rather to be deemed a declaration that for the time being, and until it sees fit to act, they may be regulated by State authority."

This decision is sometimes referred to as deciding that one test of the constitutionality of a State law on the subject of commerce is whether it would result in discrimination.48 Such a deduction from this decision is, however, unwarranted. That the absence of any discrimination between local and interstate commerce is not alone sufficient to render a State law constitutional is shown by the decision in the case of the State freight tax. This decision involved the constitutionality of a law of the State of Pennsylvania which laid a tax on every ton of freight carried within the limits of the State. The tax fell both on that commerce which was strictly local and that which was interstate in its character; but in spite of this lack of discrimination the law was held to be an unconstitutional interference with interstate commerce.

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Several of the important decisions of the Supreme Court on this question of the extent to which State may properly be allowed to regulate commerce have been concerned with the famous original package rule. The first case involving the application of this principle was that of Brown v. Maryland,50 decided in 1827 and already referred to in this chapter. In the decision in this case it was held that as sale is the object of importation, the importation of goods for sale was not complete until the goods had been sold, and that an article could not be considered as incorporated with the general mass of property of the State while it still remained in its original package in the hands of the importer. Forty years later this rule was modified by the decision in the case of Woodruff v. Parban, in which the Supreme Court held that this rule should only be applied in the case of goods imported from foreign countries and not to goods merely imported into one State from another State. This modified rule was followed by the court in the cases of Brown v. Houston,52 and Robbins v. Taxing District. In the still more

"See Prentice and Egan, "Commerce Clause of the Federal Constitution," 30.

4 15 Wallace, 232.

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51

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recent cases, however, of Bowman v. The Northwestern Rail road, and Leisy v. Hardin," the Supreme Court, although in each case by a divided vote, returned to the doctrine as laid down in Brown v. Maryland.

This last mentioned case grew out of the prohibition law of the State of Iowa. Certain citizens of Illinois, in disregard of this law, shipped beer into Iowa, and upon its seizure by officers of the law brought an action of replevin to recover it. A judg ment by the Supreme Court of Iowa in favor of the defendants was overruled by the Supreme Court of the United States, which held that the right of Congress to provide for the interchange of commodities between the States involved the control over such commerce until the commodities were incorporated into the general mass of property of the State (thus deciding as to interstate commerce what Brown v. Maryland decided as to foreign commerce); that while any State under its general police powers had the right to provide for the security of the lives, limbs, health and comfort of persons and the protection of property, so situated, yet a subject matter which has been confided exclusively to Congress by the Constitution is not within the jurisdiction of the police powers of the State unless placed there by congressional action, and that, therefore, as beer was a generally recognized article of commerce, no State could prohibit its importation, or its sale in the original packages in which it was imported. The opinion closed with the following paragraph:

"Whatever our individual views may be as to the deleterious or dangerous qualities of particular articles, we cannot hold that any articles which Congress recognizes as subjects of interstate commerce are not such, or that whatever are thus recognized can be controlled by State laws amounting to regulations. while they retain that character; although, at the same time, if directly dangerous in themselves the State may take appropriate measures to guard against injury before it obtains complete jurisdiction over them. To concede to a State the power to exclude, directly or indirectly, articles so situated, without congressional permission, is to concede to a majority of the people

34125 U. S. 465, decided in 1887. 5 135 U. S. 100; decided in 1890.

of a State, represented in the State Legislature, the power to regulate commercial intercourse between the States, by determining what shall be its subjects, when that power was distinctly granted to be exercised by the people of the United States, represented in Congress, and its possession by the latter was considered essential to that more perfect union which the constitution was adopted to create. Undoubtedly there is difficulty in drawing the line between the municipal powers of the one government and the commercial powers of the other, but when that line is determined in the particular instance, accommodation to it, without serious inconvenience, may readily be found, to use the language of Mr. Justice Johnson in Gibbons v. Ogden, 22 U. S. 8 Wheat. 1,248 [1, 23, 80], 'in a frank and candid coöperation for the general good.'"

However sound the doctrine in Leisy v. Hardin may have been, the inconveniences of its application were so great as to induce Congress to alleviate them by the passage of the Wilson Act of Congress of August 8, 1890, which provided "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 law of such State or Territory enacted in the exercise of its police powers, 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 therefrom by reason of being introduced therein in original packages or otherwise."

In re Rahrer identically the same question as had come in Leisy v. Hardin was before the court, except that the Wilson Act had been passed in the meantime. The court said: "Congress did not use terms of permission to the States 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."

All State statutes discriminating in any way against citizens of other States, or the productions of other States, have invariably been held unconstitutional. In Welton v. Missouri a State statute was held void which required the payment of a license tax from persons selling, by going from place to place within the State for purpose, goods not the growth or manufacture of the State, and did not require such a license tax from persons so selling goods which were the growth or manufacture of the State. On the other hand, in Howe Machine Company v. Gages a State statute which imposed a like tax, without discriminating as to the place of growth or produce of material or manufacture, was adjudged to be constitutional and valid as applied to machines made in and brought from another State.

The law of Kentucky (Act of March 2, 1860) required from the agent of every express company not incorporated by the laws of Kentucky a license from the auditor of public accounts before he could carry on business for said company in the State. This was held unconstitutional in Crutcher v. Kentucky," so far as it applied to interstate commerce.

In Robbins v. Shelby County Taxing District a State law requiring the payment of a license tax by drummers and persons not having a regularly licensed house of business within the taxing district, offering for sale or selling any goods by sample, was decided to be unconstitutional as applied to persons offering to sell goods on behalf of merchants residing in other States, because, as the majority of the court held, its effect was "to tax sale of such goods, or the offer to sell them, before they are brought into the State."

But in Delanater v. South Dakota a law of South Dakota imposing an annual license tax on traveling salesmen selling or offering for sale or soliciting orders for intoxicating liquors in quantities of less than five gallons was held constitutional.

An important constitutional question at the present day is the question of the rights of a corporation, established by one of the States of the Union, in another State. It may be said in

91 U. S. 275.

100 U. S. 676.

141 U. S. 47.

60 120 U. S. 489.

61 205 U. S. 93.

general on this point that a corporation is not a citizen of the State which creates it under the clause of the fourth article providing that:

"The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States."

A foreign corporation doing business in a State, however, is protected under the provisions of the fourteenth amendment, that no State shall "deny to any person within its jurisdiction the equal protection of the laws."

A State may thus prohibit foreign corporations from doing business within its limits, or it may admit them under such conditions as it may deem proper; it cannot admit them, however, and then discriminate against them. In a recent case it was held by the United States Circuit Court for the Eastern District of Arkansas that:

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"While a State which has admitted a foreign corporation to the right to do business therein has power to withdraw such permission at pleasure, the exercise of such power is subject to the limitation that where the corporation has been granted a franchise in the nature of a contract it is protected from impairment by the contract clause of the constitution."

Many cases have recently come before the Federal courts involving the construction of that series of acts which began with the Interstate Commerce Act of 1887.

§ 259. Crandall v. Nevada.—In each of the cases mentioned in the last section which held a State statute to be unconstitutional, such decision was based upon the violation by the statute of some particular clause of the Constitution. There remains to be considered an important and far-reaching case where the unconstitutionality of a law was placed upon the broader grounds of opposition to the general spirit and meaning of the Constitution as a whole.

The principle that a statute, either national or State, might be unconstitutional, even although it was impossible to point out the particular clause or line of the Constitution violated, was recognized as early as the famous decision in McCulloch v.

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'Chicago, R. I. & P. Ry. Co. v.Ludwig, 156 Fed. Rep. 152.