Chapter XXXIII: Section 10: No State Shall enter into any Treaty, Alliance, or (3)

[168] Hinds' Precedents of the House of Representatives, IV: Sec. 2910-2915 (1907); Cannon's Precedents of the House of Representatives, VI: Sec. 645, 646 (1936).

[169] United States _v._ Ballin, 144 U.S. 1, 5 (1892). It is, of course, by virtue of its power to determine "rules of its proceedings" that the Senate enables its members to prevent the transaction of business by what are termed "filibusters". The question has been raised whether the rules which support a filibuster are constitutionally compatible with the clause in the preceding section: "A majority of each [House] shall constitute a quorum to do business". _See_ Franklin Burdette, Filibustering in the Senate (Princeton University Press, 1940), 6, 61, 111-112, 227-229, 232-233, 237-238. The Senate is "a continuing body". McGrain _v._ Daugherty, 273 U.S. 139, 181-182 (1927). Hence its rules remain in force from Congress to Congress except as they are changed from time to time, whereas those of the House are readopted at the outset of each new Congress.

[170] 286 U.S. 6 (1932).

[171] 338 U.S. 84 (1949).

[172] Title 22, Sec. 2501.

[173] 338 U.S. at 93-95, citing Field _v._ Clark, 143 U.S. 649, 669-673 (1892); United States _v._ Ballin, 144 U.S. 1, 5 (1892); and other cases.

[174] Burton _v._ United States, 202 U.S. 344, 356 (1906).

[175] In re Chapman, 166 U.S. 661, 669, 670 (1897).

[176] I Story, Constitution, Sec. 840, quoted with approval in Field _v._ Clark, 143 U.S. 649, 670 (1892).

[177] United States _v._ Ballin, 144 U.S. 1, 4 (1892).

[178] Field _v._ Clark, 143 U.S. 649 (1892); Flint _v._ Stone Tracy Co., 220 U.S. 107, 143 (1911). A parallel rule holds in the case of a duly authenticated official notice to the Secretary of State that a State legislature has ratified a proposed amendment to the Constitution. Leser _v._ Garnett, 258 U.S. 130, 137 (1922); _see also_ Coleman _v._ Miller, 307 U.S. 433 (1939). In Christoffel _v._ United States, 338 U.S. 84 (1949), a sharply divided Court ruled that, in a case brought under the Perjury Statute of the District of Columbia (Sec. 22-2501 of the D.C. Code) for alleged perjurious testimony before a Committee of the House of Representatives, the trial Court erred in charging the jury that it was free to ignore testimony that less than a quorum of the Committee was in attendance when the alleged perjury was committed. Four Justices dissented; and curiously enough only four of the majority were present when the opinion was delivered, the fifth being indisposed. Remarks Justice Jackson in his concurring opinion in United States _v._ Bryan (339 U.S. 323 (1950)), in which the ruling in Christoffel was held to be inapplicable: "It is ironic that this interference with legislative procedures was promulgated by exercise within the Court of the very right of absentee participation denied to Congressmen." Ibid. 344. It seems unlikely that the Christoffel decision seriously undermines Field _v._ Clark.

[179] Page _v._ United States, 127 U.S. 67 (1888).

[180] Long _v._ Ansell, 293 U.S. 76 (1934).

[181] Ibid. 83.

[182] United States _v._ Cooper, 4 Dall. 341 (1800).

[183] Williamson _v._ United States, 207 U.S. 425, 446 (1908).

[184] Kilbourn _v._ Thompson, 103 U.S. 168 (1881).

[185] Ibid.

[186] 4 Mass. 1 (1808).

[187] Kilbourn _v._ Thompson, 103 U.S. 168, 203, 204 (1881).

[188] Ibid. 205.

[189] Justice Frankfurter for the Court in Tenney _v._ Brandhove, 341 U.S. 367, 377 (1951). Justice Douglas dissented: "* * * I do not agree that all abuses of legislative committees are solely for the legislative body to police. We are dealing here with a right protected by the Constitution--the right of free speech. The charge * * * is that a legislative committee brought the weight of its authority down on respondent for exercising his right of free speech. Reprisal for speaking is as much an abridgment as a prior restraint. If a committee departs so far from its domain [as?] to deprive a citizen of a right protected by the Constitution, I can think of no reason why it should be immune". Ibid. 382. _See also_ Barsky _v._ United States, 167 F. (2d) 241 (1948); certiorari denied, 334 U.S. 843 (1948).

[190] Hinds' Precedents of the House of Representatives, I: Sec. 493 (1907); Cannon's Precedents of the House of Representatives, VI: Sec. 63, 64 (1936).

[191] Hinds' Precedents of the House of Representatives, I: Sec. 496-499 (1907).

[192] 34 Stat. 948 (1907).

[193] 35 Stat. 626 (1909).

[194] The situation gave rise to the case of Ex parte Albert Levitt, Petitioner, 302 U.S. 633 (1937). This was the case in which the Court declined to pass upon the validity of Justice Black's appointment. It seems curious that the Court, in rejecting petitioner's application, did not point out that it was being asked to assume original jurisdiction contrary to the decision in Marbury _v._ Madison, 1 Cr. 137 (1803).

[195] I Story, Constitution, Sec. 880.

[196] Twin City Nat. Bank _v._ Nebeker, 167 U.S. 196 (1897).

[197] Millard _v._ Roberts, 202 U.S. 429 (1906).

[198] Flint _v._ Stone Tracy Co., 220 U.S. 107, 143 (1911).

[199] Rainey _v._ United States, 232 U.S. 310 (1914).

[200] La Abra Silver Mining Co. _v._ United States, 175 U.S. 423, 453 (1899).

[201] Edwards _v._ United States, 286 U.S. 482 (1932). On one occasion in 1936, delay in presentation of a bill enabled the President to sign it 23 days after the adjournment of Congress. Schmeckebier, Approval of Bills After Adjournment of Congress, 33 American Political Science Review 52 (1939).

[202] Gardner _v._ Collector, 6 Wall. 499 (1868).

[203] Ibid. 504. _See also_ Burgess _v._ Salmon, 97 U.S. 381, 383 (1878).

[204] Matthews _v._ Zane, 7 Wheat. 164, 211 (1822).

[205] Lapeyre _v._ United States, 17 Wall. 191, 198 (1873).

[206] Okanogan Indians _v._ United States, 279 U.S. 655 (1929).

[207] Wright _v._ United States, 302 U.S. 583 (1938).

[208] Missouri P.R. Co. _v._ Kansas, 248 U.S. 276 (1919).

[209] 20 Wall. 92, 112, 113 (1874).

[210] 12 Stat. 589 (1862).

[211] 54th Cong., 2d sess., S. Doc. 1335; Hinds' Precedents of the House of Representatives, IV: Sec. 3483 (1907).

[212] _See e.g._, Lend Lease Act of March 11, 1941 (55 Stat. 31); First War Powers Act of December 18, 1941 (55 Stat. 838); Emergency Price Control Act of January 30, 1942 (56 Stat. 23); Stabilization Act of October 2, 1942 (56 Stat. 765); War Labor Disputes Act of June 25, 1943 (57 Stat. 163).

[213] Reorganization Act of June 20, 1949 (63 Stat. 203).

[214] Reorganization Act of April 3, 1939 (53 Stat. 561).

[215] Hollingsworth _v._ Virginia, 3 Dall. 378 (1798).

[216] License Tax Cases, 5 Wall. 462, 471 (1867).

[217] Brushaber _v._ Union Pac. R.R., 240 U.S. 1 (1916).

[218] Ibid. 12.

[219] 253 U.S. 245 (1920).

[220] 268 U.S. 501 (1925).

[221] 307 U.S. 277 (1939).

[222] 11 Wall. 113 (1871).

[223] Graves _v._ O'Keefe, 306 U.S. 466 (1939).

[224] 304 U.S. 405, 414 (1938).

[225] Veazie Bank _v._ Fenno, 8 Wall. 533 (1869).

[226] United States _v._ Baltimore & O.R. Co., 17 Wall. 322 (1873).

[227] 157 U.S. 429 (1895).

[228] 4 Wheat. 316 (1819).

[229] Indian Motorcycle Co. _v._ United States, 283 U.S. 570 (1931).

[230] 12 Wheat. 419, 444 (1827).

[231] Snyder _v._ Bettman, 190 U.S. 249, 254 (1903).

[232] South Carolina _v._ United States, 199 U.S. 437 (1905). _See also_ Ohio _v._ Helvering, 292 U.S. 360 (1934).

[233] 220 U.S. 107 (1911).

[234] Greiner _v._ Lewellyn, 258 U.S. 384 (1922).

[235] Wheeler Lumber Bridge & Supply Co. _v._ United States, 281 U.S. 572 (1930).

[236] University of Illinois _v._ United States, 289 U.S. 48 (1933).

[237] Allen _v._ Regents, 304 U.S. 439 (1938).

[238] Wilmette Park District _v._ Campbell, 338 U.S. 411 (1949).

[239] Metcalf _v._ Mitchell, 269 U.S. 514 (1926).

[240] Helvering _v._ Powers, 293 U.S. 214 (1934).

[241] Willcutts _v._ Bunn, 282 U.S. 216 (1931).

[242] Helvering _v._ Mountain Producers Corp., 303 U.S. 376 (1938), overruling Burnet _v._ Coronado Oil & Gas Co., 285 U.S. 393 (1932).

[243] New York _v._ United States, 326 U.S. 572, 584 (1946), (concurring opinion of Justice Rutledge).

[244] 304 U.S. 405 (1938).

[245] Ibid. 419-420.

[246] 326 U.S. 572 (1946).

[247] Ibid. 584.

[248] Ibid. 589-590.

[249] Ibid. 596.

[250] Wilmette Park District _v._ Campbell, 338 U.S. 411 (1949).

[251] _See also_ article I, section 9, clause 4.

[252] LaBelle Iron Works _v._ United States, 256 U.S. 377 (1921); Brushaber _v._ Union P.R. Co., 240 U.S. 1 (1916); Head Money Cases, 112 U.S. 580 (1884).

[253] Knowlton _v._ Moore, 178 U.S. 41 (1900).

[254] Fernandez _v._ Wiener, 326 U.S. 340 (1945); Riggs _v._ Del Drago, 317 U.S. 95 (1942); Phillips _v._ Commissioner of Internal Revenue, 283 U.S. 589 (1931); Poe _v._ Seaborn, 282 U.S. 101, 117 (1930).

[255] Florida _v._ Mellon, 273 U.S. 12 (1927).

[256] Downes _v._ Bidwell, 182 U.S. 244 (1901).

[257] 194 U.S. 486 (1904). The Court recognized that Alaska was an incorporated territory but took the position that the situation in substance was the same as if the taxes had been directly imposed by a territorial legislature for the support of the local government.

[258] License Tax Cases, 5 Wall. 462, 471 (1867).

[259] United States _v._ Yuginovich, 256 U.S. 450 (1921).

[260] United States _v._ Constantine, 296 U.S. 287, 293 (1935).

[261] License Tax Cases, 5 Wall. 462, 471 (1867).

[262] Felsenheld _v._ United States, 186 U.S. 126 (1902).

[263] In re Kollock, 105 U.S. 526 (1897).

[264] United States _v._ Doremus, 249 U.S. 86 (1919). _Cf._ Nigro _v._ United States, 276 U.S. 332 (1928).

[265] Sonzinsky _v._ United States, 300 U.S. 506 (1937).

[266] McCray _v._ United States, 195 U.S. 27 (1904).

[267] Justice Clark speaking for the Court in United States _v._ Sanchez, 340 U.S. 42, 44 (1950). _See also_ Sonzinsky _v._ United States, 300 U.S. 506, 513-514 (1937).

[268] Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381, 383 (1940). _See also_ Head Money Cases, 112 U.S. 580, 596 (1884).

[269] Bailey _v._ Drexel Furniture Co., 259 U.S. 20 (1922); Hill _v._ Wallace, 259 U.S. 44 (1922); Helwig _v._ United States, 188 U.S. 605 (1903).

[270] 296 U.S. 287 (1935).

[271] 1 Stat. 24 (1789).

[272] 276 U.S. 394 (1928).

[273] Ibid. 411-412.

[274] III Writings of Thomas Jefferson, 147-149 (Library Edition, 1904).

[275] James Francis Lawson, The General Welfare Clause (1926).

[276] The Federalist Nos. 30 and 34.

[277] Ibid. No. 41.

[278] 1 Stat. 229 (1792).

[279] 2 Stat. 357 (1806).

[280] In an advisory opinion which it rendered for President Monroe at his request on the power of Congress to appropriate funds for public improvements, the Court answered that such appropriations might be properly made under the war and postal powers. _See_ E.F. Albertsworth, "Advisory Functions in the Supreme Court," 23 Georgetown L.J. 643, 644-647 (1935). Monroe himself ultimately adopted the broadest view of the spending power, from which, however, he carefully excluded any element of regulatory or police power. _See_ his "Views of the President of the United States on the Subject of Internal Improvements," of May 4, 1822, 2 Richardson, Messages and Papers of the Presidents, 713-752.

[281] The Council of State Governments, Federal Grants-in-Aid, 6-14 (1949).

[282] 127 U.S. 1 (1888).

[283] 255 U.S. 180 (1921).

[284] 262 U.S. 447 (1923). _See also_ Alabama Power Co. _v._ Ickes, 302 U.S. 464 (1938).

[285] 160 U.S. 668 (1896).

[286] Ibid. 681.

[287] 297 U.S. 1 (1936). _See also_ Cleveland _v._ United States, 323 U.S. 329 (1945).

[288] 297 U.S. 1, 65, 66 (1936).

[289] Justice Stone, speaking for himself and two other Justices, dissented on the ground that Congress was entitled when spending the national revenues for the "general welfare" to see to it that the country got its money's worth thereof, and that the condemned provisions were "necessary and proper" to that end. United States _v._ Butler, 297 U.S. 1, 84-86 (1936).

[290] 301 U.S. 548 (1937).

[291] Ibid. 591.

[292] Ibid. 590.

[293] Cincinnati Soap Co. _v._ United States, 301 U.S. 308 (1937).

[294] 301 U.S. 619 (1937).

[295] 301 U.S. 548, 589, 590 (1937).

[296] 330 U.S. 127 (1947).

[297] 54 Stat. 767 (1940).

[298] 330 U.S. 127, 143.

[299] United States _v._ Realty Co., 163 U.S. 427 (1896); Pope _v._ United States, 323 U.S. 1, 9 (1944).

[300] Cincinnati Soap Co. _v._ United States, 301 U.S. 308 (1937).

[301] Cr. 358 (1805).

[302] Ibid. 396.

[303] 2 Madison, Notes on the Constitutional Convention, 81 (Hunt's ed. 1908).

[304] Ibid. 181.

[305] Legal Tender Cases, 12 Wall. 457 (1871), overruling Hepburn _v._ Griswold, 8 Wall. 603 (1870).

[306] Perry _v._ United States, 294 U.S. 330, 351 (1935). _See also_ Lynch _v._ United States, 292 U.S. 571 (1934).

[307] Prentice and Egan, The Commerce Clause of the Federal Constitution (1898) 14. The balance began inclining the other way with the enactment of the Interstate Commerce Act in 1887.

[308] 9 Wheat. 1, 189-192 (1824). _Cf._ Webster for the appellant: "Nothing was more complex than commerce; and in such an age as this, no words embraced a wider field than _commercial_ regulation. Almost all the business and intercourse of life may be connected, incidently, more or less, with commercial regulations." (ibid. 9-10); also Justice Johnson, in his concurring opinion: "Commerce, in its simplest signification, means an exchange of goods; but in the advancement of society, labor, transportation, intelligence, care, and various mediums of exchange, become commodities, and enter into commerce; the subject, the vehicle, the agent, and their various operations, become the objects of commercial regulation. Shipbuilding, the carrying trade, and propagation of seamen, are such vital agents of commercial prosperity, that the nation which could not legislate over these subjects, would not possess power to regulate commerce." (ibid. 229-230). "It is all but impossible in our own age to sense fully its eighteenth-century meaning (i.e., the meaning of commerce). The Eighteenth Century did not separate by artificial lines aspects of a culture which are inseparable. It had no lexicon of legalisms extracted from the law reports in which judicial usage lies in a world apart from the ordinary affairs of life. Commerce was then more than we imply now by business or industry. It was a name for the economic order, the domain of political economy, the realm of a comprehensive public policy. It is a word which makes trades, activities and interests an instrument in the culture of a people. If trust was to be reposed in parchment, it was the only word which could catch up into a single comprehensive term all activities directly affecting the wealth of the nation," Walton H. Hamilton and Douglass Adair, The Power to Govern, 62-63 (New York: 1937).

[309] Ibid. 191.

[310] 9 Wheat. 1, 193 (1824).

[311] _See_ Pennsylvania _v._ Wheeling & Belmont Bridge Co., 18 How. 421 (1856); Mobile _v._ Kimball, 102 U.S. 691 (1881); Covington Bridge Co. _v._ Kentucky, 154 U.S. 204 (1894); Kelley _v._ Rhoads, 188 U.S. 1 (1903); United States _v._ Hill, 248 U.S. 420 (1919); Edwards _v._ California, 314 U.S. 160 (1941).

[312] Pensacola Tel. Co. _v._ Western Union Tel. Co., 96 U.S. 1, 9 (1878); International Text Book Co. _v._ Pigg, 217 U.S. 91, 106-107 (1910); Western Union Tel. Co. _v._ Foster, 247 U.S. 105 (1918); Federal Radio Com. _v._ Nelson Bros., 289 U.S. 266 (1933).

[313] Swift & Co. _v._ United States, 196 U.S. 375, 398-399 (1905); Dahnke-Walker Milling Co. _v._ Bondurant, 257 U.S. 282, 290-291 (1921); Stafford _v._ Wallace, 258 U.S. 495 (1922); Federal Trade Com. _v._ Pacific States Paper Trade Assoc., 273 U.S. 52, 64-65 (1927).

[314] Kidd _v._ Pearson, 128 U.S. 1 (1888); Oliver Iron Co. _v._ Lord, 262 U.S. 172 (1923).

[315] Paul _v._ Virginia, 8 Wall. 168 (1869). _See also_ New York L. Ins. Co. _v._ Deer Lodge County, 231 U.S. 495 (1913); New York L. Ins. Co. _v._ Cravens, 178 U.S. 389, 401 (1900); Fire Assoc. of Philadelphia _v._ New York, 119 U.S. 110 (1886); Bothwell _v._ Buckbee-Mears Co., 275 U.S. 274 (1927); Metropolitan Casualty Ins. Co. _v._ Brownell, 294 U.S. 580 (1935).

[316] Federal Baseball Club _v._ National League, 259 U.S. 200 (1922).

[317] Blumenstock Bros. _v._ Curtis Pub. Co., 252 U.S. 436 (1920).

[318] Williams _v._ Fears, 179 U.S. 270 (1900).

A contract entered into for the erection of a factory which was to be supervised and operated by the officers of a foreign corporation was held not a transaction of interstate commerce in the constitutional sense merely because of the fact that the products of the factory are largely to be sold and shipped to other factories. Diamond Glue Co. _v._ United States Glue Co., 187 U.S. 611, 616 (1903). In Browning _v._ Waycross, 233 U.S. 16 (1914), it was held that the installation of lightning rods sold by a foreign corporation was not interstate commerce, although provided for in the contract of purchase. Similarly in General Railway Signal Co. _v._ Virginia, 246 U.S. 500 (1918), where a foreign corporation installed signals in Virginia, bringing in materials, supplies, and machinery from without the State, the Court held that local business was involved, separate and distinct from interstate commerce, and subject to the licensing power of the State. However, in an interstate contract for the sale of a complicated ice-making plant, where it was stipulated that the parts should be shipped into the purchaser's State and the plant there assembled and tested under the supervision of an expert to be sent by the seller, it was held that services of the expert did not constitute the doing of a local business subjecting the seller to regulations of Texas concerning foreign corporations. York Mfg. Co. _v._ Colley, 247 U.S. 21 (1918). _See also_ Kansas City Structural Steel Co. _v._ Arkansas, 269 U.S. 148 (1925).

[319] Associated Press _v._ United States, 326 U.S. 1 (1945).

[320] American Medical Association _v._ United States, 317 U.S. 519 (1943). _Cf._ United States _v._ Oregon State Medical Society, 343 U.S. 326 (1952).

[321] United States _v._ South-Eastern Underwriters Assoc, 322 U.S. 533 (1944). The interstate character of the insurance business as today organized and carried on is stressed, although its intrastate elements are not overlooked. The Court's business is to determine in each case whether "the competing * * * State and national interests * * * can be accommodated." Ibid. 541 and 548.

[322] Article I, Sec. 8, cl. 18.

[323] _See infra_ CONGRESSIONAL REGULATIONS OF PRODUCTION AND INDUSTRIAL RELATIONS.

[324] 6 Wheat. 264, 413 (1821).

[325] 9 Wheat. 1, 195 (1824).

[326] New York _v._ Miln, 11 Pet. 102 (1837), overturned in Henderson _v._ New York, 92 U.S. 259 (1876); License Cases, 5 How. 504, 573-574, 588, 613 (1847); Passenger Cases, 7 How. 283, 399-400, 465-470 (1849); The Passaic Bridges, 3 Wall. 782 (Appendix), 793 (1866); United States _v._ Dewitt, 9 Wall. 41, 44 (1870); Patterson _v._ Kentucky, 97 U.S. 501, 503 (1879); Trade-Mark Cases, 100 U.S. 82 (1879); Kidd _v._ Pearson, 128 U.S. 1 (1888); Illinois Central R. Co. _v._ McKendree, 203 U.S. 514 (1906); Keller _v._ United States, 213 U.S. 138, 144-149 (1909); Hammer _v._ Dagenhart, 247 U.S. 251 (1918). _See also infra._

[327] United States _v._ Wrightwood Dairy Co., 315 U.S. 110, 119 (1942).

[328] Gibbons _v._ Ogden, 9 Wheat. 1, 196. Commerce "among the several States" does not comprise commerce of the District of Columbia nor the territories of the United States. Congress's power over their commerce is an incident of its general power over them. Stoutenburgh _v._ Hennick, 129 U.S. 141 (1889); Atlantic Cleaners and Dyers, Inc. _v._ United States, 286 U.S. 427 (1932); In re Bryant, 4 Fed. Cas. No. 2067 (1865). Transportation between two points in the same State, when a large part of the route is a loop outside the State, is "commerce among the several States." Hanley _v._ Kansas City Southern R. Co., 187 U.S. 617 (1903); followed in Western Union Telegraph Co. _v._ Speight, 254 U.S. 17 (1920), as to a message sent from one point to another in North Carolina via a point in Virginia.

[329] 9 Wheat. 1, 196-197.

[330] Champion _v._ Ames (Lottery Case), 188 U.S. 321, 373-374.

[331] Brolan _v._ United States, 236 U.S. 216, 222 (1915).

[332] Thurlow _v._ Massachusetts (License Cases), 5 How. 504, 578 (1847).

[333] Pittsburgh & S. Coal Co. _v._ Bates, 156 U.S. 577, 587 (1895).

[334] United States _v._ Carolene Products Co., 304 U.S. 144, 147-148 (1938). _See also infra._

[335] The "Daniel Ball," 10 Wall. 557, 564 (1871).

[336] Mobile County _v._ Kimball, 102 U.S. 691, 696, 697 (1881).

[337] Second Employers' Liability Cases, 223 U.S. 1, 47, 53-54 (1912).

[338] The above case. And _see infra_.

[339] 9 Wheat. 1, 217, 221 (1824).

[340] Pensacola Teleg. Co. _v._ Western Union Teleg. Co., 96 U.S. 1 (1878). _See also_ Western Union Teleg. Co. _v._ Texas, 105 U.S. 460 (1882).

[341] Ibid. 9. "Commerce embraces appliances necessarily employed in carrying on transportation by land and water."--Chicago & N.W.R. Co. _v._ Fuller, 17 Wall. 560, 568 (1873).

[342] "No question is presented as to the power of the Congress, in its regulation of interstate commerce, to regulate radio communications." Chief Justice Hughes speaking for the Court in Federal Radio Com _v._ Nelson Bros. B. & M. Co., 289 U.S. 266, 279 (1933). _Said_ Justice Stone, speaking for the Court in 1936: "Appellant is thus engaged in the business of transmitting advertising programs from its stations in Washington to those persons in other States who 'listen in' through the use of receiving sets. In all essentials its procedure does not differ from that employed in sending telegraph or telephone messages across State lines, which is interstate commerce. Western Union Teleg. Co. _v._ Speight, 254 U.S. 17 (1920); New Jersey Bell Teleph. Co. _v._ State Bd. of Taxes & Assessments, 280 U.S. 338 (1930); Cooney _v._ Mountain States Teleph. & Teleg. Co., 294 U.S. 384 (1935); Pacific Teleph. & Teleg. Co. _v._ Tax Commission, 297 U.S. 403 (1936). In each, transmission is effected by means of energy manifestations produced at the point of reception in one State which are generated and controlled at the sending point in another. Whether the transmission is effected by the aid of wires, or through a perhaps less well understood medium, 'the ether,' is immaterial, in the light of those practical considerations which have dictated the conclusion that the transmission of information interstate is a form of 'intercourse,' which is commerce. _See_ Gibbons _v._ Ogden, 9 Wheat. 1, 189." Fisher's Blend Station _v._ Tax Commission, 297 U.S. 650, 654-655 (1936).

[343] 13 How. 518.

[344] 10 Stat. 112 (1852).

[345] Pennsylvania _v._ Wheeling & Belmont Bridge Co., 18 How. 421, 430 (1856). "It is Congress, and not the Judicial Department, to which the Constitution has given the power to regulate commerce with foreign nations and among the several States. The courts can never take the initiative on this subject." Parkersburg & O. River Transportation Co. _v._ Parkersburg, 107 U.S. 691, 701 (1883). _See also_ Prudential Insurance Co. _v._ Benjamin, 328 U.S. 408 (1946); and Robertson _v._ California, 328 U.S. 440 (1946).

[346] 3 Wall. 713.

[347] Ibid. 724-725.

[348] Union Bridge Co. _v._ United States, 204 U.S. 364 (1907). _See also_ Monongahela Bridge Co. _v._ United States, 216 U.S. 177 (1910); and Wisconsin _v._ Illinois, 278 U.S. 367 (1929). Of collateral interest are the following: South Carolina _v._ Georgia, 93 U.S. 4, 13 (1876); Bedford _v._ United States, 192 U.S. 217 (1904); Jackson _v._ United States, 230 U.S. 1 (1913); United States _v._ Arizona, 295 U.S. 174 (1935).

[349] Gibson _v._ United States, 166 U.S. 269 (1897). _See also_ Newport & Cincinnati Bridge Co. _v._ United States, 105 U.S. 470 (1882); United States _v._ Rio Grande Dam & Irrig. Co., 174 U.S. 690 (1899); United States _v._ Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913); Seattle _v._ Oregon & W.R. Co., 255 U.S. 56, 63 (1921); Economy Light & Power Co. _v._ United States, 256 U.S. 113 (1921); United States _v._ River Rouge Improv. Co., 269 U.S. 411, 419 (1926); Henry Ford & Son _v._ Little Falls Fibre Co., 280 U.S. 369 (1930); United States _v._ Commodore Park, 324 U.S. 386 (1945).

[350] United States _v._ Cress, 243 U.S. 316 (1917).

[351] United States _v._ Chicago, M., St. P. & P.R. Co., 312 U.S. 592, 597 (1941); United States _v._ Willow River Power Co., 324 U.S. 499 (1945).

[352] United States _v._ Rio Grande Dam & Irrig. Co., 174 U.S. 690 (1899); and _cf._ below the discussion of United States _v._ Appalachian Electric P. Co., 311 U.S. 377 (1940).

[353] The "Daniel Ball" _v._ United States, 10 Wall. 557 (1871).

[354] Ibid. 560.

[355] Ibid. 565.

[356] Ibid. 566. "The regulation of commerce implies as much control, as far-reaching power, over an artificial as over a natural highway." Justice Brewer for the Court in Monongahela Navigation Co. _v._ United States, 148 U.S. 312, 342 (1893).

[357] Congress had the right to confer upon the Interstate Commerce Commission the power to regulate interstate ferry rates. (New York C. & H.R.R. Co. _v._ Board of Chosen Freeholders, 227 U.S. 248 (1913)); and to authorize the Commission to govern the towing of vessels between points in the same State but partly through waters of an adjoining State (Cornell Steamboat Co. _v._ United States, 321 U.S. 634 (1944)). _Also_ Congress's power over navigation extends to persons furnishing wharfage, dock, warehouse, and other terminal facilities to a common carrier by water. Hence an order of the United States Maritime Commission banning certain allegedly "unreasonable practices" by terminals in the Port of San Francisco, and prescribing schedules of maximum free time periods and of minimum charges was constitutional. (California _v._ United States, 320 U.S. 577 (1944)). The same power also comprises regulation of the registry, enrollment, license, and nationality of ships and vessels; the method of recording bills of sale and mortgages thereon; the rights and duties of seamen; the limitations of the responsibility of shipowners for the negligence and misconduct of their captains and crews; and many other things of a character truly maritime. _See_ Rodd _v._ Heartt (The "Lottawanna"), 21 Wall. 558, 577 (1875); Providence & N.Y.S.S. Co. _v._ Hill Mfg. Co., 109 U.S. 578, 589 (1883); Old Dominion S.S. Co. _v._ Gilmore, 207 U.S. 398 (1907); O'Donnell _v._ Great Lakes Dredge & Dock Co., 318 U.S. 36 (1943). _See also_ below article III, Sec. 2, (Admiralty and Maritime clause).

[358] Pollard _v._ Hagan, 3 How. 212 (1845); Shively _v._ Bowlby, 152 U.S. 1 (1894). "The shores of navigable waters, and the soils under them, were not granted by the Constitution to the United States, but were reserved to the States respectively; and the new States have the same rights, sovereignty, and jurisdiction over this subject as the original States." 3 How. 212, headnote 3.

[359] Green Bay & M. Canal Co. _v._ Patten Paper Co., 172 U.S. 58, 80 (1898).

[360] 229 U.S. 53 (1913).

[361] Ibid. 72-73, citing Kaukauna Water Power Co. _v._ Green Bay & M. Canal Co., 142 U.S. 254 (1891).

[362] 283 U.S. 423.

[363] 311 U.S. 377.

[364] 283 U.S. at 455, 456.

[365] 311 U.S. at 407, 409-410.

[366] 311 U.S. at 426.

[367] Oklahoma ex rel. Phillips _v._ Atkinson Co., 313 U.S. 508, 523-534 _passim_ (1941).

[368] Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288 (1936). _See infra._

[369] 12 Stat. 489 (1862).

[370] Thomson _v._ Pacific Railroad, 9 Wall. 579, 589 (1870); California _v._ Central Pacific Railroad, 127 U.S. 1, 39 (1888); Cherokee Nation _v._ Southern Kansas R. Co., 135 U.S. 641 (1890); Luxton _v._ North River Bridge Co., 153 U.S. 525, 530 (1894).

[371] 14 Stat. 66 (1866). In his first annual message (December 4, 1865), President Johnson had asked Congress "to prevent any selfish impediment [by the States] to the free circulation of men and merchandise." 6 Richardson, Messages and Papers of the Presidents, 362.

[372] 14 Stat. 221; Pensacola Teleg. Co. _v._ Western Union Teleg. Co., 96 U.S. 1, 3-4, 11 (1878).

[373] R.S. Secs. 4386-4390; replaced today by the Live Stock Transportation Act of 1906 (34 Stat. 607).

[374] 94 U.S. 113 (1877).

[375] 118 U.S. 557.

[376] 24 Stat. 379 (1887).

[377] 154 U.S. 447.

[378] Interstate Commerce Com. _v._ Alabama Midland R. Co., 168 U.S. 144, 176 (1897). _See also_ Cincinnati, N.O. & T.P.R. Co. _v._ Interstate Commerce Commission, 162 U.S. 184 (1896).

[379] 34 Stat. 584.

[380] 36 Stat. 539 (1910).

[381] By the Federal Communications Act of 1934 (48 Stat. 1081), this jurisdiction was handed over to the Federal Communications Commission, created by the act.

[382] 41 Stat. 474 Sec. 400; 488 Sec. 422. The act must today be read in conjunction with the Transportation Act of 1940 (54 Stat. 898), which "was intended, together with the old law, to provide a completely integrated interstate regulatory system over motor, railroad, and water carriers." United States _v._ Pennsylvania R. Co., 323 U.S. 612, 618-619 (1945).

[383] Houston E. & W.T.R. Co. _v._ United States (Shreveport Case), 234 U.S. 342 (1914). Forty States, through their Attorneys General, intervened in the case against the Commission's order.

[384] Ibid. 351-352.

[385] Ibid. 353. _See_ to the same effect American Express Co. _v._ Caldwell, 244 U.S. 617, 627 (1917); Pacific Teleph. & Teleg. Co. _v._ Tax Commission (Washington), 297 U.S. 403 (1936); Weiss _v._ United States, 308 U.S. 321 (1939); Bethlehem Steel Co. _v._ New York Labor Relations Bd., 330 U.S. 767, 772 (1947); and United States _v._ Walsh, 331 U.S. 432, 438 (1947).

[386] 257 U.S. 563 (1922).

[387] In North Carolina _v._ United States, 325 U.S. 507 (1945), the Court disallowed as _ultra vires_ an order of the Interstate Commerce Commission, setting aside State-prescribed intrastate passenger rates, on the ground that it was unsupported by clear findings and evidence sufficient to show its necessity.

Among the various provisions of the Interstate Commerce Commission Act that have been sustained in specific decisions are the following: a provision penalizing shippers for obtaining transportation at less than published rates, Armour Packing Co. _v._ United States, 209 U.S. 56 (1908); the so-called "commodities clause" of the Hepburn Act of June 29, 1906, construed as prohibiting the hauling of commodities in which the carrier had at the _time of haul_ a proprietary interest, United States _v._ Delaware & H. Co., 213 U.S. 366 (1909); a provision of the same act abrogating life passes, Louisville & N.R. Co. _v._ Mottley, 219 U.S. 467 (1911); a provision of the same act authorizing the Commission to regulate the entire system of bookkeeping of interstate carriers, including intrastate accounts, Interstate Commerce Commission _v._ Goodrich Transit Co., 224 U.S. 194 (1912); the "long and short haul" clause of the Interstate Commerce Act, United States _v._ Atchison, T. & S.F.R. Co. (Intermountain Rate Cases), 234 U.S. 476 (1914); an order of the Commission establishing the so-called uniform zone or block system of express rates, American Express Co. _v._ South Dakota ex rel. Caldwell, 244 U.S. 617 (1917); an order of the Commission directing the abandonment of an intrastate branch of an interstate railroad, Colorado _v._ United States, 271 U.S. 153 (1926); an order of the Commission fixing rates of a transportation company operating solely in the District of Columbia, on the ground that its carriage of passengers constituted part of an interstate movement, United States _v._ Capital Transit Co., 338 U.S. 286 (1949).

[388] United States _v._ Ohio Oil Co. (Pipe Line Cases), 234 U.S. 548 (1914).

[389] _See also_ State Corp. Commission _v._ Wichita Gas Co., 290 U.S. 561 (1934); Eureka Pipe Line Co. _v._ Hallanan, 257 U.S. 265 (1921); United Fuel Gas Co. _v._ Hallanan, 257 U.S. 277 (1921); Pennsylvania _v._ West Virginia, 262 U.S. 553 (1923); Missouri ex rel. Barrett _v._ Kansas Natural Gas Co., 265 U.S. 298 (1924).

[390] Public Utilities Com. _v._ Attleboro Steam and Electric Co., 273 U.S. 83 (1927). _See also_ Utah Power & Light Co. _v._ Pfost, 286 U.S. 165 (1932).

[391] 49 Stat. 838.

[392] The Natural Gas Act of 1938, 52 Stat. 821.

[393] 315 U.S. 575 (1942).

[394] Ibid. 582. Sales to distributors by a wholesaler of natural gas which is delivered to it from an out-of-State source are subject to the rate-making powers of the Federal Power Commission. Colorado-Wyoming Co. _v._ Comm'n., 324 U.S. 626 (1945). _See also_ Illinois Natural Gas Co. _v._ Central Illinois Pub. Serv. Co., 314 U.S. 498 (1942); _also_ Federal Power Commission _v._ East Ohio Gas Co., 338 U.S. 464, decided January 9, 1950, where it was held that a natural gas company which, while operating exclusively in one State, sold there directly to consumers gas transported into the State through the interstate lines of other companies, "a natural gas company" within the meaning of the act of 1938, and so could be required by the Commission to keep uniform accounts and submit reports.

[395] 48 Stat. 1064.

[396] 49 Stat. 543; since amended in some respects in 1938 (52 Stat. 973) and 1940 (54 Stat. 735).

[397] 52 Stat. 973.

[398] 27 Stat. 531. As early as 1838 laws were passed requiring the installation of safety devices on steam vessels. 5 Stat. 304 and 626. Along with the Safety Appliance Acts mention should also be made of acts requiring the use of ashpans on locomotives (35 Stat. 476 (1908)); the inspection of boilers (36 Stat. 913 (1911) and 38 Stat. 1192 (1915)); the use of ladders, drawbars, etc., on cars (36 Stat. 298 (1910)); etc.

[399] 32 Stat. 943.

[400] 222 U.S. 20 (1911).

[401] Ibid. 26-27. _See also_ Texas & P.R. Co. _v._ Rigsby, 241 U.S. 33 (1916); and United States _v._ California, 297 U.S. 175 (1936). In the latter case the intrastate railway involved was property of the State.

[402] 34 Stat. 1415.

[403] Baltimore & O.R. Co. _v._ Interstate Commerce Com., 221 U.S. 612, 618-619 (1911).

[404] 34 Stat. 232, disallowed in part in Howard _v._ Illinois Central R. Co., 207 U.S. 463 (1908); 35 Stat. 65, sustained in the Second Employers' Liability Cases (Mondou _v._ New York, N.H. & H.R. Co.), 223 U.S. 1 (1912).

[405] _See_ 223 U.S. at 19-22.

[406] Ibid. 48. Because the injured employee must, in order to benefit from the act, be employed at the time of his injury "in interstate commerce," the Court's application of it has given rise to some narrow distinctions. _See_ Illinois Central R. Co. _v._ Peery, 242 U.S. 292 (1916); New York Central R. Co. _v._ White, 243 U.S. 188 (1917); Chicago, B. & Q.R. Co. _v._ Harrington, 241 U.S. 177 (1916); Louisville & N.R. Co. _v._ Parker, 242 U.S. 13 (1916); Illinois Central R. Co. _v._ Behrens, 233 U.S. 473 (1914); St. Louis, S.F. & T.R. Co. _v._ Seale, 229 U.S. 156 (1913); Pedersen _v._ Delaware, L. & W.R. Co., 229 U.S. 146 (1913); Shanks _v._ Delaware, L. & W.R. Co., 239 U.S. 556 (1916); Lehigh Valley R. Co. _v._ Barlow, 244 U.S. 183 (1917); Southern R. Co. _v._ Puckett, 244 U.S. 571 (1917); Reed _v._ Director General of Railroads, 258 U.S. 92 (1922). That Congress might "legislate as to the qualifications, duties, and liabilities of employes and others on railway trains engaged in that [interstate] commerce," was stated by the Court in Nashville, C. & St. L.R. Co. _v._ Alabama, 128 U.S. 96, 99 (1888).

[407] 208 U.S. 161 (1908).

[408] 30 Stat. 424.

[409] 44. Stat. 577.

[410] Texas & N.O.R. Co. _v._ Brotherhood of R. & S.S. Clerks, 281 U.S. 548 (1930). The provision of Railway Labor Act of 1926 (44 Stat. 577), preventing interference by either party with organization or designation of representatives by the other, is within the constitutional authority of Congress. Similarly, "back shop" employees of an interstate carrier, who engaged in making heavy repairs on locomotives and cars withdrawn from service for that purpose for long periods (an average of 105 days for locomotives and 109 days for cars), were held to be within the terms of the act as amended in 1934 (48 Stat. 1185). "The activities in which these employees are engaged have such a relation to the other confessedly interstate activities of the * * * [carrier] that they are to be regarded as a part of them. All taken together fall within the power of Congress over interstate commerce." Virginian R. Co. _v._ System Federation No. 40, 300 U.S. 515, 556 (1937).

By the Adamson Act of 1916 a temporary increase in wages was imposed upon the railways of the country in order to meet a sudden threat to strike by important groups of their employees. The act was assailed on the dual ground that it was not a regulation of commerce among the States and that it was violative of the carriers' rights under the Fifth Amendment. A closely divided Court, speaking through Chief Justice White, answered both objections by pointing to the magnitude of the emergency which had threatened the country with commercial paralysis and grave loss and suffering. To the familiar argument that "emergency may not create power" (Ex parte Milligan, 4 Wall. 2 (1806)), the Chief Justice answered that "it may afford a reason for exerting a power already enjoyed." A further answer to objections based on the rights of carriers under the Fifth Amendment, particularly the right of "freedom of contract," was that the situation met by the statute had arisen in consequence of a failure to exercise these rights--a far from satisfactory answer, as the dissent pointed out, since one element of a right is freedom of choice regarding its use or nonuse. Wilson _v._ New, 243 U.S. 332, 387 (1917).

[411] 48 Stat. 1283.

[412] 295 U.S. 330 (1935).

[413] Ibid. 374.

[414] Ibid. 384.

[415] 326 U.S. 446 (1946). Indeed, in a case decided in June, 1948, Justice Rutledge, speaking for a majority of the Court, listed the Alton case as one "foredoomed to reversal," though the formal reversal has never taken place. _See_ Mandeville Is. Farms _v._ American C.S. Co., 334 U.S. 219, 230 (1948).

[416] 250 U.S. 199 (1919).

[417] Ibid. 203-204.

[418] 26 Stat. 209 (1890).

[419] 156 U.S. 1 (1895).

[420] Ibid. 13.

[421] 156 U.S. 1, 13-16 (1895). "Slight reflection will show that if the national power extends to all contracts and combinations in manufacture, agriculture, mining, and other productive industries, whose ultimate result may effect external commerce, comparatively little of business operations and affairs would be left for State control."

[422] Ibid. 17. The doctrine of the case simmered down to the proposition that commerce was transportation only; a doctrine which Justice Harlan undertook to refute in his notable dissenting opinion: "Interstate commerce does not, therefore, consist in transportation simply. It includes the purchase and sale of articles that are intended to be transported from one State to another--every species of commercial intercourse among the States and with foreign nations." (p. 22). "Any combination, therefore, that disturbs or unreasonably obstructs freedom in buying and selling articles manufactured to be sold to persons in other States or to be carried to other States--a freedom that cannot exist if the right to buy and sell is fettered by unlawful restraints that crush out competition--affects, not incidentally, but directly, the people of all the States; and the remedy for such an evil is found only in the exercise of powers confided to a government which, this court has said, was the government of all, exercising powers delegated by all, representing all, acting for all. McCulloch _v._ Maryland, 4 Wheat. 316, 405." (p. 33). "It is said that manufacture precedes commerce and is not a part of it. But it is equally true that when manufacture ends, that which has been manufactured becomes a subject of commerce; that buying and selling succeed manufacture, come into existence after the process of manufacture is completed, precede transportation, and are as much commercial intercourse, where articles are bought _to be_ carried from one State to another, as is the manual transportation of such articles after they have been so purchased. The distinction was recognized by this court in Gibbons _v._ Ogden, where the principal question was whether commerce included navigation. Both the Court and counsel recognized buying and selling or barter _as included in commerce_. * * * The power of Congress covers and protects the absolute freedom of such intercourse and trade among the States as may or must succeed manufacture and precede transportation from the place of purchase." (p. 35-36). "When I speak of trade I mean the buying and selling of articles of every kind that are recognized articles of interstate commerce. Whatever improperly obstructs the free course of interstate intercourse and trade, as involved in the buying and selling of articles to be carried from one State to another, may be reached by Congress, under its authority to regulate commerce among the States." (p. 37). "If the national power is competent to repress _State_ action in restraint of interstate trade as it may be involved in purchases of refined sugar to be transported from one State to another State, surely it ought to be deemed sufficient to prevent unlawful restraints attempted to be imposed by combinations of corporations or individuals upon those identical purchases; otherwise, illegal combinations of corporations or individuals may--so far as national power and interstate commerce are concerned--do, with impunity, what no State can do." (p. 38). "Whatever a State may do to protect its completely interior traffic or trade against unlawful restraints, the general government is empowered to do for the protection of the people of all the States--for this purpose one people--against unlawful restraints imposed upon interstate traffic or trade in articles that are to enter into commerce among the several States." (p. 42).

[423] 175 U.S. 211 (1899).

[424] 196 U.S. 375.--The Sherman Act was applied to break up combinations of interstate carriers in United States _v._ Trans-Missouri Freight Asso., 166 U.S. 290 (1897); United States _v._ Joint-Traffic Asso., 171 U.S. 505 (1898); and Northern Securities Co. _v._ United States, 193 U.S. 197 (1904). In the first of these cases the Court was confronted with the contention that the act had been intended only for the industrial combinations, and hence was not designed to apply to the railroads, for whose governance the Interstate Commerce Act had been enacted three years prior. Justice Peckham answered the argument by saying that "to exclude agreements as to rates by competing railroads * * * would leave [very] little for the act to take effect upon," referring in this connection to the decision in the Sugar Trust Case, 166 U.S. at 313.

Alluding in his opinion for the Court in Mandeville Island Farms _v._ American C.S. Co., 334 U.S. 219 (1948) to the Sugar Trust Case, Justice Rutledge said: "Like this one, that case involved the refining and interstate distribution of sugar. But because the refining was done wholly within a single state, the case was held to be one involving 'primarily' only 'production' or 'manufacturing,' although the vast part of the sugar produced was sold and shipped interstate, and this was the main end of the enterprise. The interstate distributing phase, however, was regarded as being only 'incidentally,' 'indirectly,' or 'remotely' involved; and to be 'incidental,' 'indirect,' or 'remote' was to be, under the prevailing climate, beyond Congress' power to regulate, and hence outside the scope of the Sherman Act. _See_ Wickard _v._ Filburn, 317 U.S. at 119 et seq. (1942).

"The _Knight_ decision made the statute a dead letter for more than a decade and, had its full force remained unmodified, the Act today would be a weak instrument, as would also the power of Congress, to reach evils in all the vast operations of our gigantic national industrial system antecedent to interstate sale and transportation of manufactured products. Indeed, it and succeeding decisions, embracing the same artificially drawn lines, produced a series of consequences for the exercise of national power over industry conducted on a national scale which the evolving nature of our industrialism foredoomed to reversal." Ibid. 229-230.

[425] Swift & Co. _v._ United States, 196 U.S. 375, 396 (1905).

[426] 196 U.S. at 398-399.

[427] Ibid. 399-401.

[428] Ibid. 400.

[429] Loewe _v._ Lawlor, 208 U.S. 274 (1908); Duplex Printing Press Co. _v._ Deering, 254 U.S. 443 (1921); Coronado Coal Co. _v._ United Mine Workers of America, 268 U.S. 295 (1925); United States _v._ Brime, 272 U.S. 549 (1926); Bedford Co. _v._ Stone Cutters Assn., 274 U.S. 37 (1927); Local 167 _v._ United States, 291 U.S. 293 (1934); Allen Bradley Co. _v._ Union, 325 U.S. 797 (1945).

[430] 42 Stat. 159.

[431] Ibid. 998 (1922).

[432] 258 U.S. 495 (1922).

[433] Ibid. 514.

[434] Ibid. 515-516. _See also_ Lemke _v._ Farmers' Grain Co., 258 U.S. 50 (1922); Minnesota _v._ Blasius, 290 U.S. 1 (1933).

[435] 262 U.S. 1 (1923).

[436] Ibid. 35.

[437] Ibid. 40.

[438] 258 U.S. at 521; 262 U.S. at 37.

[439] 48 Stat. 881.

[440] 49 Stat. 803.

[441] Electric Bond Co. _v._ Comm'n., 303 U.S. 419 (1938); North American Co. _v._ S.E.C., 327 U.S. 686 (1946); American Power & Light Co. _v._ S.E.C., 329 U.S. 90 (1946).

[442] "The Bond and Share system, including American and Electric, possesses an undeniable interstate character which makes it properly subject, from the statutory standpoint, to the provisions of Sec. 11 (b) (2). This vast system embraces utility properties in no fewer than 32 States, from New Jersey to Oregon and from Minnesota to Florida, as well as in 12 foreign countries. Bond and Share dominates and controls this system from its headquarters in New York City. * * * the proper control and functioning of such an extensive multi-state network of corporations necessitates continuous and substantial use of the mails and the instrumentalities of interstate commerce. Only in that way can Bond and Share, or its subholding companies or service subsidiary, market and distribute securities, control and influence the various operating companies, negotiate inter-system loans, acquire or exchange property, perform service contracts, or reap the benefits of stock ownership. * * * Moreover, many of the operating companies on the lower echelon sell and transmit electric energy or gas in interstate commerce to an extent that cannot be described as spasmodic or insignificant. * * * Congress, of course, has undoubted power under the commerce clause to impose relevant conditions and requirements on those who use the channels of interstate commerce so that those channels will not be conduits for promoting or perpetuating economic evils. * * * Thus to the extent that corporate business is transacted through such channels, affecting commerce in more States than one, Congress may act directly with respect to that business to protect what it conceives to be the national welfare. * * * It may compel changes in the voting rights and other privileges of stockholders. It may order the divestment or rearrangement of properties. It may order the reorganization or dissolution of corporations. In short, Congress is completely uninhibited by the commerce clause in selecting the means considered necessary for bringing about the desired conditions in the channels of interstate commerce. Any limitations are to be found in other sections of the Constitution. Gibbons _v._ Ogden, 9 Wheat. 1, 196." American Power & Light Co. _v._ S.E.C., 329 U.S. 90, 98-100 (1946).

[443] Appalachian Coals, Inc. _v._ United States, 288 U.S. 344, 372 (1933).

[444] 48 Stat. 195.

[445] 295 U.S. 495 (1935).

[446] Ibid. 548. _See also_ Ibid. 546.

[447] In United States _v._ Sullivan, 332 U.S. 689 (1948), the Court interpreted the Federal Food, Drug, and Cosmetics Act of 1938 as applying to the sale by a retailer of drugs purchased from his wholesaler within the State nine months after their interstate shipment had been completed. The Court, speaking by Justice Black, cited United States _v._ Walsh, 331 U.S. 432 (1947); Wickard _v._ Filburn, 317 U.S. 111 (1942); United States _v._ Wrightwood Dairy Co., 315 U.S. 110 (1942); United States _v._ Darby, 312 U.S. 100 (1941). The last three of these cases are discussed below. _See_ pp. 155, 159. Justice Frankfurter dissented on the basis of Federal Trade Commission _v._ Bunte Bros., 312 U.S. 349 (1941). It is apparent that the Schechter case has been thoroughly repudiated so far as the distinction "direct" and "indirect" effects is concerned. _See also_ McDermott _v._ Wisconsin, 228 U.S. 115 (1913), which preceded the Schechter decision by more than two decades.

The N.I.R.A., however, was found to have several other constitutional infirmities besides its disregard, as illustrated by the Live Poultry Code, of the "fundamental" distinction between "direct" and "indirect" effects, namely, the delegation of uncanalized legislative power; the absence of any administrative procedural safeguards; the absence of judicial review; and the dominant role played by private groups in the general scheme of regulation. These objections are dealt with elsewhere in this volume. _Supra_, pp. 75, 78, 80.

[448] 48 Stat 31 (1933).

[449] United States _v._ Butler, 297 U.S. 1, 63-64, 68 (1936).

[450] 49 Stat. 991.

[451] Carter _v._ Carter Coal Co., 298 U.S. 238 (1936).

[452] Ibid. 308-309.

[453] United States _v._ E.C. Knight Co., 156 U.S. 1 (1895).

[454] 301 U.S. 1 (1937).

[455] 49 Stat. 449.

[456] 301 U.S. at 38, 41-42 (1937).

[457] National Labor Relations Board _v._ Fruehauf Trailer Co., 301 U.S. 49 (1937); National Labor Relations Board _v._ Friedman-Harry Marks Clothing Co., 301 U.S. 58 (1937).

[458] National Labor Relations Board _v._ Fainblatt, 306 U.S. 601, 606 (1939).

[459] _See_ Santa Cruz Fruit Packing Co. _v._ National Labor Relations Board, 303 U.S. 453, 465 (1938).

[460] 52 Stat. 1060.

[461] United States _v._ Darby, 312 U.S. 100, 115 (1941).

[462] _See_ ibid. 113, 114, 118.

[463] Ibid. 123-124.

[464] Owen J. Roberts, The Court and the Constitution, The Oliver Wendell Holmes Lectures 1951, (Harvard University Press 1951), 56.

[465] The Act provided originally that "for the purposes of this Act an employee shall be deemed to have been engaged in the production of goods if such employee was employed * * * in any process or occupation necessary to the production thereof, in any State." By 63 Stat. 910 (1949), "necessary to the production thereof" becomes "directly essential to the production thereof." The effect of this change, which has not yet registered itself in judicial decision, seems likely to be slight, in view of the power, which the act gives the Administrator to lay down "such terms and conditions" as he "finds necessary to carry out the purposes of" his orders to prevent their evasion or circumvention. _See_ Gemsco, Inc. _v._ Walling, 324 U.S. 244 (1945). The employees involved in the following cases have been held to be covered by the act:

(1) Operating and maintenance employees of the owner of a loft building, space in which is rented to persons producing goods principally for interstate commerce (Kirschbaum _v._ Walling, 316 U.S. 517 (1942));

(2) an employee of an interstate motor transportation company, who acted as rate clerk and performed other incidental duties (Overnight Motor Co. _v._ Missel, 316 U.S. 572 (1942));

(3) members of a rotary drilling crew, engaged within a State, as employees of an independent contractor, in partially drilling oil wells, a portion of the products from which later moved in interstate commerce (Warren-Bradshaw Co. _v._ Hall, 317 U.S. 88 (1942));

(4) employees of a wholesale paper company who are engaged in the delivery, from company warehouse within a State to customers within that State, after a temporary pause at such warehouses, of goods procured outside of the State upon prior orders from, or pursuant to contracts with, such customers (Walling _v._ Jacksonville Paper Co., 317 U.S. 564 (1943));

(5) employees of a private corporation who are engaged in the operation and maintenance of a drawbridge which is part of a toll road used extensively by persons and vehicles traveling in interstate commerce, and which spans an intercoastal waterway used in interstate commerce (Overstreet _v._ North Shore Corp., 318 U.S. 125 (1943));

(6) a night watchman employed in a plant in which veneer was manufactured from logs and from which a substantial portion of the manufactured product was shipped in interstate commerce (Walton _v._ Southern Package Corp., 320 U.S. 540 (1944));

(7) employees putting in stand-by time in the auxiliary fire-fighting service of an employer engaged in interstate commerce (Armour & Co. _v._ Wantock, 323 U.S. 126 (1944));

(8) warehouse and central office employees of an interstate retail chain store system (Phillips Co. _v._ Walling, 324 U.S. 490 (1945));

(9) employees of an independent contractor engaged in repairing abutments and substructures of bridges which were part of the line of an interstate railroad (Fitzgerald Co. _v._ Pedersen, 324 U.S. 720 (1945));

(10) maintenance employees of an office building which was owned and operated by a manufacturing corporation and in which 58 per cent of the rental space was used for its central offices, where its production of goods for interstate commerce was administered, managed and controlled, although the goods were actually produced at plants located elsewhere (Borden Company _v._ Borella, 325 U.S. 679 (1945));

(11) the employees of an electrical contractor, locally engaged in commercial and industrial wiring and dealing in electrical motors and generators for commercial and industrial uses, whose customers are engaged in the production of goods for interstate commerce (Roland Co. _v._ Walling, 326 U.S. 657-678 (1946));

(12) employees of a window-cleaning company, the greater part of whose work is done on the windows of industrial plants of producers of goods for interstate commerce (Martino _v._ Michigan Window Cleaning Company, 327 U.S. 173-178 (1946));