of commerce for its own ports and harbors, and for its own territory; and such regulations are valid unless they come in conflict. with a law of Congress." One clause of this sentence seems to indicate the police power as a source of authority for these state commercial regulations; but later on the necessity of resorting to this source of authority is expressly repudiated. The State's authority, to make regulations of commerce, he says, "is as absolute as its power to pass health laws, except in so far as it has been restricted by the Constitution of the United States. And when the validity of a state law making regulations of commerce is drawn into question in a judicial tribunal, the authority to pass it cannot be made to depend upon the motives that may be supposed to have influenced the legislature, nor can the court inquire whether it was intended to guard the citizens of the States from pestilence and disease, or to make regulations of commerce for the interest and convenience of trade." However, as has been said, several of the concurring justices were not in agreement with the chief justice upon this point, and found the source of the power of the States to enact the laws in question to be their police powers rather than a concurrent authority to legislate with reference to matters of interstate and foreign commerce.

The position taken by Justice Woodbury is especially worthy of attention, in that it was one which had earlier been suggested by Daniel Webster in an argument in Gibbons v. Ogden, and which approximates the one that has since obtained general acceptance by the court. This is, that the federal power over commerce is exclusive in so far as, from the nature of the case, a uniform regulation is demanded or is appropriate; but that in matters of purely local and particular interest the States may, in the absence of opposing federal statutes, legislate. "I admit," he said, "that, so far as regards the uniformity of a regulation reaching to all the States, it must in these cases, of course, be exclusive. But there is much in connection with foreign commerce which is local within each State, convenient for its regulation and useful to the public, to be acted on by each till the power is abused or some course is taken by Congress conflicting with it."

.

§ 307. Passenger Cases.

Two years after the License Cases, the court was again called upon, in the so-called Passenger Cases,50 to consider the regulative powers of the States with reference to foreign and interstate commerce. Here there was a departure from the doctrine of New York v. Miln, a law of New York being held void which authorized the state health commissioners to collect certain fees from captains of ships arriving at the ports of the State; and a law of Massachusetts annulled which required captains of ships to give certain bonds as to immigrants landed, and which provided for the payment of a small sum by each immigrant.

In these Passenger Cases, as in the License Cases, no opinion representing that of a majority of the court was rendered, the justices preparing individual arguments in support of their several positions. Justice McLean asserted emphatically the exclusiveness of the federal jurisdiction. Justice Wayne agreed as to this, but said that it was not necessary to argue it in the cases at bar. The three other justices, concurring in the judgment that the laws in question were in violation of existing federal laws and treaties, did not commit themselves upon the question of the exclusiveness of the federal power. Chief Justice Taney in a dissenting opinion argued that the state laws were valid as a proper exercise of the States' police power. Justice Woodbury, also dissenting, reaffirmed the doctrine declared by him in the License Cases, and held the laws valid as local in nature and operation.

$308. Cooley v. Port Wardens.

51

In Cooley v. Port Wardens, decided in 1851, the Supreme Court, three justices dissenting, accepted the principle that had been suggested by Webster and approved by Justice Woodbury, and upheld a pilotage law of Pennsylvania on the ground that, though it was a regulation of commerce, it was with reference to a matter properly lending itself to local state control, and one for the regulation of which Congress had not legislated. Justice

50 7 How. 283; 12 L. ed. 702. 51 12 How. 299; 13 L. ed. 996.

Curtis, delivering the opinion of the court, said: "When the nature of a power like this [the commerce power] is spoken of, when it is said that the nature of the power requires that it should be exercised exclusively by Congress, it must be intended to refer to the subjects of that power, and to say that they are of such a nature as to require exclusive legislation by Congress. Now the power to regulate commerce, embraces a vast field, containing not only many but exceedingly various subjects, quite unlike in their nature, some imperatively demanding a single uniform rule, operating equally on the commerce of the United States in every port; and some, like the subject now in question, as imperatively demanding that diversity, which alone can meet the local necessities of navigation. Either absolutely to affirm, or deny, that the nature of this power requires exclusive legislation by Congress, is to lose sight of the nature of the subjects of this power, and to assert concerning all of them, what is really applicable to but a part. It is the opinion of a majority of the court that the mere grant to Congress of the power to regulate commerce, did not deprive the States of power to regulate pilots." 52

The doctrine of Cooley v. Port Wardens is, at the present time, the accepted doctrine of the Supreme Court. In Bowman v. R. R. Co.53 the doctrine is declared to be firmly established.54

52 Justice McLean, in a dissenting opinion, restated his doctrine of the exclusiveness of the federal power, including such matters of local regulation as that of pilotage. Justice Daniel, though concurring in the judgment rendered, declared that he did so because this was a matter which the States had never surrendered to the Federal Government, and which was not implied in the commercial power which had been granted to that government. 53 125 U. S. 465; 8 Sup. Ct. Rep. 689; 31 L. ed. 700.

54"The doctrine now firmly established is that where the subject upon which Congress can act under its commercial power is local in its nature or sphere of operation, such as harbor pilotage, or improvement of harbors, the establishment of beacons and buoys to guide vessels in and out of port, the construction of bridges over navigable rivers, the erection of wharves, piers and docks, and the like, which can be properly regulated only by special provisions adapted to their localities, the State can act until Congress interferes and supersedes its authority; but when the subject is national in its character, and admits and requires uniformity of regulation, affecting alike all the States, such as transportation between the States, including the importation of goods from one State to another, Congress can alone act upon

The rule thus stated as to the distinction between subjects requiring general and those necessitating, or at least rendering highly desirable, local regulation, is a simple and rational one. It is, however, one which, in application, has not infrequently given rise to considerable difficulty, there being no definite criteria for distinguishing between these two classes of subjects. This has made it necessary that each case should be determined by itself, the Supreme Court in each instance deciding whether the state law in question is, or is not, regulative of a matter properly requiring national control.55

§ 309. Subjects of Local Regulation by the States.

Among the more important subjects which, it has been held, may, in the absence of federal legislation, be controlled by the States, because they lend themselves to local regulation, are ferries, bridges, pilotage, and harbor regulations.

The purpose of this treatise which is the determination and statement of the general principles of United States constitutional law does not require us to review in any detail the adjudications of the Supreme Court as to these several subjects. As has been said, each case has to be decided upon its own merits.

The general rule governing all the cases is, perhaps, best stated and the authorities summarized, in Covington, etc., Bridge Co. v. Kentucky.56

it and provide the needed regulations. The absence of any law of Congress on the subject is equivalent to its declaration that commerce in that matter shall be free."

55 Thayer in a note in his Cases on Constitutional Law, p. 2190, points out that this question as to the need for local or national regulation is, inherently, a legislative and not a judicial one.

56 154 U. S. 204; 14 Sup. Ct. Rep. 1087; 38 L. ed. 962. "The adjudications of this court with respect to the power of the States over the general subject of commerce are divisible into three classes. First, those in which the State is exclusive; second, those in which the States may act in the absence of legislation by Congress; third, those in which the action of Congress is exclusive and the States cannot interfere at all. The first class, including all those wherein the States have plenary power, and Congress has no right to interfere, concern the strictly internal commerce of the State, and while the regulations of the State may affect interstate commerce indirectly, their

§ 310. The Police Powers of the States and Commerce.

Very closely related to the authority of the States to legislate with reference to commercial matters of a local character, is the power of the States, in the exercise of their police powers to enact and enforce measures which incidentally, but often substantially, affect interstate commerce.

The distinction that is drawn between these police powers of the States, and their authority to enforce local commercial regulations is that, in the absence of countervailing federal legislation, the latter are valid even though conceded to bear directly upon interstate or foreign commerce, whereas the police regulations are only valid bearing upon it is so remote that it cannot be termed in any just sense an interference. Within the second class of cases those of what may be termed concurrent jurisdiction are embraced laws for the regulation of pilots (Cooley v. Philadelphia Port Wardens, 12 How. 299; 13 L. ed. 996; Pacific Mail SS. Co. v. Joliffe, 2 Wall. 450; 17 L. ed. 805; Ex parte McNiel, 13 Wall. 236; 20 L. ed. 624; Wilson v. McNamee, 102 U. S. 572; 26 L. ed. 234); quarantine and inspection laws and the policing of harbors (Gibbons v. Ogden, 9 Wheat, 1; 6 L. ed. 23; New York v. Miln, 11 Pet. 102; 9 L. ed 648; Turner v. Maryland, 107 U. S. 38; 2 Sup. Ct. Rep. 44; 27 L. ed. 370; Morgan's L. & T. R. & SS. Co. v. Louisiana Board of Health, 118 U. S. 455; 6 Sup. Ct. Rep. 1114; 30 L. ed. 237); the improvement of navigable channels (Mobile Co. v. Kimball, 102 U. S. 691; 26 L. ed. 238; Escanaba & L. M. Transp. Co. v. Chicago, 107 U. S. 678; 2 Sup. Ct. Rep. 185; 27 L. ed. 442; Huse v. Glover, 119 U. S. 543; 7 Sup. Ct. Rep. 313; 30 L. ed. 487); the regulation of wharves, piers and docks (Cannon v. New Orleans, 20 Wall. 577; 22 L. ed. 417; Keokuk N. L. Packet Co. v. Keokuk, 95 U. S. 80, 24 L. ed. 377; Northwestern U. Packet Co. v. St. Louis, 100 U. S. 423; 25 L. ed. 688; Cincinnati, P. B. S. & P. Packet Co. v. Catlettsburg, 105 U. S. 559; 26 L. ed. 1; Parkersburg & O. R. Transp. Co. v. Parkersburg, 107 U. S. 691: 2 Sup. Ct. Rep. 732; 27 L. ed. 584; Ouachita & M. R. Packet Co. v. Aiken, 121 U. S. 444; 7 Sup. Ct. Rep. 907; 30 L. ed. 976); the construction of dams and bridges across navigable waters of a State (Wilson v. Black Bird Creek Marsh Co., 2 Pet. 245; 7 L. ed. 412; Cardwell v. American River Bridge Co., 113 U. S. 205; 5 Sup. Ct. Rep. 423; 28 L. ed. 959; Pound v. Turck, 95 U. S. 459; 24 L. ed. 525), and the establishment of ferries (Conway v. Taylor, 1 Black, 603). But wherever such laws, instead of being of a local nature and not affecting interstate commerce but incidentally, are national in their character, the non-action of Congress indicates its will that such commerce shall be free and untrammeled, and the case falls within the third class of those laws wherein the jurisdiction of Congress is exclusive. (Brown v. Houston, 114 U. S. 622; 5 Sup. Ct Rep. 1091; 29 L. ed. 257; Bowman v. Chicago & N. W. R. Co., 125 U. S. 465; 8 Sup. Ct. Rep. 689; 31 L. ed. 700.)"