sales. It requires, however, but a superficial examination of the authorities to discover that the word, as used in the commerce clause, has radically departed from such signification, insomuch that it seems to have no necessary reference whatever to mere sales. Perhaps the following definition is the one most approved: "Commerce with foreign countries and among the States, strictly considered, consists in intercourse and traffic, including in these terms navigation and the transportation and transit of persons and property, as well as the purchase, sale and exchange of commodities." 6 But this loosely worded definition seems to us entirely inadequate, as an examination of the authorities will reveal that commerce, in the sense now considered, but partially and imperfectly comprehends intercourse, and does not necessarily comprehend traffic at all, or the "purchase, sale and exchange of commodities." The important point to note is that commerce, in the sense now considered, essentially consists in transportation, clearly including the transportation of persons and property, at least tangible property generally. The scope of what is included, in addition to persons and tangible property, may not yet be clearly defined, but 6 County of Mobile v. Kimball, 102 U. S. 691, 702; 26 L. Ed. 238 (Oct., 1880). This was approvingly quoted in McCall v. California, 136 U. S. 104; 10 Supm. 881; 34 L. Ed. 391 (1890); Williams v. Fears, 179 U. S. 270; 21 Supm. 128; 45 L. Ed. 186 (1900); Lottery Case (Champion v. Ames), 188 U. S. 321, 351; 23 Supm. 321, 325; 47 L. Ed. 492 (1903). To like effect, Addyston Pipe & Steel Co. v. U. S., 175 U. S. 211, 241; 20 Supm. 96, 107; 44 L. Ed. 136 (1899); U. S. v. American Tobacco Co., 164 Fed. 700, 712 (C. C. N. Y., 1908). A somewhat confused conception of "commerce" would seem indicated by the following statement of the court in Swift v. U. S., 196 U. S. 375, 398; 25 Supm. 276, 280; 49 L. Ed. 518 (1905): "Commerce 7 there is certainly included the transmission of intelligence under certain conditions. We therefore submit the following definition of commerce as the term is used in the commerce clause: "Commerce consists in transportation (not necessarily all transportation, but certainly) including transportation of persons, tangible property, and (at least under certain conditions) of intelligence." In brief, so far as we are here concerned, commerce is transportation. This, then, is the pole star to guide us in considering in detail the scope of the application of the act. It is to transportation by railroad that the commerce clause is now most conspicuously applied, but it is equally applicable to other means of transportation, as bridges, ferries and vessels; so, too, transmission of intelligence by telegraph or telephone.9 8 § 185. Commerce as "among the several States."-Commerce as "among the several States" consists in transportation from a point within a given State to a point within another, the length of the distance of either of the terminal points from the boundary line of the State being obviously immaterial. It makes no difference that such terminal points are not in adjoining States, that is to say, the route of transportation passing over other territory than that of the respective States. 10 § 186. Commerce as "with foreign nations."-Commerce as "with foreign nations" consists in transportation from a point within a given State to a foreign nation, and vice versa.11 § 187. Commerce in, from or to Territory or District of Co 7 See Cooke on the Commerce Clause, §§ 4 et seq., for a fuller statement of the views expressed in the text, with supporting authorities. 8 See Cooke on the Commerce Clause, 10. here employed for the sake of uniformity. 10 Cooke on the Commerce Clause, $ 22. 11 Cooke on the Commerce Clause, § 29. In Thomsen v. Union Castle Mail S. S. Co., 166 Fed. 251 (C. C. A., 2d C., 1908), reversing 149 Fed. 933 (C. C. N. Y., 1907), the act was held applicable to a combination among carriers in restraint of foreign trade and commerce, it being held immaterial that the combina lumbia. The act contains a prohibition against "every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or commerce in any Territory of the United States or of the District of Columbia, or in restraint of trade or commerce between any such Territory and another, or between any such Territory or Territories and any State or States or the District of Columbia, or with foreign nations, or between the District of Columbia and any State or States or foreign nations." 12 " 13 § 188. Trade as distinguished from commerce.-Although the prohibition of the act is directed in terms against a "restraint" or monopoly, not merely of "commerce," but of "trade or commerce," the terms are probably to be regarded as "practically synonymous. The term "trade" crept in without much consideration, it would seem, as part of the ancient phrase "contract in restraint of trade." If, however, there is any distinction, the term "trade" is probably to be regarded as of narrower scope than "commerce," as necessarily involving the idea of an exchange or sale, whereas, as already seen, commerce, in the sense now under consideration, does not.14 But on this suppotion was formed in a foreign coun- U. S., 95 Pac. 85; 16 L. R. A. N. try. See act of Aug. 27, 1894, c. 349, §§ 73-77 (28 Stat. L. 570), confined to importations from foreign countries; Hadley Dean Plate Glass Co. v. Highland Glass Co., 143 Fed. 242; 74 C. C. A. 462 (8th C., 1906). 12 § 3. See Shawnee Compress Co. v. Anderson, 209 U. S. 423; 28 Supm. 572; 52 L. Ed. 865 (1908); Moore v. U. S., 85 Fed. 465; 29 C. C. A. 269 (8th C., 1898). In Leonard v. Abner-Drury Brewing Co., 25 App. D. C. 161 (1905), was allowed relief against the execution of the objects of what was said to be a conspiracy in restraint of trade, illegal under § 3, but "equally violative of the common law." See § 164. In Tribolet v. S. 223 (Supm. Ct. Ariz., 1908), § 3 was held applicable to combination, etc., in a particular city, though not "in or throughout the Territory." As to anti-trust act of Oklahoma Territory, see § 228. As to application of act to Porto Rico, see Peck Steamship Co. v. N. Y. & Porto Rico S. S., 2 Porto Rico, 109 (1906); Pastor v. N. Y. & Porto Rico S. S. Co., 3 Id. 95 (1907). 18 So held in U. S. v. Patterson, 55 Fed. 605, 639 (C. C. Mass., 1893). 14 In U. S. v. Coal Dealers' Assoc., 85 Fed. 252, 265 (C. C. Cal., 1898), the word "commerce" was declared to have a broader meaning, the court saying: "Commerce sition the narrower signification of "trade" would undoubtedly be without effect to limit the scope of "commerce" as already stated. § 189. Transportation and other transactions within State, e. g., manufacture and sale.-The scope of the act being, then, limited to commerce "among the several States" or "with foreign nations," there is, as a rule, excluded transportation between points both within a given State; 15 also other transactions carried on wholly within the State, such as sale and manufacture.16 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." To same effect, U. S. v. Cassidy, 67 Fed. 698, 705 (D. C. Cal., 1895); Re Grand Jury, 62 Id. 840 (D. C. Cal., 1894); Re Grand Jury, Id. 834 (D. C. Cal., 1894); U. S. v. Debs, 64 Fed. 724, 749 (C. C. Ill., 1894). 15 See The Charles E. Wiswall, 86 Fed. 671; 30 C. C. A. 339; 42 L. R. A. 85 (2d C., 1898). As to transportation between points both in State, but over route partly outside, see Cincinnati, Portsmouth, etc., Packet Co. v. Bay, 200 U. S. 179; 26 Supm. 208; 50 L. Ed. 428 (1906). In Swift v. U. S., 196 U. S. 375, 400; 25 Supm. 276, 281; 49 L. Ed. 518 (1905; for facts see § 190), it was said: "We do not mean to imply that the rule which marks the point at which State taxation or regulation becomes permissible necessarily is beyond the scope of interference by Congress in cases where such interference is deemed necessary for the protection of commerce among the States. Nor do we mean to intimate that the statute under consideration (i. e., the Federal anti-trust act) is limited to that point." 16 In U. S. v. E. C. Knight Co., 156 U. S. 1; 15 Supm. 249; 39 L. Ed. 325 (1895); affirming 60 Fed. 934; 9 C. C. A. 297; 24 L. R. A. 428 (3d C., 1894); 60 Fed. 306 (C. C. Pa., 1894), the prohibition of the act was held not to include the mere acquiring of certain manufacturing plants, all within a single State, though it was conceded that the result would be to give the purchaser a practical monopoly of manufacture within the United States. Compare Pennsylvania Sugar Refining Co. v. American Sugar Refining Co., 166 Fed. 254 (C. C. A., 2d C., 1908; see § 198) involving a similar state of facts, where, however, the act was held applicable. The act was held not to apply in Merz Capsule Co. V. U. S. Capsule Co., 67 Fed. 414 (C. C. Mich., 1895), where the agreement in question was among parties doing business in different States. So in Robinson v. Suburban Brick Co., 127 Fed. 804; 62 C. C. A. 484 (4th C., 1904); Davis v. Booth, 131 Fed. 31; 65 C. C. A. 269 (6th C., 1904); modifying Booth v. Davis, 127 Fed. 875 (C. C. Mich., 1904). See also Dueber Watch-Case Manuf. Co. v. Thus the act would not apply to a mere monopoly of transportation between Albany and Buffalo, or to a mere monopoly of the manufacture and sale of a given article, even though manufac tured and sold in every State. But the rule excluding transactions carried on wholly within the State seems in practical effect of but limited scope. That is to say, although it is held to apply notwithstanding that such sale or manufacture is of an article intended for transportation to a point outside of the State,1 yet, as will presently be seen, its application is in practice extensively modified, even if not nullified, by the operation of the rule presently to be considered giving the act effect as to transactions within the State regarded as incidents of other acts; also the rule giving it effect as to contracts, etc., among those not engaged in transportation. § 190. Transaction within State, when included as incident of other acts.—It has just been pointed out that though in theory Howard Watch & Clock Co., 66 Fed. 637, 642; 14 C. C. A. 14, 19 (2d C., 1895); Re Greene, 52 Fed. 104, 112 (C. C. Ohio, 1892); Bishop v. American Preservers' Co., 105 Fed. 845 (C. C. Ill., 1900); Walsh v. Dwight, 40 App. D. 513; 58 N. Y. Suppl. 91 (1899). For a vigorous criticism of the decision in U. S. v. E. C. Knight Co., see article in 1 Va. Law Reg. 709 (1896) by Jackson Guy. See also reply in 2 Id. 160 (1896) by John Hunter. See generally, as to application of rule denying applicability of act to mere manufacture or sale, Northern Securities Co. v. U. S., 193 U. S. 197, 331; 24 Supm. 436, 455; 48 L. Ed. 679 (1904); U. S. Tobacco Co. v. American Tobacco Co., 163 Fed. 701 (C. C. N. Y., 1908); Albers Commission Co. v. Spencer, 205 Mo. 105; 103 S. W. 523; 11 L. R. A. N. S. 1003 (1907); Locker v. American Tobacco Co., 121 App. D. 443; 106 N. Y. Suppl. 115 (1907); Slaughter v. Thacker Coal & Coke Co., 55 W. Va. 642; 47 S. E. 247; 65 L. R. A. 342; 104 Am. St. Rep. 1013 (1904); Pocahontas Coke Co. v. Powhatan Coal & Coke Co., 60 W. Va. 508, 519; 56 S. E. 264, 268; 10 L. R. A. N. S. 268, 279; 116 Am. St. Rep. 901 (1907); National Distilling Co. v. Cream City Importing Co., 86 Wis. 352; 56 N. W. S64; 39 Am. St. Rep. 902 (1893). In Addyston Pipe & Steel Co. v. U. S., 175 U. S. 211, 247; 20 Supm. 96, 109; 44 L. Ed. 136 (1899), where the prohibition of the act was held to apply to the combination in question (see § 198), it was held not to apply to such parties thereto as resided and carried on business in the State where delivery under any particular contract was to be made. 17 U. S. v. E. C. Knight Co., supra (156 U. S. 13; 15 Supm. 254). |