v. Pigg. 13 In that case it was held that the carrying on by a corporation of instruction of students in other States by correspondence, the solicitation of students in other States by local agents, and the collection and transmitting of fees to the home office, is a carrying on of interstate commerce.

Commerce does not include the production of the commodities transported

In a series of most important decisions it has been held that commerce does not begin until the goods intended for purchase, sale or exchange in another State have begun their trip thither. That is to say, they must at least have been placed in the hands of the agents who are to transport them. The mere fact that goods are manufactured to be transported and sold in another or other States, or that they have been segregated in the places where produced, for that purpose, is not sufficient to make them articles of interstate commerce. In some way they must have advanced some distance upon their way outside of the State of production. It is clear, therefore, that the whole process of manufacture or production is definitely excluded from the operation of the commerce clause. "Commerce succeeds to manufacture, and is not a part of it."14

Intent to export not controlling

The fact that goods are manufactured for export does not render their manufacture an element in the interstate or foreign commercial transaction. This principle is clearly laid down in Coe v. Errol.15 In this case the court held that certain logs cut in New Hampshire and hauled

13 217 U. S. 91; 30 Sup. Ct. Rep. 431; 54 L. ed. 678.

14 United States v. E. C. Knight Co., 156 U. S. 1; 15 Sup. Ct. Rep. 249; 39 L. ed. 325.

15 116 U. S. 517; 6 Sup. Ct. Rep. 475; 29 L. ed. 715.

to a river town for transportation to the State of Maine but not yet actually started upon their final way to that State, had not become articles of interstate commerce. The court say: "There must be a point of time when they cease to be governed exclusively by the domestic law and begin to be governed and protected by the national law of commercial regulation, and that moment seems to us to be a legitimate one for this purpose, in which they commence their final movement from the State of their origin, to that of their destination."

Interstate commerce includes the sale of the articles imported

It has been seen that interstate commerce does not begin until, by some definite act, the goods have started upon their trip outside the State of origin. As to the termination of interstate transportation it has been established that this does not occur until the goods transported have reached their destination, been delivered, and, either sold or taken out of their original packages in which shipped, and thus commingled with the other goods of the State.

The right to import, including the right of the importer to sell the goods imported, and the right to engage in interstate and foreign commerce being a Federal right, the States have no more constitutional power to restrain or regulate the sale of imported commodities by the importer than they have to prevent or regulate their being brought within the State.1

16

The fact that the right to engage in commerce carries with it the right to sell the goods transported, does not, it has been held, exclude the right of the State to tax goods

16 Brown v. Maryland, 12 Wh. 419; 6 L. ed. 678; Leisy v. Hardin, 135 U. S. 100; 10 Sup. Ct. Rep. 681; 34 L. ed. 128. As to the inability of a State to prevent commodities from being taken out the State see West v. Kansas Natural Gas Co., 221 U. S. 229; 31 Sup. Ct. Rep. 564; 55 L. ed. 716.

brought from another State still unsold, and still in their original packages, provided such goods be not discriminated against because of their having been brought into the State from another State. As to imports from foreign countries, however, the rule is that until sale in the original package, or until the breaking of the package, no State tax may be imposed. This prohibition is, however, not drawn from the commerce clause but from the express provision of the Constitution that "No State shall, without the consent of Congress, lay any impost or duty on imports or exports.

9917

The original package doctrine

From the foregoing sections it has appeared that the State's authority over articles brought in from the other States does not attach, except for purposes of taxation, until the articles so brought in have been sold. It will also have appeared, however, from the quotations which have been made, that this rule is modified by the doctrine that, whether sold or not, the articles brought in lose their interstate commercial character, and full State authority at once attaches, as soon as these articles have in any way become mixed with the general mass of property of the State to which they have been transported. As a convenient test for determining when this commingling takes place, the Supreme Court early developed the so-called "Original Package" doctrine. This doctrine is that so long as the commodity is kept in the unbroken package in which it was delivered to the carrier for transportation, no commingling with the State goods has taken place. At times this has been stated by the courts and by commentators as an absolute rule. In fact, however, the doctrine does not state a right to which the exporter is entitled,

17 Art. I, § 10, cl. 1.

but is a test which the court frequently finds convenient to apply for determining when commingling of the imports with State goods has taken place, but which in other cases may be held inapplicable because of the character of the goods transported. 18

Exclusiveness of Federal control over interstate commerce

The Federal authority over interstate commerce is not in terms made exclusive, and the courts have at times varied their views as to the extent to which an exclusiveness is to be deemed implied. From the beginning the States acted upon the assumption that they were not deprived of power to grant to persons and corporations exclusive privileges with reference to the carrying on upon land of commerce between themselves and other States; and this practice was acquiesced in by the Federal Government. As to the carrying on of interstate commerce by water, however, it seems to have been more generally held that the Federal jurisdiction was exclusive. This, however, was not judicially determined until the decision of the great case of Gibbons v. Ogden. 19

Gibbons v. Ogden

In this case it was held that the grant by the State of New York to an individual of an exclusive right to navigate

18 The doctrine was first stated in Brown v. Maryland, 12 Wh. 419; 6 L. ed. 678, and reaffirmed in Leisy v. Hardin, 135 U. S. 100; 10 Sup. Ct. Rep. 681; 34 L. ed. 128, with reference to the importation of intoxicating liquors; and in Schollenberger v. Pennsylvania, 171 U. S. 1; 18 Sup. Ct. Rep. 757; 43 L. ed. 49. For instances in which the court found it difficult to apply the doctrine see May v. New Orleans, 178 U. S. 496; 20 Sup. Ct. Rep. 976; 44 L. ed. 1165; Austin v. Tennessee, 179 U. S. 343; 21 Sup. Ct. Rep. 132; 45 L. ed. 224; Cook v. Marshall, 196 U. S. 261; 25 Sup. Ct. Rep. 233; 49 L. ed. 471.

19 9 Wh. 1; 6 L. ed. 23.

its waters with steam vessels had no constitutional validity in so far as interstate or foreign commerce was affected. In support of this judgment, Marshall, in his opinion, laid down in general terms the doctrine that by the commerce clause, the Federal Government is granted an exclusive control of commerce between the States, and with foreign countries, and that, therefore, it is beyond the constitutional power of the States to grant, or to withhold, interstate or foreign commercial privileges.

A review of the cases which followed Gibbons v. Ogden will show, however, that the doctrine of the Supreme Court as to the exclusiveness of Federal authority over commerce has not been a uniform one. Without abandoning the doctrine that the States are constitutionally disqualified from directly interfering with the regulation of commerce, the Supreme Court has at times upheld State acts which have in fact amounted to substantial interferences with interstate and foreign commerce. And indeed, the language of the court, and even of Marshall himself, in certain cases, simplied the adoption of the doctrine that the constitunality of a State law in regulation of, or interfering with, he freedom of interstate and foreign commerce is to be tested rather by the existence of a conflicting Federal statute, than by the exclusiveness of the Federal jurisdiction.20

In Cooley v. Port Wardens, 21 decided in 1851, the Supreme Court, three justices dissenting, accepted the principle that had been suggested by Webster and approved by Justice Woodbury, and upheld a pilotage law of Pennsylvania on the ground that, though it was a regulation of

20 See Brown v. Maryland, 12 Wh. 419; 6 L. ed. 678; Wilson v. Blackbird Creek Co., 2 Pet. 245; 7 L. ed. 412; New York v. Miln, 11 Pet. 102, 9 L. ed. 648; License Cases, 5 How. 504; 12 L. ed. 256; Passenger Cases, 7 How. 283, 12 L. ed. 702.

21 12 How. 299; 13 L. ed. 996.