The police power of the state was extended to oleomargarine, butterine, etc., as it had theretofore been extended to liquors in the "original package."

As to the anti-trust legislation of congress and also legislation in relation to the relations of labor and capital in interstate commerce, see chapter IV, infra, “Business and Labor Combinations in Interstate Commerce."

Congress has also legislated extensively in regard to transportation by water in the navigation acts. The Interstate Commerce Act only regulates water transportation, when the transportation is partly by railroad and partly by water under a common control or management.

$55. The Department of Commerce and Labor. In 1903congress established the department of commerce and labor, the secretary at the head being made one of the executive officers of the government and as such one of the President's advisers known as the Cabinet.2

This department included several of the bureaus theretofore included in other departments, and among others the De-` partment of Labor, which had been established by congress in 1888.3

Section 5 of this act establishes a Bureau of Manufactures, and section 6 a Bureau of Corporations, which is vested with the same power and authority of investigation in respect to corporations and combinations engaged in interstate commerce as is conferred on the Interstate Commerce Commission in respect to railroads. The commissioner of corporations is given powers of investigation, with the right to summon witnesses and call for the production of books and papers, subject to the same immunities against the enforcement of self-incriminating testimony, as is contained in the act of 1893 concerning the Interstate Commerce Act.4

This act includes in section 6, as subject to the investigation of the commissioner of corporations, corporations engaged in insurance. It has been adjudged, supra, § 8, in successive opin

1 Act of May 9, 1902, Supp. Comp. see infra, § 48; also Interstate ComStat. p. 369. merce Commission v. Brimson, 154

2 Act of February 18, 1903, Supp. U. S 447, 38 L. Ed. 1047; InterstateComp. Stats. p. 41.

3 Infra, § 351 et seq.

4 As to the construction of this act,

Commission v. Baird, 194 U. S. 25, 48 L. Ed. 860, infra, § 268.

ions of the Supreme Court, that insurance is not commerce in any of its forms.1

This act has not been judicially construed. The federal government has obviously no visitorial power over corporations which it does not create, and the power of the commissioner to make investigations or to compel reports would be clearly limited to transactions in interstate commerce, to the same extent as the powers of the interstate commerce commission are limited to transactions in interstate as distinguished from domestic commerce.

While the powers of the Bureau of Corporations are described mainly by reference to those contained in the Interstate Commerce Act, the latter is a quasi judicial body, in the sense that it is empowered to hear complaints and make charges and findings for judicial investigation and determination, while the Commissioner of Corporations is at the head of an administrative department of the government. The powers of investigation vested in this bureau are to be used for the purpose of assisting the legislative department in making laws, and the executive department in enforcing them. The commissioner has no judicial powers, and within the scope of his duties must appeal to the courts for the enforcement of his orders.2 The

The Commissioner of Corporationsin his first annual report, December 1904, says that if this purpose is irrevocably settled, the powers of the commissioner relative thereto are of purely a statistical, voluntary, non-compulsory nature. He suggests however, that in view of the rapid developement of the insurance business, its extent, the enormous amount of money and the diversity of interests involved and the present business methods, that under existing conditions, that insurance is commerce and may be subject to federal regulation through affirmative action by congress.

It is difficult to see, however, if the supreme court adheres to its present rulings, how the jurisdiction of Congress can be enlarged by its, own declarations of the extent of its powers.

2 It is said in the very exhaustive first annual report of the commissioner, Hon. James R. Garfield, "that many of the specific powers of the Interstate Commerce Commission are clearly inapplicable to the purpose of the Bureau of Corporations. He cannot make investigations or procure and enforce information by means of his compulsory powers for the purpose of enforcing the penal provisions other than those contained in the organic act of the bureau, nor can he furnish information so procured to private individuals for their personal use. His compulsory investigatory powers are further limited by the rights of privacy of the citizen which may not be invaded by inquiry except for a definite, constitutional and legal object, and only such matters may be investigated as relate to and give information upon

statute has not been judicially construed, nor has any appeal been made to the courts to enforce its powers of investigation by compulsory testimony or production of books.1

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§ 56. The unexercised federal power. In determining the possible limits of the unexercised federal power in the regulation of commerce, there is comparatively little in the way of direct judicial authority. The Supreme Court has frequently been called upon to decide, and has decided, what the states cannot do, and it is from the expressions in these negative opinions that we are compelled to rely in determining what congress can do, that is, what are the limits of the regulating power of congress. The law of interstate commerce is essentially judge made law, supplemented in comparatively recent years by the exercise of the regulating power of congress. The Supreme Court has repeatedly declined to formulate a general rule as to the precise line where the power of congress begins and the power of the state ends. It was on this question of the conflict between the admitted powers of the state and of the federal government, that Chief Justice Marshall said that the power and the restriction on it, though quite distinguishable when they did not approach each other, may well, like the intervening colors between white and black, approach so nearly as to perplex the understanding, as colors perplex the vision in marking the distinction between them.3

In the recent lottery case the extent of the federal regulating power was directly presented and exhaustively discussed, and by a bare majority of the court the federal power to prohibit interstate traffic in lottery tickets was sustained, but it was said in the prevailing opinion that the whole subject was too

the objects of the bureau and its work."

1 Commissioner Garfield says in his report of December 1904, "In brief, the policy of the bureau in the accomplishment of the purposes of its creation is to co-operate, and not antagonise, the business world. The Immediate object of its inquiries is the suggestion of constructive legis lation, not the institution of criminal legislation. It proposes through exhaustive investigations of law and

fact to secure conservative action, to avoid ill considered attack upon corporations which will avoid unfair and dishonest practices. Legitimate business law respecting persons and corporations have nothing to fear from the proposed exercise of this governmental power of inquiry."

2 Welton v. Missouri, 91 U. S. 275 (1875), 23 L. Ed. 347; Hall v. De Cuir, 95 U. S. 485, 24 L. Ed. 547.

3 Brown v. Maryland, 12 Wheat. 419 (1827), 6 L. Ed. 678.

important and the question suggested by its consideration too difficult for solution, to justify any attempt to lay down a rule for determining in advance what could be enacted by congress under the commerce clause. See Lottery case, supra.

The power of congress in the regulation of interstate commerce has been impliedly declared by the supreme court with reference to the Interstate Commerce Act in several cases decided, involving the construction of that act. Thus the court has pointed out the possible limits of the power which congress could have delegated to the railway commission, saying that congress could itself have prescribed the rates, or could have committed to some subordinate tribunal this duty; but it held as a matter of construction of this act that congress had not taken either of these permissible courses in the commerce act.' This unexercised federal power has been discussed (supra, 45) in connection with the proposed amendment of the Interstate Commerce Act. While it seems to be conceded that congress has the power to regulate rates or to delegate that legislative power to a commission, this power must be exercised. subject to the guarantees of the "due process of law," and against the taking of private property for public use without compensation. In the exercise of this power, congress, or any commission under the authority of congress, is restrained by the provision that "no preference shall be given to any regulation of commerce or revenue to the ports of one state over those of another." "Ports" of entry are now not only on the seaboard, but are scattered through the interior, and the application of this provision to the federal regulation of carrier's charges in the recognition of "differentials" between competing "ports" is yet to be dertermined. (Supra, § 3.)

A wide field for the possible exercise of the federal power of regulation is found in the class of cases wherein the court has adjudged that the states have a concurrent power of legislation in the non-action of congress. In other words, congress can act in cases wherein it has heretofore exercised its power of regulation by its non-action. Thus, in cases where congress has heretofore allowed local regulations to control, and also in the class of cases where the court has sustained state statutes Interstate Commerce Commission v. Railway Co., 167 U. S. 479, l. c 494 (1897), 42 L. Ed. 243, 251.

or state laws regulating the relations of interstate carriers to their patrons. In such cases the court has said that as long as congress has not legislated in aid of interstate commerce, they are to be regarded as a rightful exercise of the police power of the state in regulating the lawful duties of persons and corporations within their limitations.!

There is therefore a wide legislative discretion in congress to determine when a subject is capable of uniform regulation in interstate commerce, and when it is so determined, all local or state legislation in respect to such matters and covering the same ground cease to have the same force whether formally abrogated or not, and the regulations prescribed by congress will then alone control. It is for the supreme court to determine, when a question arises, as to whether a state law is thus abrogated by the exercise of the power by congress. The power which the states can thus exercise will in this way be suspended until the national control is abolished and the subject thereby again left under the control of the states."

§ 57. Prohibition and regulation. The most important and indeed the fundamental question involved in the extension of the federal regulation of commerce was discussed, but not definitely decided, in the Lottery Cases. It was there strongly contended that the power to regulate commerce did not include the power to prohibit, as the power delegated to congress was for the purpose of securing the freedom of interstate commerce and preventing the hostile or discriminating action of the states, and was thereby distinguished from the sovereign control over foreign commerce, and that congress had no general police powers such as are reserved to the states. This view was strongly maintained by the four dissenting judges.3

The prevailing opinion did not directly dispute or discuss the position of the dissenting judges, and declined to formu late any general rule as to the powers of congress, but based the position of the majority upon what was essentially the moral view, that the lottery business had grown into such dis

1 Pennsylvania R. Co. v. Hughes, 191 U. S. 477, 1. c. 490 (1903), 48 L. Ed. 26S.

2 Reid v. Colorado, 187 U. S. 137 (1902), 47 L. Ed. 108.

3 Justices Fuller, Brewer, Shiras and Peckham.