such navigable streams or creeks, there would be little difficulty in saying that a State law in conflict with such an act would be

less the city authorities from all expenses and charges which might be incurred in the maintenance and support of any passenger not a citizen of the United States, and was compellable, on the order of the mayor, under a heavy penalty, to remove to the place of his last settlement any passenger, being a citizen of the United States, who should be likely to become chargeable on the city. The majority of the court (Justice Story dissenting) held that this act was to be regarded not as a regulation of commerce, but one of police merely, and consequently as referable to an undoubted power reserved to the States.

On the other hand, in the Passenger cases, 7 How. 283, certain acts of the States of New York and Massachusetts having in view a similar purpose to the act last referred to were declared void. The New York act imposed upon the master of every vessel arriving from a foreign port a tax of one dollar and fifty cents for himself and each cabin passenger, and one dollar for each steerage passenger, mate, or sailor, and on the master of every coasting vessel twenty-five cents for each person on board, which sums, when collected, after defraying the expenses of enforcing the law, were to be paid over to the Society for Reformation of Juvenile Delinquents in the city of New York. The Massachusetts act authorized certain State officers to go on board of every vessel arriving from a port out of the State, and examine into the condition of the passengers; and to forbid any alien pauper or person incompetent in their opinion to maintain himself, to land, until the master, owner, or consignee of the vessel should give security that such person should not become a city, town, or State charge for ten years; and a heavy penalty, was imposed on the master, owner, or consignee of the vessel for every person permitted to land contrary to the prohibition, the money collected to be paid into the city or town treasury for the support of alien paupers. The majority of the court (Justices McLean, Wayne, Catron, Grier, and McKinley: Ch. Justice Taney and Justices Daniel, Nelson, and Woodbury dissenting) held these acts void. Mr. Justice Wayne sums up the conclusions of the majority as follows:

"1. That the acts of New York and Massachusetts imposing a tax upon passengers, either foreigners or citizens, coming into the ports in those States, either in foreign vessels, or vessels of the United States, from foreign nations or from ports in the United States, are unconstitutional or void, being, in their nature, regulations of commerce contrary to the grant in the Constitution to Congress of the power to regulate commerce with foreign nations and among the several States.

"2. That the States of this Union cannot constitutionally tax the commerce of the United States for the purpose of paying any expense incident to the execution of their police laws; and that the commerce of the United States includes an intercourse of persons, as well as the importation of merchandise.

"3. That the acts of Massachusetts and New York in question in these cases conflict with treaty stipulations existing between the United States and Great Britain, permitting the inhabitants of the two countries 'freely and securely to come, with their ships and cargoes, to all places, ports, and rivers in the territories of each country to which other foreigners are permitted to come, to enter into the same, and to remain and reside in any parts of said territories respectively; also to hire and occupy houses and warehouses for the purposes of their commerce; and generally the merchants and traders of each nation, respectively, shall enjoy the most complete protection and security for their commerce, but subject always to

void. But if Congress have passed no general or special act on the subject, the invalidity of such a State act must be placed the laws and statutes of the two countries, respectively;' and that said laws are therefore unconstitutional and void.

"4. That, the Congress of the United States having by sundry acts passed at different times admitted foreigners into the United States with their personal luggage and tools of trade, free from all duty or imposts, the acts of Massachusetts and New York imposing any tax upon foreigners or immigrants for any purpose whatever, whilst the vessel is in transitu to her port of destination, though said vessel may have arrived within the jurisdictional limits of either of the States of Massachusetts or New York, and before the passengers have been landed, are in violation of said acts of Congress, and therefore unconstitutional and void.

"5. That the acts of Massachusetts and New York, so far as they impose any obligations upon the owners or consignees of vessels, or upon the captains of vessels or freighters of the same, arriving in the ports of the United States within the said States, to pay any tax or duty of any kind whatever, or to be in any way responsible for the same, for passengers arriving in the United States, or coming from a port in the United States, are unconstitutional and void; being contrary to the constitutional grant to Congress of the power to regulate commerce with foreign nations and among the several States, and to the legislation of Congress under the said power, by which the United States have been laid off into collection districts, and ports of entry established within the same, and commercial regulations proscribed, under which vessels, their cargoes and passengers, are to be admitted into the ports of the United States, as well from abroad as from other ports of the United States. That the act of New York now in question, so far as it imposes a tax upon passengers arriving in vessels from other ports in the United States, is properly in this case before this court for construction, and that the said tax is unconstitutional and void. That the ninth section of the first article of the Constitution includes within it the migration of other persons, as well as the importation of slaves, and in terms recognizes that other persons as well as slaves may be the subject of importation and commerce. “6. That the fifth clause of the ninth section of the first article of the Constitution, which declares that no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another State, nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another,' is a limitation upon the power of Congress to regulate commerce for the purpose of producing entire commercial equality within the United States, and also a prohibition upon the States to destroy such equality by any legislation prescribing a condition upon which vessels bound from one State shall enter the ports of another State.

"7. That the acts of Massachusetts and New York, so far as they impose a tax upon passengers, are unconstitutional and void, because each of them so far conflicts with the first clause of the eighth section of the first article of the Constitution, which enjoins that all duties, imposts, and excises shall be uniform throughout the United States; because the constitutional uniformity enjoined in respect to duties and imposts is as real and obligatory upon the States, in the absence of all legislation by Congress, as if the uniformity had been made by the legislation of Congress; and that such constitutional uniformity is interfered with and destroyed by any State imposing any tax upon the intercourse of persons from State to State, or from foreign countries to the United States.

"8. That the power in Congress to regulate commerce with foreign nations, and

VOL. II.

1 [See Jolly v. Terre Haute Draw Bridge Co., 6 McLean, 237.]

2

entirely upon its repugnancy to the power to regulate commerce in its dormant state. Under such circumstances, it would be difficult among the several States, includes navigation upon the high seas, and in the bays, harbors, lakes, and navigable waters within the United States, and that any tax by a State in any way affecting the right of navigation, or subjecting the exercise of the right to a condition, is contrary to the aforesaid grant.

"9. That the States of this Union may, in the exercise of their police powers, pass quarantine and health laws, interdicting vessels coming from foreign ports, or ports within the United States, from landing passengers and goods; prescribe the places and time for vessels to quarantine, and impose penalties upon persons for violating the same; and that such laws, though affecting commerce in its transit, are not regulations of commerce, prescribing terms upon which merchandise and persons shall be admitted into the ports of the United States, but precautionary regulations to prevent vessels engaged in commerce from introducing disease into the ports to which they are bound; and that the States may, in the exercise of such police power, without any violation of the power in Congress to regulate commerce, exact from the owner or consignee of a quarantined vessel, and from the passengers on board of her, such fees as will pay to the State the cost of their detention, and of the purification of the vessel, cargo, and apparel of the persons on board."

In Sinnot v. Davenport, 22 How. 227, an act of the State of Alabama, which required the owners of steamboats navigating the waters of the State, before a boat should leave the port of Mobile, to file in the office of the probate judge of Mobile county a statement in writing, setting forth the name of the vessel, and the names, places of residence, and respective interests of the owners, was declared void, so far as it was brought to bear upon a vessel which had taken out a license and been duly enrolled under the acts of Congress. The State act was defended as a regulation for police purposes, but the court were unanimously of opinion that it imposed a condition to the privilege conferred by the license under the federal law, and consequently the conflict with that law was direct and important. See also Foster v. Davenport, 22 How. 244.

That regulations of police are within the reserved powers of the States, is fully conceded by several of the cases referred to, and was decided after full consideration in the License Cases, 5 How. 504. These cases involved the power of the States to prohibit the sale of spirituous liquors without a license from the State, and the question whether, if they possessed such power, it could be made applicable to liquors lawfully imported under the laws of Congress, or brought for sale from one State into another. The court held State laws for this purpose to be mere police regulations, and valid as such even in their application to imported liquors after they should have passed from the hands of the importer and become a part of the general merchandise of the country. In the License Tax Cases, 5 Wall. 462, it was decided that Congress might require the payment of a license fee by way of taxation by those engaging in the sale of liquors, notwithstanding such business was forbidden by State police law, and the payment of the license fee gave no right to carry on the business in opposition to the State law. And in Pervear v. Commonwealth, 5 Wall. 475, these views were repeated, and it was further held that the license under the federal law was no bar to an indictment under the State law.

In United States v. Dewitt, 9 Wall. 41, a section of the internal revenue act of 1867 which undertook to make it a misdemeanor to mix for sale naphtha and illuminating oils, or to sell oil of petroleum, inflammable at a less temperature than 110° Fahrenheit was held to be a mere police regulation, and as such void within the States, whose power to make such laws was exclusive. On this subject, see

to affirm, that the sovereignty of a State, acting on subjects within the reach of other powers, besides that of regulating commerce, and which belonged to its general territorial jurisdiction, would be intercepted by the exclusive power of commerce, unexercised by Congress, over the same subject-matter. The value of the property on the banks of such streams and creeks may be

further, State v. Fosdick, 21 La. Ann. 256. That Congress has no control of the strictly internal commerce of a State, even though carried on upon navigable waters, see The Bright Star, 1 Wool. 366.

That ferries across a river within the limits of one State are not within the power of Congress over commerce, and consequently the acts requiring boats engaged in the coasting trade to be registered and licensed do not apply thereto, see The James Morrison, 1 Newb. Adm. 241, 257; United States v. The William Pope, Id. 256. That the States may require the payment of a license fee by the owners of such ferry boats, see Conway v. Taylor, 1 Black, 603. That a State may control the fisheries within its limits and confine the privileges thereof to its own citizens, see Corfield v. Coryell, 4 Wash. C. C. 371; Smith v. Maryland, 18 How. 71. That a State may establish harbor regulations, see The James Gray v. The John Fraser, 21 How. 184. That Congress under its power over commerce may provide for the punishment of sales of intoxicating drinks to the Indians, see United States v. Holliday, 3 Wall. 407. That the United States may maintain an injunction bill to protect improvements, which are being made in navigable waters under the authority of Congress, from injury which might be caused by other improvements under State authority, see United States v. Duluth, 1 Dillon, 469.

A tax upon a bill of lading of goods transported upon the high seas is a regulation of commerce, and therefore void. Almy v. California, 24 How. 169. See Woodruff v. Parham, & Wall. 138. A tax on railroad and stage companies for every passenger carried out of the State by them, is not void as a regulation of commerce in the absence of any conflicting regulation by Congress. But it is void as opposed to the free right of the government to transport troops through all parts of the Union, by the usual and most expeditious modes of transportation, and to the right of citizens to approach the great departments of the government, the ports of entry through which commerce is conducted, and the various federal offices in the States. Crandall v. Nevada, 6 Wall. 35. The legislation of Congress on the subject of the transfer of mortgages of vessels enrolled and licensed supersedes the legislation of the States on the subject. White's Bank v. Smith, 7 Wall. 646. The power of the federal government to make improvements in navigable waters, when called into exercise, is not only paramount but exclusive. United States v. Duluth, 1 Dillon, 469.

A review of the cases will show, that of late the Supreme Court has recognized a clear distinction between those cases in which State regulations are admissible, and those in which they are not. Whatever subjects of the power over commerce are in their nature national, or admit of one uniform system or plan, of regulation, are to be regarded as within the exclusive control of Congress; but other subjects, which are to be regulated in view of local circumstances and facts, and which can usually be best regulated by State legislation, are subject to such legislation, so far as it does not interfere with any action of Congress. In this last category belong the regulation of pilots, the construction of bridges over navigable waters, &c. See Crandall v. Nevada, 6 Wall. 42; Steamship Co. v. Portwardens, Id. 31; Ex parte McNiel, 13 Wall. 236.1

materially enhanced by excluding the waters from them and the adjacent low and marshy grounds, and the health of the inhabitants be improved. Measures calculated to produce these objects, provided they do not come into collision with the power of the general government, are undoubtedly within those which are reserved to the States.1

§ 1074. In the next place, to what extent, and for what objects. and purposes the power to regulate commerce may be constitutionally applied.

§ 1075. And, first, among the States. It is not doubted that it extends to the regulation of navigation, and to the coasting trade and fisheries, within, as well as without any State, wherever it is connected with the commerce or intercouse with any other State, or with foreign nations.2 It extends to the regulation and govern

1 Willson v. Blackbird Creek Company, 2 Peters's R. 245.

2 Gibbons v. Ogden, 9 Wheat. R. 189 to 198; Id. 211 to 215; 1 Tuck. Black. Comm. App. 247 to 249; Id. 250. [See also The Chusan, 2 Story C. C. 456; The Wilson, 1 Brock. 423; United States v. Coombs, 12 Pet. 72; and cases cited in note to § 1072, ante. And acts done on land which interfere with, obstruct, or prevent commerce or navigation may be made punishable by act of Congress under its general authority to make all laws necessary and proper to execute its delegated powers. United States v. Coombs, supra.

The case of Gibbons v. Ogden should be considered in connection with the more recent case of Veazie v. Moor, 14 How. 568. In the former the laws of New York, which assumed to grant to certain parties the exclusive right to navigate all the waters within the jurisdiction of that State, with boats propelled by steam, for a term of years, were declared inoperative as against the laws of the United States regulating the coasting trade, and consequently could not restrain vessels licensed to carry on the coasting trade under the laws of the United States from navigating those waters in the prosecution of that trade. In the latter case a similar exclusive right to navigate the upper waters of a river lying wholly within the limits of the State granting it, separated from tidal waters by falls impassable for purposes of navigation, and not forming a part of any continuous track of commerce between two or more States, or with a foreign country, was held not repugnant to the Constitution or any law of the United States. Mr. Justice Daniel, delivering the opinion of the court, says:

Taking the term commerce in its broadest acceptation, supposing it to embrace not merely traffic, but the means and vehicles by which it is prosecuted, can it properly be made to include objects and purposes such as those contemplated by the law under review? Commerce with foreign nations must signify commerce which in some sense is necessarily connected with those nations; transactions which either immediately, or at some stage of their progress, must be extra-territorial. The phrase can never be applied to transactions wholly internal, between citizens of the same community, or to a polity and laws whose ends and purposes and operations are restricted to the territory and soil and jurisdiction of such community. Nor can it be properly concluded, that because the products of domestic enterprise in agriculture or manufactures, or in the arts, may ultimately become the subjects of foreign commerce, that the control of the means or the encouragements by which enterprise is