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tide ebbs and flows, within its territorial limits, as by authorizing the erection of a dam across it, has been a subject of much recent

it was said, "includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States, which are accessible from a State other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress. Gibbons v. Ogden, 9 Wheat. 1; Corfield v. Coryell, 4 Wash. C. C. 378. This necessarily includes the power to keep them open and free from any obstruction to their navigation, interposed by the States or otherwise; to remove such obstructions when they exist; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders. For these purposes Congress possesses all the powers which existed in the States before the adoption of the national Constitution, and which have always existed in the Parliament in England. It is for Congress to determine when its full power shall be brought into activity, and as to the regulations and sanctions which shall be provided. United States v. New Bedford Bridge, 1 Wood. & Minot, 420, 421; United States v. Coombs, 12 Pet. 72; New York v. Miln, 11 Pet. 102, 155. A license, under the act of 1793, to engage in the coasting trade, carries with it right and authority. Commerce among the States does not stop at a State line. Coming from abroad, it penetrates wherever it can find navigable waters reaching from without into the interior, and may follow them up as far as navigation is practicable. Wherever commerce among the States goes, the power of the nation, as represented in this court, goes with it to protect its rights. Gibbons v. Ogden, 9 Wheat. 1; Steamboat Co. v. Livingston, 3 Cow. 713. There can be no doubt that the coasting trade may be carried on where the bridge in question is to be built.

"We will now turn our attention to the rights and powers of the States which are to be considered. The national government possesses no powers but such as have been delegated to it. The States have all but such as they have surrendered. The power to authorize the building of bridges is not to be found in the federal Constitution. It has not been taken from the States. It must reside somewhere. They had it before the Constitution was adopted, and they have it still. . . . The power to regulate commerce covers a wide field, and embraces a great variety of subjects. Some of these subjects call for uniform rules and national legislation; others can be best regulated by rules and provisions suggested by the varying circumstances of different localities, and limited in their operation to such localities respectively. To this extent the power to regulate commerce may be exercised by the States. Whether the power in any given case is vested exclusively in the general government depends upon the nature of the subject to be regulated. Pilot laws are regulations of commerce; but if a State enact them in good faith, and not covertly for another purpose, they are not in conflict with the power to regulate commerce committed to Congress by the Constitution. Cooley v. The Board of Wardens, 12 How. 319."

The court proceed to say that the most important case in its application to the one then under judgment was that of Wilson v. The Blackbird Creek Marsh Co., 2 Pet. 245. In that case was drawn in question the validity of a State law, which, for the purpose of improving its marsh lands and promoting the public health, permitted the construction of a dam across a creek previously navigable from the sea by vessels enrolled and licensed for the coasting trade. There was no act of Congress forbidding its erection or declaring it an obstruction to commerce, a fact deemed of the highest importance by Chief Justice Taney in the Wheeling Bridge case, -nor was there any legislation of Congress which could be regarded as in conflict with the State law,

discussion. If Congress, in regulating commerce, should pass any act, the object of which should be to control State legislation over

unless the general regulations for the coasting trade and the enrolling and licensing of vessels therefor could be so treated. The court sustained the law, Marshall, C. J. saying: "If Congress had passed any act which bore upon the case, any act in execution of the power to regulate commerce, the object of which was to control legislation over those small navigable creeks into which the tide flows, and which abound throughout the lower country of the middle and Southern States, we should feel not much difficulty in saying that a State law coming in conflict with such act would be void. But Congress has passed no such act. The repugnancy of the law of Delaware to the Constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several States, a power which has not been so exercised as to affect the question."

The difference between the facts in the Wheeling Bridge Case and those in the one last referred to, in which a conclusion so different was reached, is not so obvious at first as to preclude possible misapprehension. In neither case was the particular structure in question forbidden by congressional legislation, and in each, privileges derived by vessels engaged in navigation under the laws of Congress were, or might be, prevented from being exercised. But in the case of the Ohio River, these laws, and the regulations established under them, had recognized it as a highway of commerce, while in the case of Blackbird Creek there was no such explicit recognition, and all that could be said of it was that it was capable from its navigable character of being such a highway. In the one case the indirect conflict was palpable and important, in the other it was argumentative rather than actual.

In the Wheeling Bridge Case, however, it will be perceived that it was not regarded as a matter of course that the State bridge across a navigable stream covered by the regulations of commerce should be destroyed as unlawful. The bridge itself was to be a highway for travel and traffic; and although it might in some degree constitute an impediment to commerce, its advantages to the general business of the country might be so great as to more than overbalance the inconvenience. Considerations of this character are of very great importance when a power is being exercised which is conferred for the regulation and protection of commerce, and the court very properly went into them in that case, and would have denied the relief prayed had they been satisfied that the interference was immaterial. They did deny such relief in Gilman v. Philadelphia. See also the important case of Jolly v. The Terre Haute Drawbridge Co., 6 McLean, 237; Columbus Ins. Co. v. Peoria Bridge Co., 6 McLean, 70; Same v. Curtenius, Id. 209; United States v. Railroad Bridge, Id. 518; Avery v. Fox, 1 Abb. U. S. Reps. 246; Woodman v. Kilbourn Manuf. Co., Id. 158; Works v. Junction R. R. Co., 5 McLean, 425; Halderman v. Beckwith, 4 McLean, 286; Silliman v. Bridge Co., 4 Blatch. 74, 395.

The case of New York v. Miln, 11 Pet. 102, referred to above, involved the validity of an act of the State of New York which required the master of any vessel arriving at the port of New York from a foreign port or from one of the other States, within twenty four hours after its arrival, to report to the mayor in writing and on oath or affirmation, the name, place of birth, last legal settlement, age, and occupation of every passenger brought in such ship to the city, or permitted to land at any place, or put on board any ship with an intention of proceeding to the city, under a penalty of seventy-five dollars, to be paid by the master, owner, or consignee for every such passenger. The master was also required to give bond to the mayor to save harm

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, 287.]

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

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