IV. marized the propositions deducible therefrom, and Chapter having special reference to the question decided in the Addyston Pipe, etc., Co. case, supra, said: "Although the Act of Congress known as the Anti-Trust Act has no reference to the mere manufacture or production of articles or commodities within the limits of the several States, it does embrace and declare to be illegal every contract, combination, or conspiracy, in whatever form, of whatever nature, and whoever may be parties to it, which directly or necessarily operates in restraint of trade or commerce among the several States or with foreign nations. Combinations even among private manufacturers or dealers whereby interstate or international commerce is restrained are equally embraced by the Act." The power of Congress in some measure indirectly to regulate production and manufacture must be conceded. By denying the facilities of interstate transportation in the case of commodities which have not been manufactured under federal supervision, this object may be attained. To insure the interstate and foreign trade in pure and unadulterated foods, and to prevent frauds upon purchasers of goods which are upon the interstate and foreign market, Congress would seem to have ample power. But there must be some limit, some line of demarcation between the power of Congress and of the States, in controlling the processes of manufacture, beyond which Congress cannot step. That there must be a limit to the power of Congress in this regard is evident both from the nature of the subject and from the judicial recognition and insistence that manufacture is not commerce, or, at any rate, that in and of itself it is a matter of domestic concern. Power of deny trans facilities. Congress to portation Chapter IV. Extent of power of Congress suggested. The remark of Chief Justice Fuller, that 66 commerce succeeds to manufacture," in the E. C. Knight Co. case, supra, is very suggestive in this connection." It will have been noticed that in the Addyston Pipe, etc., Co. case, supra, while the contract or combination was entered into with respect to articles to be thereafter manufactured, the contract nevertheless had reference to contracts of sale and delivery in other States and Territories than those in which the respective manufacturers resided, and as it tended to restrain interstate trade in those articles, in violation of the statute, the conspirators were enjoined from carrying out that part of their contract, but neither their right to manufacture nor their purely domestic trade could be affected by a federal statute. And in the supposed cases of indirect interference, by denying the privileges of interstate transportation in the interest of the consumer, the exercise by Congress of such a right would seem to be referable to a power in the nature of an ultraconstitutional or federal police regulation.1 To the extent that manufacturers, in so far as their business is concerned in finding an interstate or foreign market for their products, may be subject to the rules prescribed by Congress by which that commerce shall be governed, as by the rule of free competition, and to such regulations as may be adopted to insure the quality of the articles transported and for the prevention of fraud and imposition - to As is also that of Chief Justice Waite, that commerce has nothing to do with land while producing, but only with the product after it has become the subject of trade," made in McCready v. Virginia, (1876) 94 U. S. 391, wherein the right of a State to grant the exclusive use of the land under its waters to its own citizens for the propagation of oysters was affirmed. 1 See supra, p. 51. this limit, the power of Congress may probably be Chapter exerted. But if, under the guise of its power to regulate interstate and foreign transportation, Congress were to attempt to control the processes of production and manufacture, with the avowed or ostensible purpose of regulating matters which are of purely domestic or local concern, and with no federal policy to be promoted, it must be that the line, faint though it be, which marks the boundary of federal and State power, would seemingly be overstepped. For instance, labor laws, strictly so called, are assuredly matters of State regulation. It may be, in order to secure the purity or quality of articles to be transported from one State to another and to foreign countries, that Congress can prohibit the transportation of articles which have not been produced under conditions guaranteeing their purity and fitness for consumption, and can probably stipulate for the freedom from certain diseases of the persons employed, as well as for the sanitary condition of the premises. Here there would be an element of the federal policy -a national guaranty of the quality of the article. But federal laws regulating the hours of labor and prohibiting the employment of children, and making a conformity to those laws a condition to the interstate transportation of the goods manufactured, proper subjects of regulation though these may be, can have no relation to anything more than matters of local concern, as it is difficult to see how such regulations can be embraced by any conceivable rule of commerce, or how they can be considered such police regulations as would serve any distinctively federal purpose. IV. Power of to control facture Congress processes of manu limited. CHAPTER V. SALE, PURCHASE, AND EXCHANGE OF COMMODITIES. POWER OF CONGRESS IN GENERAL. Chapter THAT part of interstate commerce which con Interstate sales within exclusive power of sists in the sale, purchase, and exchange of commodities for transportation from one State to another is national in its character and must be Congress. governed by a uniform system, and is within the exclusive power of Congress to control. So long as Congress does not pass any law regulating it, or allowing the States to do so, it thereby indicates its will that such commerce shall be free.1 Intrastate sales within exclusive power of the States. On the other hand, Congress is without power to legislate respecting the traffic which is intrastate. This was clearly indicated in the case of Addyston Pipe, etc., Co. v. U. S.,2 referred to heretofore, in considering the subject of manufacture, in which case the court modified the judgment in so far as it included in its scope the enjoining of the defendants from combining in regard to contracts of sale to be performed within their respective States. 1 Interstate commerce consists of intercourse and traffic between the citizens or inhabitants of different States, and includes not only the transportation of persons and property and the navigation of public waters for that purpose, but also the purchase, sale, and exchange of commodities. Addyston Pipe, etc., Co. v. U. S., (1899) 175 U. S. 211, citing Gloucester Ferry Co. v. Pennsylvania, (1885) 114 U. S. 196; Kidd v. Pearson, (1888) 128 U. S. 1. 2 (1899) 175 U. S. 211. 4 police applicable eral places The Internal Revenue Act of Congress of March Chapter 2, 1867, provided "that no person shall mix for sale naphtha and illuminating oils, or shall knowingly sell or keep for sale or offer for sale such mixture, or shall sell or offer for sale oil made from petroleum for illuminating purposes, inflammable at less temperature or fire-test than 110 degrees Fahrenheit; and any person so doing shall be held to be guilty of a misdemeanor, and on conviction thereof by indictment or presentment in any court of the United States having competent jurisdiction, shall be punished by fine, etc., and imprisonment." It Federal was urged that the provision was in aid and sup-regulation port of the internal revenue tax imposed on other only to fedilluminating oils, analogous to provisions regulating the business of distilling liquors, and the mode of packing various manufactured articles, but in U. S. v. Dewitt the court said that if the prohibition had any relation to taxation at all, it was merely that of increasing the production and sale of other oils, and, consequently, the revenue derived from them, by excluding from the market the particular kind described, and that this consequence was too remote and too uncertain to warrant the court in saying that the prohibition was an appropriate and plainly adapted means for carrying into execution the power of laying and collecting taxes. And Chief Justice Chase, speaking for the court, further said that "as a police regulation, relating exclusively to the internal trade of the States, it can only have effect where the legislative authority of Congress excludes, territorially, all State legislation, as for example, in the District of Columbia. 14 Stat. at L. 484, c. 169, § 29. 4(1869) 9 Wall. (U. S.) 41. |