of the manufacturer, in such a case, to interstate and foreign commerce is incidental and indirect, and the business therefore is subject only to state control.

Trademarks, though useful and valuable aids of commerce, are not subject to congressional regulation, unless limited to their use in commerce with foreign nations and among the several states and with Indian tribes.1

§ 8. Insurance is not commerce.-An important application of this principle, that the contractual relations incidental to commerce are not included in the commerce clause, has been made in relation to the business of insurance. The business of fire and marine insurance is intimately related to interstate and foreign commerce, and is indeed an essential feature of such commerce, while life insurance involves an associated relation for the averaging of human lives, extending not only through the states of this country but foreign countries. It was first held in the case of a foreign fire insurance company which claimed exemption from state control, that a policy of insurance was not an instrument of commerce, but was a mere contract for indemnity against loss by fire, and that the fact that the parties were domiciled in different states did not make such contracts interstate transactions within the meaning of the commerce clause. Later this ruling was applied to a contract of marine insurance, and the court said, if the power to regulate interstate commerce applied to all the incidents to which commerce might give rise, and to all the contracts which might be made in the course of its transaction, the power would embrace the entire sphere of mercantile activity in any way connected with trade between the states. Finally, in 1900, the ruling was extended to the case of mutual life insurance, although here it was contended that the policies were not mere

1 Trade Mark Cases, 100 U. S. 82, countries and foreign governments. 25 L. Ed. 550 (1879).

2 President Roosevelt, in his message of December 1904, says that the business of insurance vitally affects the great mass of the people of the United States, and is national and not local in its application, and that it involves a multitude of transactions among the people of the different states and between American

He urges congress to consider whether the power of the Bureau of Corporations, infra, § 350, could not constitutionally be extended to cover interstate transactions in insurance. 3 Paul v. Virginia, 8 Wall. 168 (1869), 19 L. E 1. 357.

4 Hooper v. California, 155 U. S. 647 (1895), 39 L. Ed. 297.

contracts of indemnity, but represented an associated relation based on the comparative certainty of the average life and the uncertainty of the individual life, thus necessitating a uniform law controlling this associated relation of parties resident in different states and countries. The court, however, refused to distinguish the business of mutual life insurance from that of fire and marine insurance. The business of insurance therefore, in all its branches is subject to the legislation of the different states' wherein the companies are located.

It was strongly contended by the dissenting judges in the lottery cases, supra, that lottery tickets, under the ruling in the insurance cases, were mere evidences of contractual relations, furnishing the means of enforcing contract rights, and were not instruments of commerce in any sense. It was ruled in the prevailing opinion, however, that lottery tickets are subjects of traffic, and are therefore subjects of commerce.

9. What are the subjects of commerce.- Commerce between the states includes only the subjects, which are properly and lawfully articles of commerce. The regulating power of congress does not deprive the states of their inherent police power in protecting the lives and property of their citizens, although the line is oftentimes difficult to draw, as the dissents in the supreme court show, between reasonable police regulation which only indirectly or incidentally effects interstate commerce, and legislation which invades the prerogatives of congress.

Thus the states may legislate to prevent the spread of crime, and may exclude from their limits paupers, convicts, persons likely to become a public charge, and persons afflicted with contagious diseases. A state may protect the moral as well as the physical health of its people. A corpse is not the subject of commerce. This power of the state includes the right to protect the people against fraud and deception in the sale of food products. The principle was applied by the court in sus

1 New York Life Ins. Co. v. Cravens, 178 U. S. 389 (1890), 44 L. Ed.

1116.

2 As to the exercise of their power by the states and its effect upon the business of insurance, see infra, $15.

3 But as to right of excluding foreign immigrants, see Henderson v. New York, 92 U. S. 259 (1875), 23 L. Ed. 543, Chy Lung v. Freeman, 92 U. S. 275 (1875). 23 L. Ed. 550. *In re Wong Yung Quy, 6 Saw.

442.

taining a Massachusetts statute,' which prohibited the manufacture and sale of imitation butter, oleomargarine, artificially colored so as to cause it to look like butter.

This principle does not extend to the exclusion of any commodity which is generally recognized as a legitimate article of commerce, though condemned and sought to be excluded by the legislation of a particular state. A state cannot determine for itself upon its own standards of public opinion what are and what are not lawful subjects of commerce, against the generally accepted opinion of the commercial world. This distinction was illustrated in another oleomargarine case 2 where the court held invalid a statute of Pennsylvania which absolutely prohibited the manufacture or sale of oleomargarine, so far as that statute prohibited the introduction of oleomargarine from another state and its sale in the original package.

The court distinguished the Plumley (Massachusetts) case on the ground that it was based upon the right of the state to prevent deception and fraud, and that the right of a state in relation to the administration of its internal affairs was one thing, and its right to prevent the introduction within its limits of an article of commerce was another and totally different thing. The court in its opinion referred to the fact that oleomargarine had been treated by congress as a proper subject of taxation, that this was in effect an affirmative declaration by by congress that it was a proper subject of commerce, and that it was established by competent testimony that it was a wholesome human food and a legitimate subject of commerce.

This conflict between local and general public opinion as to what are proper subjects of commerce was illustrated in the case of spirituous liquors which the court held were legitimate sub

1 Plumley v. Massachusetts, 155 U. S. 461 (1895), 39 L. Ed. 223. The same principle was applied in Crossman v. Lurman, 192 U. S. 189 (1904), 48 L. Ed. 401, in sustaining a New York statute as to the importation of artificially colored foreign coffee. Held that there was no error in excluding evidence that it was a recognised article of commerce. See also Capitol City Dairy Co. v. Ohio, 183 U. S. 238 (1902), 46 L. Ed. 171.

2 Schollenberger v. Pennsylvania, 171 U. S. 1 (1998), 43 L. Ed. 49: In Collins v. New Hampshire. 171 U. S. 31 (1898), 43 L. Ed. 60, the court held invalid, as being in necessary effect prohibitory, a statute prohibiting sale of oleomargarine as a substitute for butter unless colored pink.

3 Act of August 2, 1866, c. 40, 24 statutes at large, 209. 4 See infra, § 21.

jects of commerce, the introduction and sale whereof in the original package could not be prohibited by the state. The right of the state in its control of its domestic commerce to enforce its own views of public policy in prohibiting the manufacture and sale of both liquors and oleomargarine had been sustained by the court.

1

Tobacco is also a legitimate article of commerce and the supreme court said that it could not take judicial notice of the fact that it was more noxious in the form of cigarettes than in other forms. It was therefore subject to the same extent as intoxicating liquors to the police power of the state, that is, the state could declare how far cigarettes should be sold or prohibit their sale entirely after they had been taken from the original packages or had left the hands of the importer, providing no discrimination was used as against those imported from other states, but could not prohibit their importation.

The lawful police power of the state also extends to the reasonable inspection of articles brought in from the other states, this right of inspection being expressly recognized by the constitution in the case of foreign importations. But this inspection must be reasonable, and is invalid if burdened with such conditions as would wholly prevent the introduction of the sound article from other states."

10. Wild game and fish as subjects of commerce.- Lawful subjects of commerce must be capable of private ownership, and while this is not subject to the determination of a state in relation to recognized subjects of commerce, it is subject to the state control where the matter is not a subject of private owner

1 Mugler v. Kansas, 123 U. S. 623, though applied to articles sold in 31 L. Ed. 205 (1877). original packages imported from other states.

2 Powell v. Pennsylvania, 127 U. S. 678 (1888), 32 L. Ed. 253. See also Arbuckle v. Blackburn, 6th circuit, 51 C. C. A. 122, 113 Fed. Rep. 616, 65 L. R. A. 864, where the court refused to enjoin the enforcement of a state statute prohibiting coloring, coating or polishing an article intended for food, whereby damage or inferiority is concealed. The court said this was not in conflict with the power of congress to regulate commerce,

3 Austin v. Tennessee, 179 U. S. 343 (1900), 45 L. Ed. 224.

As to size of the original package, see infra, § 16.

5 Art. I, sec. 10, par. 2; Patapsco Guano Co. v. North Carolina Board of Agriculture, 171 U. S. 345 (1898), 43 L. Ed. 191.

6 See Minnesota v. Barber, 136 U. S. 313 (1890), 34 L. Ed. 455.

ship except as permitted by state law. Thus the wild game within a state at common law belongs to the sovereign, and in this country to the people in their collective capacity, and the state therefore has a right to say that it shall not become the subject of commerce. Upon this principle the Supreme Court sustained a Connecticut' statute prohibiting the killing of certain game in the state, with the intent of transporting the same out of the state.

Under the same principle the state determines on what conditions the products of oyster beds and fisheries may become subjects of commerce, as each state, subject to the paramount control of navigation in the federal government, owns the beds of all tide waters and public waters in its jurisdiction."

In the case cited from Massachusetts the courts held valid an act of that state prohibiting fisheries in the waters of Buzzard's Bay, except under the regulations prescribed by the act, and held that it applied to a vessel which had a license to fish under the laws of the United States. There has been no grant to congress of power over fisheries, and these remain under the exclusive control of the states. The extent of the territorial jurisdiction of the state of Massachusetts over the sea adjacent to its coast was held to be that of an independent nation, and except so far as the right of control over this territory had been granted to the United States, the control remained with the state, subject of course to the admiralty and maritime jurisdiction of the United States. Within what are generally recognized as the territorial limits of states by the law of nations, a state can define its boundaries on the sea and the boundaries of

1 Geer v. Connecticut, 161 U. S. 519 (1896), 40 L. Ed. 793. After this decision it was held in the case of In re Davenport, 102 Fed. Rep. 540, (1900), U. S. Circuit Court of Wash ington, that a state had no power to forbid traffic in game brought from another state where it had been law. fully killed; but the U. S. Circuit Court of Oregon, 108 Fed. Rep. 623 (1901), In re Deininger, declined to follow this view and held valid a state law making it a penal offense

to have trout in possession for sale although brought from another state where it was lawfully caught. Some of the state courts had held that such laws were invalid as regulative of interstate commerce. See State v. Sanders, 19 Kan. 127, and Territory v. Evans. 2 Idaho. 634.

2 McCready v. Virginia, 94 U. S. 391 (1876), 24 L. Ed. 248: Manchester v. Massachusetts, 139 U. S. 240 (1890), 35 L. Ed. 159.