Readings on the Relation of Government to Property and Industry

By Samuel P. Orth | Go to book overview

it for time and experience to determine whether constitutional rights have been infringed.1

A most serious difficulty is presented by our dual form of government. It is beyond the scope of the present discussion to treat the numerous cases dealing with the commerce clause, and the question what is interstate and what is intrastate commerce. The net return to a railroad company, -- and it is to railway traffic that the questions most frequently relate, -- depends on the relation between its income from whatever source derived and its outgoes whether for the conduct of interstate or intrastate business. The two are inextricably intermingled, and the problem of preserving the rights and powers of both the state and the federal governments is one of the problems of the future.


THE CONTROL OF CONGRESS OVER MANUFACTURE AND PRODUCTION2

By THOMAS H. CALVERT

(Chapter IV of "Regulation of Commerce under the Federal Constitution," by Thomas H. Calvert. (Copyrighted) Edward Thompson Co., 1907)

As the power delegated to Congress is limited to "commerce with foreign nations, and among the several States, and with the Indian tribes," there is an internal commerce which is subject to the exclusive control of the States. The principle that manufacture and production are not commerce was clearly stated by Mr. Justice Lamar in Kidd vs. Pearson.3 He said: "No distinction is more popular to the common mind, or more clearly expressed in economic and political literature, than that between manufactures and commerce. Manufacture is transformation -- the fashioning of raw materials into a change of form for use. The functions of commerce are different. The buying and selling and the transportation incidental thereto constitute commerce; and the regulation of commerce in the constitutional sense embraces the regulation at least of such transportation." And it was said by Chief Justice Fuller, in U.S. vs. E. C. Knight Co.,4 that "Commerce succeeds to manufacture, and is not a part of it."

In the Kidd vs. Pearson case, supra, it was held that a statute of Iowa which, as construed by the State Supreme Court, provided that

____________________
1
Willcox vs. Consolidated Gas Co., 212 U.S. 19; Northern Pacific R'y vs. North Dakota, 216 U.S. 579.
2
Copyrighted.
3
( 1888) 128 U.S. 1.

Packing houses are not engaged in interstate commerce. U.S. vs. Boyer, ( 1898) 85 Fed. Rep. 425.

4
( 1895) 156 U.S. 1.

-547-

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