the importation upon the commerce and manufacture of the importing state that the Constitution was framed. It was not enough to forbid the states from prescribing rules for the conduct of such interstate shipments. As has been frequently recognized, not part but all the power they had over shipments from one state to another of any character of commodity was vested expressly in the federal government.

As was said in Gibbons v. Ogden, 32

"The 'power to regulate commerce,' here meant to be granted, was that power to regulate commerce which previously existed in the States.

But what was that power? The States were, unquestionably, supreme; and each possessed that power over commerce which is acknowledged to reside in every sovereign State.

"This power (said Mr. Chief Justice Marshall, page 196, 9 Wheat.), like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution. . . . If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States."

In Brown v. Maryland, after referring to the oppressed and degraded state of commerce previous to the adoption of the Constitution, the Chief Justice said:

"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. It is not, therefore, matter of surprise, that the grant should be as extensive as the mischief, and should comprehend all foreign commerce, and all commerce among the States."

In Welton v. Missouri 34 the court gave clear expression to the rule: "The power to regulate conferred by that clause upon Congress is one without limitation; and to regulate commerce is to prescribe rules by which it shall be governed, that is, the conditions upon which it shall be conducted; to determine how far it shall be free and untrammelled, how far it shall be burdened by duties and imposts, and how far it shall be prohibited."

35

And in Houston & Texas Ry. v. United States the court, in summarizing the law, declared:

"First. It is unnecessary to repeat what has frequently been said by this court with respect to the complete and paramount character of the power confided to Congress to regulate commerce among the several States. It is of the essence of this power that where it exists it dominates."

33

12 Wheat. (U. S.) 419, 446 (1827).

34

91 U. S. 275, 279, 280 (1875).

35 234 U. S. 342, 350 (1914).