Frank Albert Fetter

“ Hardly less important is the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof” (Art. 1, sec. 8, clause 18) . To the same end of freedom of commerce, Congress is limited in that “no tax or duty shall be laid on articles exported from any state,” and “no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another ”

“ With the increase of interstate commerce, the states have been hard pushed to find sources of revenue adequate to their increasing needs. The courts, therefore, have sought to draw a line between taxes on the privilege of carrying on interstate commerce and taxes on the property employed in carrying on such commerce as a part of the general body of property in the state. ”

“ Federal control of interstate commerce has been interpreted by the courts to be exclusive of any control by the states. This is not self-evident in the clause, “Congress shall have power to regulate commerce among the several states.” Over some other subjects the power of the federal and state governments is concurrent, the state being able to act until Congress enacts some conflicting legislation. Although the early decisions suggested that the power of Congress was exclusive, yet for nearly a century no positive decision was rendered and no positive action was taken by Congress. ”

“ In the last-named case, which concerned a combination of sugar refineries controlling a large proportion of the product of the country, it was said that commerce succeeds manufacture and is not a part of it. The relation of the manufacturer to interstate and foreign commerce being thus only incidental and indirect, the business is subject to state control. By a series of decisions the transportation of persons has been decided to be commerce. ”

“ The Supreme Court itself has said (Fargo v. Michigan, 121 U.S. 230) that “it may be admitted that the court has not always employed the same language, and that all of the judges of the court who have written opinions for it may not have meant precisely the same thing.” Though in the period just preceding the Civil War the doctrine of states’ rights tended to weaken somewhat the federal power, the broad outlines of the interpretation by Chief Justice Marshall laid down in 1824 in Gibbons v. Ogden remain to-day almost undimmed. ”

“ The moral issue doubtless influenced a decision so difficult to reconcile with other opinions of the court, which otherwise had held regularly that commerce involves the physical movement of persons or things and does not include the contractual relations between citizens incident to commercial intercourse. ”

“ It applied to common carriers wholly by railway, and partly by railway and partly by water when both are used under a common arrangement for continuous shipment; forbade unjust discrimination and undue and unreasonable preference; made it unlawful to charge more for a shorter than for a longer distance over the same line in the same direction, the shorter being included within the longer distance (though a carrier might be freed by the Commission from the working of this provision) ”

“ Until 1897, the Commission, when it adjudged a rate unreasonable, usually declared what rate was reasonable, and directed the carrier to reduce the rate by a given date to the designated maximum. Of 135 orders made in decisions rendered in the first ten years of the Commission, 68 prescribed a maximum rate for the future. In 1897 it was finally decided in the Cincinnati Freight Bureau Case (167 U.S. 479) that Congress had not conferred upon the Commission the power to prescribe any rate for the future. ”