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tant question of construction that has arisen, and perhaps no more striking illustration of this irreconcilable conflict of views may be found in our whole judicial literature than in the earnest, almost angry, discordance of our Supreme Court in the last important decision on this commerce clause.
But the constitutional inhibition does not prevent the States from enacting laws which prevent non-residents from engaging in certain classes of employments within their limits. Such, for example, is the right of a State to limit the right to fish and hunt within her borders to her own citizens. It has been held that the States did not invest the Federal government with any portion of their power and control over fishing and hunting within their borders; that the fish and shellfish and game in every State belong to, peculiarly and of right, and form part of the food supply of, the people in each State, and that it is within the police powers of the State, without any right of interference by Federal authority, to determine who shall and who shall not take the fish and game within her borders, and even to prohibit the shipping of the same beyond the limits of the State. Thus when a Virginia law punished a citizen of Maryland for taking oysters from Virginia oyster beds, and he claimed that he was engaged in commerce, the Supreme Court sustained the State law, and denied the claim of license to fish in Virginia waters as a matter of commercial right. So, a law of Connecticut regulating the manner of taking game in that State and forbidding its exportation was held valid. The duty of preserving the game was declared to be a trust for her own people. And State laws prohibiting exhaustive methods of fishing in waters within State jurisdiction, or the use of destructive instruments, are within the powers of the State.
91. THE HEPBURN INTER-STATE COMMERCE ACT OF 1906.
The increasing demand for a more thorough regulation of interstate commerce led Congress in 1906 to enact a law which greatly
extended the scope of that of 1887 and enlarged the powers of the Commission. The important provisions of this Act are here given:
Sec. 1. That the provisions of this Act shall apply to any corporation or any person or persons engaged in the transportation of oil or other commodity, except water and except natural or artificial gas, by means of pipe lines, or partly by pipe lines and partly by railroad, or partly by pipe lines and partly by water, who shall be considered and held to be common carriers within the meaning and purpose of this Act.
The term 'common carrier" as used in this Act shall include express companies and sleeping car companies. The term "railroad" as used in this Act, shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any corporation operating a railroad, whether owned or operated under a contract, agreement, or lease, and shall also include all switches, spurs, tracks, and terminal facilities of every kind used or necessary in the transportation of persons or property designated herein, and also all freight depots, yards and grounds used or necessary in the transportation or delivery of any of said property; and the term transportation shall include the receipt, delivery, elevation and transfer in transit, ventilation, refrigeration or icing, storage and handling of property transported.
All charges made for any service rendered or to be rendered in the transportation of passengers or property as aforesaid, or in connection therewith, shall be just and reasonable; and every unjust and unreasonable charge for such service or any part thereof is prohibited and declared to be unlawful.
No common carrier subject to the provisions of this Act, shall, after January first, nineteen hundred and seven, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers, except to its em
From and after May first, nineteen hundred and eight, it shall be unlawful for any railroad company to transport from any State, Territory, or the District of Columbia, to any other State, Territory, or the District of Columbia, or to any foreign country, any article or commodity, other than timber and the manufactured products thereof, manufactured, mined or produced by it, or under its authority, or which it may own in whole, or in part, or in which it may have any interest direct or indirect except such articles or commodities as may be necessary and intended for its own use in the conduct of its business as a common carrier.
Any common carrier subject to the provisions of this Act, upon the application of any lateral, branch line of railroad, or of any shipper, tendering interstate traffic for transportation, shall construct, maintain and operate upon reasonable terms a switch connection and shall furnish cars for the movement of such traffic to the best of its ability without discrimination in favor of or against any such shipper.
The Commission may determine and prescribe the form in which the schedules required by this section to be kept open to public inspection shall be prepared and arranged and may change the form from time to time as shall be found expedient.
The willful failure upon the part of any carrier subject to said Acts to file and publish the tariffs or rates and charges as required by said Acts, or strictly to observe such tariffs until changed according to law, shall be a misdemeanor, and upon conviction thereof the corporation offending shall be subject to a fine of not less than one thousand dollars nor more than twenty thousand dollars for each offense; and it shall be unlawful for any person, persons, or corporations to offer, grant, or give, or to solicit, accept or receive any rebate, concession, or discrimination. Every person or corporation whether carrier or shipper, who shall know
ingly offer, grant, or give, or solicit, accept, or receive any such rebates, concession, or discrimination shall be deemed guilty of a misdemeanor, and a conviction thereof shall be punished by a fine of not less than one thousand dollars nor more than twenty thousand dollars: Provided, That any person or any officer or director of any corporation subject to the provision of this Act who shall be convicted
as aforesaid, shall, in addition to the fine herein provided for, be liable to imprisonment in the penitentiary for a term of not exceeding two years, or both such fine and imprisonment, in the discretion of the court.
Sec. 15. That the Commission is authorized and empowit shall be of the opinion that any of the rates or charges whatsoever demanded, charged or collected by any common carrier any regulation or practices whatsoever of such carrier or carriers affecting such rates, are unjust or unreasonable or unjustly discriminatory, or unduly preferential or prejudicial, or otherwise in violation of any of the provisions of this Act, to determine and prescribe what shall be the just and reasonable rate or rates, charge or charges to be thereafter observed in such case as the maximum to be charged. . . All orders of the Commission, except orders for the payment of money, shall take effect within such reasonable time, not less than thirty days, and shall continue in force for such period of time, not exceeding two years as shall be prescribed by the Commission, unless the same shall be suspended or modified or set aside by the Commission, or be suspended or set aside by a court of competent jurisdiction.
Sec. 16. If a carrier does not comply with an order for the payment of money within the time limit in such order, the complainant may file in the circuit court of the
United States for the district in which he resides petition setting forth the cause for which he claims damages and the order of the Commission in the premises. Such suit shall proceed in all respects like other civil suits for damages, except that on the trial of such suit the findings and order
of the Commission shall be prima facie evidence of the facts therein stated.
The Commission may, in its discretion, prescribe the form of any and all accounts, records, and memoranda to be kept by carriers subject to the provisions of this Act.
Sec. 24. That the Interstate Commerce Commission is hereby enlarged so as to consist of seven members with terms of seven years, and each shall receive ten thousand dollars' compensation annually. .
92. THE SHERMAN ANTI-TRUST ACT OF 1890.
While the regulation of railroad rates has been one of the most difficult problems with which Congress has had to deal in connection with interstate commerce, it is by no means the only one. Modern industrial development has tended strongly toward the formation of trusts-great combinations of capital which have threatened to stifle fair competition. Congress considered that its power to regulate commerce enabled it to meet this situation and accordingly in 1890 it passed an anti-trust measure the chief provisions of which are as follows:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
Section 1. Every contract combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeaner, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the
Sec. 2. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be