remove ambiguities which are patent in the text of the act itself. § 798. The effect of the title of this act has already been passed upon,' the supreme court saying: "We are asked to regard the title of this act as indicative of the purpose to include only those contracts which were unlawful at common law, but which require the sanction of a federal statute in order to be dealt with in a federal court. It is said that when terms which are known to the common law are used in a federal statute, those terms are to be given the same meaning that they received at common law, and that when the language of the title is to 'protect trade and commerce against unlawful restraints and monopolies,' it means those restraints and monopolies which the common law regarded as unlawful, and which were to be prohibited by the federal statute. We are of opinion. that the language used in the title refers to and includes, and was intended to include, those restraints and monopolies which are made unlawful in the body of the statute. It is to the statute itself that resort must be had to learn the meaning thereof, though a resort to the title here creates no doubt about the meaning of and does not alter the plain language contained in its text." Under this decision the title is embraced in the act, and the act in the title; each is made inclusive and neither explains the other. It will, however, be profitable to consider the wording of this title and the terms used therein a little further, since by so doing light will be thrown upon the meaning and intent of the act itself. § 799. "Trade and commerce." By the use of the terms "trade" and "commerce" in both the title and the act, a distinction is assumed. In the title the terms are used conjunctively, while in the act they are used disjunctively. The phrase "trade and commerce " is so commonly used as meaning simply the entire field of commerce that were it not for the disjunctive use of the two terms in the body of the act it might be assumed that no distinction was intended - that the words were used as a phrase in common use rather than as terms to describe more or less distinct conditions.2 1 United States v. Trans-Missouri Freight Ass'n (1896), 166 U. S. 290, 17 Sup. Ct. R. 540. 2That the words "trade" and "commerce" are not synonymous, see People v. Fisher (1835), 14 Wend. 15; but Primarily trade meant the calling, handicraft or occupation of a mechanic or an artisan; it once signified the footsteps, the trace, the path, the way, the course, but these significations are obsolete, and it is now specifically defined as "the craft or the distinction in this case, namely, the power to regulate it embraces that commerce relates to dealings with foreign nations, is not sound. As to what constitutes commerce with foreign countries and among the states, see County of Mobile v. Kimball (1880), 102 U. S. 691; The Lewellen (1868), 4 Biss. 156, Fed. Cas. No. 8,307; In re Nickodemus (1869), Fed. Cas. No. 10,254; In re Greene (1892), 52 Fed. R. 104. To the effect that commerce includes no intercourse except that which consists in trade or traffic, see Caldwell v. State (1832), 1 Stew. & P. 327. To the effect that commerce, as the term is used in section 8, article 1, of the federal constitution, includes intercourse as well as the exchange of commodities, and also the transportation of passengers, see People v. Raymond (1868), 34 Cal. 492; Fuller v. C. & N. W. R. Co. (1871), 31 Iowa, 187; Crow v. State (1851), 14 Mo. 237; State v. Forman (1835), 16 Tenn. 256. For distinction between commerce and transportation, see Council Bluffs v. Kansas City, St. J. & C. R. R. Co. (1876), 45 Iowa, 338. In Hopkins v. United States (1898), 171 U. S. 578, 19 Sup. Ct. R. 40, the supreme court said: "Definitions as to what constitutes interstate commerce are not easily given so that they shall clearly define the full meaning of the term. We know from the cases decided in this court that it is a term of very large significance. It comprehends, as it is said, intercourse for the purposes of trade, in any and all its forms, including transportation, purchase, sale and exchange of commodities between the citizens of different states, and all the instruments by which such commerce may be conducted." Citing Welton v. Missouri (1875), 91 U. S. 275; County of Mobile v. Kimball (1880), 102 U. S. 691; Gloucester Ferry Co. v. Pennsylvania (1884), 114 U. S. 196, 5 Sup. Ct. R. 826; Hooper v. California (1894), 155 U. S. 648, 15 Sup. Ct. R. 207; United States v. E. C. Knight Co. (1894), 156 U. S. 1, 15 Sup. Ct. R. 249. "Trade has been defined as 'the exchange of commodities for other commodities or for money; the business of buying and selling; dealing by way of sale or exchange.' The word 'commerce,' as used in the statute and under the terms of the constitution, has, however, a broader meaning than the word 'trade.' Commerce among the states consists of intercourse and traffic between their citizens, and includes the transportation of persons and property, and the navigation of public waters for that purpose, as well as the purchase, sale and exchange of commodities." County of Mobile v. Kimball (1880), 102 U. S. 702; Gloucester Ferry Co. v. Pennsylvania (1884), 114 U. S. 196, 5 Sup. Ct. R. 826. Pullman cars in use upon the roads are instrumentalities of commerce. United States v. Debs (1894), 64 Fed. R. 724, 763. "When the commerce begins is determined, not by the character of the commodity, nor by the intention of the owner to transfer it to another state for sale, nor by his preparation of it for transportation, but by its actual delivery to a common carrier for transportation, or the actual commencement of its transfer to an business which a person has learned and which he carries on as a means of a livelihood or for profit; occupation; particularly mechanical or mercantile employment; a handicraft as distinguished from one of the liberal arts or of the learned professions, and from agriculture." Later in time the term was applied to barter and the exchange of commodities, and to dealing and selling generally, until nowadays "trade comprehends every species of exchange or dealing, either in produce of land, in manufactures or in bills or money. It is, however, chiefly used to denote barter or purchase and sale of goods, wares and merchandise, either by wholesale or retail." 2 Trade, therefore, has two quite distinct meanings and applications. As originally used it referred to a man's calling, and particularly to the calling or occupation of a mechanic, and under the exemption laws the term "trade" is still confined quite strictly to the occupation of artisans and mechanics. In this narrower sense trade is one of the factors of production rather than of commerce; it is descriptive of labor rather than of intercourse. The term "trade," as originally used in decisions relating to contracts in restraint of trade, referred to the occu other state. At that time the power and regulating authority of the state ceases, and that of congress attaches and continues, until it has reached another state and becomes mingled with the general mass of property in the latter state. That neither the production or manufacture of articles or commodities which constitute subjects of commerce, and which are intended for trade and traffic with citizens of other states, nor the preparation for their transportation from the state where produced or manufactured, prior to the commencement of the actual transfer, or transmission thereof to another state, constitutes that interstate commerce which comes within the regulating power of congress; and further, that after the termination of the transportation of commodities or articles of traffic from one state to another, and the mingling or merging thereof in the general mass of property in the state of destination, the sale, distribu- pation or calling of the individual rather than to commercial intercourse. The use of the term "trade" in connection with exchange or barter is essentially distinct in its meaning and application. Trade in this sense has as its verb "to trade," and trading in this sense is a part of commerce and not of manufacture or production. Since the use of the term in both senses is equally common, no rule can be laid down to the effect that unless otherwise explained the term shall be taken in either one sense or the other. Unexplained by context it is impossible to say whether the term "trade" refers to an occupation or calling or to barter and exchange. In discussing contracts in restraint of trade it has been earnestly urged that the law primarily has reference to contracts which restrain a party from following his occupation or calling,- conceding, of course, that in process of time the occupation and calling have come to embrace a party's business, industrial or professional pursuit. And the effort was made to clearly distinguish contracts in restraint of trade from contracts to suppress competition and combinations to control the market. A contract in restraint of trade is primarily and essentially an agreement whereby a party is restrained from following his trade, occupation, business, industry or practice,- that is, from doing the thing which he is best equipped by experience and training for doing; such a contract may and usually does deprive the community, for the time being, of the services of the individual bound, and thereby directly affects production; whereas, a contract to suppress competition may not affect the right of any individual to pursue his trade or calling, and may not affect in any manner production by paralyzing any factor of production; but contracts to suppress competition and combinations to control markets may, and usually do, very materially affect commerce. A law, therefore, for the protection of trade against restraints might have for its object the protection of production by forbidding all contracts which tend to restrain a party from following his usual trade or calling, or such law might have for its object the protection of commerce by forbidding parties from entering into agreements to suppress competition or to control the market. If the law is for the protection of production it will be directed primarily toward the individual, since it is the individual who binds himself to refrain from producing; whereas, if the law is for the protection of commerce, it will be directed primarily against combinations of two or more for the suppression of competition or the control of the market. Commerce embraces not only barter and the exchange and sale of commodities, but also traffic and transportation of every nature and kind. Chief Justice Marshall said concerning commerce: "Counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce undoubtedly is traffic, but it is something more; it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse."1 The disjunctive use of the terms in the body of the act clearly indicates that congress had in mind a distinction between trade and commerce, and that the object of the law is to protect both trade and commerce from restraints and monopolies. But this construction of the term "trade" in the act is impossible on account of the constitutional limitation upon the powers of congress to legislate concerning trade and commerce. The power of congress to pass any law affecting contracts in restraint of trade or commerce is found in the interstate commerce clause of the constitution, which confers upon congress the power "to regulate commerce with foreign nations and among the several states, and with the Indian tribes." It is obvious that this section confers upon congress no power whatsoever to legislate concerning the various trades, pursuits, callings, industries and occupations of the citizens of the several states, except in so far as those trades, callings, industries and pursuits directly affect interstate or foreign commerce or commerce with the Indian tribes. Contracts in restraint of trade are therefore not within the act unless they directly affect interstate or foreign commerce. Combinations of labor are not within the act 1 Gibbons v. Ogden (1824), 9 Wheat. 1, 189. 2 Art. I, sec. 8, par. 3, Const. U.S. |