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CHAPTER XVI.: THE LOCATION OF POLICE POWER IN THE FEDERAL SYSTEM OF GOVERNMENT. - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 
A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.
Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.
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THE LOCATION OF POLICE POWER IN THE FEDERAL SYSTEM OF GOVERNMENT.
The United States government one of enumerated powers.—
Very frequently, during the first century of our national existence, the government of the United States has assumed powers, which were highly essential to the promotion of the general welfare, but which were not expressly delegated to the Federal government. The exercise of such powers has always met with the vehement objection of the party in opposition (although each of the great national parties has in turn exercised such questionable powers, whenever public necessities or party interest seemed to require it); the objection being that the constitution did not authorize the exercise of the power, since there was no delegation of it by the constitution. Popular opinion, concerning the fundamental character of the Federal government, was formulated in the adoption of the tenth amendment to the constitution, which provides that “the powers, not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.” Relying upon this amendment as the authority for it, it has become the universally recognized rule of constitutional construction that, adopting the language of an eminent writer on constitutional law, “the government of the United States is one of enumerated powers, the national constitution being the instrument which specifies, and in which the authority should be found for the exercise of, any power which the national government assumes to possess. In this respect it differs from the constitutions of the several States, which are not grants of powers to the States, but which apportion and impose restrictions upon the powers which the States inherently possess.”1
The so-called “strict constructionists” have maintained that the United States can exercise no power but what is expressly granted by the constitution. But this rule was at times applied so rigidly by the party in opposition, whenever it was desirable to prevent the enactment of an obnoxious law, that the right was denied to the United States to exercise even those powers which, although not expressly delegated, were so necessary to the effectuation of the express powers, that it cannot be supposed that the framers of the constitution did not intend to grant them. In numerous instances, the question of constitutional construction has been brought for settlement before the Supreme Court of the United States; and it is now firmly settled, that the Federal government can exercise, not only the powers which are expressly granted, but also those powers, the grant of which can be fairly implied from the necessity of assuming them, in order to give effect to the express grant of powers. “The government of the United States can claim no powers which are not granted to it by the constitution; and the powers actually granted must be such as are expressly given, or given by necessary implication.”1
This doctrine of implied powers gave to the Federal constitution that elasticity of application, without which the permanency of the Federal government would have been seriously endangered.2 But at the same time it produced the very evil, in a greater or less degree, the fear of which urged the strict constructionists to oppose its adoption, viz.: that it would open the way to the most strained construction of express grants of power, in order to justify the exercise of powers that could not be fairly implied from the express grants. Indeed, the country has often been presented with the spectacle of United States judges and legislators, engaged in justifying questionable but necessary assumptions of power by the general government, by laboriously twisting, turning and straining the plain literal meaning of the constitutional provisions, seeking to bring the powers in question within the operation of some express grant of power. For illustration I will refer only to two extreme cases, the Louisiana purchase, and the issue of treasury notes with the character of legal tender.
In the case of the Louisiana purchase, the exercise of the questionable power was so plainly beneficial to the whole country, that it was generally acquiesced in. But the claim of an express or implied power to make the purchase was so palpably untenable, that the transaction has been tacitly admitted to have been an actual but necessary violation of the constitution. Even Mr. Jefferson, to whom the credit of effecting the purchase of Louisiana was justly and chiefly due, was of the opinion that there was no warrant in the constitution for the exercise of such a power, and recommended the adoption of an amendment to the constitution, authorizing its purchase. In speaking of the objections that were urged against the project, Judge Story says: “The friends of the measure were driven to the adoption of the doctrine that the right to acquire territory was incident to national sovereignty; that it was a resulting power, growing necessarily out of the aggregate power confided by the Federal constitution, that the appropriation might justly be vindicated upon this ground, and also upon the ground that it was for the defense and general welfare.”1
The acquisition of Puerto Rico, Guam and the Philippine Islands, in pursuance of the treaty of peace with Spain in closing the war of 1898 with that country, has again raised the question of the undefined power of the United States to acquire foreign territory. But the present opponents of this policy of territorial expansion make a very different point against the acquisition of foreign territory. They concede the power to acquire foreign territory by purchase or conquest, but they deny that this government has any power to make out of such acquired territory colonial dependencies; i. e. permanent dependencies. They say that the purchase of the Louisiana territory was constitutional, because it was contiguous territory; and could be expected to be ultimately populated by people of our own or kindred nationalities; that the territorial governments which Congress had established in this and other territories, which had been heretofore purchased, were temporary governmental organizations, which were designed to prepare the new communities for ultimate admission into the sisterhood of States on terms of absolute political equality, in accordance with the provisions of the Federal constitution, when the territorial governments would be superseded by a semi-independent State government, formed by the people of the territory under a constitution of their own making. The so-called anti-imperialists claim that the present cases of acquisition of foreign territory are in violation of the fundamental principles of the American Declaration of Independence, in that it is proposed to deny in perpetuity to the inhabitants of those islands, the right of establishing an independent government of their own, as well as to ultimate participation and representation in our national government. Whatever truth there may be in the allegation, that the proposition to create colonial dependencies is in violation of the principles of the American Declaration of Independence, it is not a practical question of constitutional law, as, I think, the argument in the present section will demonstate.
An equally remarkable case of a strained construction of constitutional provisions is the exercise by Congress of the power to make the United States treasury notes legal tender in payment of all debts, public and private. The exercise of this power is not so plainly beneficial; on the contrary, it has been considered by many able publicists to be both an injurious and a wrongful interference with the private rights of the individual.1 For this reason, the assumption of the power by the national government has not met with a general acquiescence; and the constitutionality of the acts of Congress, which declared the treasury notes to be legal tender, has been questioned in numerous cases, most of which have found their way by appeal to the Supreme Court of the United States. In Hepburn v. Griswold,2 the acts of Congress of 1862 and 1863 were declared to be unconstitutional, so far as they make the treasury notes of the United States legal tender in the payment of pre-existing debts. In the Legal Tender Cases,3 the opinion of the court in Hepburn v. Griswold was overruled, and the acts of 1862 and 1863 were declared to be constitutional in making treasury notes legal tender, whether they applied to existing debts, or those which were created after the enactment of the statutes, the burden of the opinion being that Congress has the right, as a war measure, to give to these notes the character of legal tender. In 1878, Congress passed an act, providing for the reissue of the treasury notes, and declared them to be legal tender in payment of all debts. In a case, arising under the act of 1878, the Supreme Court has finally affirmed the opinion announced in 12 Wallace, and held further that, the power of the government to make the treasury notes legal tender, when the public exigencies required it, being admitted, it becomes a question of legislative discretion, when the public welfare demands the exercise of the power.4 A perusal of these cases will disclose the fact that the members of the court, and the attorneys in the causes, have not referred to the same constitutional provisions for the authority to make the treasury notes legal tender. Some have claimed it to be a power, implied from the power to levy and carry on war; some refer it to the power to borrow money, while others claim it may be implied from the grant of power to coin money and regulate the value of it. It will not be necessary for the present purpose to demonstrate that this power is not a fair implication from the express powers mentioned. A careful reading of all the opinions in the cases referred to will at least throw the matter into hopeless doubt and uncertainty, if it does not convince the reader that in assuming this position, violence has been done by the court to the plain literal meaning of the words. There are only too many cases, in which forced construction has been resorted to, in order to justify the exercise of powers which are deemed necessary by public opinion. No change in the rules of construction will prevent altogether the tendency to strain and force the literal meaning of the written constitution, in order to bring it into conformity with that unwritten constitution, which is the real constitution, and which is slowly but steadily changing under the pressure of popular opinion and public necessities, checked only by the popular reverence for the written word of the constitution. But all justification for this violent construction can be removed by correcting a most surprising error in constitutional construction, an error which has produced an anomaly in constitutional law.
A stable and enduring government can not be so constructed, that no branch of it can exercise a given power, unless it is granted by the constitution, expressly or by necessary implication. A government, as a totality, may properly be compared to a general agent, who does not require any specific delegation of power, in order to do any act, provided it falls within the scope of the agent’s general authority. A government, like a general agent, may have express restrictions or limitations imposed upon the general powers. But in the absence of a prohibition, the right to exercise a given power, which falls within the legitimate scope of governmental authority, must be vested in some branch of the government.
Referring to the Federal system, it is claimed, in the assertion of this principle, that either the general government or the several State governments may exercise such a power, unless its exercise is prohibited to both by the Federal constitution. I do not mean to say that constitutional conventions never attempt to lay down a different rule. On the contrary, if the great men, who have contributed to the building up of American constitutional law, have been free from error in their construction of the tenth amendment to the Federal constitution, the adoption of that amendment was an attempt to do this impossible thing; and the attempt has resulted in repeated violations of the constitution as construed by them, by the assumption by Congress of powers, which were not expressly delegated nor fairly implied. The Louisiana purchase and the Legal Tender Cases, already referred to, furnish sufficient illustration of the truth of the statement. Cases of the same character will surely arise from time to time, and each repetition will diminish the popular reverence for the written constitution; an evil which every earnest jurist would like to prevent. The difficulty lies in the interpretation and construction of the tenth amendment.
According to the prevailing interpretation of that amendment, in order that the United States may by treaty make a purchase of foreign territory, or declare by act of Congress that the treasury notes shall be legal tender in payment of all public and private debts, the power must be granted by the constitution. It is clear that the State governments cannot exercise these powers, for the exercise of them is expressly prohibited to the States. But if it can be shown that this interpretation of the tenth amendment is erroneous,—unless the common law maxim, communis error facit jus, is recognized as binding in this case,—it must be conceded that the United States may exercise these and other like powers, although they are not expressly or impliedly granted.1 There is no reason why the real meaning of that amendment should not be given effect, in construing the constitutionality of such acts. For no rule of construction is binding upon the courts and other departments of the government, which does not rest for its authority upon some provision of the written constitution.2
The tenth amendment reads as follows: “The powers, not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” It is clear that, if a given power is not prohibited to the States, the general government cannot exercise it, unless there is an express delegation of the power. The amendment declares that such powers are reserved to the States or to the people. But if a given power is prohibited to the States, but not delegated to the United States (the right to make purchase of foreign territory, for example), can it be said that under this amendment the exercise of this power is reserved to the States? The very prohibition to the States in the Federal constitution forbids such a construction. It may be claimed that in such a case the power would be reserved “to the people.” But that claim cannot be sustained. The reservation of the powers (referred to in this amendment), in the alternative, “to the States respectively or to the people,” evidently involves a consideration of the possibility that the State constitutions may prohibit to the States the exercise of the power that is reserved, and in that case the power would be reserved to the people.
What powers “are reserved to the States respectively, or to the people?” The answer is, those powers which are “not (neither) delegated by the constitution to the United States, nor prohibited by it to the States.” These two clauses, which contain the exceptions to the operation of the amendment, are not in the alternative. In order that it may be claimed under this amendment that a power is “reserved to the States respectively or to the people,” it must avoid both exceptions, i. e., it must be a power which is neither delegated to the United States, nor prohibited to the States. It cannot be successfully claimed that a power is reserved under this provision, which is prohibited by the Federal constitution to the States, for the reason that it is not delegated to the United States. The conclusion, therefore, is that the United States government is one of enumerated powers, so far that it cannot exercise any power which is not prohibited by the constitution to the States, unless it is expressly or impliedly delegated to the United States. But those powers, which are prohibited to the States, and which fall legitimately within the scope of governmental authority, may be exercised by the United States unless they are also prohibited to the United States. There need not be any express or implied grant of such powers to the national government.
It is not pretended or claimed that the construction of the tenth amendment here advocated conforms more nearly to the intentions of the framers of the constitution than that which has generally been accepted by writers upon the constitutional law of the country. Indeed, the early history of the United States reveals forces of disintegration in the politics of that day, equal or almost equal to the forces of consolidation, which would incline one to suppose that the intentions of the law-makers in the formation of the constitution were embodied in that construction of constitutional provisions which would most effectually hamper and curtail the powers of the national government. The great struggle of the wise men of those days was to secure for the Federal government the delegation of sufficient power to establish an independent government, and it may be said with truth that the Federal constitution was wrested from an unwilling people. It would, therefore, be impossible to show that the construction of the tenth amendment here advocated was in conformity with the intentions and expectations of those whose votes enacted the amendment. It is freely admitted that the prevailing construction is without doubt what the framers of the amendment intended. But the intentions of our ancestors can not be permitted to control the present activity of the government, where they have not been embodied in the written word of the constitution. Where the written word is equally susceptible of two constructions, one of which reflects more accurately the intention of the writer, the preference is given to that construction. But when this construction is discovered by the practical experience of a century to be pernicious to the stability of the government and in violation of the soundest principles of constitutional law; when the alternative construction is grammatically the only possible one, and relieves the constitutional law of the country of a serious embarrassment, it is but reasonable that the latter construction should be adopted, and its adoption would not violate any known rule of constitutional construction.
Police power generally resides in the States.—
But this discussion concerning the true construction of the tenth amendment of the United States constitution only affects the location of those phases of police power, which are denied by the constitution to the States, and which are neither granted nor prohibited to the United States, as in the case of making anything else besides gold and silver legal tender in the payment of private and public debts, or in the purchase of foreign territory, and the like; and the question in such cases is not, whether the power to do these things resides in the Federal or State government, but whether the power can be exercised at all. In all ordinary cases of police powers, the meaning and legal effect of the tenth amendment is clear, viz.: that unless the exercise of a particular police power is granted to the United States government, expressly or by necessary implication, the power resides in the State government, and may be exercised by it, unless the State constitution prohibits its exercise. It may, therefore, be stated as a general proposition that with the few exceptions, which are mentioned in the succeeding sections, the police power in the United States is located in the States. The State is intrusted with the duty of enacting and maintaining all those internal regulations which are necessary for the preservation and the prevention of injury to the rights of others. The United States government cannot exercise this power, except in those cases in which the power of regulation is granted to the general government, expressly or by necessary implication. For example, it was held unconstitutional for Congress to declare it to be a misdemeanor for any one to mix naptha and illuminating oils, and offer the adulterated article for sale, or to prohibit the sale of petroleum that is inflammable at a less than the given temperature. This was a police regulation that could only be established by the States.1
So, also, it has been held to be unconstitutional for Congress to undertake to regulate the equal rights of citizens to make use of the public conveyances, hotels and places of amusement. In order to give full effect to the fourteenth amendment, which prohibited the States from passing or enforcing any law, which denied to any person within its jurisdiction the equal protection of the laws, Congress passed an act which declared that all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances on land and water, theaters and other places of public amusement, subject only to the conditions and limitations established by law, and applicable alike to the citizens of every race and color, regardless of any previous condition of servitude.1 The ordinary police regulation of employments and professions is most certainly within the powers of the State governments. Independently of the fourteenth amendment to the national constitution, it would not be within the power of Congress to enact a law, which provided for the compulsory formation of business relations, for such regulations fall within the ordinary police power of the State. The fourteenth amendment merely prohibits a State from passing or enforcing any law, which denied to any person equality before the law. If a State should not deem it proper to provide that the hotels of the State shall be open for the reception and entertainment of all persons who may apply, Congress cannot supply the deficiency by an enactment of its own; for in such a case there has been no violation of the fourteenth amendment. The amendment is violated only when the States attempt by legislation to establish an inequality in respect to the enjoyment of any rights or privileges. It has, therefore, been held by the United States Supreme Court that the civil rights bill, the act of 1875 just mentioned, is unconstitutional because it invades the police jurisdiction of the States.2
In the Civil Rights Case,1 the court says: The Fourteenth Amendment, “does not invest Congress with power to legislate upon subjects that are within the domain of State legislation; but to provide modes of relief against State legislation, or State action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of State laws, and the action of State officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the fourteenth amendment; but they are secured by way of prohibition against State laws and State proceedings affecting those rights and privileges, and by the power given to Congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must necessarily be predicated upon such supposed State laws or State proceedings, and be directed to the correction of their operation and effect.”
It must be remembered that, in this discussion, reference is made only to the division of the police powers of the government between the general and State governments, as they are to be exercised within the boundaries of the States, which compose the Union. There is no such division of the police power in the territories, which have not been admitted to the statehood, in the District of Columbia, or in the foreign possessions of the United States. Over these, the power of Congress is supreme, limited only by the provisions of the United States constitution. It has been recently held that the police power of Congress over the District of Columbia is similar to the police power of the States over their respective territory, with only those modifications which the provisions of the Federal constitution have imposed.2
Regulations affecting interstate commerce.—
In article I., section 8, clause 3, of the United States constitution, it is provided that Congress shall have power “to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.” In conformity with this constitutional provision, it has been held that, whenever Congress exercises this form of regulation over foreign and interstate commerce, State regulations must invariably give way; and that the regulations by Congress of commerce may descend to the minutest details, providing regulations of the most local character in the exercise of this power. Wherever the regulation of commerce is general and national in character, so that its enforcement in one locality to the exclusion of others would seriously disturb the uniformity of regulation which the national constitution contemplated, the power of Congress is exclusive of all State control, whether the congressional power be exercised or not. But where the proposed regulation of commerce is purposed to protect a local community from the dangers to health and life, or to private rights, which the unregulated prosecution of commerce might threaten, in the absence of congressional regulations, the State may to that end institute the ordinary reasonable police regulations of commerce.1 But when Congress acts, all State regulations must give way in every case in which they conflict with the regulations of Congress.
In this case, as well as in the cases just explained, in which the power of Congress is exclusive, whether Congress has acted or not, the courts of the United States are empowered to employ all the enginery of legal procedure, as well as the national executive, the military forces at his command to remove obstructions to the orderly and peaceable prosecution of interstate commerce and the transmission of the mails, whether these obstructions are caused by State legislation, or by the unauthorized and unlawful acts of individuals.1 Thus, in the absence of a general regulation of the kind by Congress, it is lawful for a State to provide for the inspection of tobacco, which is intended to be shipped to some point outside of the State, it being an ordinary police regulation, not designed to interfere with commerce but to facilitate the detection of fraud in the sale of this article.2
But the provision by State laws for the inspection of articles of interstate commerce opens the door, under the guise of ordinary sanitary regulations, to the covert prohibition or restriction of commerce between the States. While it is an undoubted power of the States, in the absence of Congressional regulation to provide for the safety and health of its inhabitants by the inspection of articles of interstate commerce, and the consequent elimination of all sources of danger to either; the regulations, which are based upon this inspection, must not go to the length of excluding articles of interstate commerce from the State, or operate to their disadvantage, in their competition with the home products of the same kind. The inspection by State officials of illuminating oils and of the tank-cars, in which they are transported, for the purpose of safe-guarding the public against explosions, is a reasonable police regulation, and the owners of the oil, and of the cars, may be charged an inspection fee, to cover the cost to the State of the inspection. And as long as the fee is a reasonable one, serving only to cover the expenses of maintaining the police regulation, it cannot be considered as contravening the constitution of the United States by the imposition of a burden upon interstate commerce. It would, of course, be different, if the amount of the fee was so disproportionate to the expenses of the inspection, as that its exaction was properly construed to be a tax upon interstate commerce.1
A Louisiana regulation for the inspection of all boatloads of coal or coke, which are brought into the State for sale therein, and for the payment of an inspection fee by the seller, has been sustained as a reasonable State regulation.2 The same conclusion was reached concerning a Louisiana requirement of the inspection of flour.3 But when an act of Virginia required the inspection of all flour, which was brought into the State for sale therein, but did not require a similar inspection of flour, which was manufactured within the State, the regulation was declared to be an unconstitutional discrimination against interstate commerce, by the direct imposition of a burden thereon.4
Whenever the amount of the charge for inspection is so large that it amounts to a prohibitory tariff on interstate commerce, it offends the constitution of the United States. Thus, a Virginia statute provided that before fresh meat, which is offered for sale at places distant one hundred miles or more from the place of slaughter, may be lawfully sold, it must be inspected, and the seller must pay, as an inspection fee, one cent per pound for the meat inspected. The Supreme Court of the United States held this to be a burden upon interstate commerce, in violation of the Federal constitution, in that the fee levied was a tax, and was intended, not to cover only the expenses of inspection, but to restrict trade in fresh meat which had been slaughtered at a distance from the place of sale. The court intimated that, if it was demonstrated that meat, slaughtered at a great distance, became unwholesome for consumption as food, the prohibition might be lawful. But, in these days of refrigerated cars, this contention could not be successfully established.1 Other States had enacted laws, prohibiting the sale of the fresh meat of animals which had not been inspected before slaughter within the State; but these laws had been declared to be an unconstitutional prohibition of interstate commerce in fresh meat.2 But the reasonable regulations for the inspection of animals on the hoof, as well as of the fresh meat, after they have been slaughtered, which operate impartially against all classes, do not contravene the national constitution.3
The State may impose upon telephone companies, which are engaged in interstate business, reasonable regulations, which are designed to promote the safety of the local public, without violating the interstate commerce clause of the constitution.4 So, also, may a State law provide that a railroad in its interstate business shall be liable for the loss of goods, or the injury to passengers, which had been occasioned by the negligence of the company’s employees; provided that the State law did not go farther and declare void any agreement for exemption from such liability, which the railroad may have included in the bills of lading, which are used in the interstate business.5
License tax upon drummers and peddlers.—
A very common police regulation, and one that is the source of much litigation, is the imposition by municipal government, and sometimes by State governments, of a license tax upon itinerant vendors, peddlers and traveling salesmen or drummers. As has been very fully explained in a preceding section of this book1 a license tax is a police regulation or a tax in the proper sense of the term, according to the motive or purpose of its imposition. If the right to pursue a particular trade or business is made to depend upon the procurement of a license, which is granted only to those who give proof of their qualification to ply the calling without injury or damage to the public,—the exaction of the license being only a police provision for the regulation of the business in the interests of the public or of the persons having dealings with the licensees; and the tax levied upon them is measured by and limited to the expense of maintaining the police regulation—the license tax is strictly a police regulation; and, except from its conflict with interstate commerce, is rarely subjected to constitutional criticism, unless the exaction of a license, as a condition precedent to the prosecution of the business, is itself open to constitutional objection. But where the purpose of imposing a license tax is not merely to cover the expense of maintaining a justifiable police supervision of the business, but to add to the revenue of the city or State, the license tax is not a police regulation, but a tax; and it is valid or invalid, according as the constitutional requirements of uniformity and equality have been observed in its imposition. It may be fair to say that, in the levy of a license tax upon peddlers, the tax assumes the dual character of a police regulation, in that it tends to safeguard the confiding public from the frauds and misrepresentations of dishonest peddlers, and of a tax, in that the amount exacted from such peddlers is in excess of the expense of maintaining the police supervision. But, generally, the license tax is imposed for the exclusive purpose of increasing the public revenue; and it is, therefore, more properly treated as a tax. And this is unquestionably true of the license tax, which States and municipalities have attempted to impose upon the traveling salesmen or drummers of non-resident merchants. If the license tax, in any particular case, be properly described as a police regulation, to protect the public against fraud and other dangers, and the tax is only sufficient to cover the expense of the necessary and justifiable police supervision of the business, I take it to be reasonably well established that the tax is constitutional, and not a burden upon interstate commerce, whether the business which the licensee pursues is properly described as interstate or domestic commerce. The question in such a case, is whether the police supervision thus established is or is not a reasonable exercise by the State of its police power.1 But in order that such a police regulation may be constitutional, it must be enforced indiscriminately against all who pursue the same calling. It cannot be enforced against non-residents or the residents of other States, if the law does not apply to residents of the State. Such a discrimination would violate the guaranty of the United States constitution of equal privileges and immunities to the citizens of the different States.2 It has been held in Pennsylvania that there is no violation of the interstate commerce clause of the constitution, if a State law prohibits peddling without license in a certain county, even though the peddler brings his goods from another State.1
But where the license tax is, and can be properly construed only as a tax; it is necessarily invalid, in violation of the Federal constitution, if it is laid upon interstate commerce. When, therefore, a State or city imposes a license tax, as a tax, upon peddlers and traveling salesmen, the validity of the tax depends upon the nature of the business of the person so taxed. If he is engaged in interstate commerce, the tax is void; and if he engaged in domestic commerce, the tax is valid. In what constitutes the difference between peddlers and traveling salesmen or drummers? The Standard Dictionary defines the peddler to be “one who travels from house to house with an assortment of goods for retail;” and drummer “a traveling salesman who solicits custom.” The peddler carries his stock of goods with him, and from that stock he sells to those who will buy; while the traveling salesman carries no stock, only a sample case, if anything; and solicits orders for goods, which his principal will supply from a stock which is kept elsewhere. In the case of the peddler, the contract of sale is made on the spot, and the goods delivered by him immediately, so that the entire transaction is begun and completed within the same State. His tradings cannot be anything but domestic commerce, whether he is the principal or he is only acting as the agent of a non-resident principal. But when the traveling salesman receives an order for goods, the executory contract of sale is made by him on the spot, to be performed, however, subsequently by the transportation of the goods to, and their delivery at, the place of sale. And if the principal and the goods are outside of the State, in which the sale was made, the transaction is interstate commerce. The levy of a license tax upon such a transaction would necessarily be a tax upon interstate commerce, which is prohibited, not only by the interstate commerce clause of the United States constitution, but also by Art. I., § 10, of the same constitution, which prohibits the imposition of a State tax upon imports and exports.
In conformity with this distinction between the peddlers and traveling salesmen, we find an uniform declaration of the courts that a license tax may constitutionally be imposed upon peddlers, for they are not engaged in interstate commerce.1 But the imposition of a license tax upon a traveling salesman, who solicits and receives orders for goods for future delivery, is void, because he is engaged in interstate commerce, in every case in which the performance of the contract of sale involves the transportation of goods from one State to another, or the transfer of title to goods which are located in some other State than that in which the sale was made.2 Even in the sale of intoxicating liquors, notwithstanding the wide scope and effect of the Wilson Bill, it is not within the police power of the State to exact a license fee or tax of a liquor drummer, who solicits orders for liquors, to be shipped into the State from some point outside.1 A tax that was laid upon all solicitors of pictures, to be enlarged outside of the State, was held to be a tax upon interstate commerce, and for that reason void.2 So, likewise, in regard to the exaction of a license fee from all persons within the State, who dealt in goods which were made by convicts in other States.3 But it was held in Missouri that where a traveling salesman sold goods partly by sample, but also sold from a stock of goods, which he carried along with him, the imposition of a license tax upon him was not void because it was a burden upon interstate commerce.4 So, likewise, it has been held that, where one agent of a foreign principal takes an order for goods to be shipped from another State, and another agent receives the goods so ordered and delivers them to the purchaser, this is a domestic sale, and not interstate commerce; and the local or State regulations control it.5
In South Dakota, a license tax was exacted of agents of commercial agencies; and the law was upheld, although it was enforced against a special agent of a foreign agency, who had been sent into the State for the purpose of making a special investigation into the financial standing of a local firm of merchants.6 But it would seem, from the analogies to be drawn from the well-settled distinctions between peddlers and traveling salesmen, that this cannot be taken as a reliable precedent, so far as it sustains a license tax, which is imposed upon a non-resident and visiting agent of the commercial agency. This agent’s legal position would seem to be analogous to, if not identical with, that of the traveling salesman; whereas, the resident representatives of the agency would, like the peddlers, fall within the taxing power of the State and municipality.
The cases, which have just been fully elucidated, in which a license tax or fee is exacted of importers or exporters, and of persons who are in any way engaged in interstate commerce or trade, are not the only cases of imposition of a license tax upon interstate commerce. The same rule obtains, in regard to railroads, the telegraph companies, express companies, and other mediums of transportation and communication, which have both an interstate and an intra-state business. If the license tax is exacted for the transaction of domestic or intra-state business, it is valid, although the same company may likewise be engaged in an interstate business.1 But if it is imposed upon those which are engaged only in interstate business, the license tax is void, because it is an unconstitutional burden upon interstate commerce. But where the license fee is exacted in such a case only in an amount sufficient to cover the expenses of maintaining an inspection, which is allowable under the constitutional limitations, this is not held to be a tax upon interstate commerce, but a part of the process of exercising the lawful police power of the State.2
The reports contain a few cases of the attempt of State governments, by the exaction of license fees, to restrict certain exports to other States. In Pennsylvania, the requirement of a license fee is applied to the cases of purchase of certain enumerated articles in two counties of the State, for sale outside of those counties. The statute was sustained as a constitutional exercise of police power, and not a burden upon interstate commerce, on the ground that it was a tax upon the articles before they assumed the character of articles of interstate commerce. And it was, furthermore, declared by the court that the interstate commerce clause of the Federal constitution could not in any event invalidate the law, in its application to the unauthorized sale of such articles within the State.1 Doubtless, this latter proposition is sound; but this would seem as objectionable a burden upon interstate commerce, as would the license tax of drummers. Furthermore, as a tax upon exports, it would offend the constitutional prohibition of the levy by States of all taxes upon exports.2 A law, which imposed a license tax upon all packers and canners of oysters “for sale or transportation,” was sustained by the Supreme Court of Maryland.3
On the other hand, the Supreme Court of North Carolina declared a State statute to be unconstitutional, which exacted of emigrant agents, who were hiring laborers for work outside of the State, a license fee that was so large as to amount to a restriction of the business. No facts were proven in support of any possible contention, that the business justified and required, in the interest of the public or of the laborers, the police supervision of the State.4
Taxation of interstate commerce.—
The cases of taxation or of attempted taxation by the State or municipal governments of interstate commerce, are not confined to the exactions of license fees from those who are engaged in interstate commerce, as presented in the preceding section. It is not an uncommon occurrence that the attempt is made to lay a more or less direct tax upon those who are engaged in interstate commerce, or upon the articles of interstate commerce, which they handle. Where the tax is properly construed, as a tax upon interstate commerce, it is unconstitutional, and cannot be enforced.
Under the guise of a police regulation, no tax may be laid by the State government upon either exports or imports. The tax will be void, because it is in contravention with § 10, Art I., of the United States Constitution, which declares that “No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any State on imports or exports, shall be for the use of the Treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.” This clause, as well as the interstate commerce clause, is violated, whenever a tax is laid upon exports or imports,1 or upon the business of any importer or exporter, or upon the business of any one who is in any way engaged in the promotion of interstate commerce.
In presenting the limitations of the power of the States to tax corporations which are engaged in interstate commerce, two facts must not be allowed to pass out of sight. The first is, that the State cannot in any case prevent or restrict any corporation or natural person from engaging in an interstate contract or business. But the fact, that a foreign corporation is engaged in a business of interstate character and proportions, does not involve the right of such a corporation to go into another State, open a branch office, for the purpose of there prosecuting its business. In the preceding chapter,1 it has been explained that foreign corporations, unlike the natural citizens of the different States, are not guaranteed the enjoyment of equal privileges and immunities, and may be refused altogether the right to engage in business in any State, other than that in which they have been created; but if they are admitted within any State, they cannot object to the arbitrary or discriminating character of the conditions of their admission into the State.2 So that the exaction of a franchise or license tax from a foreign corporation like an industrial corporation, having a place of business within the State, can in no sense be considered a tax upon interstate commerce.3 That is a very different tax, when it is laid upon a foreign coporation having a place of business within the State, than when it is exacted of a foreign corporation, which does business within, but which conducts it, from a place of business outside of the State, through traveling salesmen and agents, or by mail or telegraph.4 In the former case, the transactions are domestic or intra-state; while, in the latter case, they are interstate contracts, forming a part of the interstate commerce, and being beyond the taxing power of the State. A law, which declares void a contract for the sale of goods, made by the traveling salesman of a foreign and non-resident corporation, unless a franchise fee is paid by such corporation into the State Treasury, is unconstitutional in that it imposes a restraint upon interstate commerce.1 The same rule obtains in regard to the direct taxation of the business, which a foreign corporation may do within the State from the place of business which it has established therein. This is not a tax upon interstate commerce, for the business taxed is done entirely within the State.2
Corporations, which are engaged in business, which is partly interstate and partly intra-state, like the railroads, telegraph and express companies, whose business extends over many States, do not, on account of the extensiveness of their business, escape taxation by the State. In a paragraph of the preceding section, it has been shown how far they may be subjected to a license tax. So, also, may they be subjected to a property and a franchise tax, provided neither as laid constitutes a burden upon interstate commerce. The fact, that property is employed in the prosecution of an interstate business, does not take that property out of the taxing power of the State.3 Thus, a State may tax coal, like any other property within the State, which has been brought into the State, while it is still in the barges afloat upon the navigable waters of the State;4 and forbid the sale of the same until it has been gauged by State officers.5 A city or State may lay a property tax upon a telegraph company, which is measured by the number of poles or the feet of wire it may have and use within such city or State.6
So, also, would a property tax be valid, when it is laid upon the assessed valuation of the property of the telegraph company, which is located within the State, the assessment being determined by the entire value of the company’s property, wherever located, in the proportion that its mileage of wires within the State bears to the entire mileage of its line.1 The same rule of proportional assessment according to mileage within and without the State, when applied to the State taxation of express companies, has been sustained, as a valid exercise of the taxing power of the States, by the Supreme Court of the United States.2 The same rule, that property, which is employed in the prosecution of interstate commerce, may nevertheless be taxed by the State, in which it is located, has been applied to an interstate pipe line company;3 and to a bridge company, whose bridge spans a river which separates two States.4
So, also, may a corporation be subjected by a State to a franchise or business tax, provided such tax is laid exclusively upon the intra-state business, and the interstate business is altogether excluded from the burden of the tax. This rule has been applied to railroads5 and to telegraph companies.6 But where the tax is laid upon the gross receipts of the entire business of a corporation, which is engaged in an interstate business, it is unconstitutional, because it is levied in part upon interstate business.1
The same rule applies to industrial corporations, which are engaged in an interstate business.2
In Postal Tel. Cable Co. v. Adams,3 the court said: It is settled that where, by way of duties laid on the transportation of the subjects of interstate commerce, or on the receipts derived therefrom, or on the occupation or business of carrying it on, a tax is levied by a State on interstate commerce, such taxation amounts to a regulation of such commerce, and cannot be sustained. But property in a State belonging to a corporation, whether foreign or domestic, engaged in foreign or interstate commerce, may be taxed, or a tax may be imposed on the corporation on account of its property within a State, and may take the form of a tax for the privilege of exercising its franchises within the State, if the ascertainment of the amount is made dependent in fact on the value of its property situate within the State (the exaction, therefore, not being susceptible of exceeding the sum which might be leviable directly thereon), and if payment be not made a condition precedent to the right to carry on the business, but its enforcement left to the ordinary means devised for the collection of taxes. The corporation is thus made to bear its proper proportion of the burdens of the government under whose protection it conducts its operations, while interstate commerce is not in itself subjected to restraint or impediment. We are of the opinion that it is within the power of the State to levy a charge upon this company in the form of a franchise tax, but arrived at with reference to the value of its property within the State, and in lieu of all other taxes, and that the exercise of that power by this statute, as expounded by the highest judicial tribunal of the State, did not amount to a regulation of interstate commerce or put an unconstitutional restraint thereon.”
Exports and imports are free from taxation by the State only so long as they are found in that character. Before the article has become an export, or after the original package of the import has been broken and the separate parts of the contents of the original package are offered in trade within the State, they may be subjected to taxation within the State, in common with other property owned within the State, from which they cannot then be distinguished.1
State regulation and prohibition of interstate commerce, particularly, articles of merchandise.—
There are two phases of interstate commerce, which are readily suggested by the correlative words, exports and imports. The sale of the products of domestic labor beyond the limits of the State is just as much a transaction of interstate commerce, as would be the sale within the State of the products of labor done without the State. But before the products of either labor may become the subjects of interstate commerce, steps must have been taken for their sale in or transportation to another State or country. As long, therefore, as the products of domestic labor and manufacture are not set apart for sale to non-resident vendees or for transportation to another State, they may be subjected to any police regulation and restriction, which would not offend the limitations of the State constitutions, without infringing the interstate commerce clause of the national constitution.1 In this case, the Iowa statute, prohibiting the manufacture and sale of intoxicating liquors, was held not to interfere with interstate commerce, in that it prohibited the manufacture of liquors for export. On the same grounds, a statute, which prohibited the shipment beyond the State of certain fish which was caught within it, was held not to work an interference with interstate commerce, in the constitutional sense of the words.2
It has been held to be an unlawful interference with interstate commerce, for a State law to prohibit suit in the State courts on contracts of insurance, which are effected outside of the State with a non-resident or foreign insurance company, unless the insurance company complies with the license law of the State by the payment of the required license tax. The contract of insurance, which is effected by a resident with a foreign insurance company through correspondence with the home office or a non-resident agency, is a contract of the State in which the home office or agency is located, and is, therefore, not governed by the law of the State in which the insured resides. Furthermore, it is an interstate contract, and comes within the purview of the interstate commerce clause of the Federal constitution.3
On the other hand, State laws have been sustained, which prohibit the selling of any pool or bets within the State upon any races or games, which are to take place outside of the State, or the establishment within the State of any agency for the sale of such pools or bets,4 or for the transmission of money to race tracks outside of the State.1 In such a case, the contract is wholly made within the State, and for that reason does not fall within the interstate commerce clause of the Federal constitution. So, also, has a State statute been sustained, as not being an interference with interstate commerce, which declares void any stipulation in a contract which provides a shorter period of limitation than two years, or which requires that a notice of claim of damages be given within less than ninety days after suffering the damage.2
But the chief instances of police regulations by the State, which interfere with the prosecution of interstate commerce, relate to the importation of merchandise into the State, and the sale thereof within the State, in violation of the local police regulations. Generally these regulations, if they are so excessive as to amount to a burden or restriction upon commerce, are held to be void, and in contravention of the interstate commerce clause of the national constitution. But a disposition is manifested to sustain all reasonable police regulations, which do not restrain or burden the prosecution of the interstate business, and which are designed to protect the purchaser against fraud or injury. Naturally a State law, which only regulated the business in a way which did not prevent its prosecution, is more likely to be sustained than one, which served as a practical barrier to the profitable prosecution of the interstate business. Thus, a State law was held to be constitutional, which required that no lard be sold within the State that contains anything but the pure fat of healthy swine, unless each package is marked “compound lard.”3 And so, also, has the Supreme Court of the United States held a State law to be constitutional, which prohibits the sale of oleomargarine, whether made within or without the State, if it is colored so as to resemble butter in appearance, or if its appearance is not so changed in form or color as to prevent such resemblance.1 On the other hand, a United States Circuit Court held a Minnesota statute to violate the interstate commerce clause of the national constitution, so far as it was enforced against original packages, which prohibited the sale within the State, of any baking powder which contains alum, unless that fact is stated upon the label of the box or package.2 In Tennessee, it has been held that the State has the power to prohibit the sale of cigarettes, even in the original package of interstate commerce, because, being deleterious to the health, it was not a legitimate article of commerce.3
It has also been held to be a constitutional exercise of the police power of the State, to require that all coal, imported into the State, shall be gauged by State officials, before it can be sold.4 And provision for the inspection of goods, which are either imported or exported, is held to be a constitutional exercise of the police power.5
In the case of all of these regulations, the manifest single intent of the legislator was to protect the purchaser against fraud and imposition, without interfering in the slightest with the fair, straightforward interstate business of an honest man. They are, therefore, sustainable as reasonable police regulations, whose enforcement does not operate as an interference with interstate commerce. But where compliance with the requirements of the statute is impossible to the non-resident trader, and its enforcement against him would operate as a practical prohibition of his business—particularly, if the regulation is not impossible of performance to the resident, who is engaged in the same business—the regulation will be declared to be an unconstitutional interference with interstate commerce. Thus a law, which requires the inspection within the State of all live stock, which is slaughtered for sale within the State, cannot be complied with by non-resident stock dealers, and is, therefore, unconstitutional as a restriction upon interstate commerce. And such has been the almost unanimous opinion of the courts.1
Probably, for the reason that the motive of the regulation was not a reasonable one, it has been held that a State law, which prohibited the sale within the State of the products of the convict labor of other States, unless they are so labeled, is an unconstitutional interference with interstate commerce.2 And so, also, because it discriminated without reason against non-resident in favor of resident vendors, a State law, which required the vendors of nursery stock grown in another State to file an affidavit and bond with the Secretary of State, was held to be an unconstitutional restriction upon interstate commerce.3 It has also been held to be an unreasonable and unlawful interference with interstate commerce, for a State law to require that sheep be “dipped” before being imported into the State.4
In like manner, the State government cannot impose conditions upon the sale within the State of articles of interstate commerce, which are not required to protect the health of the community or the reasonable rights of the purchaser. These would be unreasonable; and, because they were unreasonable, they would be declared to be an unlawful interference with interstate commerce.1 In these cases, the statutes required foreign corporations, doing business within the State, to have a place of business and an agent within the State. It was held that this law could not be enforced against corporations who send goods into the State upon the order of resident buyers, which have been mailed to the home office of the corporation, or which have been given to its traveling salesmen.
Where the police regulation is an absolute prohibition of the importation of articles into the State, the regulation is likely to be declared to be an unconstitutional interference with interstate commerce. This was the case with State statutes, which, like that of the State of Missouri, prohibited absolutely the importation into or through the State of Texan, Indian or Mexican cattle during certain periods of the year. The statute was declared to be unconstitutional by the Supreme Courts of the United States and Missouri.2 In the latter case, the Supreme Court of the United States stated, in partial explanation of its judgment:—
“While we unhesitatingly admit that a State may pass sanitary laws, and laws for the protection of life, liberty, health or property within its borders; while it may prevent persons and animals suffering under contagious or infectious diseases, or convicts, etc., from entering the State; while for the purpose of self-protection it may establish quarantine and reasonable inspection laws, it may not interfere with transportation into or through the State, beyond what is absolutely necessary for its self-protection. It may not, under the cover of exerting its police powers, substantially prohibit or ourden either foreign or interstate commerce.” * * *
The Illinois courts held such an act to be constitutional.1
“Regarding the statutes as mere police regulations, intended to protect domestic cattle against infectious diseases, those courts have refused to inquire whether the prohibition did not extend beyond the danger to be apprehended, and whether, therefore, the statutes were not something more than exertions of police power. That inquiry, they have said, was for the legislature and not for the courts. With this, we cannot concur. The police power of a State cannot obstruct foreign commerce or interstate commerce beyond the necessity for its exercise; and, under color of it, objects not within its scope cannot be secured at the expense of the protection afforded by the Federal constitution. And as this range sometimes comes very near to the field committed by the constitution to Congress, it is the duty of the courts to guard vigilantly against any needless intrusion.”
In explanation of the distinction made by the national Supreme Court between total prohibition of the transportation of Texas and other Southern cattle into and through the State, and the police provisions for the protection of domestic cattle from contagiously diseased animals, the same court, in a later case, upheld, as a reasonable police regulation, the statute of Iowa which provided that any one, who had in his possession within the State Texas cattle, which had not wintered north of the southern boundary of Missouri and Kansas, shall be liable for any damages which may be suffered by the spreading of the Texas fever among domestic cattle.2
In the pursuit of the rigid enforcement of the game laws of a State,3 the inability to detect breaches of the law, if the sale of imported game of the prohibited kind is allowed, led to the extension of the statutory prohibition to all such game, whether it was domestic or imported. A statute of California, absolutely prohibiting the sale of hide or meat of deer during the closed season, was sustained as a lawful exercise of the police power of the State, although it was enforced against importations into the State, provided that the sale of the original package was not interfered with.1 In another case, the State prohibitive law was sustained, as not a violation of the interstate commerce clause, although it prohibited the sale of the imported game in the original package.2
Elsewhere,3 the curious and, to the author unjustifiable, legislative crusade against oleomargarine, a harmless substitute for butter, is very fully set forth, and the decisions for and against the constitutionality of the laws, prohibitory and regulative of its sale, are there more or less fully treated. These laws must be referred to again in the present connection, because their enforcement has proven to be unsuccessful, as long as the laws cannot prevent or control the sale of oleomargarine, which may be imported into the prohibitory State. All of the cases unite in declaring that a State statute, prohibiting the sale of oleomargarine, cannot prevent the sale of the imported oleomargarine in the original package in which it was shipped into the State; but that as soon as such original package is broken, and the component elements of the original package are offered for sale at retail, they have ceased to be articles of interstate commerce, and have become indistinguishable from the general property, which is subject to the reasonable exercise of the police power of the State. When the original package of oleomargarine, unbroken, is offered for sale in a prohibitory State, it is still an article of interstate commerce, and its sale cannot be prevented by State law.1 But it has been held that, where the police regulation of the sale of oleomargarine does not do more than establish conditions, which are designed, not to prohibit its sale, but only to prevent the practice of deception or fraud in the sale of it for genuine butter, the regulation is constitutional, even when it is enforced against the original package of interstate commerce.2 But in a recent case, it has been held by the Supreme Court of the United States that the New Hampshire statute, which required oleomargarine to be colored pink, was equivalent to a prohibition of interstate commerce in that article of merchandise when applied to original packages, and was for that reason void and unconstitutional.3
The same ruling, distinguishing between the original package of interstate commerce and the broken contents of the same, has been made in the case of State laws which prohibit the sale of cigarettes; the courts holding, that the States have no power to prohibit the sale of cigarettes, imported from another State, when they are offered for sale in the original package in which they had been imported into the State.4 The same ruling would be made in the case of any other article of interstate commerce, such as seed1 or baking powder.2
The most important occasion, for determining the proper line of demarcation of the police regulation of a trade which is conceded to a State, and the restraint upon or interference with interstate commerce which is denied by the national constitution, is in the State laws and the constitutional provision, which prohibit the sale of intoxicating liquors.
Two propositions have, as a result of the fruitful litigation over prohibitory laws in this traffic, been definitely settled, particularly by the decisions of the Federal courts. The first is, that no prohibitory law of a State can interfere with the purchase without the State, and the shipment into the prohibitory State, of intoxicating liquors for the purchaser’s own use and consumption. Any State law, which interferes with this interstate transaction, either to prohibit it altogether, or to subject it to the police supervision of the State,—as was the case in South Carolina under the dispensary act,3 requiring a certificate from the State chemist of the purity of the liquors so imported,—is an unconstitutional interference with interstate and extra-state commerce.4 The second proposition is—or was, until the enactment in 1890 of the so-called “Wilson Bill,” which will be explained presently,—that intoxicating liquors, imported into a prohibitory State, may be sold within such State, notwithstanding the prohibitory law, in the original package, in which it was imported; and that such liquors did not come within the prohibition of the State law, until the original package had been broken, and the contents in a different form or package were offered for sale.1
The decision of the Supreme Court of the United States in Leisy v. Hardin, sound as it was on the precedents laid down by the earlier cases,2 created a very natural consternation among the advocates and supporters of laws for the prohibition of the sale of intoxicating liquors; for it dealt a death-blow to their aims and aspirations for the banishment of intemperance from their States and domiciles. The breweries, in order to comply with the judicial determination of what was the original package of interstate commerce, constructed cars for the safe depository of single unpacked bottles of beer; and these cars, with the bottle-rack filled with the unpacked bottles of beer, would be transported to different places within the prohibition States, there side-tracked and opened daily for the transaction of business in the sale of original packages, in the form of single bottles of beer.
The courts had held that the original package of interstate commerce, whose sale within a State cannot be prohibited or restrained by State law, was the package that was delivered to the common carriers for transportation, in the exact condition in which it was shipped. For example in the case of liquors, the bottles, if shipped without any packing, were the original packages; but if they were packed in a box or barrel, or basket, the box, barrel or basket, was the original package, and not the individual bottles.3 The same ruling would be made in the case of any dry goods. The original case, box or barrel, in which the articles were shipped, would be the original package and not the smaller packages, which were packed for shipment in such case, box or barrel. This question has been recently raised in the shipment of cigarettes into States, in which their sale is prohibited by law. The cigarettes, as is well known, are put up in packages of twelve, either in a tin box, or incased in a paper wrapper. It was held by the Supreme Court of Iowa that, where these small packages were packed for shipment in a larger box or crate, the larger box or crate was the original package of interstate commerce, and that the requirement of an internal revenue stamp upon each one of the smaller packages did not make them original packages.1 In other cases,2 the same practical conclusion was reached, viz.: that the smaller packages of cigarettes were not so far original packages of interstate commerce, after they had reached their place of destination, as they may be sold in defiance of the prohibitory law of the State; but the court held that, nothwithstanding the conclusion just given, these smaller packages were made original packages, while in course of transportation, by the requirement of a revenue stamp on each one of them. In a Tennessee case, it was held that an open basket, filled with the smaller packages of cigarettes, was the original package, so that the sale of one of the smaller packages would not be the sale of an original package, if it has been shipped into the State in the basket, as described.3
The consternation, which the decision in the case of Leisy v. Hardin,4 had occasioned, led to the enactment of what is known as the “Wilson Bill,” which reads as follows:—
“That all fermented, distilled or other intoxicating liquors or liquids, transported into any State or Territory, or remaining therein for use, consumption, sale or storage therein, shall, upon arrival in such State or Territory, be subject to the operation and effect of the laws of such State or Territory, enacted in the exercise of its police power, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory, and shall not be exempt by reason of being introduced therein in original packages, or otherwise.”
This congressional enactment was suggested by a statement in the opinion of Chief Justice Fuller in Leisy v. Hardin, as follows: “Hence, inasmuch as interstate commerce, consisting in the transportation, purchase, sale and exchange of commodities, is national in its character, and must be governed by an uniform system, so long as Congress does not pass any law to regulate it, or allowing the States so to do, it thereby indicates its will that such commerce shall be free and untrammeled. * * * The conclusion follows that as the grant of the power to regulate commerce among the States, so far as one system is required, is exclusive, the States cannot exercise that power without the assent of Congress.”
The constitutionality of the Wilson bill was denied, on the ground that Congress had not the power under the constitution to delegate to the States the regulation of interstate commerce, which had been placed within the exclusive power of Congress by the interstate commerce clause of the constitution.1 But the Supreme Court of the United States2 sustained the Wilson law, claiming that Congress had the power to remove the obstruction to the State regulation of interstate commerce, which the constitutional grant of such power to Congress had created. The court held that, where Congress took no action for the regulation of interstate commerce of a national character, such as is the traffic in intoxicating liquors, its silence must be taken as equivalent to a declaration that the commerce must be free and untrammeled. “It followed as a corollary that, when Congress acted at all, the result of its action must be to operate as a restraint upon that perfect freedom which its silence insured. Congress has now spoken and declared that imported liquors and liquids shall, upon arrival in a State, fall within the category of domestic articles of a similar nature. * * * Congress did not use terms of permission to the State to act, but simply removed an impediment to the enforcement of the State laws in respect to imported packages in their original condition, created by the absence of a specific utterance on its part. It imparted no power to the State not then possessed, but allowed imported property to fall at once upon arrival within the local jurisdiction.”1
In a case, growing out of the enforcement of the South Carolina Dispensary Law,2 which converted the sale of intoxicating liquors into a government monopoly, and prohibited its sale within the State by private dealers, it was held by the United States Circuit Court that the Wilson bill did not apply to a State in which intoxicating liquors were allowed to be sold for consumption as beverage; that, where a State made the liquor business a government monopoly, and forbade the importer of original packages to sell the same, the law was in conflict with the interstate commerce clause of the constitution, and was for that reason void.3 The Supreme Court, however, did not agree to this distinction, reversed the decision of the Circuit Court, and held that the Wilson law placed intoxicating liquors in original packages within the control of the State laws, whatever those laws prescribed, in the regulation of the sale of intoxicating liquors. The only practical limitation which the court made in the scope of the Wilson bill, was that no State had the power to prohibit the importation into the State of intoxicating liquors for the purchasers’ own use and consumption.1 It has also been held by the Supreme Court of the United States that intoxicating liquors, imported into a State in which their sale is prohibited, were not brought within the prohibitory law of the State by the Wilson bill, until the carrier had transported them to the place of destination, and had made actual or constructive delivery to the consignee. The State’s interference with such transportation, by requiring the carrier, under penalties, to procure a certificate from some State official before the goods could be lawfully delivered to the consignee, was an unconstitutional interference with interstate commerce.2
State regulation of railroads and other common carriers, and of their business, when an interference with interstate commerce.—
The railroads, the express companies, the telegraph companies, and other corporations, which establish and furnish the means and facilities for transportation and communication between places, in these days of gigantic combinations, do not and cannot limit their operations by State lines. In the prosecution of their business, most of them traverse more than one State; and by partnerships between connecting lines trunk lines of railroads are formed, which extend from ocean to ocean; whereas, the Western Union Telegraph Company covers the entire country, its electric arteries penetrating every nook and corner. Naturally, their business is partly interstate, and partly intra-state, while the respective corporations are creatures of State legislation. The corporations, and their business are subject to reasonable police regulations. But the query is appropriate: by which government shall these regulations be established and enforced? The answer is plain, although the application of the principle involved to the particular case may occasion some difficulty. It is that, so far as the regulation interferes with or imposes a burden upon interstate commerce, and involves the exercise of an extra-state power of control over the business of these corporations, it is only valid, if it be exercised by the national government; and it is unconstitutional, if it is exerted by a State government. The police regulation of these corporations, and of their business by a State government, must be confined to those local regulations, which, while they interfere with commerce more or less materially, may be enforced without giving to the State authorities an extra-territorial power of control over these corporations and their business.
The principle, underlying this distinction, is clear enough and easy of comprehension; but it is not always clear, that the courts, in applying this distinction to concrete cases, have adhered to it in deciding, whether a State regulation did or did not constitute an invalid interference with interstate commerce. For example, it has been held in some of the Southern States, that a State statute, which prohibits the running of freight trains on Sunday, did not interfere with interstate commerce, in violation of the United States constitution, although it was enforced against trains which were exclusively laden with freight, which was being transported across the State from one State to another.1 It is true that, in enforcing such a regulation against “through” freight, the State was not exercising any extra-territorial control over interstate commerce; but it certainly was interfering with the expedition of the interstate business of the railroad. And if the stopping of interstate freight trains on Sundays, by State regulation, was no interference with interstate commerce, a similar prohibition of passenger trains on Sunday would be equally unobjectionable. Elsewhere1 the constitutionality of Sunday laws in general is fully discussed from the standpoint of religious liberty, to which the reader is referred for a consideration of that phase of the present question.
On the other hand, it has been held that a State law, which requires a railroad to provide separate coaches or cars to be furnished for white and colored passengers, is an unconstitutional interference with interstate commerce, if it is made to apply to passengers, who are to be transported from some point within the State to a point of destination in another State.2
If a State statute prohibits a railroad from providing by contract for its exemption from liability for negligence, it is constitutional provided the statute is not applied to contracts, made outside of the State, for transportation from one State into or through another.3
On the question, whether railroad service, which is known as “switching,” is to such an extent a part of interstate commerce, as that it cannot be subjected to State regulation, where interstate traffic is involved, has been answered in the affirmative by the Texas court,4 and in the negative by the United States Circuit Court.5
It is held not to be in violation of the interstate clause of the constitution, for a State to require by law the stopping of certain or of all trains at certain stations;1 to require locomotive engineers to submit to examinations for color blindness and to pay the cost of the examination, even though they are in charge of locomotives which are employed in interstate traffic;2 to prohibit any railroad from acquiring the control of any parallel or competing lines.3 So, also, has it been held not to be an interference with interstate commerce for a State statute to prohibit the sale of railroad or steamboat tickets by any but the authorized agents of the carrier which issues them.4
The national government has the exclusive power of regulating and controlling the immigration of foreigners into this country, or into any part of it. Naturally, the courts have held that no State can exercise this power, whether Congress has acted or not. A California statute, which prohibited the immigration of the Chinese into the State, and regulated their removal from place to place within the State, was declared to be unconstitutional.5
A State may authorize by statute the garnishment of an interstate railroad, without being charged with an unlawful interference with interstate commerce.6
In many of the cities, particularly in the Southern States, it is deemed to be prejudicial to the public health to permit the sale of fresh meats, vegetables, fruits and other perishable goods, in any other place than the public market; and the general constitutionality of statutes and ordinances, which prohibit their sale elsewhere, has been uniformily sustained.1 The city of New Orleans has had such an ordinance for many years. But it has been held that an ordinance of the city of New Orleans, which prohibited the railroads from permitting the sale of such perishable food from the cars on its tracks, was an unjustifiable interference with interstate commerce, so far as it was made to apply to articles brought from another State;2 so, likewise, in a prohibition State, to prohibit the transportation of liquors to a point within the State, unless the railroad has first obtained a certificate from some State official.3
Frequently, it is a mooted question, whether a particular transportation of goods or passengers is not a case of interstate traffic. In the first place, the mere fact, that the line of the railroad extends through two or more States, does not make its transportation of goods or passengers an interstate transaction, if the transportation is from one point to another within the same State.4 And this is likewise true, although, in making such a transportation between two points within the same State, it must be made over a part of the track of the railroad which lies in another State. This is, nevertheless, a case of intra-state transportation, and subject to State regulation.5 And where a railroad, whose line of road is wholly within the boundaries of a State, engages itself, as a link in any extensive trunk line, to transport goods to the end of its line, there to be delivered to the connecting road—the entire transportation of the goods or passengers to a place of destination beyond the State, being provided for by a contract of a connecting road outside of the State, with which the transportation began,—the local road, in the transportation of such goods or passengers, is not so far engaged in interstate commerce, as that it is not subject to the police regulations of the State.1
It has been held recently in South Carolina, in the case of a shipment of whisky into the State, in violation of the State Dispensary Law but for the personal use of the consignee, that the interstate transportation had not ceased, and that the goods had not come within the jurisdiction of the State laws, when the consignee was transporting the case of whisky to his home in his own buggy.2
The communication or intercourse by telegraph messages, between persons residing or located in different States, is undoubtedly interstate commerce.3 But, nevertheless, it has been held that there is no unconstitutional interference with interstate commerce, if a State statute regulates the transmission of telegrams, by requiring reasonable facilities for the dispatch of business;4 or by imposing a specific penalty for the non-delivery of a telegram, which shall be recovered either by the sender5 or by the person to whom the telegram was addressed.6 And where the penalty is recoverable by the addressee of the non-delivered telegram, its recovery does not constitute any impairment of the contract of the sender with the telegraph company, which provides against or limits the liability for mistakes in transmission.1 It has also been held that State regulations of telephone companies, for the protection of the local public from threatened danger, did not violate the interstate commerce clause of the Federal constitution.2
Elsewhere3 the general subject of the police regulation of prices and charges, for the prevention of extortion, has been very fully discussed, apart from its effect upon interstate commerce, when it is instituted by the State governments. It remains to refer to these regulations from the standpoint of interstate commerce; and, particularly, to the rates and charges of railroads and other common carriers which are engaged in part in an interstate traffic. The principle controlling these questions is clear, and is the same which has guided the courts in their determination of the scope of the prohibitive influence of the interstate commerce clause of the national constitution. And, when applied to the particular case under inquiry, it declares that the State laws, which undertake to regulate the rates of fare and freight of railroads and other common carriers, are unconstitutional, so far as they are made to apply to the interstate traffic of the railroads. To regulate the rates of fare and freight of railroads, charged by a railroad for transportation from a point in one State to a point in another, is an unconstitutional interference with the national power of control over commerce.4 And, although it has been held that a railroad, in transporting goods or passengers from one point to another in the same State, is not engaged in interstate traffic, although the route between the two points is laid across two States, so that such business is within the police regulation of the State;1 the cases are at variance, whether the State railroad commissioners can under those circumstances fix the charges for transportation between the two points. One case denies the power to do so;2 the other case holds that it is not a case of interstate commerce, and that it is within the power of the railroad commissioners to regulate the rates and charges of transportation between the two points within the State, although the route lies in part through another State.3 The latter view is believed to be the correct one.
The State may also regulate the price charged for mileage books, although the railroad line extends beyond the State. But the mileage tickets so sold may be limited by the company to use within the State; and the fact, that they may be tendered to a point without the State, was declared not to make the State law an interference with interstate commerce.4
The State courts seem to concur in the opinion that a State does not interfere with interstate commerce, if it imposes a penalty upon a common carrier for refusing to deliver goods to a consignee within the State, upon tender of all the charges for freight which the bill of lading calls for, or for detaining the goods for an unreasonable time for any unfounded cause, even though the goods have been shipped from another State.1 And the same conclusion was reached, where a State law prohibited railroads doing business within the State from increasing their rates, during the course of transportation, above what were charged when the goods were tendered to them.2 But the Supreme Court of the United States has held such a State regulation to be an interference with interstate commerce, wherever it is applied to interstate freight.3 It is clear enough, that a State statute cannot provide for the repayment of overcharges on interstate freight, which involved unjust discrimination between points or persons. That is a matter which belongs to the exclusive jurisdiction of the United States government.4
The United States government, in the exercise of its power to regulate commerce with foreign nations and between the States, may establish maximum and minimum rates of fare and freight between which all common carriers, doing an interstate business, must keep their charges. In the establishment of the interstate commerce commission, the commission was empowered to regulate railroad traffic, so as to prevent discrimination between points and persons, in the fixing of tariff rates by the railroads, but the power was not given to the commission to establish maximum or minimum or absolute rates of fare and freight; and it was held that the commission could not indirectly attain this control of the charges of the railroads, by first determining what are reasonable rates, and secure a peremptory order from the courts, that the railroads must conform to the commission’s determination of what are reasonable charges.1
The constitutionality of State regulations of the charges of grain elevators,2 has been attacked on the ground that, since they constitute one link in the transportation of grain from one State to another, the regulation of their charges involved an unconstitutional interference by the State with interstate commerce. But the Supreme Court of the United States, with a divided court, denied this contention, and sustained the constitutionality of this exercise of the police power of the States.3 And in Nebraska, it has been held that, as long as Congress does not act in the matter, the States have the power to prevent telegraph companies from discriminating between places in their rates of interstate service.4
The jurisdiction of anti-trust laws, national and State, as affected by the interstate commerce clause.—
The general subject of the prohibition of trade combinations has been very fully treated in a previous section.5 The chief statutory regulations against them are known as “anti-trust laws.” We have such laws in almost every State in the Union; and, in addition, we have a national anti-trust law. It is important to delimit the jurisdictions of these national and State laws against trade combinations. Generally, it might be stated, as an accurate delimitation of their jurisdictions, that the State anti-trust laws can apply only to those cases of trade combinations which do not involve, necessarily and exclusively, the prosecution of interstate commerce. Such a State law cannot be enforced against parties, who violate its provisions by acts committed outside of the State;1 as, for example, by foreign insurance companies who form a combination outside of the State, which combination determines the rates of premium which shall be charged for insurance within the State.2 On the other hand, the national anti-trust law can be enforced only against combinations in restraint of trade, which are engaged in interstate commerce. In its application to railroads and other common carriers, whose lines extend over two or more States, it has never been questioned that the national anti-trust law could be enforced against combinations of such common carriers which included within their sphere of operation more than one State. Thus, since the Trans-Missouri Freight Association and the Joint Traffic Association included among its members railroads, which had extensive trunk lines covering a number of the States, the combination was properly held to be in restraint of interstate commerce; and, so far as I know, this position has never been seriously contested.3
But the jurisdiction becomes less clear, when the subject of local facilities in aid of interstate transportation, such as grain elevators and live stock yards, is broached in its relation to the national and State antitrust laws. In the case of the grain elevators, it has already been shown in the preceding section4 that the Supreme Court of the United States had sustained the constitutionality of State laws which regulated the rates of charges of such elevators, because their business was only incidental to interstate commerce, and not a part of it. The same principle has been adhered to in a subsequent case, in which an attempt was made to enforce the provisions of the national antitrust law against a combination of live stock yard owners at Kansas City, Missouri. The United States Circuit Court held that this association or combination was engaged in interstate commerce; and that their combination, in restraint of such commerce, brought it within the condemnation of the national anti-trust law.1 But this decision was, on appeal, reversed by the Supreme Court, in harmony with its prior decision in the grain elevator cases.2
The practical failure of all the State laws, against trade combinations in restraint of competition, to suppress the formation of gigantic corporate monopolies in the various industries of the country, together with the facilities which some of the States afford for the easy incorporation of such large combinations, led the opponents of the trusts and trade combinations to look to the national anti-trust law for the suppression of those, which were beyond the power of the State laws. The State laws could exclude these industrial monopolies from conducting their business within a State through a local branch office; but the interstate commerce clause of the constitution prevents any interference by a State with the prosecution of their business from an office without the State, or through traveling salesmen and agents. Two cases have been brought into the United States courts, to secure the suppression of these trade combinations by the enforcement of the national anti-trust law. One was directed against a combination of sugar-refineries; the other, against a combination of manufacturers of water and gas pipes. In the case of the sugar refineries, it was held that the combination was not in violation of the national anti-trust laws, although the ultimate effect of a successful combination of the sugar refineries of the State might be a restraint upon interstate commerce. But it was held that the manufacture of sugar was not interstate commerce, and hence did not fall within the provisions of the national anti-trust law.1 In the case of the water and gas pipe combination, the terms of agreement between the manufacturers of pipes involved a partition of the States and Territories between them, and a prohibition against a manufacturer to sell pipe in any State or Territory which had not been allotted to him by the combination. The facts of this case are manifestly different in legal character from the facts of the sugar refineries case, wherein there was no partitioning of territory between rival manufacturers, but a consolidation of the refineries under one corporation. In the United States Circuit Court, it was held that the water and gas pipe combination was not in restraint of interstate commerce, and hence did not come within the condemnation of the national anti-trust law.2 But this decision has been overruled by the United States Court of Appeals and the United States Supreme Court; both courts holding, that the combination was in restraint of interstate commerce, and did violate the provisions of the national anti-trust law.3 Mr. Justice Peckham, in delivering the opinion of the Supreme Court, said in part:—
“The direct and immediate result of the combination was necessarily a restraint upon interstate commerce, in respect of articles manufactured by any of the parties to it to be transported beyond the State in which they were made. The defendants, by reason of this combination and agreement, could only send their goods out of the State upon the terms and pursuant to the provisions of such combination. Was not this a direct restraint upon interstate commerce in those goods? If dealers in any commodity agreed among themselves, that any particular territory bounded by State lines should be furnished with such commodities by certain members only of the combination and that the others would abstain from business in that territory, would not such agreement be regarded as one in restraint of interstate trade? If the price of the commodity was thereby enhanced (as it necessarily would be), the character of the agreement would be still more clearly in restraint of trade.
“Is there any substantial difference where by agreement among themselves the parties choose one of their number to make a bid for the supply of the pipe for delivery in another State, and agree that all the other bids shall be for a larger sum, thus practically restricting all but the member agreed upon from any attempt to supply the demand for the pipe, or to enter into competition for the business? It is useless for the defendants to say they did not intend to regulate or affect interstate commerce. They intended to make the very combination and agreement which they, in fact, did make, and they must be held to have intended the necessary and direct result of their agreement.” * * *
“We have no doubt that, where the direct and immediate effect of a contract or combination among particular dealers in a commodity is to destroy competition between them and others, so that the parties to the contract or combine may obtain increased prices for themselves, such contract or combination amounts to a restraint of trade in the commodity, even though contracts to buy such commodity at the enhanced price are continually being made. Total suppression of the trade in the commodity is not necessary, in order to render the combination one in restraint of trade. It is the effect of the combination, in limiting and restricting the right of each of the members to transact business in the ordinary way, as well as its effect upon the volume or extent of the dealing in the commodity, that is regarded.” * * *
“It is almost needless to add that we do not hold every private enterprise, which may be carried on chiefly or in part by means of interstate shipments, is therefore to be regarded as relegated to interstate commerce, so as to come within the regulating power of Congress. Such enterprises may be of the same nature as the manufacturing of refined sugar; that is, the parties may be engaged as manufacturers of a commodity which they thereafter intend at some time to sell, and possibly to sell in another State; but such sale we have already held is an incident to and not the direct result of the manufacture, and so is not a regulation of or an illegal interference with interstate commerce. The principle is not affected by anything herein decided.”
It seems to me very clear that this latest decision from the Supreme Court of the United States, especially in the light of the Wisconsin decision, cited in a preceding note, paves the way to a very decided national check upon trade combinations in declaring that all corporate combinations, which do in the judicial sense restrain competition and tend to the creation of industrial monopoly, fall within the condemnation of the national anti-trust law, whenever the combination oversteps the boundaries of a State, and include members or industrial plants, that reside or are located in different States. For example, if in the formation of a corporate combination, the manufacturers who are individually doing business in several States, should transfer their plants to the corporation, and they receive shares of stock in return, there is as manifest an intention to restrain competition in interstate commerce, as was evident in the articles of agreement of the water and gas pipe combination. If this ruling were made by the Supreme court of the United States, very few of the large industrial monopolies, so-called, could successfully plead want of jurisdiction, in a suit against them in the United States Courts for the enforcement of the national anti-trust law. The United States Circuit Court has practically taken this position in a recent case,1 which a combination, formed of importers and dealers in other States and foreign countries and of local dealers’ associations, for the purpose of maintaining prices and preventing ruinous competition, was held to be a violation of the anti-trust law. If this ruling is ultimately sustained by the Supreme Court of the United States, all combinations of foreign or extra-state manufacturers and local dealers will be within the jurisdiction of the United States courts, and in violation of the national anti-trust law.
Control of navigable streams.—
A navigable stream is one of which the public generally may make use in the interests of commerce and social intercourse. It is a highway, like the street or public road, to which every one has the right of access, and which every one may use in any manner consistent with the equal enjoyment of the stream by others. Any exclusive appropriation of the stream,2 or other interference with the ordinary use of the stream, is a nuisance, which any one may abate, by the removal of the obstructions to navigation, who may feel incommoded thereby.3
The determination of what makes a stream navigable, and consequently public, is a question for the court. The legislature cannot, by legislation, declare a stream navigable, which in fact is not so, for that would in effect be a taking of private property for a public use, which is only possible in the exercise of the right of eminent domain, and upon payment of compensation.1
According to the English common law, all streams were navigable in which the tide ebbed and flowed.2 In England, this is not the arbitrary rule, which it would be, if applied without qualification to the streams of this country. With the exception of the Thames, above tide-water, there are no streams in England which are practically and actually navigable, except those in which the tide ebbs and flows; and there are no tide-water streams of any importance, which are not actually navigable. But in the United States the situation is altogether different. Here, there are fresh-water streams which are navigable, and tidal streams which are not navigable. The application of the common-law rule, in its literal exactness, to the streams of this country would, therefore, result only in absurd conclusions. The courts of this country have been discussing the problem for many years, and have come to different conclusions on the various branches or subdivisions of the question. So far as the question concerns the location of the title to the bed of the stream, it need not be considered in this connection.3 Here, the question relates to the right of the public to make use of the stream, as a highway. In respect to this phase of the question, the courts very uniformly repudiate the common-law rule, in its literalness, and, seizing hold of the essence of the rule, declare that every stream, which is sufficiently deep and wide to float boats and rafts, used in the interests of commerce and agriculture, is navigable, and the public have a right to use it.1
As a general proposition, the power to regulate the use of navigable rivers resides in the States, through which the rivers flow. And the only constitutional limitation upon the State’s power of control, as against the United States government, is that which arises by implication from the express grant to Congress of the power to regulate foreign and interstate commerce. Inasmuch as a large part of this commerce is carried on by the use of the navigable streams of the country, it has been uniformly held by the courts, both Federal and State, that the Federal power to regulate commerce includes the power to institute regulations for the use and control of those streams, which are used in the prosecution of foreign and interstate commerce. But, inasmuch as all streams may be used in the carrying on of the domestic commerce, and serve other local interests, the congressional power of control does not exclude State regulation altogether. The power of the State to regulate the streams, which may be used in interstate commerce, is unaffected, as long as Congress does not exercise its power; and, in any case, the State regulations are void only as far as they conflict with the regulations of Congress.1
In the absence, therefore, of congressional legislation, the State may regulate the conduct and management of ships, their speed, etc., while making use of these watery highways; and the only other limitation upon the power of the State, which may be suggested by a study of police power in general, is that the regulation must be reasonable, as tending to prevent an injurious use of the stream.2 Thus, in order to prevent damage to vessels from a loose and careless floating of logs down the stream, the State may provide by law that the logs shall be bound together into rafts or inclosed in boats, and be placed under the control and supervision of men, who are required to be reasonably skilled in the management of rafts, and to be actually in charge of them.3 It has been held to be within the police power of the State to prohibit the removal of logs, which have been washed ashore on a navigable stream, without paying to the owner of the shore a certain sum for each log; and to provide for the sale of the logs by the landowner, if the owner of the logs refuses to make payment, or if he cannot be found, to appropriate to himself, out of the proceeds of sale, the permitted amount for each log so sold.4
In like manner are the fisheries in a navigable stream subject to police regulation of the State. Thus, it was held to be constitutional for a State to forbid non-residents to catch fish, for the manufacture of manure and oil, in the navigable waters of the State.1
Where the United States government has issued coasting licenses to vessels, to engage in interstate commerce on certain navigable streams, no State law can interfere with the enjoyment of the license, by granting to one or more persons the exclusive privilege of navigating the streams in question.2 Thus, an act of Maryland was not sustained, which prohibited the use of vessels in the oyster trade on the Chesapeake Bay, unless the owner had procured a license from the State authorities, and had paid a tonnage tax. The act was held to be unconstitutional, not only because it exacted a tonnage tax, in violation of the United States Constitution; but, also, because it interfered with the right to carry on the business of the owners of vessels, which were licensed and enrolled by the United States government.3
But except so far as the stream may be used, or is susceptible of use, in interstate or foreign commerce, it is within the police power of the State to grant exclusive rights to its use.4 This right of granting exclusive privileges in the use of a navigable stream is very commonly exercised in the creation of ferries, and the grant of exclusive ferry privileges. The establishment of a ferry across a navigable stream does not materially interfere with the ordinary navigation of the stream; and, consequently, the power of the State to create and regulate ferries in no case conflicts with the police control of Congress over navigable streams, unless Congress should by actual legislation, in the exercise of its power, supersede the subordinate State control.1 Not only may the State grant an exclusive privilege to the navigation of a stream, but it may grant an exclusive privilege to fish in the stream,2 or to cut ice when the river is frozen over. It is also a common exercise of proprietary power, in South Carolina, for the State to grant to corporations and individuals the exclusive right to dig phosphate rock in the beds of the navigable streams of the State.
The State has also the power to improve the navigable streams of the State, or to authorize private corporations and individuals to make the improvements, and charge toll of those who make use of the stream, as compensation for the improvements. This is but a reasonable exercise of police power, and the coasting licenses of the United States government create no exemption from liability to the regulation. All vessels may alike be required to pay toll.3
It has thus been held to be no violation of the Federal constitution for the State of Louisiana to authorize its levee district authorities to make proper provisions for the protection of its shores against inundations and overflows of the Mississippi river, even though it becomes necessary to go into the State of Arkansas, in order to make the proper provisions, provided it is done with the proper consent of the Arkansas government.1 But it is not within the power of the State to grant to private persons lands under tide waters, with the power to build dykes for the reclamation of the submerged lands: for that would be an interference with the navigable waters of the State.2 And, wherever Congress so wills it, it has the absolute power, in the interest of interstate and foreign commerce, to declare what may or may not constitute unlawful obstructions to the navigation of all the navigable waters, which are at all serviceable in the prosecution of interstate commerce. And Congress may make provisions for the removal of all prohibited obstructions, which provisions of law shall remove the questions from the jurisdiction of the States.3
The State has also the power to authorize the construction of bridges across the navigable streams within its horder; and if the stream is not one, that is or can be used in foreign and interstate commerce, the power of the State to authorize its construction can in no case be questioned, because the bridge will materially interfere with the ordinary navigation of the stream. The legislative determination of the public needs cannot in such a case be controlled by the judicial discretion.4 The State may also license the construction of piers, extending into the current of the navigable stream; and it has been held that one is not entitled to damages for injury to his fishery, resulting from the construction of the pier.1
In respect to the streams, which are subject to the control of Congress, because they are used in the conduct of interstate commerce, the authority to construct a bridge may be granted by Congress or by the State legislature. If Congress grants the authority, the interference of the bridge with interstate commerce will constitute no objection to the legality of the structure,—the determination of Congress that it causes only a reasonable interference with the navigation of the stream being conclusive, in the same manner as a like determination of the State legislatures is, in respect to bridges over streams not adapted for use in interstate commerce. But if the State legislature authorize the construction of a bridge over a stream used in interstate commerce,—inasmuch as the interference with interstate commerce by the State is only permissive, and secondary to the primary control of Congress,—the judgment of the legislature, that the bridge causes only a reasonable interference with navigation, which is justifiable by the increased facilities for rapid transportation which the bridge affords, is not conclusive, and the ultimate decision, in the absence of congressional action, rests with the Federal courts, who are deemed to have the power to pass upon the reasonableness of the interference with navigation, and to cause the bridge to be removed, if it is found to interfere materially with the use of the stream in foreign or interstate commerce.2 But, even after a bridge has been condemned by the court because of its unreasonable interference with interstate commerce, Congress may interpose, in the exercise of its power to regulate commerce, and declare the bridge to be a lawful structure.1
Where a bridge is constructed across a river which separates two States, the use of that bridge is necessarily interstate commerce. Hence, while the States, on whose shores the piers and approaches of the bridge are constructed, may levy a tax upon the intangible property of the bridge company;2 the police power of neither State covers the management and control of the bridge itself; so that neither State can regulate the tolls which the bridge company might charge for the use of the bridge. Congress alone can exercise this police control of the bridge.3
These interferences with the general navigation of a stream by the public do not constitute a limitation of the State control of streams, which cannot be used for foreign and interstate commerce. Congress has no control over these streams, and it seems to be the universally recognized rule that there is no limit to the power of the State to regulate their use. It is even held to be lawful to obstruct such a stream by the erection of dams, even to the extent of prohibiting navigation altogether. If the person who constructs the dam keeps within the authority given him, he is in no way responsible to those who may be damaged by the obstruction.1
Regulation of harbors—Pilotage laws.—
Under the constitutional grant to the United States of the power to regulate foreign and interstate commerce is included, also, the power to regulate the harbors, and the conduct and management of ships within the harbors. But as long as Congress does not exercise this implied power, it rests with the States to provide all those local regulations of the use of harbors, which are aids to commerce rather than restrictions or interferences, and which go far towards eliminating the chances of injurious accidents which are more or less present in the absence of police regulations. Thus, it is lawful for the State or municipal corporation to prescribe when a vessel may lie in the harbor, how long she may remain there, what light she must show at night, and establish other similar regulations, without coming into conflict with any law of Congress.2 So, also, has it been held within the police power of the State, to forbid the sale of coal, imported into the State in barges, until the coal has been gauged by the State gaugers.1 On the other hand, it has been held to be an unconstitutional interference with interstate commerce, for a State, in the exercise of its police power, to prohibit the crews of foreign vessels from loading or unloading vessels in the harbors of the State.2
It is also lawful for a city, so far as the Federal authority is concerned, to require the payment of a tax or license fee from all boats coming into the harbor, or mooring at the city landings. The imposition of such a tax does not constitute an interference with interstate commerce in the constitutional sense.3 It has, however, been held recently by the United States Supreme Court, that the boats, which are engaged in interstate commerce, such as tugs in a harbor, which are employed in towing vessels into or out of the harbor and rivers of a State, cannot be subjected to liability to the State or city for the payment of any license tax, if such boats possess a license from the United States government to engage in the coasting and foreign trade.4
But all charges laid by the local authorities for the enjoyment of the facilities furnished to vessels, must be so computed as not to constitute a tonnage duty. By the United States constitution,5 the States are prohibited from laying any tonnage of duty without the consent of Congress. For example, the State board of harbor commissioners for the port of Charleston, South Carolina, under the authority given by the State to levy fees and port charges to defray the expenses of the police regulation of the harbor, imposed a scale of charges on vessels entering the port according to the “length over all” in feet. It was held by the Supreme Court of the State that the charges were unlawful, because they were a tonnage duty.1 And the Supreme Court of Louisiana held that a license tax, which was imposed by the State, and graduated according to gross receipts, is void as a State regulation of interstate commerce.2 But on the other hand, it has been held by the Supreme Court of the United States that the charge for the use of the wharf is not unlawful, as being a tonnage duty, because the amount of the fees is regulated according to the tonnage of freight.3
But the harbor charges must be reasonable, and be imposed in consideration of some service rendered, or benefit received. If the law provides for the exaction of certain fees from all the vessels entering the harbor, whether any service is rendered to it or not, the law is unconstitutional as being a restriction upon commerce.4
Another very important police regulation of commerce consists in the pilotage laws. Every ordinary sailing master is able to convey his vessel with safety in the open sea to any part of the world. His general knowledge of the science of navigation is a sufficient guaranty of safety to all on board. But a special knowledge of the shoals and currents of a harbor is necessary, in order that it may be entered with safety, and for this reason, it is the universal custom of all civilized nations to require that all vessels, in entering a harbor, shall be in charge of a pilot, specially licensed by the State; or, at least, to provide such pilots for the use of those who may desire their services, under the power to regulate commerce. Congress clearly possesses the right to establish pilot regulations. But as long as Congress does not assume this power, it is but reasonable to conclude that the States may exercise the power, as they had done before the formation of the present union.
In order to remove all doubt as to the power of the States to establish pilot regulations, the first Congress passed this act:—
“All pilots in the bays, inlets, rivers, harbors, and ports of the United States shall continue to be regulated in conformity with the existing laws of the States respectively, wherein such pilots may be, or with such laws as the States may respectively hereafter enact for the purpose, until further legislative provision shall be made by Congress.”1
Notwithstanding this statutory declaration, the State pilotage laws have frequently been attacked, for being an invasion of the power of Congress; but they have been uniformly sustained in the absence of regulations by Congress.2 The only regulation of pilots established by Congress, is that contained in an act of Congress, passed in 1837, which is as follows:—
“That it shall be lawful for the master or commander of any vessel coming in or going out of any port situated upon waters, which are the boundary between two States, to employ any pilot duly licensed or authorized by the laws of either of the States bounded on the said waters, to pilot said vessel to or from said port; any law, usage or custom to the contrary notwithstanding.”1
It is lawful for the States to exact the payment of pilotage fees, in whole or in part, by those owners or masters of vessels, who decline the service of a pilot, for it is within the power of the State to compel every vessel on entering a harbor of the State, to accept the service of a licensed pilot.2 Nor is it any violation of the provisions of the constitution for a State to discriminate in the amount of pilotage between vessels in foreign commerce and those which are engaged in the coasting trade.3 It has also been held lawful for a State to require the masters of vessels bound to ports in that State to accept the services of the first licensed pilot who offers himself.4
National and State quarantine laws.—
It is, probably, not open to serious question that, whenever Congress undertakes to establish a general system of quarantine for the promotion of the general health of the country, and for the prevention of the introduction into the country of infectious and contagious diseases by diseased persons and animals, and infected goods, coming from foreign countries or other States, the regulations of Congress will supersede altogether the regulations of the State governments; and the jurisdiction of the States in such matters will be taken away completely. But, until Congress so acts, it is equally clear that the States may prescribe quarantine laws for the detention of vessels or railroad trains, on their entrance into a harbor or station, respectively, whenever for any reason the landing of the passengers, or the discharge of the cargo or freight, is likely to endanger the health of the city or State.1 This detention of passengers, as a prevention against contagious diseases, is justifiable, even though they may not have come from an infected place, provided they have traveled with those who did come from the infected localities.2 And the expense of detention and fumigation may be justly and lawfully laid upon the common carrier.3
But this extraordinary interference of the States with interstate traffic and commerce is confined to such measures, and to the cases in which such measures, as promise to protect the health of the people of the State or city. As has already been shown, the State cannot, for the protection of domestic cattle, prohibit altogether the importation into the State of cattle which may be afflicted with a contagious disease, such as Texas fever, or which carry with them into the States the germs of the disease.4 And it has also been held that a State cannot, for the prevention of the increase of the burden of pauperism, require common carriers, which bring indigent people into the State, to remove them from the State, if they should fall into distress within one year after their arrival. This is a regulation of foreign and interstate commerce, which the United States Government can alone institute and enforce.5
Regulation of weights and measures.—
Congress is given the power “to fix the standard of weights and measures.”1 The grant of power excludes the like power of the States, whenever Congress exercises the power; but, until Congress does, there can be no constitutional objection to the regulation of these subjects by the States.2
Counterfeiting of coins and currency.—
It is also declared by the national constitution, that Congress may “provide for the punishment of counterfeiting the securities and current coin of the United States.”3 There is no need of an express grant of this power, for it would be necessarily implied from the grant of power to regulate the coinage and currency of the United States.4 But the offense of counterfeiting is not only a crime against the United States government, but is also a trespass upon the rights of those who are induced to receive the counterfeit coin. The punishment of the offense against the government clearly comes within the jurisdiction of the United States. But, in the absence of an express prohibition, it would be competent for a State to punish counterfeiting, as an offense against the individual.5 Congress has lately passed an act providing for the punishment of counterfeiting the coins and currency of foreign nations; and a prosecution has been instituted in the United States Court at St. Louis, in a case in which a band of counterfeiters were convicted of the crime of counterfeiting the currency of Brazil. The constitutionality of the statute was attacked on the ground, that the power to punish the counterfeiting of foreign coin was not granted by the constitution, nor could it be implied from any express power; but the validity of the statute was sustained on the ground, that the power to enact it was included in the grant of the power to define and punish “offenses against the law of nations.”1 There can be no doubt of the correctness of this decision.2
When the wrong done to the individual, by receiving a counterfeit bill or coin, is alone considered, it is clearly a subject for the State police regulation, and cannot be considered a subject for Congressional legislation, whether the coin that is counterfeited is foreign or domestic. But when the wrong to the government, whose coin or currency is counterfeited, is considered, the character of the offense is changed. Instead of being a subject of internal police regulation, exclusively, it constitutes a subject of international law. It is an offense against the law of nations. And although it might not be declared to be so by the existing code of international law, Congress is given the power to define, as well as punish, offenses against the law of nations, and it can undoubtedly, in the exercise of this power, provide for punishing the counterfeiting of foreign coin. The exercise by Congress of this implied power will not exclude the States from the exercise of their ordinary police power over the offense against the individual who has been wronged by the deception.
Regulation of the sale of patented articles.—
The constitution of the United States contains also a provision,3 authorizing Congress to promote inventions by providing for the issue of exclusive patent rights to inventors. The power has been exercised, and the number of patented articles offered for sale in the United States is legion. In the exercise of the police power over trades and professions, the States very frequently establish regulations, which directly or indirectly interfere with or restrict the sale of patented articles, and the constitutionality of such regulations has often been questioned on that account. But they have been generally sustained, if they were in other respects free from constitutional objection. Thus, it was held to be lawful to restrain the sale of adulterated provisions without a stamp, although the article sold was patented. Congress cannot grant under the patent law the right to practice deception in the sale of adulterated articles;1 and if the adulterated article is injurious, when used in the manner for which it was intended, the sale of it may be prohibited altogether.2 But, unless there is fraud or deception in the manufacture of the patented article, it is very probable that the State could not nullify the patent by a prohibition of the sale of the patented article, on the ground that its sale involves elements of danger to the public.
Within this limitation, however, the sale of the patented article is subject to reasonable regulation by the State. For example, for the purpose of preventing fraudulent practices in the sale of patent rights, it was provided by statute in Indiana that vendors of patent rights shall file with the county clerk an authenticated copy of the letters-patent, with an affidavit that they are genuine and have not been revoked or annulled, and that the vendors have authority to sell. The statute was sustained as not being in violation of the rights of the patentee, nor an invasion of the jurisdiction of Congress.1 But a State law was declared in Nebraska to be unconstitutional, which provided that no one shall sell any patent right within the State until he has first submitted his letters-patent to a county judge and obtained his approval.2 It is also held to be constitutional for a State to impose a license tax upon the sale of patented articles by an ordinary trader, as, for example, peddlers of sewing machines.3 But it seems to be considered unconstitutional for a State to impose a license tax upon the sale by the patentee of his patented article.4
War and rebellion.5 —
It is provided by the constitution that Congress shall have the power “to declare war, to grant letters of marque and reprisal, and make rules concerning captures on land and water.”6 We are not concerned in this connection with the general war powers of the government, except so far as the exercise of them bears upon the citizens of the United States. Under the authority “to grant letters of marque and reprisal, and make rules concerning captures on land and water,” it is held to be a legitimate means of prosecuting war to seize and confiscate the property of the enemy, and this right is also claimed for the United States against its citizens who have engaged in rebellion.7 On the same ground, it has been held to be lawful as a war measure, to emancipate by proclamation the slaves of those who are engaged in rebellion.1 Congress may also in the suppression of a rebellion establish military tribunals for the trial of military offenses in those sections of the country which constitute the seat of war, and where in consequence civil law is superseded by military law. But where the courts of the country are open for the hearing of criminal offenses, and hostilities are not in such close proximity as to prevent the courts from enforcing their decrees, the jurisdiction of the civil courts cannot be invaded by a military court.2
In further support of the war power of the United States, Congress is empowered to “raise and support armies.”3 The manner of “raising” an army, the mode of enlistment, must be determined by acts of Congress. As long as the enlistments are voluntary, no constitutional question can arise. Although it has been questioned whether the government could make forced enlistments, it cannot be seriously doubted that Congress possesses this power; and under the government of the Confederate States, whose constitution made a similar grant of power to the Confederate Congress, it was held that the general government possessed this power to compel citizens of the country to perform military service in its armies, in time of war.4
Regulation of the militia.—
Congress is authorized to “provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.”5 The actual control of the militia is, therefore, reserved to the States, until the President of the United States has exercised the power, which may be given him by Congress1 to call the State militia into the service of the United States, when the militia becomes for the time being a part of the United States army; and although the States may regulate the appointment of the officers of the militia, not only are these officers subject to the orders of the President, but they are also subordinate to those officers who may be placed by the President over them in general command of the army or of divisions of the army.2 And when the President, in pursuance of the authority of Congress calls out the militia of the State, he may make his requisition upon the Governor of the State, or directly upon the militia officers. Any one refusing to obey this call subjects himself to punishment under the military laws.3
As already stated, the power to regulate and control the militia of the country is expressly reserved to the States; and hence it cannot be doubted that the power of maintaining a militia was not intended to be included in the prohibition by the constitution of the keeping of troops in time of peace by the States.4 Not only is that true, but it is competent for a State to make it unlawful for any body of men, other than the regularly organized volunteer militia of the State, and the troops of the United States, with an exception in favor of students in educational institutions in which military instruction is given, to associate themselves together as a military company, or to drill or parade with arms in any city or town of the State, without the license of the Governor. Such a statute is not inconsistent with any constitutional provision, and is a reasonable regulation in the interest of public order.1
The power of taxation may of course be exercised by both the Federal and the State governments. Neither could exercise the other powers vested in it, without the authority to provide by taxation the means of securing the execution of the laws. The constitution of the United States expressly declares that “the Congress shall have power to levy and collect taxes, duties, imposts and excises to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.”2 There are only two express limitations upon the power of Congress to levy a tax. One is to the effect that “no tax or duty shall be laid on articles exported from any State.”3 But it has been held that this provision of the constitution is not violated by the regulation which required, as a precaution against fraud, that certain articles intended for export shall be stamped. This is not a tax. It is an ordinary police regulation.4
It is also provided that “no capitation or direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.”5 But the term direct taxes is used in the constitution in a peculiar sense and includes only capitation and land taxes.6
Congress is expressly authorized to impose a license tax upon all trades, manufactures and other occupations. But it is not in the exercise of the ordinary police power. The ordinary police regulation of trades and professions falls within the power of the States, and the United States cannot determine what trades are injurious, and may therefore be restrained by the imposition of a license. The license fee, which the United States government may exact as a condition precedent to the pursuit of any employment or the manufacture and sale of any product, is a tax, and does not operate directly as an ordinary police regulation. As a measure for enforcing the payment of the license tax, no doubt Congress may prohibit the prosecution of the trade, if the tax is not paid; and in order that illicit trade may be detected, Congress may provide the most stringent regulations for the inspection of the premises of those who are engaged in the trade in question, and require the goods to be stamped, and the like. But these regulations are only lawful as means devised for the collection of the tax, and not as a police measure, designed to restrain the prosecution of the trade. If Congress declares that its purpose, in exacting a license fee, was to lay a tax, or if there is no declared purpose, and the act of Congress falls fairly within the power of Congress to impose a license tax, the constitutionality of the act cannot be questioned on the ground that it is a police regulation, designed to restrict or suppress the objectionable trade or manufacture.
The general rule of constitutional construction applies, which provides that when the language of a statute admits of two constructions, one of which keeps the statute within the constitutional limitations, and the other causes it to violate them, the former construction is invariably adopted. Nor is it possible to give the latter construction, in order to secure an avoidance of the statute on the ground of unconstitutionality, even though it is known beyond a reasonable doubt from facts outside of the statute, that this construction will conform more nearly with the real purpose of the legislators. An interesting case of this kind has lately occurred. At the last meeting of Congress (1886), an act was passed, laying a tax upon the sale and manufacture of oleomargarine, and providing a rigid system of inspection and stamping of the goods. The law in form is a legitimate exercise of the congressional power of taxation, and it may be true that some of the members of Congress supported the measure for the purpose of raising revenue. But it can hardly be doubted that the promoters and original advocates of the bill intended it to operate as a restriction upon the sale of oleomargarine in the dairy interests, and the raising of revenue was to them a matter of secondary, if of any, importance. But these occult intentions of the advocates of the bill, even if they could be judicially established, could not affect the constitutionality of the law, as far as it does not contain regulations not suitable as a means for securing a proper collection of the tax.1 Congress is not only unable to prohibit or restrict the prosecution of a trade by the requirement of a license, but it is also denied the power, by granting a license, to authorize the prosecution of a trade, which is prohibited by the laws of the State.2
In the federal state, the independence of the Federal and State governments of each other must be guaranteed by the express or implied limitations of the constitution, in order that the success of the system may be assured. And to such an extent is this limitation upon the power of both considered necessary, that it has been held by the courts that neither the United States nor the State can tax the agencies of the government of the other. The State cannot lay a tax upon the securities of the national government.3
Nor can the United States lay a tax upon the securities and other agencies of the State government.1 “In respect to the reserved powers, the State is as sovereign and independent as the general government. And if the means and instrumentalities employed by the government to carry into operation the powers granted to it are necessarily, and for the sake of self-preservation, exempt from taxation by the States, why are not those of the States depending upon their reserved powers, for like reasons, equally exempt from Federal taxation? Their unimpaired existence in the one case is as essential as in the other. It is admitted that there is no express provision in the constitution that prohibits the general government from taxing the means and instrumentalities of the States, nor is there any prohibiting the States from taxing the means and instrumentalities of that government. In both cases the exemption rests upon necessary implication, and is upheld by the great law of self-preservation; as any government, whose means employed in conducting its operations are subject to the control of another and distinct government, can only exist at the mercy of that government, of what avail are these means if another power may tax them at discretion?”1 For these reasons it has been held that the State cannot tax the property of a bank, or the bank itself, which has been established by the United States government, as a governmental agency, as was the old Bank of the United States, or the present national banks.2 So, also, has it been held incompetent for a State to tax the salary of a United States official, or for the United States to tax the salary of a State official.3 On the same ground, it has been held that the act of Congress, declaring that papers used in judicial process, either as pleadings or as evidence, shall be invalid unless stamped, was unconstitutional in its application to the State courts.4 And it has likewise been held incompetent for the United States to declare an ordinary contract or deed, which is valid according to the State law, invalid because it has not been stamped.5
Regulation of offenses against the law of nations.—
Congress is also given the power “to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.” Piracy is usually defined to be the equivalent of robbery in law, being a forcible deprivation of property upon the high seas.1 But a robbery at sea, committed in a vessel sailing under the flag of another nation and by one not a citizen of the United States, is not such a piracy as may be punished in the courts of the United States.2
The exercise of police power by municipal corporations.—
A large part of the police power of the State is exercised by the local governments of municipal corporations; and the extent of their police power depends upon the limitations of their charters. They are creatures of the State, and the superior control of the State is almost without limit. The police power of a municipal corporation must depend upon the will of the legislature, and in order that a city, town or county may exercise a particular police power, it must be fairly included in the grant of powers by the charter. The construction of the common phraseology of municipal charters, in order to determine what police powers fell within their provisions, would consume too much space to justify an exhaustive discussion in this connection. The subject has already received a full and able treatment by a distinguished American jurist,3 and does not fall properly within the scope of a treatise on the constitutional limitation upon the American police power. For these reasons, no attempt has been made to present rules for the construction of the charter grants of police power to municipal corporations. The police regulations of a municipal corporation only concern us in this connection, when they contravene some constitutional limitation, and from this standpoint all the ordinary police regulations have been criticised in these pages.
Cooley Const. Lim. 10, 11. See, also, to the same effect, Marshall, Ch. J., in Gibbons v. Ogden, 9 Wheat. 1; Story, J., in Martin v. Hunter’s Lessee, 1 Wheat. 304, 326; Waite, Ch. J., in United States v. Cruikshanks, 92 U. S. 542; Calder v. Bull, 3 Dall. 386; Trade-Mark Cases, 100 U. S. 82; Briscoe v. Bank of Kentucky, 11 Pet. 257; Gilman v. Philadelphia, 3 Wall. 713; and numerous judicial utterances of the same import in the State reports.
Story, J., in Martin v. Hunter’s Lessee, 1 Wheat. 304, 326; Ch. J. Marshall in Gibbon v. Ogden, 9 Wheat. 1, 187, and other cases cited supra.
“While the principles of the constitution should be preserved with a most guarded caution, it is at once the dictate of wisdom and enlightened patriotism to avoid the narrowness of interpretation, which would dry up all its vital powers, or compel the government [as was done under the confederation], to break down all constitutional barriers, and trust for its vindication to the people, upon the dangerous political maxim, that the safety of the people is the supreme law (salus populi suprema lex); a maxim which might be used to justify the appointment of a dictator, or any other usurpation.” Story on Constitution, § 1292.
Story on Constitution, § 1286.
See ante, § 91, for a full discussion of the power of the United States Government to make its treasury notes legal tender in payment of debts.
8 Wall. 603.
12 Wall. 457.
Juillard v. Greenman, 110 U. S. 421.
It must not be understood from what is said that the writer recognizes in the national government the power to make its treasury notes legal tender. On the contrary, the power is denied to both State and Federal government on the ground that the Federal constitution expressly prohibits to both the exercise of the power. See ante, § 91.
“As men whose intentions require no concealment generally employ the words which most directly and aptly express the idea they intend to convey, the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. * * * We know of no rule for construing the extent of such powers, other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred.” Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1.
United States v. De Witt, 9 Wall. 41; Patterson v. Commonwealth, 11 Bush, 311; s. c. 97 U. S. 501.
Laws of 1875, ch. 114.
Civil Right’s Cases, 109 U. S. 3. See Ex parte Yarborough, 110 U. S. 651.
109 U. S. 3.
Lansburgh v. District of Columbia, 11 App. D. C. 512.
Cooley v. Board of Wardens, 12 How. 299; State Freight Tax, 15 Wall. 232; Wabash, etc., Railway Co. v. Illinois, 118 U. S. 557; Bowman v. Chicago & N. W. Ry. Co., 125 U. S. 465; Leisy v. Hardin, 135 U. S. 100; Rhea v. Newport N. & M. V. Ry. Co., 50 Fed. 16; Cardwell v. Bridge Co., 113 U. S. 205.
In re Debs, 158 U. S. 564; Illinois Cent. Ry. Co. v. State of Illinois, 163 U. S. 142.
Turner v. Maryland, 107 U. S. 38.
Willis v. Standard Oil Co., 50 Minn. 290.
State v. Pittsburg & S. Coal Co., 41 La. Ann. 465.
Glover v. Board of Flour Inspectors, 48 Fed. 348.
Voight v. Wright, 141 U. S. 62.
Brimmer v. Rebman, 138 U. S. 78. See, also, to the same effect, Farris v. Henderson (Okl.), 33 P. 380; City of Buffalo v. Reavey, 55 N. Y. S. 792; 37 App. Div. 228.
Minnesota v. Barber, 136 U. S. 313; State v. Klein, 126 Ind. 68; Hoffman v. Harvey, 128 Ind. 600; Swift v. Sutphin, 39 Fed. 630.
State v. People’s Slaughterhouse & Refrigerator Co., 46 La. Ann. 1031.
Michigan Telephone Co. v. City of Charlotte, 93 Fed. 11.
Missouri K. & T. Ry. Co. v. McCann, 174 U. S. 580.
See ante, § 119.
See Ward v. State, 31 Md. 279; s. c. 12 Wall. 418; Brown v. Maryland, 12 Wheat. 419; Speer v. Commonwealth, 23 Gratt. 935 (14 Am. Rep. 164); State v. North, 27 Mo. 464; Ex parte Robinson, 12 Nev. 263 (28 Am. Rep. 794).
Walling v. Michigan, 116 U. S. 446; In re Watson, 15 Fed. 511; State v. McGinniss, 37 Ark. 362; Van Buren v. Downing, 41 Wis. 122; Marshalltown v. Blum, 58 Iowa, 184 (43 Am. Rep. 116).
Commonwealth v. Dunham, 191 Pa. St. 73.
Emert v. State of Missouri, 156 U. S. 296; s. c. 103 Mo. 241; Commonwealth v. Harmel, 166 Pa. St. 89; Commonwealth v. Dunham, 191 Pa. St. 73; Rash v. Farley, 91 Ky. 344; State v. Gauss, 85 Iowa, 21; State v. Agee, 83 Ala. 110; Hall v. State, 39 Fla. 637; State v. Gorham, 115 N. C. 121. In Commonwealth v. Harmel, 166 Pa. St. 89, the regulation, which was sustained, was strictly a police regulation, in that it required the peddlers to furnish proof before the Court of Quarter Sessions of their good moral character, before they can obtain the required license.
Ex parte Stockton, 33 Fed. 95; In re White, 43 Fed. 913; In re Flinn, 57 Fed. 496; Webster v. Bell, 68 Fed. 183; 15 C. C. App. 360; Robbins v. Taxing District, 120 U. S. 489; Carson v. Maryland, 120 U. S. 502; Leloup v. Port of Mobile, 127 U. S. 640; Asher v. State of Texas, 128 U. S. 129; McCall v. California, 136 U. S. 104; Ficklen v. Taxing District, 145 U. S. 1; Brennan v. City of Titusville, 153 U. S. 289; McLaughlin v. City of South Bend, 126 Ind. 471; City of Bloomington v. Bourland, 137 Ill. 534; Fecheimer v. City of Louisville, 84 Ky. 306; McGraw v. Town of Marion (Ky.), 34 S. W. 18; State v. Bracco, 103 N. C. 349; State v. Agee, 83 Ala. 110; Ex parte Murray, 93 Ala. 78; Talbutt v. State (Tex. Cr. App.), 44 S. W. 1091; Hurford v. State, 91 Tenn. 669; Pegues v. Ray (La.), 23 So. 904; Overton v. City of Vicksburg, 70 Miss. 558; Richardson v. State (Miss.), 11 So. 934; City of Fort Scott v. Pelton, 39 Kans. 764.
State v. Lichtenstein, 44 W. Va. 99.
State v. Scott, 98 Tenn. 254.
In re Yanders, 1 Ohio N. P. 190; 2 Ohio Dec. 126; See Arnold v. Yanders, 56 Ohio St. 417.
State v. Snoddy, 128 Mo. 523.
Stevens v. Ohio, 93 Fed. 793; Chrystal v. City of Macon (Ga. ’99), 33 S. E. 810.
State v. Morgan, 2 S. D. 32; 48 N. W. 314.
Crutchen v. Com., 141 U. S. 47; Postal Tel. Cable Co. v. City Council of Charleston, 153 U. S. 692; s. c. 56 Fed. 419; United States Express Co. v. Allen, 39 Fed. 712; United States Express Co. v. Hemmingway, 39 Fed. 60; City of St. Louis v. W. U. Tel. Co., 39 Fed. 59; Webster v. Bell, 15 C. C. A. 360; 68 F. 183; Osborne v. State of Florida, 164 U. S. 650; s. c. 33 Fla. 162; Western Un. Tel. Co. v. City of Fremont, 39 Neb. 692; Moore v. City of Eufaula, 97 Ala. 670; Alabama G. S. Ry. Co. v. City of Bessemer, 113 Ala. 668. But a city, as distinguished from the State, cannot impose a license tax upon the business of one of these companies, which is not conducted within the city. City of San Bernardino v. Southern Pac. Ry., 107 Cal. 524.
Patapoco Guano Co. v. Board of Agriculture of North Carolina, 171 U. S. 345. See ante, § 119.
Rothermel v. Meyerle, 136 Pa. St. 250.
U. S. Const. I., § 10.
State v. Applegarth, 81 Md. 293.
State v. Moore, 113 N. C. 697.
It has been held in Louisiana that this clause of the constitution does not refer to imports from another State, but only to imports from foreign countries. State v. Pittsburg & S. Coal & Coke Co., 41 La. Ann. 465. But see Am. Fertilizing Co. v. Board of Agriculture, 43 Fed. 609.
See cases, cited in § 213, and Pembina Con. Silver M. & M. Co. v. Pennsylvania, 125 U. S. 181; Hooper v. California, 155 U. S. 648; Moline Plow Co. v. Wilkinson, 105 Mich. 57; State v. Phipps, 50 Kans. 609.
Moline Plow Co. v. Wilkinson, 105 Mich. 57.
Coit & Co. v. Sutton, 102 Mich. 324. See, contra, Western Paper Bag Co. v. Johnson (Tex. Civ. App.), 38 S. W. 364.
Coit & Co. v. Sutton, 102 Mich. 324; Aultman, Miller & Co. v. Holder, 68 Fed. 467; Kindel v. Beck and Paul Lithographing Co., 19 Colo. 310; Macnaughton Co. v. McGirl (Mont.), 49 P. 651.
Singer Manufacturing Co. v. Wright, 97 Ga. 115; Singer Manufacturing Co. v. Wright, 33 Fed. 121.
Cleveland C. C. & St. L. Ry. Co. v. Backus, 133 Ind. 513; Indianapolis & V. Ry. Co. v. Backus, 133 Ind. 609.
Brown v. Houston, 114 U. S. 622; Pittsburg & S. Coal Co. v. Bates, 156 U. S. 577.
Pittsburg & S. Coal Co. v. State of Louisiana, 156 U. S. 590.
City of St. Louis v. Western Union Tel. Co., 148 U. S. 92; City of Philadelphia v. Am. Union Tel. Co., 167 Pa. St. 406; City of Philadelphia v. Postal Tel. Cable Co., 67 Hun, 21; Postal Tel. Cable Co. v. Adams, 155 U. S. 688; s. c. 71 Miss. 555.
Western Un. Tel. Co. v. Taggart, 141 Ind. 281.
Cleveland, C. C. & St. L. Ry. Co. v. Backus, 154 U. S. 439; affirming s. c. 133 Ind. 513; Adams Express Co. v. Ohio State Auditor, 165 U. S. 194; Adams Express Co. v. Kentucky, 166 U. S. 171.
Tide Water Pipe Co. v. State Board of Assessors, 57 N. J. L. 516, following Maine v. Grand Trunk Ry. Co., 142 U. S. 217.
Henderson Bridge Company v. Commonwealth (Ky.), 31 S. W. 486; s. c. Henderson Bridge Co. v. Kentucky, 166 U. S. 150.
New York L. E. & W. Ry. Co. v. Pennsylvania, 158 U. S. 431; s. c. Commonwealth v. N. Y. Lake E. & W. Ry. Co., 145 Pa. St. 38; People v. Campbell, 74 Hun, 210; s. c. 144 N. Y. 478.
Ratterman v. Western Union Tel. Co., 127 U. S. 411; Western Union Tel. Co. v. Pennsylvania, 128 U. S. 39. The tax in these cases was based upon the messages, which were sent and delivered by the company within the State. See, also, to same effect, Western Union Tel. Co. v. City of Fremont, 43 Neb. 499.
Fargo v. Stevens, 121 U. S. 230; Leloup v. Port of Mobile, 127 U. S. 472; Lyng v. Michigan, 135 U. S. 161; McCall v. California, 136 U. S. 104; Norfolk & West. R. R. Co. v. Pennsylvania, 136 U. S. 114; Vermont & C. Ry. Co. v. Vermont Central Ry. Co, 63 Vt. 1; People v. Wemple, 65 Hun, 252; 144 N. Y. 478; State v. Woodruff S. & P. Coach Co., 114 Ind. 155.
People v. Horn Silver Mining Co., 105 N. Y. 76; In re Tiffany & Co., 80 Hun, 486; Home Ins. Co. v. State, 92 N. Y. 328; s. c. 134 U. S. 594; Southern Building & Loan Association v. Norman (Ky.), 32 S. W. 952.
155 U. S. 688.
In re May, 82 Fed. 422; Nathan v. State, 8 How. 73; Brown v. Houston, 33 La. Ann. 843; State v. North, 27 Mo. 464. As to what is an original package, see, more fully, post, § 220.
Kidd v. Pearson, 128 U. S. 1.
State v. Northern Pac. Express Co., 58 Minn. 403.
Allgeyer v. State of Louisiana, 165 U. S. 578.
State v. Stripling, 113 Ala. 120.
State v. Harbourne, 70 Conn. 484.
Gulf, C. & S. F. Ry. Co. v. Eddins, 7 Tex. Civ. App. 116; 26 S. W. 161.
State v. Snow, 81 Iowa, 642.
Plumley v. Massachusetts, 155 U. S. 461. In this case, the court held the law to be valid in its enforcement against an original package of interstate commerce.
In re Ware, 53 Fed. 783.
Austin v. State, 101 Tenn. 563.
Pittsburg & S. Coal Co. v. Louisiana, 156 U. S. 590.
Patapoca Guano Co. v. Board of Agriculture of North Carolina, 171 U. S. 345.
Minnesota v. Barber, 136 U. S. 313; Ga. Packing Co. v. City of Macon, 60 Fed. 774; State v. Klein, 126 Ind. 68; Hoffman v. Harvey, 128 Ind. 600; Schmidt v. People, 18 Colo. 78; Farris v. Henderson, 1 Okla. 384 (33 P. 380).
People v. Hawkins, 85 Hun, 43; s. c. 47 N. Y. S. 56; 20 App. Div. 494; s. c. 157 N. Y. 1.
In re Schechter, 63 Fed. 695.
State v. Duckworth (Idaho), 51 P. 456.
Allen v. Tyson-Jones Buggy Co., 91 Tex. 22; Cook v. Rome Brick Co., 98 Ala. 409.
Grimes v. Eddy, 126 Mo. 168; Railroad Company v. Husen, 95 U. S. 465.
Yeazel v. Alexander, 58 Ill. 254.
Kimmish v. Ball, 129 U. S. 217.
As to these, see ante, § 151.
Ex parte Maier, 103 Cal. 476.
Stevens v. State (Md. ’99), 43 Atl. 929.
Ante, § 122.
State v. Gooch, 44 Fed. 276; In re Worther, 58 Fed. 467; In re McAllister, 51 Fed. 282; Ex parte Scott, 66 Fed. 45; Armour Packing Co. v. Snyder, 84 Fed. 136; Waterbury v. Egan, 23 N. Y. S. 115; 3 Misc. Rep. 355; Commonwealth v. Paul, 148 Pa. St. 559; s. c. Paul v. Pennsylvania, 171 U. S. 1; Commonwealth v. Schollenberger, 156 Pa. St. 20; s. c. Schollenberger v. Pennsylvania, 171 U. S. 1; Fox v. State (Md. ’99), 43 Atl. 775.
Plumley v. Massachusetts, 155 U. S. 471; Commonwealth v. Huntley, 156 Mass. 236; In re Plumley, 156 Mass. 236. In this case, the statute required the oleomargarine to be so colored or made as to destroy its resemblance to genuine butter.
Collins v. New Hampshire, 171 U. S. 130.
State of Iowa v. McGregor, 76 Fed. 956; Sawrie v. State of Tennessee, 82 Fed. 615; In re May, 82 Fed. 422; McGregor v. Cone, 104 Iowa, 465; State v. Goetze, 43 W. Va. 495; Austin v. State, 101 Tenn. 563.
In re Saunders, 52 Fed. 802.
In re Ware, 53 Fed. 783.
As to which see ante, § 131.
Donald v. Scott, 67 Fed. 854; s. c. 76 Fed. 559; Ex parte Gonzales, 76 Fed. 559; Scott v. Donald, 165 U. S. 58; Gardner v. Donald, 165 U. S. 58; W. A. Vandercook Co. v. Vance, 80 Fed. 786; s. c. Vance v. W. A. Vandercook Co., 170 U. S. 438.
In re Lebolt, 77 Fed. 587; Bowman v. Chicago & N. W. Ry. Co., 125 U. S. 465; Leisy v. Hardin, 135 U. S. 100.
Especially, see Nathan v. State, 8 How. 73.
Guckenheimer v. Sellers, 81 Fed. 997; Commonwealth v. Schollenberger, 156 Pa. St. 201; Schollenberger v. Commonwealth of Pennsylvania, 171 U. S. 1; State v. Parsons, 124 Mo. 436.
McGregor v. Cone, 104 Iowa, 465.
In re May, 82 Fed. 422; contra, Austin v. State, 101 Tenn. 563.
Austin v. State, 101 Tenn. 563.
135 U. S. 100.
See, especially, Stoutenburg v. Hennick, 129 U. S. 141.
In re Rahrer, 140 U. S. 545.
See, further, in support of the constitutionality of the Wilson law, Scott v. Donald, 165 U. S. 58; In re Spickler, 43 Fed. 653; Stevens v. State (Ohio, 1900), 56 N. E. 478.
For a full discussion of this law, see ante, § 131.
W. A. Vandercook Co. v. Vance, 80 Fed. 786.
Vance v. W. A. Vandercook Co., 170 U. S. 438. See Rhodes v. State of Iowa, 170 U. S. 412.
Rhodes v. State of Iowa, 170 U. S. 412; reversing s. c. State v. Rhodes, 90 Iowa, 496.
State v. Southern Ry. Co., 119 N. C. 814; Hennington v. State, 90 Ga. 396; State v. Railroad Co., 24 W. Va. 783. But see contra, Norfolk & W. Ry. Co. v. Commonwealth, 88 Va. 95.
See ante, § 68.
State v. Hicks (La.), 11 So. 74; Anderson v. Louisville & N. Ry. Co., 62 Fed. 46.
Solan v. Chicago, M. & St. P. Ry. Co., 95 Iowa, 260; 63 N. W. 692; McCann v. Eddy (Mo.), 27 S. W. 541.
Fielder v. Mo. K. & T. Ry. Co. (Tex. Civ. App.), 42 S. W. 362.
Chicago, M. & St. P. Ry. Co. v. Becker, 32 Fed. 849; State of Iowa v. Chicago M. &. St. P. Ry. Co., 33 Fed. 391.
State v. Gladson, 57 Minn. 385; Lake Shore & M. S. Ry. Co. v. State, 8 Ohio C. C. 220.
Smith v. State of Alabama, 124 U. S. 465; Nashv. C. &. St. L. Ry. Co. v. Alabama, 128 U. S. 96.
Louisville & N. Ry. Co. v. Commonwealth (Ky.), 31 S. W. 476.
Burdick v. People, 149 Ill. 600, 611; State v. Corbett, 57 Minn. 345; People v. Warden of City Prison, 50 N. Y. S. 56; 26 App. Div. 228. On the general subject of the constitutionality of the so-called anti-ticket scalper’s law, see ante, § 123.
Ex parte, Ah. Cue, 101 Cal. 197.
Landa v. Holck, 129 Mo. 663.
See ante, § 126.
Spellman v. City of New Orleans, 45 Fed. 3; Ill. Cent. Ry. Co. v. City of New Orleans, 45 Fed. 3.
Rhodes v. State of Iowa, 170 U. S. 412; reversing s. c. 90 Iowa, 496.
Campbell v. Chicago, M. & St. P. Ry. Co., 86 Iowa, 587.
Lehigh Val. Ry. Co. v. Pennsylvania, 145 U. S. 192; Seawell v. Kansas City, Ft. S. & M. Ry. Co., 119 Mo. 222.
Ft. Worth & D. C. Ry. Co. v. Whitehead, 6 Tex. Civ. App. 595.
State v. Holleyman (S. C. ’99), 33 S. E. 366.
Reed v. Western Union Tel. Co., 59 Mo. App. 168.
Connell v. W. U. Tel. Co., 108 Mo. 459.
Western Union Tel. Co. v. Tyler, 90 Va. 297; Western Union Tel. Co. v. Powell, 94 Va. 268; Western Union Tel. Co. v. Mellan, 100 Tenn. 429.
Western Union Tel. Co. v. James, 162 U. S. 650; s. c. 90 Ga. 254; Western Union Tel. Co. v. Howell, 95 Ga. 194; Western Union Tel. Co. v. Bright, 90 Va. 778; Butner v. Western Union Tel. Co., 2 Okl. 234 (37 P. 1087).
Western Union Tel. Co. v. James, 162 U. S. 650.
Michigan Telephone Co. v. City of Charlotte, 93 Fed. 11.
See, ante, §§ 96, 97, where the general subject is treated, and § 212, where the regulations of charges of corporations are more particularly discussed.
Kaiser v. Ill. Central R. R. Co., 18 Fed. 151; 5 McCrary, 496; Louisville, etc., R. R. Co. v. Tenn. R. R. Commissioners, 19 Fed. 679; Illinois Central R. R. Co. v. Stone, 20 Fed. 468; Pacific Coast S. S. Co. v. Cal. R. R. Commissioners, 18 Fed. 10; Carton v. Ill. Cent. R. R. Co., 59 Iowa, 148 (44 Am. Rep. 672); s. c. 22 Am. Law Reg. (n. s.) 373, note; Commonwealth v. Housatonic R. R. Co., 143 Mass. 264; 9 N. E. 547, note; Southern Pac. Ry. Co. v. Haas (Tex.), 17 S. W. 600. It is different, however, where a railroad has entered into a contract with a city government, that it will not discriminate in the rates of fare and freight against the inhabitants of that city. Under such a contract, a city ordinance, declaring certain established rates to be discriminative against the city, is not an attempt to interfere with interstate commerce, but the initial step in the enforcement of the railroad’s contractual obligation. Iron Mountain Ry. Co. of Memphis v. City of Memphis, 96 Fed. 113.
See ante, p. 1056 of present section.
State v. Chicago, St. P. v. M., etc., Ry. Co., 40 Minn. 267.
Commonwealth v. Lehigh Val. Ry. Co., 129 Pa. St. 308.
Dillon v. Erie Ry. Co., 43 N. Y. S. 320; Smith v. Lakeshore & M. S. Ry. Co., 114 Mich. 460.
Gulf, C. & S. F. Ry. Co. v. Nelson, 4 Tex. Civ. App. 345; 23 S. W. 732; Bagg v. Wilmington C. & A. Ry. Co., 109 N. C. 279.
Chicago, St. L. & P. Ry. Co. v. Wolcott, 141 Ind. 267.
Gulf C. & S. F. Ry. Co. Hefley, 158 U. S. 98. The specified statute under inquiry was the Texas statute, which prohibited, under a penalty, the charging of more than the rate which was stipulated in the bill of lading.
Gatton v. Chicago, R. I. & P. Ry. Co., 95 Iowa, 112.
Cincinnati, N. O. & T. P. Ry. Co. v. Interstate Commerce Commission, 162 U. S. 184; affirming s. c. 21 C. C. A. 54; 74 Fed. 715.
For a full discussion of their constitutionality from the standpoint of the personal liberty of the persons who were engaged in the business, see ante, §§ 96, 97.
Budd v. People, 143 U. S. 517; Brass v. State of North Dakota, 153 U. S. 39’.
Western Union Tel. Co. v. Call Pub. Co. (Neb.), 78 N. W. 519.
In re Grice, 79 Fed. 627.
State v. Lancashire Fire Ins. Co. (Ark. ’99), 51 S. W. 633.
See United States v. Trans-Missouri Freight Association, 166 U. S. 290; United States v. Joint Traffic Association, 171 U. S. 505.
United States v. Hopkins, 82 Fed. 529.
Hopkins v. United States, 171 U. S. 578.
United States v. E. C. Knight Co., 156 U. S. 1; affl’g 9 C. C. A. 297; 60 Fed. 934. See, also, National Distilling Co. v. Cream City Importing Co., 86 Wis. 352, wherein it was held that where both parties to a contract of sale were corporations of the State in which the sale was made, the transaction did not come within the provisions of the national antitrust law.
United States v. Addystone Pipe and Steel Co., 78 Fed. 712.
United States v. Addystone Pipe and Steel Co., 85 Fed. 271; 29 C. C. A. 141; s. c. Addystone Pipe and Steel Co. v. United States (1900), 20 Sup. Ct. Rep. 96.
United States v. Coal Dealers Association, 85 Fed. 252.
Commonwealth v. Charlestown, 1 Pick. 180; Kean v. Stetson, 5 Pick. 492; Arnold v. Mundy, 6 N. J. 1; Bird v. Smith, 8 Watts, 434.
Inhabitants of Arundel v. McCulloch, 10 Mass. 70; Selman v. Wolfe, 27 Tex. 78; State v. Moffett, 1 Greene (Iowa), 247. In Maine it has been held to be a public right, when the streams are frozen over, to pass over them on foot or in vehicles, which cannot be interfered with, by cutting and removing the ice, without special authority of the State. French v. Camp, 18 Me. 433.
Treat v. Lord, 42 Me. 552; Morgan v. King, 18 Barb. 284; s. c. 35 N. Y. 454; Glover v. Powell, 10 N. J. Eq. 211; Baker v. Lewis, 33 Pa. St. 301; Weise v. Smith, 3 Ore. 445 (8 Am. Rep. 621); American River Water Co. v. Amsden, 6 Cal. 443.
Commonwealth v. Chapin, 5 Pick. 199; People v. Tibbetts, 19 N. Y. 523; Lorman v. Benson, 8 Mich. 18.
As to this branch of the question, see Tiedeman on Real Prop., § 835.
The Daniel Ball, 10 Wall. 557; The Montello, 20 Wall. 439; Spring v. Russell, 7 Me. 273; Brown v. Chadbourne, 31 Me. 9; Ingraham v. Wilkinson, 4 Pick. 268; Commonwealth v. Alger, 7 Cush. 53; Claremont v. Carlton, 2 N. H. 369; Canal Comrs. v. People, 5 Wend. 423; People v. Platt, 17 Johns. 195; Morgan v. King, 25 N. Y. 454; Palmer v. Mulligan, 3 Caines, 315; Shrunk v. Schuylkill Co., 14 Serg. & R. 71; Cates v. Wadlington, 1 McCord, 580; Commissioners, etc., v. Withers, 29 Miss. 21; Rhodes v. Otis, 33 Ala. 578; Elder v. Barnes, 6 Humph. 358; Gavit v. Chambers, 3 Ohio, 495; Blanchard v. Porter, 11 Ohio, 138; Depew v. Board of Comrs., etc., 5 Ind. 8; Board of Comrs. v. Pidge, 5 Ind. 13; Moore v. Sanborn, 2 Mich. 519; Dorman v. Benson, 8 Mich. 18; Middleton v. Pritchard, 4 Ill. 560; McManus v. Carmichael, 3 Iowa, 1; Weise v. Smith, 3 Ore. 445 (8 Am. Rep. 621).
Cooley Const. Lim. 730; Wilson v. Black Bird Creek Marsh Co., 2 Pet. 245; Wheeling Bridge Case, 13 How. 518; s. c. 18 How. 421; Gilman v. Philadelphia, 3 Wall. 713; Withers v. Buckley, 20 How. 84; Gibbons v. Ogden, 9 Wheat. 1; Escanaba Company v. Chicago, 107 U. S. 678. Rumsey v. N. Y. & N. E. Ry. Co., 63 N. Y. 200. Under the power to regulate commerce, Congress may regulate the sale, mortgage, etc., of United States vessels engaged in interstate trade. Shaw v. McCandless, 36 Miss. 296. As to how far State legislatures may authorize condemnation of ships as unseaworthy by tribunals constituted by State authority, in absence of any general regulation made by Congress, see Janney v. Columbus Ins. Co., 10 Wheat. 418.
See people v. Jenkins, 1 Hill, 469; People v. Roe, 1 Hill, 470.
Craig v. Kline, 65 Pa. St. 399 (3 Am. Rep. 636). See Harrigan v. Conn. River Lumber Co., 129 Mass. 580 (37 Am. Rep. 387).
Henry v. Roberts, 50 Fed. 902.
Brothers v. Church, 14 R. I. 398 (51 Am. Rep. 410). See, generally, People v. Reed, 47 Barb. 235; Phipps v. State, 22 Md. 380; Gentile v. State, 29 Ind. 409.
Gibbons v. Ogden, 9 Wheat. 1; Ogden v. Gibbons, 4 Johns Ch. 150; s. c. 17 Johns. 488; Steamboat Company v. Livingston, 3 Cow. 713. See Gilman v. Philadelphia, 3 Wall. 713; The Daniel Ball, 10 Wall. 557.
Booth v. Lloyd, 33 Fed. 593; Ex parte Insley, 33 Fed. 680.
Veazie v. Moor, 14 How. 568. In this case the stream, over which the exclusive privilege extended, was that part of the Penobscot river, which was intercepted from communication by boats with the sea by a fall and several dams, and consequently was not susceptible of use in interstate commerce. See, also, People v. Tibbetts, 19 N. Y. 523; Livingston v. Van Ingen, 9 Johns. 50; McReynolds v. Smallhouse, 8 Bush, 447.
Conway v. Taylor’s Ex’r, 1 Black, 603; Fanning v. Gregorie, 16 How. 524; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365; Parker v. Metropolitan, etc., R. R. Co., 109 Mass. 506; People v. Mayor, etc., of New York, 32 Barb. 102; Chilvers v. People, 11 Mich. 43; Marshall v. Grimes, 41 Miss. 27; Carroll v. Campbell, 108 Mo. 550.
See Tinicum Fishing Co. v. Carter, 90 Pa. St. 85 (35 Am. Rep. 602).
See, generally, Thames Bank v. Lovell, 18 Conn. 500; Kellogg v. Union Co., 12 Conn. 6; Zimmerman v Union Canal Co., 1 Watts & S. 346; Benjamin v. Manistee, etc., Co., 42 Mich. 628; Nelson v. Sheboygan Nav. Co., 4 Mich. 7 (38 Am. Dec. 222); Wisconsin River Improvement Co. v. Manson, 43 Wis. 255 (28 Am. Rep. 542); McReynolds v. Smallhouse, 8 Bush, 447; Carondelet Canal, etc., Co. v. Parker, 29 La. Ann. 430 (29 Am. Rep. 339); Huse v. Glover, 119 U. S. 543; Stockton v. Powell, 29 Fla. 1.
Fisher v. Steele, 39 La. Ann. 447.
Coxe v. State, 144 N. Y. 396.
United States v. North Bloomfield Gravel Mining Co., 81 Fed. 243.
Commonwealth v. Breed, 4 Pick. 460; Dover v. Portsmouth Bridge, 17 N. H. 200; Depew v. Trustees of W. & E. Canal, 5 Ind. 8; Illinois, etc., Co. v. Peoria Bridge, 28 Ill. 467; Chicago v. McGinn, 51 Ill. 266 (2 Am. Rep. 295).
Tinicum Fishing Co. v. Carter, 90 Pa. St. 85 (35 Am. Rep. 632).
Wheeling Bridge Case, 13 How. 518; Columbus Ins. Co. v. Peoria Bridge Co., 6 McLean, 70; Columbus Ins Co. v. Peoria Bridge Co., 6 McLean, 209; Jolly v. Terre Haute Drawbridge Co., 6 McLean, 237; United States v. New Bedford Bridge, 1 W. & M. 401; Commissioners of St. Joseph Co. v. Pidge, 5 Ind. 13; Decker v. Balt. & N. Y. R. Co., 30 Fed. Rep. 723. Stockton v. Balt. & N. Y. Ry. Co., U. S. C. C. 32 Fed. 9; Rhea v. Newport, N. & M. V. Ry. Co., 50 Fed. 16; State v. Leighton, 83 Me. 419; Green & B. R. Nav. Co. v. Chesapeake & S. W. Ry. Co., 88 Ky. 1 (State authorizing temporary obstruction of navigable river for the repair of the railroad bridge); Winifrede Coal Co. v. Central Railway and Bridge Co. (Ohio), 24 Wkly. Law Bul. 173; Pennsylvania Ry. Co. v. Baltimore and N. Y. Ry. Co., 37 Fed. 129 (congressional grant of the right to construction of a bridge without the consent, and against the protest, of the State); Luxton v. North River Bridge Co., 153 U. S. 525; Henderson Bridge Co. v. Kentucky, 166 U. S. 150. It has been held that Congress cannot delegate to the Secretary of War, or to any other administrative officer, the power to determine whether a bridge over a navigable stream is an obstruction to interstate commerce, and, upon reaching such an adverse determination, to cause it to be removed, or so reconstructed, as that the bridge will cease to be an obstruction. United States v. Rider, 50 Fed. 406; U. S. v. Keokuk and II. Bridge Co., 45 Fed. 178.
Wheeling Bridge Case, 18 How. 421.
Henderson Bridge Co. v. Kentucky, 166 U. S. 150.
Covington & C. Bridge Co. v. Kentucky, 154 U. S. 204; reversing Commonwealth v. Covington & C. Bridge Co. (Ky.), 21 S. W. 1042; Covington & C. El. Railroad & Transfer Bridge Co. v. Kentucky, 154 U. S. 224; reversing s. c. (Ky.) 22 S. W. 851.
Wilson v. Black Bird Creek Marsh Co., 2 Pet. 245; Parker v. Cutler Mill Dam Co., 21 Me. 353; People v. Vanderbilt, 28 N. Y. 396; Hinchman v. Patterson, etc., R. R. Co., 17 N. J. Eq. 75; Roush v. Walter, 10 Watts 86; Zimmerman v. Union Canal Co., 1 Watts & S. 346; Brown v. Commonwealth, 3 Serg. & R. 273; Bailey v. Phila., etc., R. R. Co., 4 Harr. 389; Hogg v. Zanesville Co., 5 Ohio, 257; Depew v. Trustees of W. & E. Canal Co., 5 Ind. 8; Neaderhouser v. State, 28 Ind. 257; Stoughton v. State, 5 Wis. 291; Commissioners v. Withers, 29 Miss. 21; Eldridge v. Cowell, 4 Cal. 80.
The James Gray v. The John Fraser, 21 How. 421. See Mobile v. Kimball, 102 U. S. 691; Escanaba Company v. Chicago, 107 U. S. 678. In Vanderbilt v. Adams, 7 Cow. 349, an act of the legislature of New York was sustained as constitutional, which authorized the harbormasters of the city of New York to regulate the moorings and movements of all ships and vessels in the current of the East and North Rivers, and to remove from the wharves such vessels as were not employed in discharging or receiving freight, in order to make room for vessels, waiting for an opportunity to come up to the wharf.
Pittsburg & S. Coal Co. v. Louisiana, 156 U. S. 590.
Cuban S. S. Co. v. Fitzpatrick, 66 Fed. 63.
Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365; Wheeler, etc., Transportation Co. v. City of Wheeling, 9 W. Va. 170 (27 Am. Rep. 552); City of New Orleans v. Eclipse Towboat Co., 33 La. Ann. 647 (39 Am. Rep. 279).
Harmon v. City of Chicago, 147 U. S. 396; reversing s. c. City of Chicago v. Harmon, 37 Ill. App. 496; 140 Ill. 374; following Gibbons v. Ogden, 9 Wheat. 210; Foster v. Davenport, 22 How. 244; Moran v. New Orleans, 112 U. S. 69; and distinguishing Huse v. Glover, 119 U. S. 543; Sands v. Improvement Co., 123 U. S. 288.
Art. I., § 10, ch. 3.
Harbor Commissioners v. Pashley, 19 S. C. 315. See Inman Steamship Co. v. Tinker, 94 U. S. 238.
Frere v. Von Schoeller, 47 La. Ann. 334.
Packet Company v. Keokuk, 95 U. S. 80; People v. Roberts, 92 Cal. 659.
Webb v. Dunn, 18 Fla. 721; see Harmon v. City of Chicago, 147 U. S. 396; reversing s. c. City of Chicago v. Harmon, 37 Ill. App. 496; 140 Ill. 374.
U. S. Rev. Stat. 4235.
Cooley v. Wardens, 12 How. 299; Ex parte McNiell, 13 Wall. 236; The Panama, Deady, 27; Ex parte Siebold, 100 U. S. 385; Wilson v. McNamee, 102 U. S. 572; State v. Penny, 19 S. C. 218.
U. S. Rev. Stat. 4236. See Henderson v. Spofford, 59 N. Y. 131.
Cooley v. Wardens, 12 How. 299.
Collins v. Relief Society, 73 Pa. St. 94; Freeman v. The Undaunted, 37 Fed. 662. See Cooley v. Wardens, 12 How. 299.
Thompson v. Spraigue, 69 Ga. 409 (47 Am. Rep. 760).
License Cases, 5 How. 504, 632; Railroad Co. v. Husen, 95 U. S. 465; Brown v. Maryland, 12 Wheat. 419; Minneapolis, St. P. & S. S. M. Ry. Co. v. Milner, 57 Fed. 276; Train v. Boston Disinfecting Co., 144 Mass. 523. In St. Louis v. McCoy, 18 Mo. 238, an ordinance of the city of St. Louis was sustained, which prescribed that boats coming from below Memphis, and having had on board, at any time, during the voyage, more than a specified number of passengers, should remain in quarantine for a specified period. See, also, St. Louis v. Boffinger, 18 Mo. 13.
Minneapolis, St. P. & S. S. M. Ry. Co. v. Milner, 57 Fed. 276.
Minneapolis, St. P. & S. S. M. Ry. Co. v. Milner, 57 Fed. 276; Train v. Boston Disinfecting Co., 144 Mass. 523.
See ante, § 220, and the cases there cited.
City of Bangor v. Smith, 83 Me. 422.
U. S. Const., art. I., § 8, cl. 5.
Weaver v. Fegely, 29 Pa. St. 27.
U. S. Const., art. I., § 8, cl. 6.
Story on Constitution, § 1123.
Fox v. Ohio, 5 How. 410. See United States v. Marigold, 9 How. 560; Moore v. Illinois, 14 How. 13.
U. S. Const., art. I., § 8, cl. 10.
This was affirmed in United States v. Arjona, 120 U. S. 479.
United States Const., art. I., § 8, cl. 8.
Palmer v. State, 39 Ohio St. 236 (48 Am. Rep. 429). As to the general right of the State to regulate the sale of patented articles, see Jordan v. Overseers, 4 Ohio, 295; In re Brosnahan, 4 McCrary C. C. 1 (18 Fed. Rep. 62); Patterson v. Kentucky, 97 U. S. 501; Webber v. Virginia, 103 U. S. 344. See ante, pp. 412, 413, where it is explained how farpatented articles may be controlled by the anti-trust laws of the State.
Patterson v. Kentucky, 97 U. S. 501.
Brechbill v. Randall, 102 Ind. 528 (52 Am. Rep. 695).
Welch v. Phelps, 14 Neb. 134.
Howe Machine Co. v. Gage, ICO U. S. 676.
State v. Butler, 3 Lea (Tenn.), 222.
See Chapter VII, Tiedeman’s Unwritten Constitution of the United States, for a critical discussion of constitutional limitations in time of war, and of the value as a precedent of the case of Ex parte Mulligan, 4 Wall. 2, which is also cited in the present section.
U. S. Const., art. I., § 8, cl. 11.
Miller v. United States, 11 Wall. 268; Tyler v. Defrees, 11 Wall. 331; The Grape Shot, 9 Wall. 129; The Prize Cases, 2 Black, 635.
Slayback v. Cushman, 12 Fla. 427; Weaver v. Lapsley, 42 Ala. 601; Hall v. Keese, 31 Tex. 504; Dorris v. Grace, 24 Ark. 326.
Ex parte Mulligan, 4 Wall. 2.
U. S. Const., art. I., § 8, cl. 12.
Barber v. Irwin, 34 Ga. 27; Ex parte Tate, 39 Ala. 254; Ex parte Coupland, 26 Tex. 386.
Const., art. I., § 8, cl. 16.
Congress is authorized to “provide for calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions.” U. S. Const., art. I., § 8, cl. 13.
See Kneedler v. Lane, 45 Pa. St. 238.
Houston v. Moore, 5 Wheat. 1; Martin v. Mott, 12 Wheat. 19.
U. S. Const., art. I., § 10, cl. 3; Luther v. Borden, 7 How. 1.
Dunne v. People, 94 Ill. 120 (34 Am. Rep. 213). See ante, § 173.
U. S. Const., art. I., § 8, cl. 1.
U. S. Const., art. I., § 9, cl. 5.
Pace v. Burgess, 92 U. S. 372.
U. S. Const., art. I., § 2; § 9, cl. 4.
Hylton v. United States, 3 Dall. 171; Pac. Ins. Co. v. Soule, 7 Wall. 433; Veazie Bank v. Fenno, 8 Wall. 533; Springer v. United States, 102 U. S. 586.
See Veazie Bank v. Fenno, 8 Wall. 533; National Bank v. United States, 101 U. S. 1.
License Tax Cases, 5 Wall. 462; Pervear v. Commonwealth, 5 Wall. 475; McGuire v. Commonwealth, 3 Wall. 387; Commonwealth v. Thornley, 6 Allen, —; Commonwealth v. O’Donnell, 8 Allen, 548; Commonwealth v. Holbrook, 10 Allen, 200; Block v. Jacksonville, 36 Ill. 301; State v. Carney, 20 Iowa, 82; State v. Stulz, 20 Iowa, 488; State v. Baughman, 20 Iowa, 497.
“That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to those measures, is declared to be supreme over that which exerts the control, are propositions not to be denied.” Marshall, Ch. J., in McCulloch v. Maryland, 4 Wheat. 316, 413; Weston v. Charleston, 2 Pet. 449; Bank of Commerce v. New York City, 2 Black, 620; Bank Tax Case, 2 Wall. 200; Society for Savings v. Coite, 6 Wall. 594; Van Allen v. Assessors, 3 Wall. 573; People v. Commissioners, 4 Wall. 244; Bradley v. People, 4 Wall. 459; Banks v. The Mayor, 7 Wall. 16; Bank v. Supervisors, 7 Wall. 26. Revenue stamps are not taxable. Palfrey v. Boston, 101 Mass. 329. United States treasury notes are not taxable. Montgomery Co. v. Elston, 32 Ind. 27. See People v. United States, 93 Ill. 30 (34 Am. Rep. 155), in which the power of the State, to tax the property of the United States held by private individuals for any purpose, was denied. See State v. Jackson, 33 N. J. 450.
Collector v. Day, 11 Wall. 113; Ward v. Maryland, 12 Wall. 418; Railroad Company v. Peniston, 18 Wall. 5; Fifield v. Close, 15 Mich. 505.
Nelson, J., in Collector v. Day, 11 Wall. 113, 124.
McCulloch v. Maryland, 4 Wheat. 316; Osborn v. United States Bank, 9 Wheat. 738. See National Bank v. Commonwealth, 9 Wall. 353.
Dobbins v. Commissioners of Erie Co., 16 Pet. 435; Collector v. Day, 11 Wall. 113; Freedman v. Sigel, 10 Blatchf. 327.
Carpenter v. Snelling, 97 Mass. 452; Green v. Holway, 101 Mass. 243 (3 Am. Rep. 339); Atkins v. Plimpton, 44 Vt. 21; Griffin v. Ranney, 35 Conn. 239; People v. Gates, 43 N. Y. 40; Moore v. Moore, 47 N. Y. 467 (7 Am. Rep. 466); Hale v. Wilkinson, 21 Gratt. 75; Haight v. Grist, 64 N. C. 739; Smith v. Short, 40 Ala. 385; Davis v. Richardson, 45 Miss. 499 (7 Am. Rep. 732); Bumpass v. Taggart, 26 Ark. 398 (7 Am. Rep. 623); Union Bank v. Hill, 3 Cold. 325; Hunter v. Cobb, 1 Bush, 239; Warren v. Paul, 22 Ind. 276; Craig v. Dimmock, 47 Ill. 308; Jones v. Estates of Keep, 19 Wis. 369; Sammons v. Holloway, 21 Mich. 162 (4 Am. Rep. 465); Burson v. Huntington, 21 Mich. 415 (4 Am. Rep. 497); Duffy v. Hobson, 40 Cal. 240.
Moore v. Quirk, 105 Mass. 49 (7 Am. Rep. 499); Sayles v. Davis, 22 Wis. 225.
4 Bl. Com. 71-73; 1 Kent, 183. See United States v. Smith, 5 Wheat. 153; United States v. Brig Malek Adhel, 2 How. 210.
United States v. Palmer, 3 Wheat. 610; United States v. Kessler, Baldw. 15.
See Dillon on Municipal Corporations, and Tiedeman’s Municipal Corporations, Chapter VIII.