Chapter XXVI: Section 1: of the act of 1887 contains the proviso "that the provisions (4)

In Southern Pacific Co. _v._ Arizona,[782] decided in 1945, Chief Justice Stone made the following systematic statement of principles which have guided the Court in the exercise of its power of judicial review of State legislation affecting interstate commerce: "Although the commerce clause conferred on the national government power to regulate commerce, its possession of the power does not exclude all state power of regulation. Ever since Willson _v._ Black-Bird Creek Marsh Co., 2 Pet. 245, and Cooley _v._ Board of Wardens, 12 How. 299, it has been recognized that, in the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it.[783] Thus the states may regulate matters which, because of their number and diversity, may never be adequately dealt with by Congress.[784] When the regulation of matters of local concern is local in character and effect, and its impact on the national commerce does not seriously interfere with its operation, and the consequent incentive to deal with them nationally is slight, such regulation has been generally held to be within state authority.[785]

"But ever since Gibbons _v._ Ogden, 9 Wheat. 1, the states have not been deemed to have authority to impede substantially the free flow of commerce from state to state, or to regulate those phases of the national commerce which, because of the need of national uniformity, demand that their regulation, if any, be prescribed by a single authority.[786] Whether or not this long-recognized distribution of power between the national and the state governments is predicated upon the implications of the commerce clause itself,[787] or upon the presumed intention of Congress, where Congress has not spoken,[788] the result is the same.

"In the application of these principles some enactments may be found to be plainly within and others plainly without state power. But between these extremes lies the infinite variety of cases, in which regulation of local matters may also operate as a regulation of commerce, in which reconciliation of the conflicting claims of state and national power is to be attained only by some appraisal and accommodation of the competing demands of the state and national interests involved.[789]

"For a hundred years it has been accepted constitutional doctrine that the commerce clause, without the aid of Congressional legislation, thus affords some protection from state legislation inimical to the national commerce, and that in such cases, where Congress has not acted, this Court, and not the state legislature, is under the commerce clause the final arbiter of the competing demands of state and national interests.[790]

"Congress has undoubted power to redefine the distribution of power over interstate commerce. It may either permit the states to regulate the commerce in a manner which would otherwise not be permissible,[791] or exclude state regulation even of matters of peculiarly local concern which nevertheless affect interstate commerce.[792]

"But in general Congress has left it to the courts to formulate the rules thus interpreting the commerce clause in its application, doubtless because it has appreciated the destructive consequences to the commerce of the nation if their protection were withdrawn,[793] and has been aware that in their application state laws will not be invalidated without the support of relevant factual material which will 'afford a sure basis' for an informed judgment.[794] Meanwhile, Congress has accommodated its legislation, as have the states, to these rules as an established feature of our constitutional system. There has thus been left to the states wide scope for the regulation of matters of local state concern, even though it in some measure affects the commerce, provided it does not materially restrict the free flow of commerce across state lines, or interfere with it in matters with respect to which uniformity of regulation is of predominant national concern."

State Regulation of Agencies of Interstate Commerce

RAILWAY RATE REGULATION

In one of the Granger Cases decided in 1877 the Court upheld the power of the legislature of Wisconsin in the absence of legislation by Congress, to prescribe by law the maximum charges to be made by a railway company for fare and freight upon the transportation of persons and property within the State, or taken up outside the State and brought within it, or taken up inside and carried without it.[795] Ten years later, in Wabash, St. Louis and Pacific Railway Co. _v._ Illinois[796] this decision was reversed as to persons and property taken up within the State and transported out of it and as to persons and property brought into the State from outside. As to these, the Court held that the regulation of rates and charges must be uniform and that, therefore, the States had no power to deal with the subject even when Congress had not acted. The following year Congress passed the Interstate Commerce Act[797] to fill the gap created by the Wabash decision. Today, the States still exercise the power to regulate railway rates for the carriage of persons and property taken up and put down within their borders, but do so subject to the rule, which is enforced by the Interstate Commerce Commission, that such rates may not discriminate against interstate commerce.[798]

ADEQUATE SERVICE REGULATIONS

In many other respects the power still remains with the States to require by statute or administrative order a fair and adequate service for their inhabitants from railway companies, including interstate carriers operating within their borders, so long as the burdens thus imposed upon interstate commerce are, in the judgment of the Court, "reasonable." In an instructive brace of cases the Court was asked to say whether a carrier, in the interest of providing proper local facilities of commerce, could be required to stop its interstate trains. In one case a State regulation requiring all regular passenger trains operating wholly within the State to stop at all county seats was held to have been validly applied to interstate connection trains;[799] while in the other case a statute requiring _all_ passenger trains to stop at county seats was held invalid, there being "other and ample accommodation."[800] Comparing these and other like decisions, the Court has stated "the applicable general doctrine" to be as follows: (1) It is competent for a State to require adequate local facilities, even to the stoppage of interstate trains or the rearrangement of their schedules. (2) Such facilities existing--that is, the local conditions being adequately met--the obligation of the railroad is performed, and the stoppage of interstate trains becomes an improper and illegal interference with interstate commerce. (3) And this, whether the interference be directly by the legislature or by its command through the orders of an administrative body. (4) The fact of local facilities this court may determine, such fact being necessarily involved in the determination of the Federal question whether an order concerning an interstate train does or does not directly regulate interstate commerce, by imposing an arbitrary requirement.[801] "There is, however," it later added, "no inevitable test of the instances; the facts in each must be considered."[802]

In the same way a State regulation requiring intersecting railways to make track connections was held valid,[803] as was also a regulation requiring equality of car service between shippers;[804] while a regulation requiring the delivery of shipments on private sideways[805] and one requiring cars for local shipments to be furnished on demand, were held to be invalid.[806] In the first brace of decisions, the application of the local regulation to interstate commerce was found not to be "unduly" burdensome; in the second brace the contrary conclusion was reached.

SAFETY AND OTHER REGULATIONS

A class of regulations as to which the Court has exhibited marked tolerance although they "incidentally" embrace interstate transportation within their operation are those which purport to be in furtherance of "public safety."[807] The leading case is Smith _v._ Alabama,[808] in which the Court held it to be within the police power of the State to require locomotive engineers to be examined and licensed, and to enforce this requirement until Congress should decree otherwise in the case of an engineer employed exclusively in interstate transportation. Also upheld as applicable to interstate trains were a statute which forbade the heating of passenger cars by stoves;[809] a municipal ordinance restricting the speed of trains within city limits;[810] the order of a public utility commission requiring the elimination of grade crossings;[811] a statute requiring electric headlights of a specified minimum capacity;[812] a statute requiring three brakemen on freight trains of over twenty-five cars.[813] In the last case the Court admitted that "under the evidence," there was "some room for controversy" as to whether the statute was necessary, but thought it "not so unreasonable as to justify the Court in adjudging it" to be "merely an arbitrary exercise of power" and "not germane" to objects which the State was entitled to accomplish.[814] And in 1943 the Court sustained, though again in somewhat doubtful terms, the order of a State railroad commission requiring a terminal railroad which served both interstate and local commerce to provide caboose cars for its employees.[815] At times, indeed, the Court has made surprising concession to local views that had nothing to do with safety. Hennington _v._ Georgia,[816] decided in 1896, where was sustained a Georgia statute forbidding freight trains to run on Sunday, is perhaps the supreme example. Whether such an act would pass muster today is doubtful. And earlier statutes reinforcing the legal liability of railroads as common carriers and the carriers of passengers were sustained in the absence of legislation by Congress.[817]

INVALID STATE REGULATIONS

"The principle that, without controlling Congressional action, a State may not regulate interstate commerce so as substantially to affect its flow or deprive it of needed uniformity in its regulation is not to be avoided by 'simply invoking the convenient apologetics of the police power.'" So remarks Chief Justice Stone in his summarizing opinion cited above, in Southern Pacific Co. _v._ Arizona.[818] Among others he lists the following instances in which State legislation was invalidated on the basis of this rule: "In the Kaw Valley case[819] the Court held that the State was without constitutional power to order a railroad to remove a railroad bridge over which its interstate trains passed, as a means of preventing floods in the district and of improving its drainage, because it was 'not pretended that local welfare needs the removal of the defendants' bridges at the expense of the dominant requirements of commerce with other States, but merely that it would be helped by raising them.' And in Seaboard Air Line R. Co. _v._ Blackwell,[820] it was held that the interference with interstate rail transportation resulting from a State statute requiring as a safety measure that trains come almost to a stop at grade crossings, outweigh the local interest in safety, when it appealed that compliance increased the scheduled running time more than six hours in a distance of one hundred and twenty-three miles."[821] And "more recently in Kelly _v._ Washington,"[822] the Chief Justice continued, "we have pointed out that when a State goes beyond safety measures which are permissible because only local in their effect upon interstate commerce, and 'attempts to impose particular standards as to structure, design, equipment and operation [of vessels plying interstate] which in the judgment of its authorities may be desirable but pass beyond what is plainly essential to safety and seaworthiness, the State will encounter the principle that such requirements, if imposed at all, must be through the action of Congress which can establish a uniform rule. Whether the State in a particular matter goes too far must be left to be determined when the precise question arises.'"

STATE REGULATION OF LENGTH OF TRAINS

Applying the test of these precedents, the Chief Justice concluded that Arizona, in making it unlawful to operate within the State a railroad train of more than fourteen passenger or seventy freight cars, had gone "too far"; and in support of this conclusion he recites the following facts: "In Arizona, approximately 93% of the freight traffic and 95% of the passenger traffic is interstate. Because of the Train Limit Law appellant is required to haul over 30% more trains in Arizona than would otherwise have been necessary. The record shows a definite relationship between operating costs and the length of trains, the increase in length resulting in a reduction of operating costs per car. The additional cost of operation of trains complying with the Train Limit Law in Arizona amounts for the two railroads traversing that State to about $1,000,000 a year. The reduction in train lengths also impedes efficient operation. More locomotives and more manpower are required; the necessary conversion and reconversion of train lengths at terminals and the delay caused by breaking up and remaking long trains upon entering and leaving the state in order to comply with the law, delays the traffic and diminishes its volume moved in a given time, especially when traffic is heavy.

"At present the seventy freight car laws are enforced only in Arizona and Oklahoma, with a fourteen car passenger car limit in Arizona. The record here shows that the enforcement of the Arizona statute results in freight trains being broken up and reformed at the California border and in New Mexico, some distance from the Arizona line. Frequently it is not feasible to operate a newly assembled train from the New Mexico yard nearest to Arizona, with the result that the Arizona limitation governs the flow of traffic as far east as El Paso, Texas. For similar reasons the Arizona law often controls the length of passenger trains all the way from Los Angeles to El Paso.

"If one State may regulate train lengths, so may all the others, and they need not prescribe the same maximum limitation. The practical effect of such regulation is to control train operations beyond the boundaries of the State exacting it because of the necessity of breaking up and reassembling long trains at the nearest terminal points before entering and after leaving the regulating State. The serious impediment to the free flow of commerce by the local regulation of train lengths and the practical necessity that such regulation, if any, must be prescribed by a single body having a nation-wide authority are apparent.

"The trial court found that the Arizona law had no reasonable relation to safety, and made train operation more dangerous. Examination of the evidence and the detailed findings makes it clear that this conclusion was rested on facts found which indicate that such increased danger of accident and personal injury as may result from the greater length of trains is more than offset by the increase in the number of accidents resulting from the larger number of trains when train lengths are reduced. In considering the effect of the statute as a safety measure, therefore, the factor of controlling significance for present purposes is not whether there is basis for the conclusion of the Arizona Supreme Court that the increase in length of trains beyond the statutory maximum has an adverse effect upon safety of operation. The decisive question is whether in the circumstances the total effect of the law as a safety measure in reducing accidents and casualties is so slight or problematical as not to outweigh the national interest in keeping interstate commerce free from interferences which seriously impede it and subject it to local regulation which does not have a uniform effect on the interstate train journey which it interrupts."[823]

THE LESSON OF SOUTHERN PACIFIC CO. _v._ ARIZONA

The lesson to be extracted from Southern Pacific Co. _v._ Arizona is a threefold one: 1) Where uniformity is judged by the Court to be "essential for the functioning of commerce, a State may not interpose its regulation"; 2) in resolving this question the Court will canvass what it considers to be relevant facts extensively; 3) its task is, however, in the last analysis, one of weighing competing values, in brief, arbitral rather than strictly judicial.

The lesson of Southern Pacific is further exemplified by the more recent holding in Morgan _v._ Virginia,[824] in which the Court was confronted with a State statute which, in providing for the segregation of white and colored passengers, required passengers to change seats from time to time as might become necessary to increase the number of seats available to the one race or the other. First, reciting the rule of uniformity, Justice Heed, for the Court, said: "Congress, within the limits of the Fifth Amendment, has authority to burden [interstate] commerce if that seems to it a desirable means of accomplishing a permitted end. * * * As no State law can reach beyond its own border nor bar transportation of passengers across its boundaries, diverse seating requirements for the races in interstate journeys result. As there is no federal act dealing with the separation of races in interstate transportation, we must decide the validity of this Virginia statute on the challenge that it interferes with commerce, as a matter of balance between the exercise of the local police power and the need for national uniformity in the regulations for interstate travel. It seems clear to us that seating arrangements for the different races in interstate motor travel require a single, uniform rule to promote and protect national travel. Consequently, we hold the Virginia statute in controversy invalid."

STATE REGULATION OF MOTOR VEHICLES; VALID REGULATIONS

Cases arising under this caption further illustrate the competition for judicial recognition between the interstate commerce interest and local interests, especially that of public safety. A new element enters the problem, however, which lends some added weight to the claims of the police power, the fact, namely, that motor vehicles use highways furnished and maintained by the State.

A State is entitled to enact a comprehensive scheme for the licensing and regulation of motor vehicles using its highways with a view to insuring itself of reasonable compensation for the facilities afforded and to providing adequate protection of the public safety; and such scheme may embrace out-of-State vehicles using the State's highways.[825] Thus legislation limiting the net loads of trucks using the State's highways is valid;[826] as are also, in the absence of national legislation on the subject, State regulations limiting the weight and width of the vehicles themselves, provided such regulations are applied without discrimination as between vehicles moving in interstate commerce and those operating only intrastate.[827] Likewise, a State may deny a certificate of public convenience and necessity to one desiring to operate a common carrier over a particular highway to an out-of-State destination in an adjacent State, on the ground that the specified route is already congested. So it was held in Bradley _v._ Public Utilities Commission of Ohio,[828] in which the Court took cognizance of the full hearing accorded the appellant, and of his failure to choose another route, although he was at liberty to do so. And in Maurer _v._ Hamilton a Pennsylvania[829] statute prohibiting the operation over its highways of any motor vehicle carrying any other vehicle over the head of the operator was upheld in the absence of conflicting Congressional legislation. Similarly, in Welch _v._ New Hampshire[830] a statute of that State establishing maximum hours for drivers of motor vehicles was held not to be superseded by the Federal Motor Carrier Act prior to the effective date of regulations by the Interstate Commerce Commission dealing with the subject. Nor was pendency before the Interstate Commerce Commission of an application under the Motor Carrier Act for a license to operate a motor carrier in interstate commerce found to supersede as to the applicant the authority of a State to enforce "reasonable regulations" of traffic upon its highways. "In the absence of the exercise of federal authority," said the Court, "and in the light of local exigencies, the State is free to act in order to protect its legitimate interests even though interstate commerce is directly affected."[831] And for the same reason New York City was entitled to apply to trucks engaged in the delivery of goods from New Jersey a traffic regulation forbidding the operation on the streets of an advertising vehicle.[832] Said Justice Douglas for the Court: "Many of these trucks are engaged in delivering goods in interstate commerce from New Jersey to New York. Where traffic control and the use of highways are involved and where there is no conflicting federal regulation, great leeway is allowed local authorities, even though the local regulation materially interferes with interstate commerce."[833] Also, the Court has consistently sustained State regulations requiring motor carriers to provide adequate insurance protection for injuries caused by the negligent operation of their vehicles.[834]

INVALID STATE ACTS AFFECTING MOTOR CARRIERS

A State law which imposes upon all persons engaged in transporting for hire by motor vehicle over the public highways of the State the burdens and duties of common carriers and requires them to furnish bonds to secure the payment of claims and liabilities resulting from injury to property carried, may not be validly applied to a private carrier which is engaged exclusively in hauling from one State to another State the goods of particular factories under standing contracts with their owners, the said carrier enjoying neither a special franchise nor using the eminent domain power.[835] On the other hand, a State statute which prohibits common carriers for hire from using the highways of the State between fixed termini or over regular routes without having first obtained from a director of public works a certificate of public convenience, is primarily not a regulation to secure safety on the highways or to conserve them, but a ban on competition and, as applied to a common carrier by motor vehicle of passengers and express purely in interstate commerce, is both violation of the Commerce Clause and defeats the express purpose of Congressional legislation rendering federal aid for the construction of interstate highways.[836]

TRANSPORTATION AGENCIES

The special characteristics of motor travel have brought about a reversal of the Court's attitude toward State control of transportation agencies. Sustaining in 1941 a California statute requiring that agents engaged in negotiating for the transportation of passengers in motor vehicles over the highways of the State take out a license, Justice (later Chief Justice) Stone, speaking for the Court, said: "In Di Santo _v._ Pennsylvania,[837] this Court took a different view * * *, it held that a Pennsylvania statute requiring others than railroad or steamship companies, who engage in the intrastate sale of steamship tickets or of orders for transportation to and from foreign countries, to procure a license by giving proof of good moral character and filing a bond as security against fraud and misrepresentation to purchasers, was an infringement of the Commerce Clause. Since the decision in that case this Court has been repeatedly called upon to examine the constitutionality of numerous local regulations affecting interstate motor vehicle traffic. It has uniformly held that in the absence of pertinent Congressional legislation there is constitutional power in the States to regulate interstate commerce by motor vehicle wherever it affects the safety of the public or the safety and convenient use of its highways, provided only that the regulation does not in any other respect unnecessarily obstruct interstate commerce."[838]

NAVIGATION; GENERAL DOCTRINE

In Gibbons _v._ Ogden[839] the Court, speaking by Chief Justice Marshall, held that New York legislation which excluded from the navigable waters of that State steam vessels enrolled and licensed under an act of Congress to engage in the coasting trade was in conflict with the act of Congress and hence void. In Willson _v._ Blackbird Creek and Marsh Co.[840] the same Court held that in the absence of an act of Congress, "the object of which was to control State legislation over those small navigable creeks into which the tide flows," the State of Delaware was entitled to incorporate a company vested with the right to erect a dam across such a creek. From these two cases the Court in Cooley _v._ the Board of Wardens,[841] decided in 1851, extracted the rule that in the absence of conflicting legislation by Congress States were entitled to enact legislation adapted to the local needs of interstate and foreign commerce, that a pilotage law was of this description, and was, accordingly, constitutionally applicable until Congress acted to the contrary to vessels engaged in the coasting trade. In the main, these three holdings have controlled the decision of cases under the above and the following caption, there being generally no applicable act of Congress involved. But the power which the rule attributed to the States, they must use "reasonably," something they have not always done in the judgment of the Court.

Thus an Alabama statute which required that owners of vessels using the public waters of the enacting State be enrolled, pay fees, file statements as to ownership, etc., was held to be inapplicable to vessels licensed under the act of Congress to engage in the coasting trade;[842] as was also a Louisiana statute ordering masters and wardens of the port of Orleans to survey the hatches of all vessels arriving there and to enact a fee for so doing.[843] "The unreason and the oppressive character of the act" was held to take it out of the class of local legislation protected by the rule of the Cooley case.[844] Likewise, while control by a State of navigable waters wholly within its borders has been often asserted to be complete in the absence of regulation by Congress,[845] Congress may assume control at any time;[846] and when such waters connect with other similar waters "so as to form a waterway to other States or foreign nations, [they] cannot be obstructed or impeded so as to impair, defeat, or place any burden upon a right to their navigation granted by Congress."[847]

On the other hand, in Kelly _v._ Washington,[848] decided in 1937, the Court sustained the State in applying to motor-driven tugs operating in navigable waters of the United States legislation which provided for the inspection and regulation of every vessel operated by machinery if the same was not subject to inspection under the laws of the United States. It was conceded that there was "elaborate" federal legislation in the field, but it was asserted that the Washington statute filled a gap. "The principle is thoroughly established," said Chief Justice Hughes for the Court, "that the exercise by the State of its police power, which would be valid if not superseded by federal action, is superseded only where the repugnance or conflict is so 'direct and positive' that the two acts cannot 'be reconciled or consistently stand together.'"[849] And in Bob-Lo Excursion Co. _v._ Michigan,[850] the Court, elbowing aside a decision of many years standing,[851] ruled that the commerce clause does not preclude a State, in the absence of federal statute or treaty, from forbidding racial discrimination by one carrying passengers by vessel to and from a port in the United States to an island situated in Canadian territory.

BRIDGES, DAMS, FERRIES, WHARVES

The holding in Willson _v._ Blackbird Creek Marsh Co.[852] has been invoked by the Court many times in support of State legislation permitting the construction across navigable streams of dams, booms, and other shore protections,[853] as well as in support of State legislation authorizing the erection of bridges and the operation of ferries across such streams.[854] Bridges, it is true, may obstruct some commerce, but they may more than compensate for this by aiding other commerce.[855] In Justice Field's words in Huse _v._ Glover,[856] it should not be forgotten that: "the State is interested in the domestic as well as in the interstate and foreign commerce conducted on the Illinois River, and to increase its facilities, and thus augment its growth, it has full power. It is only when, in the judgment of Congress, its action is deemed to encroach upon the navigation of the river as a means of interstate and foreign Commerce, that that body may interfere and control or supersede it. * * * How the highways of a State, whether on land or by water, shall be best improved for the public good is a matter for State determination, subject always to the right of Congress to interpose in the cases mentioned."[857] The same principle applies to the construction of piers and wharves in a navigable stream,[858] as well as to harbor improvements by a State for the aid and protection of navigation;[859] and reasonable tolls may be charged for the use of such aids, and reasonable regulations laid down governing their employment.[860]

Ferries

A State may license individuals to operate a ferry across an interstate river bounding its territory, or may incorporate a company for the purpose.[861] Nor may a neighbor State make the securing of its consent and license a condition precedent to the operation of such a ferry to one of its towns.[862] Earlier the right of a State to regulate the rates to be charged by an interstate bridge company for passage across its structure was denied by a closely divided Court.[863] The ruling does not, however, control the regulation of rates to be charged by an interstate ferry company. These the chartering State may, in the absence of action by Congress, regulate except in the case of ferries operated in connection with railroads,[864] as to which Congress has acted with the result of excluding all State action.[865] A State may also regulate the rates of a vessel plying between two points within the State although the journey is over the high seas; although again action by Congress may supersede State action at any time.[866]

TELEGRAPHS AND TELEPHONES

An Indiana statute which required telegraph companies to deliver dispatches by messenger to the persons to whom they were addressed if the latter resided within one mile of the telegraph station or within the city or town where it was located, and which prescribed the order of preference to be given various kinds of messages, was held to be an unconstitutional interference with interstate commerce;[867] as was also the order of the Massachusetts Public Service Commission interfering with the transmission to firms within the State's borders of continuous quotations of the New York Stock Exchange by means of ticker service.[868] But a Virginia statute which imposed a penalty on a telegraph company for failure in its "clear common-law duty" of transmitting messages without unreasonable delay, was held, in the absence of legislation by Congress, to be valid;[869] as was also a Michigan statute which prohibited the stipulation by a company against liability for nonperformance of such duty.[870] However, a South Carolina statute which sought to make mental anguish caused by the negligent nondelivery of a telegram a cause of action, was held to be, as applied to messages transmitted from one State to another or to the District of Columbia, an unconstitutional attempt to regulate interstate commerce.[871] A State has no authority to interfere with the operation of the lines of telegraph companies constructed along postal routes within its borders under the authority of the Post Road Act of 1866,[872] nor to exclude altogether a company proposing to take advantage of the act;[873] but that act does not deprive the State or a municipality of the right to subject telegraph companies to reasonable regulations, and an ordinance regulating the erection and use of poles and wires in the streets does not interfere with the exercise of authority under that act.[874] The jurisdiction conferred by The Transportation Act of 1920 upon the Interstate Commerce Commission, and since transferred to the Federal Communications Commission, over accounts and depreciation rates of telephone companies does not, in the absence of exercise by the federal agency of its power, operate to curtail the analogous State authority;[875] nor is an unconstitutional burden laid upon interstate commerce by the action of a State agency in requiring a telephone company to revise its intrastate toll rates so as to conform to rates charged for comparable distances in interstate service.[876]

GAS AND ELECTRICITY

The business of piping natural gas from one State to another to local distributors which sell it locally to consumers is a branch of interstate commerce which a State may not regulate.[877] Likewise, an order by a State commission fixing rates on electric current generated within the States and sold to a distributor in another State, imposes an unconstitutional burden on interstate commerce, although the regulation of such rates would necessarily benefit local consumers of electricity furnished by the same company.[878] In the absence, on the other hand, of contrary regulation by Congress a State may regulate the sale to consumers in its cities of natural gas produced in and transmitted from another State;[879] nor did Congress, by the National Gas Act of 1938, impose any such contrary regulation.[880] Likewise, a State is left free by the same act to require a gas company engaged in interstate commerce to obtain a certificate of convenience before selling directly to customers in the State.[881] And where a pipe line is used to distribute both gas that is brought in from without the State and gas that is produced and used within the State, and the two are commingled, but their proportionate quantities are known, an order by the State commission directing the gas company to continue supplying gas from the line to a certain community does not burden interstate commerce.[882] The transportation of natural gas from sources outside the State to local consumers in its municipalities ceases to be interstate commerce at the point where it passes from a pressure producing station into local distributing stations, and from that point is subject to State regulation.[883] A State public utilities commission is entitled to require a natural gas distributing company seeking an increase of rates to show the fairness and reasonableness of the rate paid by it to the pipe line company from which it obtains its supplies, both companies being subsidiaries of a third.[884] A State agency may require a company which sells natural gas to local consumers and distributing companies, transporting it in pipe lines from other States, to file contracts, agreements, etc., for sales and deliveries to the distributing companies;[885] nor does the fact that a natural gas pipe line from the place of production to the distributing points in the same State cuts across a corner of another State render it improper, in determining maximum rates for gas sold by the owner of the pipe line to distributing companies, to include the value of the total line in the rate base.[886] A State may, as a conservation measure, fix the minimum prices at the wellhead on natural gas produced in the State and sold interstate.[887]

FOREIGN CORPORATIONS

A State may require that a foreign corporation as a condition of its being admitted to do a local business or to having access to its courts obtain a license, and in connection therewith furnish information as to its home State or country, the location of its principal office, the names of its officers and directors, its authorized capitalization, and the like, and that it pay a reasonable license fee;[888] nor is a corporation licensed by the National Government to act as a customs broker thereby relieved from meeting such conditions.[889] So it was decided in 1944. The holding does not necessarily disturb one made thirty years earlier in which the Court ruled that a statute which closed the courts of the enacting State to any action on any contract in the State by a foreign corporation unless it had previously appointed a resident agent to accept process, could not be constitutionally applied to the right of a foreign corporation to sue on an interstate transaction.[890] A suit brought in a State court by a foreign corporation having its principal place of business in the State against another foreign corporation engaged in interstate commerce on a cause of action arising outside the State does not impose an undue burden on such commerce; and the forum being in other respects appropriate, its jurisdiction is not forfeited because the property attached is an instrumentality of interstate commerce.[891] There is nothing in the commerce clause which immunizes a foreign corporation doing business in a State from any fair inquiry, judicial or legislative, that is required by local laws.[892]

MISCELLANEOUS

Banks and Banking

A State statute which forbids individuals or partnerships to engage in the banking business without a license is not, as to one whose business chiefly consists in receiving deposits for periodic shipment to other States and to foreign countries, invalid as a regulation of interstate and foreign commerce.[893]

Brokers

A statute which requires dealers in securities evidencing title or interest in property to obtain a license from a State officer, is not invalid as applied to dispositions within the State securities transported from other States.[894]

Commission Men

A statute requiring commission merchants to give bonds for the protection of consignees may be validly applied to commission merchants handling produce shipped to them from without the State.[895]

Attachment and Garnishment

Railway cars are not exempt from attachment under State laws, although they may have been or are intended to be used in interstate commerce.[896]

Statutory Liens

A State statute which gives a lien upon all vessels whether domestic or foreign, and whether engaged in interstate commerce or not, for injuries to persons and property within the State, does not as applied to nonmaritime torts offend the commerce clause, there being no act of Congress in conflict.[897] Nor can the enforcement of a lien for materials used in the construction of a vessel be avoided because the vessel is engaged in interstate commerce.[898]

The Police Power and the Subject-Matter of Commerce

SCOPE OF THE POLICE POWER

"Quarantine regulations are essential measures of protection which the States are free to adopt when they do not come into conflict with Federal action. In view of the need of conforming such measures to local conditions, Congress from the beginning has been content to leave the matter for the most part, notwithstanding its vast importance, to the States and has repeatedly acquiesced in the enforcement of State laws. * * * Such laws undoubtedly operate upon interstate and foreign commerce. They could not be effective otherwise. They cannot, of course, be made the cover for discriminations and arbitrary enactments having no reasonable relation to health * * *; but the power of the State to take steps to prevent the introduction or spread of disease, although interstate and foreign commerce are involved (subject to the paramount authority of Congress if it decides to assume control), is beyond question.[899] * * * State inspection laws and statutes designed to safeguard the inhabitants of a State from fraud and imposition are valid when reasonable in their requirements and not in conflict with Federal rules, although they may affect interstate commerce in their relation to articles prepared for export or by including incidentally those brought into the State and held for sale in the original imported packages."[900]

QUARANTINE LAWS

In two earlier cases a Missouri statute which prohibited the driving of all Texan, Mexican, and Indian cattle into the state during certain seasons of the year was held void;[901] while a statute making anybody in the State who had Texas cattle which had not wintered north of a certain line liable for damage through the communication of disease from these to other cattle was sustained;[902] as were also the regulations of a sanitary commission which excluded all cattle, horses, and mules, from the State at a certain period when anthrax was prevalent.[903] Reviewing previous cases in the one last cited, the Court declared their controlling principle to be simply whether the police power of the State had been exerted to exclude "_beyond what is necessary for any proper quarantine_," a question predominantly of fact, and one therefore to be determined for each case with only general guidance from earlier decisions.[904]

More recent cases conform to the same pattern. Among measures sustained are the following: an Ohio statute forbidding the sale in that State of condensed milk unless made from unadulterated milk;[905] a New York statute penalizing the sale with intent to defraud of preparations falsely represented to be Kosher;[906] a New York statute requiring that cattle shall not be imported for dairy or breeding purposes unless accompanied by the certificate of a proper sanitary official in the State of origin, in order to prevent the spread of an infectious disease;[907] an order of a State Department of Agriculture, pursuant to a State law, regulating the standards of containers in which agricultural products (berries) may be marketed within the State;[908] a State statute restricting the processing of fish found within the waters of the State with the purpose of conserving it for food, even though it also operates upon fish brought into the State from without;[909] the price fixing and licensing provisions of a State Milk and Cream Act, not applicable to transactions in interstate commerce, by declaration of the act;[910] a Maine statute requiring the registration with the State Health Department of cosmetic preparations for the purpose of ascertaining whether the products are harmless;[911] an Indiana Animals Disposal Act requiring that animal carcasses, not promptly disposed of by the owner, be delivered to the representative of a disposal plant licensed by the State, and prohibiting their transportation on the public highways for any other purpose;[912] a Pennsylvania statute providing for the licensing and bonding of all milk dealers and fixing a minimum price to be paid producers, as applied to a dealer purchasing milk within the State for shipment to points outside it.[913]

STATE INSPECTION LAWS

The application of State inspection laws to imports from outside the State has been sustained as warranted by local interests and as not discriminating against out-of-state products, in the following instances: A North Carolina statute providing that "every bag, barrel, or other package" of commercial fertilizer offered for sale in the State should bear a label truly describing its chemical composition, which must comply with certain requirements, and charging 25 cents per ton to meet the cost of inspection;[914] an Indiana statute forbidding the sale in the original package of concentrated feeding stuffs prior to inspection and analysis for the purpose of ascertaining whether certain minimum standards as to composition had been met;[915] a Minnesota statute requiring as a precondition of its being offered for sale in the State, the inspection of illuminating oil and gasoline;[916] a Kansas statute forbidding any moving picture film or reel to be exhibited in the State unless it had been examined by the State Superintendent of Instruction and certified by him as moral and instructive and not tending to debase or corrupt the morals.[917] A Minnesota statute, on the other hand, which forbade the sale in any city of the State of any beef, mutton, lamb, or pork which, had not been inspected on the hoof by local inspectors within twenty-four hours of slaughter, was held void.[918] Its "necessary operation," said the Court, was to ban from the State wholesome and properly inspected meat from other States.[919] Also a Virginia statute which required the inspection and labelling of all flour brought into the State for sale was disallowed because flour produced in the State was not subject to inspection;[920] likewise a Florida statute providing for the inspection of all cement imported into the State and enacting a fee therefor, but making no provision for the inspection of the local product, met a like fate;[921] as did also a Madison, Wisconsin ordinance which sought to exclude a foreign corporation from selling milk in that city solely because its pasteurization plants were more than five miles away.[922]

STATE PROHIBITION LAWS; THE ORIGINAL PACKAGE DOCTRINE

The original package doctrine made its debut in Brown _v._ Maryland,[923] where it was applied to remove imports from abroad which were still in the hands of the importer in the original package, out of the reach of the State's taxing power. This rule the Court, overriding a dictum in Marshall's opinion in Brown _v._ Maryland,[924] rejected outright after the Civil War as to imports from sister States.[925] However, when in the late eighties and early nineties State-wide Prohibition laws began making their appearance, the Court seized on the rejected dictum and began applying it as a brake on the operation of such laws with respect to interstate commerce in intoxicants, which the Court denominated "legitimate articles of commerce." While holding that a State was entitled to prohibit the manufacture and sale within its limits of intoxicants,[926] even for an outside market--manufacture being no part of commerce[927]--it contemporaneously laid down the rule, in Bowman _v._ Chicago and Northwestern Railroad Co.,[928] that so long as Congress remained silent in the matter, a State lacked the power, even as part and parcel of a program of Statewide prohibition of the traffic in intoxicants, to prevent the shipment into it of intoxicants from a sister State; and this holding was soon followed by another to the effect that, so long as Congress remained silent, a State had no power to prevent the sale in the original package of liquors introduced from another State.[929] The effect of the latter decision was soon overcome by an act of Congress, the so-called Wilson Act, repealing its alleged silence,[930] but the Bowman decision still stood, the act in question being interpreted by the Court not to subject liquors from sister States to local authority until their arrival in the hands of the person to whom consigned.[931] Not till 1913 was the effect of the decision in the Bowman case fully nullified by the Webb-Kenyon Act,[932] which placed intoxicants entering a State from another State under the control of the former for all purposes whatsoever.

OLEOMARGARINE AND CIGARETTES

Long before this the immunity temporarily conferred by the original package doctrine upon liquors had been extended to cigarettes[933] and, with an instructive exception, to oleomargarine. The exception referred to was made in Plumley _v._ Massachusetts,[934] where the Court held that a statute of that State forbidding the sale of oleomargarine colored to look like butter could validly be applied to oleomargarine brought from another State and still in the original package. The justification of the statute to the Court's mind was that it sought "to suppress false pretenses and promote fair dealing in the sale of an article of food." Nor did Leisy and Co. _v._ Hardin[935] apply, said Justice Harlan for the Court, because the beer in that case was "genuine beer, and not a liquid or drink colored artificially so as to cause it to look like beer." That decision was never intended, he continued, to hold that "a State is powerless to prevent the sale of articles manufactured in or brought from another State, and subjects of traffic and commerce, if their sale may cheat the people into purchasing something they do not intend to buy * * *."[936] Obviously, the argument was conclusive only on the assumption that a State has a better right to prevent frauds than it has to prevent drunkenness and like evils; and doubtless that is the way the Court felt about the matter at that date. On the one hand, the liquor traffic was a very ancient, if not an altogether, venerable institution, while oleomargarine was then a relatively novel article of commerce whose wholesomeness was suspect. On the other hand, laws designed to secure fair dealing and condemnatory of fraud followed closely the track of the common law, while anti-liquor laws most decidedly did not. The real differentiation of the two cases had to be sought in historical grounds. Yet the State must not put unreasonable burdens upon interstate commerce even in oleomargarine. Thus a Pennsylvania statute forbidding the sale of this product even in the unadulterated condition was pronounced invalid so far as it operated to prevent the introduction of such oleomargarine from another State and its sale in the original package;[937] as was also a New Hampshire statute which required that all oleomargarine marketed in the State be colored pink.[938] A little later in the case above mentioned involving cigarettes, the Court discovered some of the difficulties of the original package doctrine when applied to interstate commerce, in which the package is not so apt to be standardized as it is in foreign commerce.[939]

DEMISE OF THE ORIGINAL PACKAGE DOCTRINE

What importance has the original package doctrine today as a restraint on State legislation affecting interstate commerce? The answer is, very little, if any. State laws prohibiting the importation of intoxicating liquor, have since the passage of the Twenty-first Amendment consistently been upheld, even when imposing a burden on interstate commerce or discriminating against liquor imported from another State.[940] Indeed the Court has, without appealing to the Twenty-first Amendment, even gone so far as to uphold a statute requiring a permit for transportation of liquor through the enacting State.[941] In Whitfield _v._ Ohio,[942] moreover, the Court upheld a State law prohibiting the sale in open market of convict-made goods including sales of goods imported from other States and still in the original package. While the decision is based on the Hawes-Cooper Act of 1929,[943] which follows the pattern of the Webb-Kenyon Act, Justice Sutherland speaking for the Court, takes pains to disparage the "unbroken-package doctrine, as applied to interstate commerce, * * *, as more artificial than sound."[944] Indeed, earlier cases make it clear that the enforcement of State quarantine and inspection acts, otherwise constitutional, is not to be impeded by the doctrine in any way.[945]

CURBS ON THE INTERSTATE MOVEMENT OF PERSONS

Prior to the Civil War the slaveholding States, ever fearful of a slave uprising, adopted legislation meant to exclude from their borders free Negroes whether hailing from abroad or from sister States, and in 1823 a South Carolina Negro Seamen's Act embodying this objective was held void by Justice William Johnson, himself a South Carolinian, in a case arising in the Carolina circuit and involving a colored British sailor.[946] The basis of the ruling, which created tremendous uproar in Charleston,[947] was the commerce clause and certain treaties of the United States. There followed two rulings of Attorneys General, the earlier by Attorney General Wirt, denouncing such legislation as unconstitutional;[948] the latter by Attorney General Berrien, sustaining it;[949] and in City of New York _v._ Miln[950] the Court, speaking by Justice Barbour of Virginia, asserted, six years after Nat Turner's rebellion, the power of the States to exclude undesirables in sweeping terms, which in the Passenger Cases,[951] decided in 1840, a narrowly divided Court considerably qualified. Shortly after the Civil War the Court overturned a Nevada statute which sought to halt the further loss of population by a special tax on railroads on every passenger carried out of the State.[952] This time only two Justices invoked the commerce clause; the majority, speaking by Justice Miller held the measure to be an unconstitutional interference with a right of national citizenship--a holding today translatable, in the terminology of the Fourteenth Amendment, as an abridgment of a privilege or immunity of citizens of the United States.

Against this background the Court in 1941, in Edwards _v._ California,[953] held void a statute which penalized the bringing into that State, or the assisting to bring into it, any nonresident knowing him to be "an indigent person." Five Justices, speaking by Justice Byrnes, held the act to be even as to "persons who are presently destitute of property and without resources to obtain the necessities of life, and who have no relatives or friends able and willing to support them,"[954] an unconstitutional interference with interstate commerce. "The State asserts," Justice Byrnes recites, "that the huge influx of migrants into California in recent years has resulted in problems of health, morals, and especially finance, the proportions of which are staggering. It is not for us to say that this is not true. We have repeatedly and recently affirmed, and we now reaffirm, that we do not conceive it our function to pass upon 'the wisdom, need, or appropriateness' of the legislative efforts of the States to solve such difficulties. * * * But this does not mean that there are no boundaries to the permissible area of State legislative activity. There are. And none is more certain than the prohibition against attempts on the part of any single State to isolate itself from difficulties common to all of them by restraining the transportation of persons and property across its borders. It is frequently the case that a State might gain a momentary respite from the pressure of events by the simple expedient of shutting its gates to the outside world. But, in the words of Mr. Justice Cardozo: 'The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several States must sink or swim together, and that in the long run prosperity and salvation are in union and not division'."[955] Four of the Justices would have preferred to rest the holding of unconstitutionality on the rights of national citizenship under the privileges and immunities clause of Amendment XIV.[956]

STATE CONSERVATION AND EMBARGO MEASURES