theirs; and that the harbor-masters or either of them should have authority to determine how far and in what instances it was the duty of the masters and others, having charge of ships or vessels, to accommodate each other in their respective situations; and it imposed a penalty for refusing or neglecting to obey the directions of the harbor-masters or either of them. In a suit brought against the master of a steam vessel, who had refused to move his vessel a certain distance as directed by one of the harbor-masters, in order to accommodate a new arrival, it was insisted on the defence that the act was an unconstitutional invasion of the power of Congress over commerce, but it was sustained as being merely a regulation prescribing the manner of exercising individual rights over property employed in commerce.1

*The line of distinction between that which consti- [* 586] tutes an interference with commerce, and that which is

1 Vanderbilt v. Adams, 7 Cow. 351. Woodworth, J., in this case, states very clearly the principle on which police regulations, in such cases, are sustainable: "It seems to me the power exercised in this case is essentially necessary for the purpose of protecting the rights of all concerned. It is not, in the legitimate sense of the term, a violation of any right, but the exercise of a power indispensably necessary, where an extensive commerce is carried on. If the harbor is crowded with vessels arriving daily from foreign parts, the power is incident to such a state of things. Disorder and confusion would be the consequence, if there was no control. . . . The right assumed under the law would not be upheld, if exerted beyond what may be considered a necessary police regulation. The line between what would be a clear invasion of right on the one hand, and regulations not lessening the value of the right, and calculated for the benefit of all, must be distinctly marked. . . . Police regulations are legal and binding, because for the general benefit, and do not proceed to the length of impairing any right, in the proper sense of that term. The

sovereign power in a community, therefore, may and ought to prescribe the manner of exercising individual rights over property. It is for the better protection and enjoyment of that absolute dominion which the individual claims. The power rests on the implied right and duty of the supreme power to protect all by statutory regulations; so that, on the whole, the benefit of all is promoted. Every public regulation in a city may, and does in some sense, limit and restrict the absolute right that existed previously. But this is not considered as an injury. So far from it, the individual, as well as others, is supposed to be benefited. It may, then, be said that such a power is incident to every well-regulated society, and without which it could not well exist." See Cooley v. Board of Wardens, 12 How. 289; Owners of James Gray v. Owners of The John Frazer, 21 How. 184; Benedict v. Vanderbilt, 1 Robertson, 194; Steamship Co. v. Joliffe, 2 Wall. 450; Port Wardens v. The Ward, 14 La. Ann. 289; Gilman v. Philadelphia, 3 Wall. 726, 731; Cisco v. Roberts, 36 N. Y. 292.

a mere police regulation, is sometimes exceedingly dim and shadowy, and it is not to be wondered at that learned jurists differ when endeavoring to classify the cases which arise. It is not doubted that Congress has the power to go beyond the general regulations of commerce which it is accustomed to establish, and to descend to the most minute directions, if it shall be deemed advisable; and that to whatever extent ground shall be covered by those directions, the exercise of State power is excluded. Congress may establish police regulations, as well as the States; confining their operation to the subjects over which it is given control by the Constitution. But as the general police power can better be exercised under the supervision of the local authority, and mischiefs are not likely to spring therefrom so long as the power to arrest collision resides in the national courts, the regulations which are made by Congress do not often exclude the establishment of others by the State covering very many particu lars. Moreover, the regulations of commerce are usually, and in some cases must be, general and uniform for the whole country; while in some localities, State and local policy will demand peculiar regulations with reference to special and peculiar circum

stances.

The State of Maryland passed an act requiring all importers of foreign goods, by the bale or package, &c., to take out a license, for which they should pay fifty dollars, and, in case of neglect or refusal to take out such license, subjected them to certain forfeitures and penalties. License laws are of two kinds: those which require the payment of a license fee by way of raising a revenue,

and are therefore the exercise of the power of taxation; [* 587] and those * which are mere police regulations, and re

quire the payment only of such license fee as will cover the expense of the license and of enforcing the regulation. The Maryland act seems to fall properly within the former of these classes, and it was held void as in conflict with that provision of the Constitution which prohibits a State from laying any impost, &c., and also with the clause which declares that Congress shall have the power to regulate commerce. The reasoning of the court was this: Sale is the object of all importation of goods, and the power to allow importation must therefore imply the power to au

1 Ash v. People, 11 Mich. 347. See ante, p. *201. Also Dillon, Mun. Corp. §§ 291-294 and notes.

thorize the sale of the thing imported; that consequently a penalty inflicted for selling an article in the character of importer was in opposition to the act of Congress, which authorized importation; that a power to tax an article in the hands of the importer the instant it was landed was the same in effect as a power to tax it whilst entering the port; that consequently the law of Maryland was obnoxious to the charge of unconstitutionality, on the ground of its violating the two provisions referred to. And a State law which required the master of every vessel engaged in foreign commerce to pay a certain sum to a State officer, on account of every passenger brought from a foreign country into the State, or before landing any alien passenger, was held void for similar reasons.2

On the other hand, a law of the State of New York was sustained which required, under a penalty, that the master of every vessel arriving from a foreign port should report to the mayor or recorder of the city of New York an account of his passengers; the object being to prevent New York from being burdened by an influx of persons brought thither in ships from foreign countries and the other States, and to that end to require a report of the names, places of birth, &c., of all passengers, that the necessary steps might be taken by the city authorities to prevent them from becoming chargeable as paupers. And a State regulation of pilots and pilotage was held unobjectionable, though it was conceded that Congress had full power to make regulations

*

on the same subject, which, however, it had not exer- [* 588] cised. These several cases, and the elaborate discussions

with which the decisions in each were accompanied, together with the leading case of Gibbons v. Ogden,5 may be almost said to exhaust the reasoning upon the subject, and to leave little to be

1 Brown v. Maryland, 12 Wheat. 419.

2 Passenger Cases, 7 How. 283; see also Lin Sing v. Washburn, 20 Cal. 534, where a State law imposing a special tax on every Chinese person over eighteen years of age for each month of his residence in the State was held unconstitutional, as in conflict with the power of Congress

over commerce.

8 City of New York v. Miln, 11 Pet. 102. See also State v. The Constitution, 42 Cal. 581.

Cooley v. Board of Wardens, 12 How. 299. See Barnaby v. State, 21 Ind. 450; Steamship Co. v. Joliffe, 2 Wall. 450; Cisco v. Roberts, 36 N. Y. 292.

59 Wheat. 1. And see Gilman v. Philadelphia, 3 Wall. 713.

done by those who follow beyond the application of such rules for classification as they have indicated.

Sunday Laws. We have elsewhere referred to cases in which laws requiring all persons to refrain from their ordinary callings on the first day of the week have been held not to encroach upon the religious liberty of those citizens who do not observe that day as sacred. Neither are they unconstitutional as a restraint upon trade and commerce, or because they have the effect to destroy the value of a lease of property to be used on that day, or to make void a contract for Sunday services. There can no longer be any question, if any there ever was, that such laws may be supported as regulations of police.2

Law of the Road. The highways within and through a State are constructed by the State itself, which has full power to provide all proper regulations of police to govern the action of persons using them, and to make from time to time such alterations in these ways as the proper authorities shall deem proper. A very common regulation is that parties meeting shall turn to the right; the propriety of which none will question. So the speed of travel may be regulated with a view to safe use and general protection, and to prevent a public nuisance. So beasts may be prohibited from running at large, under the penalty of being seized and sold." And it has been held competent under the same power to require the owners of urban property to construct and keep in repair and free from obstructions the sidewalks in front of it, and in case of

1 Lindenmuller v. People, 33 Barb. 576. And see Ex parte Andrews, 18 Cal. 678; Ex parte Bird, 19 Cal. 130; ante, p. 477 and notes.

8

2 Specht v. Commonwealth, Penn. St. 312; City Council v. Benjamin, 2 Strob. 508; State v. Ambs, 20 Mo. 214; St. Louis v. Cafferata, 24 Mo. 94; Kurtz v. People, 33 Mich. 279; Voglesong v. State, 9 Ind. 112; Shover v. State, 5 Eng. 259; Bloom v. Richards, 2 Ohio, N. s. 387; Lindenmuller v. People, 33 Barb. 548; Ex parte Andrews, 18 Cal. 678; Ex parte Bird, 19 Cal. 130; Hudson v. Geary, 4 R. I. 485; Frolickstein v. Mobile, 40 Ala. 725.

8 As to the right to change the

grade of a street from time to time without liability to parties incidentally injured, see ante, p. 207.

4 Commonwealth v. Worcester, 3 Pick. 473; Commonwealth v. Stodder, 2 Cush. 562; Day v. Green, 4 Cush. 433; People v. Jenkins, 1 Hill, 469; People v. Roe, 1 Hill, 470; Washington v. Nashville, 1 Swan, 177; State v. Foley, 31 Iowa, 527.

5 McKee v. McKee, 8 B. Monr. 433; Municipality v. Blanc, 1 La. Ann. 385; Whitfield v. Longest, 6 Ired. 268; Gooselink v. Campbell, 4 Iowa, 296; Roberts v. Ogle, 30 Ill. 459; Commonwealth v. Curtis, 9 Allen, 266.

their failure to do so to authorize the public authorities to do it at the expense of the property,' the courts distinguishing

*

this from taxation, on the ground of the peculiar interest [* 589] which those upon whom the duty is imposed have in its

performance, and their peculiar power and ability to perform it with the promptness which the good of the community requires.2

Navigable Waters. Navigable waters are also a species of public highway, and as such come under the control of the States. The term "navigable," at the common law, was only applied to those waters where the tide ebbed and flowed, but all streams which were of sufficient capacity for useful navigation, though not called navigable, were public, and subject to the same general rights which the public exercised in highways by land. In this country there has been a very general disposition to consider all streams public which are useful as channels for commerce, wherever they are found of sufficient capacity to float to market the products of the mines, of the forests, or of the tillage of the country through which they flow. And if a stream is of sufficient capacity for the float

1 Godard, Petitioner, 16 Pick. 504; Bonsall v. Mayor of Lebanon, 19 Ohio, 418; Paxson v. Sweet, 1 Green (N. J.), 196; Lowell v. Hadley, 8 Met. 180; Washington v. Mayor, &c. of Nashville, 1 Swan, 177; Mayor, &c. v. Medbury, 6 Humph. 368; Woodbridge v. Detroit, 8 Mich. 309, per Christiancy, J.; Matter of Dorrance St., 4 R. I. 230; Deblois v. Barker, 4 R. I. 445; Hart v. Brooklyn, 36 Barb. 226. So in Pennsylvania it has been held competent to require the owners of city lots, in front of which sewers are constructed, to pay the expense thereof in proportion to the street front. Philadelphia v. Tryon, 35 Penn. St. 400; Stroud v. Philadelphia, 61 Penn. St. 255. And see Boston v. Shaw, 1 Met. 130; Hildreth v. Lowell, 11 Gray, 345; Cone v. Hartford, 28 Conn. 363; State v. Jersey City, 5 Dutch. 441.

2 See especially the case of Godard, Petitioner, 16 Pick. 504, for a

clear and strong statement of the grounds on which such legislation can be supported. Also Dillon, Mun. Corp. § 637; Cooley on Taxation, 398.

8 Lorman v. Benson, 8 Mich. 26; Morgan v. King, 18 Barb. 283.

4 Brown v. Chadbourne, 31 Me. 9; Knox v. Chaloner, 42 Me. 150; Lancey v. Clifford, 51 Me. 489; Gerrish v. Brown, 51 Me. 256; Scott v. Willson, 3 N. H. 321; Shaw v. Crawford, 10 Johns. 236; Munson v. Hungerford, 6 Barb. 265; Browne v. Scofield, 8 Barb. 239; Morgan v. King, 18 Barb. 284, 30 Barb. 9, and 35 N. Y. 454; Cates v. Wadlington, 1 McCord, 580; Commonwealth v. Chapin, 5 Pick. 199; Moore v. Sanbourne, 2 Mich. 519; Lorman v. Benson, S Mich. 18; Depew v. Board of Commissioners, &c., 5 Ind. 8; Board of Commissioners v. Pidge, 5 Ind. 13; Stuart v. Clark, 2 Swan, 9; Elder v. Barrus, 6 Humph. 364; Dalrymple v. Mead, 1 Grant's Cases, 197; Com