(UnntfU ICam ^rl^nnl Sjibtaty CORNELL UNIVERSITY , UBR ARV , 3 1924 103 378 703 ^ Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924103378703 The Power of Congress to regulate Oommerce between the States • Andrew Strong White* CHAPTER I. The History of the commerce clause in the United States constitution. GHAPTSR II It^ interpretation and construction* CHAPTER III. The police pov/er of the separate States • THE POWER OF CONGRESS TO REGULATE C01#;IERCE BETViJEEN THE STATES. CHAPTER I. The History of the Commerce Clause in the United States Constitution. Sec 8, Sub. S of the U. S. constitution provides as follows; "The congress shall have povirer, to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." To obtain a thorough understanding of this important clause of the constitution it is imperative that we reviev; its history, in order to determine how it came about that States peopled with inhabitants so jealous of their liberty, so averse to centralization of power, could have delegated this powerful prerogative to a general government- We will find the reason to be urgent ne- cessity. s We note in the aarly history of the American colo- nies the imjiist and tyrannical treatment of England* The growth of the spirit of retaliation and the steps that were taken toward independence* During this early period the colonies were governed by the (jrown. of Great Britain or by Parliament* The representation of New England in the administration of her own affairs was indirect and insufficient- The tendency to form a separate union freed from monarchical oppression is illustrated by the New England Confederacy of 1643, the Temporary Congress of 1690, the Convention of 1754 and the Stamp Act Congress of 1765 • Upon the out- break of hostilities between the two countries in 1774, a provisional central government was established known ae the Continental Congress. This government was revolutionary in its nature* The union formed under it was accepted by the people and the exercise of some undefined general powers were delegated to it* It was given the right to declare vmr, to conclude peace, to form alliances, and to contract debts on the credit of the Union* As the Congress commanded no credit either at home or abroad its provisions could rarely be put in- to effect* A government of this nature, boimd by such 3 restrictions could not answer long the needs of a grow- ing nation. The prospect of a great war with England emphasized the necessity for more efficient government- al machinery. It did not have the ability tt> enforce its laws and practically was no more than an advisory board* Its importance became so manifest that it was finally discarded. A new government was formed under the Articles of Confederation and Perpetual Union in the year 1777* This instrtanent declared that; "each State retains its sovereignty, freedom, and independence and every power, jurisdiction and right which is not by this Donfedera- tion expressly delegated to the United States in Con- gress assembled." It was a league of friendship for their common defense and for the promotion of liberty. Although it was Stronger and more efficient than the gov- ernment it fsupplanted it was slow and inadequate for the purpose Intended. It might make laws but it could not enforce them without the consent of the States This necessitated a prolonged discussion o£ every funda- mental step* gave room for jealousies and bred estrange- ment between the different sections of the country. Up to this time no powers for the regulation of com- 4 merce, external or internal had been surrendered by the States except in the most general way« Act 6, Sec* 3 of the Articles provides that; "no State shall lay any imposts or duties, which may interfere with any stip- ulations in treaties entered into by the United States in Congress assembled, with any king, prince, or State in pursuance of any treaties already proposed by Con- gress to the courts of France and Spain." Act 9, pro- vides that; "the United States in Congress assembled shall have sole and exclusive right and power of deter- mining on peace and war, except in the cases of the 6th Article; of sending and receiving ambassadors; en- tering into treat iesand alliances; provided, that no treaty of commerce shall be made whereby the legisla- tive power of the respective States shall be i'estrained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever*" Prom this we see that the separate Statesrretained the right to impose duties on imports. Although far from perfect this constitution existed through the long struggle for independence- It was more stable and more advanced than those which had preceded it. It contained more elements of sovereignty. The chief significance of it was that it served as a stepping stone to something better. It illustrates the drift of popular thought towards the establishment of that last great plan of government for American freedom and independence, the present United States constitution. The Articles of Confederation failed on account of their own weakness, their inability to enforce obed- ience, to raise money, and to maintain respect abroad. They were also defective because they provided no uniform laws to regulate commerce with foreign nations and among the several States. Each State passed its own rules and provisions. The result was that a few of the States which had the advantage of fine harbors prospered at the expense of those which were dependent upon them and this led to jealousies and rivalries which threatened a speed disruptiLon of American peace and comfort. y/e can, find no more elaborate dissertations on these subjects than those presented by Hamilton, Jay, and Mamison in various numbers of the Federalist. , It was largely through the influence of their pens that our present constitution was made possible in 1789. Not that they originated anything but because they educated the people up to it by arguing them out of their innate prejudices against a strong central govern- ment. By our federal constitution the power to regulate commerce with foreign nations and between the States is delegated to Congress. Perhaps the most important cause leading to the adoption of the constitution of the United States was the system of taxation und dis- crimination practiced prior to its adoption. "It was intendedi" said the learned judge in Cook v State of Pa. 97 U. S. 566 in his allusion to the power conferred upon Congress to regulate Commserce, "to guard against any taxation by the States which would interfere with the freest interchange of commodities among the people of the different states" or, as was suggested by Mr. Madison in 1781, "it was Indiap enlist bly necessary that tc the United States, in Congress assembled should be v. vested with the right of superintending the commercial relations of every State, that none might take place which would be contrary to the general interests." The intention to remove the discriminations which existed under the Confederation further appears by Sec. 9 of 7 Article I. of the Constitution which provides that; "No tax or duty shall be laid on any articleseex- ported from any State* No preference shall be given by anjr regulation of commerce, or revenue to the ports of one State over those of another, nor shall vessels bound to or from one State be obliged to enter, clear or pay duties in another •" A striking example of this same evil, and its cure, in another nation is to be seen in the recent history of the states now composing the German Empire* In its early history it was ccomposed of separate states which though lying contiguously to each other, peopled by the same race, and speaking the German language, were distinct and separate municipalities, each with its own system of duties and taxation. Upon the frontiers of these states the custom officials were posted to col" lect a duty on all articles of commerce' This system became so burdensome on travellers and merchants and was the source of so much discontent that it led to a commercial union called the German Zollverein* It is a significant fact that the German empire united com- mercially before it did politically* The Austrian empire was relieved from a similar sit- 8 important truth that all nations have gradually swept away these barriers to the progress of freer national and inter -national commercial relations* The commercial clause in the United States Consti- tution was not ah original conception but merely the embodiment of a most advanced theory for the regula- tion of commerce* 9 CHAPTER II. The Interpretation and Construction of the Commerce Clause of the United States Constitution* It is impossible to define the limits of Congression- al power over commerce for the reason that its scope is "being constantly widened with the advance of civili- zation and commercial methods. The pDOvisioiB of the constitution which sevve as land marks to the constitutional lawyer in interpreting its meaning are as follows* Art* I. S* 8, Sub* 3* That Congress shall have power, "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Art* I* S* 10, Sub* 2. That no State shall without the consent of Congress "lay any Imposts or duties on imports or exports, except what may be absolutely necessary for executing its ?. ;-© inspect inn laws*" Art* I. S. 9, Sub* 5* 10 "No tax or duty shall be laid on articles exported from any state* No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter, clear or pay duties in another*" Judge Gooley in his Principles of Constitutional Law says; ^"the word commerce is not limited to traffic; to buying and selling and exchange of commodities; bttt it comprehends n.^vigation also, and all that is included in commercial intercourse between nations and ports of nations in all its branches and is regulated by prescrilb ing -rules for carrying on that intercourse*" Wherever therefore, navigation is not entirely confined to one state it comes under the power of Congress* Although it is easy to establish this general proposition it is most difficult to draw a well defined line between the conflicting interests of State and nation* Since the late decision of the U. S. Supreme Court in the case of the "State of Maine v- the Grand Trunk R. R. of Canada" we are given reason to doubt that there are any sfettlid limits beyond which the States may not go* Prior to this decision it was supposed to be well settled that a 11 state could not tax the receipts of inter-state com- merce but the conclusion to be dravm from this case is that it can. The great weight of authority has been against such a view. In the case Of the Philadelphia and Southern Mail S. S. Co* v- The Commonwealth of Pennsylvania it was held that; "The imposition of a tax by the State of Pennsylvania, up on a steamship compa;- ny incorporated under the laws of Pennsylvania, upon the gross receipts of such company, derived from the transportation of persons and property by sea between different States, and to and from foreign countries, is a regulation of inter-state and foreign commerce, in conflict with the exclusive power of Congress under the constitutiion of the United States." These cases serve to illustrate the conflict of holdings and show the unsettled condition of the law. The flexibility of the Federal constitution has never been so well exemplified as by its, commerce clause. Invention has changed the method of business, intro- duced new principles, and created nev; occupations. The progress of science has revolutionized business* Com- mercial and industrial affairs are constantly changing and improving. With this growth our law has developed. ^-c» J.1 /*i»^»a.Ja..-i.-t .- _ -ij T J. 12 ciples never dreamed of by its makers* It was forty years after the adoption of the Constitution before a steamboat vms successfully used to take part in the ac- tual transportation of goods and the navigation of the waters of the country* The railroad, the steamboat, the telegraph, are modern inventions that have raised important questions for our cour.ts to decide* In interpreting and construing the constitution we find a labyrinth of conflicting decisions and dicta as regards the relations existing between the general gov- ernment and the separate States in reference to the power to regulate commerce* To put each in its proper sphere is a difficult task* The exclusive jurisdiction of Congress over subjects of inter-state commerce has not been judiciously recognized until a recent period. Prior to 1886 by an almost unanimous concurrence of de- cisions the States were permitted to exercise in certain cases control over inter-state commerce* Since the passage of the Inter-State Commerce Act this has been somev/hat modified. In the case of Munn v- the State of Illinois 94 U. S* 113, the judge said; "It is not everything vjhich effects commerce, which amounts to a regulation of it within the meaning of the constitution* 13 The regulation of elevators is of domestic concern and until congress acts directly in reference to inter- state relations the State may exercise all acts of gov- ernment over them," although it was conceded that inter- state commerce was effected by such regulation, and also in the case of the Chi. B. & Q,. R. R. v« the State of Iowa 64 U. S., 155, the court said ; "A State may pass such rules as are necessary to promote the welfare of its citizens within its own jurisdiction even though those without the State may be indirectly effected." As early as 18S9 the same general principle was held in Wilson V. Blackbird Oreek Marsh Go. 2 Peters S45 , and as late as 1882 in Transportation Go v. Petersburg 107 U. S. 691, where it was held that; "ll/harfage charges were subject to local State laws and that vintil Gongress has acted the U. S. could not act through its courts upon the subject." The States have seldom if ever claimed the right to interfere directly with inter-state commerce. In 1870 in 15 Wallace^ 232, an act of the Pennsylvania legisla- ture was held void v.'hich levied a tax upon all freight carried through the State by any railroad and in Hall v- De Guir &5 U. S. 485, the courts said; "It is hard to 14 draw the line which separates the powers of the States from the exclusive powers of Congress but we may safely say that a State which seeks to impose a direct bur- den upon inter-state commerce or to interfere directly with its freedom does encroach on the exclusive povv'er of Congress." In Gibbons v. Ogden 9 iji/heaton 1, it was held that; "A State law giving Livihgstone and Fulton the exclusive right to navigate New York waters with steam was held unconstitutional as a direct inter- ference with commerce. In 107 U. S. 678 a regulation of the times of opening and closing bridges was consid- ered within the jurisdiction of the State as only in- directly effecting commerce- In the case of the Pensacola Tel* Go. v- Western etc- Tel Co. 96 U. S. 1 the court held; "That it is not only the right but the duty of Congress to see to it that intercourse among the States and the transmission of intelligence are not obstructed or unnecessarily encumbered by State legis- lation." By a comparison of these cases one may ob- serve that to constitute commerce between the States it is essential that it be not confined to one state exclu- sively but concern more than one. Judge Cooley aptly says; "The commerce of a State v;hich congress may con- 15 trol must be in some stage of its progress Jesit rant err i- torial". In V6azie 1 v- .Moor 14 Hun. 568 it is held that; "Because the products of domestic enterprise in agricultiire or manufactures or in the art§ may ultimate- ly become the subjects of commerce outside the State, it cannot be properly concluded, that the control of the means or the encroachments by which enterprise is fostered and protected is implied ih this important grant of power." And again in U. S. v DeWitt 9 Wall. 41 the court said; "To a law of congress which under- takes to regulate the sale of an article within a State, and to Impose penalties for preparing, offering for sale, or selling it except after it has been subjected to a prescribed test as a protection against explosions. Is inoperative within State limits." The principle that congress has only such powers as are delegated to it by the constitution is well illustrated in the last ■dase cited. Where Congress has jurisdiction it is exclusive and although it may never have legislated on the subject it Is an encroachment on its domain and void for a State to do so« It was so held in Welton V Missouri S U. S. 275 Judge Cooley says; "Inaction by Congress Is eqviivalent to a declaration that tlae coirBaerce 16 under Its control shall remain free and untrarameled. " By careful sifting of the cases on this subject we are enable to lay down a few general propositions which are useful in the study of this part of the con- stitution. Firstly, it is a fundamental deduction from the au- thorities that the States cannot pass regulations ef- fecting the navigation of public waters, the case of Gibbons v Ogden 9 Wheaton 1 before referred to is au- thority for this statement, also the case of Mann v New Orleans 112 U. S. 69 in which it was held that; " Astatute of Louisiana imposing a license tax, not on the vessel as property, but on the business of owning and operating tow-boats between New Orleans and the Gulf of Mexico, is invalid, as it puts a price on the privilege of navigating the Mssissippi." The law is in some cases clear and evidently well settled but many fine distinctions still exist. A good illus- tration of this is that while Congress takes upon itself the duty of maintaining harbors and rivers in nav- igable : condition, also the building of light-houses and piers, it leaves to the States the regulation of their own pilot and quarantine laws. 17 Secondly, in regard to the importation of property from another State or coxmtry- It is without doubt settled lawt that a State cannot tax nor require an importer to take out a license to carry on his business, as such a tax or license would necessarily be a restraint on Inter-st&te commerce and consequently void. Such was the holding in Brown v Maryland, IS Wheaton 419' In the case of Waring v the Mayor 8 Wall 110 it was held "That imported articles may be taxed after they have passed from the hands of the importer even when they re- main in the original package* There is a conflict of authority on this point it having been frequently heifed that an .imported article continues an article of com- merce so long as it remains in the original package • The law on this point was however definitely settled by 36 Statutes at Large 315 which provides that; "All liquors transported into another State, or remaining t ■ therein for use should, upon arrival in the State, be subject to its laws as though produced there, and should not be exempt therefrom by reason of being introduced therein in the original package*" Thirdly, as to the regulations affecting the bringing into a State of persoixs- from another State or country. It has been held on several occasions by the.?U. S. 18 Supreme court that, a State law req^uirlng a tax to be Imposed on each immigrant landing and seeking admittance at its port of entry was unconstitutional • In the cel- ebrated Passenger Gases 7 How- 283 the court held thatt "A law of N. Y. State requiring every master of a vessel bringing passengersfrom other countries, and landing them within its limits, to pay to the State a certain sum per head fer every such passenger was a usurpation of federal power and consequently unconstitutional and void," and in Henderson v Mayor 98 U* S. 859 it was held that; "An act which imposed a burdensome condition on the shipmaster with an alternative payment of a small sum of money, for each passenger landed, was held void as being a tax on the shipowner for the right to land the passenger, and in effect a tax on the passenger himself." Fourthly, as to laws affectihg the exportation of property to another State or country. It seems to be well settled that a State cannot impose a tax on the mere act of exportation. In the case of Almy v Califor- nia 84 How. 169 a stamp duty imposed on all bills of lading of goods sent out of the State was held invalid .' as a direct inter fereiaic© /vith inter-state and foreign 19 commerce. In State "'v • Indiana and Ohio Qas Co. 180 Md. 575 the courts said that; "A State cannot forbid the conduct from it in pipes of natural gas." it has however on various occasions been absurdly claimed that and goods produced in a State prepared for shipment out of the State should be exempt from taxation. This prop- osition has never received any judicial sanction. In Coe V . Enol 116 U, S. 517 the court maintained that; "The main fact that property produced in the State is ready for shipmient and that the owner intends to ship it, will not exempt it from State taxation, " ajad where the manufacture of an article is forbidden by law as in the case of oleomargarine or liquor it can't be made or dis- tilled solely because it is Intended for export. It was so held in Kidd v . Pearson 128 U. S. 1* Fifthly, as to regulations of the business of carry- ing property and persons in the prosecution of foreign and inter-state commerce. There is no controversy over the question of inter- state commerce. The regulation of it is left exclusively to the separate States. They have however no jurisdic- so tion over inter-state commerce except such as is necessary to enforcetheir police regulations. Congress has gen- eral power over all commerce which involves the interests of more than one State. In the case of State Freight Tax 15 Wall 832 a statute of Pennsylvania imposing a tax to be paid by railroads upon freight taken up within the State and carried out of it»a»d taken up without the State and brought within it was held void. That a State could not tax the gross receipts of Inter-state commerce was considered law prior to the "Maine" case. It is however obvious that the conclusion to be drawn from the reasoning in this case is that it can. It might be claimed that the "Maine" case was foreshadowed by the holding in Pullman Palace Car Co. v . Pa. 11 Sup. Gt. Reports 876 but I think there is a clear distinction. In the latter case a statute of Pennsylvania imposed a taxj on the capital stock of every railroad and car com- pany in the proportion which the number of miles operated by it within the State bore to the whole number operated by it every where,, was upheld as to the non-resident Pullman Car Company, "because it had within the State 21 constantly engaged in its business, though mainly oper- ated in inter-state journeys, a certain nioinber of its cars, which thus acquired a situs there for taxation, the tax being in reality upon the cars as property". This holding is by no means unchallenged but the drift of judicial opinion seems to be in its direction. The court was divided upon the question. The prevailing' opinion distinguished this tax from an occupation or license tax, or a tax on the right of transit, and extended the doc- trine to the iV. U. Tel, Co. v. Mass. 185 U. S, 530, when a like tax on fixed property wras sustained. To sum up the situation we find that Congress has power to regulate commerce with foreign nations and be- tween the States. There is no concurrent jurisdiction between Congress and the States but the States are allow- ed to pass such police regulations as they deem necessary and to protect the health, comfort welfare of their citizens. In the discussion of this subject I have followed large ly a classification suggested by Judge Cooley as it is the clearest presentation of the great mass of authority touching directly or indirectly upon this important sub- 2g Ject. ^he illustrative cases have been chosen with care and selected as the clearest erabodiraent of the principles laid down. GHAPT3?. III. The Police power of the States. The United States constitutional limitation upon the power of a State to legislate over its own affairs is found in, Amendment XlV^ec. 1. which reads as follows; " nor- shall any State deprive any person of life, liberty, or property without due process of lav,/, nor deny to any person within its jurisdiction the equal protection of the laws." This is a fundamental princi- ple of justice. It was acknowledged by King John of England in the togna Gharta. In 1789 when the States were asked to ratify the proposed constitution of the United States, as drawn up at Philadelphia, they imposed the condition that they should be guaranteed certain rights. This was granted and upon the adoption of the constitution Congress passed the first ten amendments in substance a Bill of Rights. With this assurance, for the security of their liberties, the States ratified the 84 constitution and by so doing becaiiie parts of one sov- ereign nation. The fifth of these Bmendments read; "no persons shall be deprived of life, liberty, and f^ro-~ perty without due process of law." Under the constitution of the United States the sep- arate States retained only such elements of sovereignty as they had not delegated to Congress and within their proper sphere were left to legislate for their own welfare and happiness. The Federal government is one of delegated authority its scope is definitely defined, and it cannot act except within its prescribed sphere. The power of the different States to legislate for their own health and prosperity is coimnonly known as the Police power. Blackstone defines it to be; "The due regulation and domestic order of the kingdom, v/hereby the inhabitants of a State like members' of a well governed fam^ily, are bound to conform their general behavior to the rules of propriety, good neighborhood and good manners, and to be decent, industrious and inoffensive in their respective stations." To comprehend the discussion of this subject an ex- 25 planation is necessary of the meaning of the constitu- tional guaranty that; "No State shall deprive its citi- zens of life, liberty or prosperity without due process of law," I can find no fitter words of explanation than those used by the court in the case of Bertholf v O'Reilly 74 N. Y. 509 where it was aptly said; "The main guaran- ty of private rights against tinjust legislation is found in that m&mreJale clause in the Bill of Rights, that, no man shall be deprived of life, liberty or property without due process of law. This guaranty is not con- strued in any naiTow or technical sense. The right to life may be invaded without its destruction. One may be deprived of his liberty, in a constitutional sense, without putting his person in confinement. Property may be taken without manual interference therewith or its physical destruction*' The right to life includes the right of the individual to his body in its completeness and without its dismemberment, the right to liberty, the right to exercise his faculties- and to follow a lawful avocation for the support of life, the right of property, the right to acquire property and enjoy it in any way con- Qietent. with the equal rights of others and the just exactions and- demands of the State." By "due process of law" is meant that no person shall be deprived of life* liberty or property .with- out a fair trial. The term is synonymous with "law of the lane:" which means according to fundamental prin- ciples of justice. In Thorpe v Rutland, etc., R. R. 87 Vt. 150 the court said; "The police power of the State extends to the protection of the lives* limbs, health, comfort and quiet of all persons, and the pro- tection of all property within the State." These laws are passed by the legislature of the State and if they are adapted to protect the peace, health and good order of the people the judicial department cannot inter- fere. It was held in the important Slaughter House Gases, 6 Wallace 36 that, "a State law granting to a State corporation the exclusive right for a term of years to control the slaughtering of cattle in and near to one of its cities, and requiring that all cattle and other animals intended for sale or slaughter in that district shall be brought to the yards and slaughter houses of 27 the corporation, and authorizing the corporation to exact certain prescribed fees for the use of wharves and for each animal landed or slaughtered, may be maintained as a State regulation of police." The regulation of the sale of intoxicating liq- uors also belongs to the States, but a State cannot pro- hibit the importation of liquor nor its sale in the original package, for it is then an article of com- merce and xander the control of Congress* The prin- ciples have been repeatedly laid down by the U. S. Supreme dourt. It was held in the License Gases 5 How. 504 and in Mugler v Kansas 123 U. S. 623. They remain in so far as they have not been superceded by statute. The prohibition and the manufacture of oleomargarine in imitation of butter has been held constitutional in along list of cases. In Powell v Pennsylvania 1S7 U. S. 678 a statute of the State of Pennsylvania for- bidding the manufacture and sale any substitute for butter was held constitutional and the court declared that it was not in its province to declare the act vine onstl tut ional but that the remedy of the oppressed ss was at the polls and through the legislature* The gro\mds for these decisions were that liquor and oleo- margarine being detrimental to the health and good morals of its citizens the States could constitutionally prohibit their use by the exercise of their police power. The States may regulate the transportation of pe- troleum, natural gas, and high explosives through their territory. ImHiigrants suspected of having contagious diseases may be detained, inspected and dealt with as necessity requires. In the case of R. R. 00« v Husen 95 U. S. 465 the court held that; "7/hile we tinhesitatingly ad- mit that a State may pass sanitary laws and laws for the protection of life, liberty,, property- or health within its borders, while it may prevent persons and animals suffering under contagious and infectious diseases, or convicts, etc. fi-om entering the State and while for the purpose of self-preservation it may establish quarantine and reasonable inspection laws, it may not interfere with transportation into or through the State beyond what is absolutely necessary for self- protection. It may not-, under cover of exerting its po- 89 lice power-, substantially prohibit or burden eitheK for- eign or intei'-state commerce. The police pov;er of a State cannot obstruct foreign comtnerce beyond the nec- essity of its exercise and under color of it? objects not within its scope cannot be secured at the expense of the protection afforded by the Federal constitution*" The regulation of the pilot and harbor laws is left to the States although Congress has concurrent jurisu-ic- tion. In Sprague v Thompson 118 U. G. 90 the court held that, "The regulations must not discriminate between ves- sels from different States." It was also held con- stitutional for the State of Alabama to pass a law re- quiring that all locomotive engineers be examined for color blindness in Smith v Alabama 1S4 U. S. 465. The State may also require of railroad corporations that they maintain gates or flagmen at crossings to protect the lives of its citizens. Cattle guards may also be required. i/'/hile it is true that the waters of a State that form a part of the highways of inter-state and foreign com- merce are under the control of Congress the States at all times have the right to improve those which are entirely 30 Within their borders, and to establish ferries across them, and to make ferry companies take out licenses from the States for the privilege. Perry Company v East St Louis 107 U. S. 365. In some casec, inotewrorthy among which is Oilman v Phil. 3 Wall 713 the States have been allowed to interfere to some extent with commerce. In the case sighted above the court held that; "A State un- der the protection of federal law might ridge a navigable stream even when it was to some extent an iaq)ediment to commerce. " A State has the right to impose such duty on imports and exports from and to foreign countries as are necessary to execute its inspection laws. United States Con- stitution. Art. 1. S. 10. 01. V. In 1885 the Supreme court of the United States said, in Q-louc ester Ferry Go, v The State of Pennsylvania 114 U. S. 196, "As to those subjects of commerce which are local or limited in their nature or sphere of action, the State may prescribe regulations until Congress assumes con- trol of them; as to such as are national in their char- acter and require uniformity of regulation the power of Congress is exclusive and until Congress acts such com- 31 merce is entitled to be free from State exactions and burdens. "Up to 1886 we find from a review of the lead- ing cases that in the absence of express regulations by Congress inter-state commerce might be burdened to a large extent if the burdensome laws but took the nature of po- lice regulations. This sort of thing has however been largely checked since the passage of the Inter-state Com- merce Act. In the case of In re Barber 39 Fed. Reporter 64, a statute of Ivlinnesota vrhich in the guise of a police regulation required that all dressed meats offered for sale in that State should be inspected alive twenty-four hours before such sale was held ■unconstitutional as a usaarpation of federal power- In Klugler v Kansas 123 U. S. 6S3 the court held that; "A State when providing "^orf the pro- tection of the public health, the public moral? i"orr$itofe- 11c safety is subject to the paramount authority of the constitution of the United States; and may not violate rights securec- or guaranteed by that instrument or inter- fere with the execution of power confided to the general government." 7/hile, on the one hand, a State must not use its police power as an instrument of fraud the United States gov- 3S ernment must not, on the other, declare police laws of the States unconstitutional simply because they may remotely effect inter-state commerce. congress, in its delegated capacity, has absolutely pxelusive power within its own domain but this great power must be used with justice and not contrary to the absolute rights of the people* 33 Text books consulted. - o - Principles of Constitutional Law. Gooley, S* S. Page 54 1 and on Ordronanx's Conetltutional Legislation. Pages 1 to 166. Fredman's Limitations of Policy Power- Chapters I. II. III. and IV. Treaties of CJovernraent and Oonstltutlona. Law according to the American theory. By Joel Tiffany. Chapter XVIII. Smith's Commentaries. Chapters VIII. and IX. 34 Story of the Constitution. Chapters XV., XXXII, and XXXIII. Story's Oommentarles of the Constitution. Chapters V., XV., XXXII., and XXXIII. S.ergnaut's Constitutional Law. Page 290. Potter's Dwarrls on Statutes and Constitutions* Chapter XIV. Sedgwick on the Construction of Statutory and Constitutional Law. Chapters X. and XI. Jameson on Constitutional Conventions. Miller on thle Constitution of the United States. Chapters IX. and XII. 35 The Pedralist, Desty Fedral Constitution. Ford's Pamphlets on the Constitution. Oudmore's Constitutional History* Oooley's Constitutional Limitations. Patterson's Federal Restraints on State Action. Hare's American Oonstitional Law. Black's Oonstitional Prolilbitlon. Von Hoists' Oonstitional Law of the United States. Inter-state Commerce Reports. 36 Oases OlA*^^^' Oook V St. of Pa., 97 U. S. 566. State of Me. v. ad. Trvmk R. R. of Canada. Phil. & So. Mail S. s. Go v The Commonwealth of ^enn. Munn. V State of ill. 94 U. S. 113. Ghl. B. & q,. R. R. V State of Iowa 94 U. S, 155. Willson V Blackbird Greek Marsh Go. 2 Peters 245. Transportation Go. v Petersburg 107 U. S. 691. Hail V Dr. Ouir 95 U. S. 485. Gibbons v Ogden 9 \Vheaton 1 Pensacola Tel. Co. v Western etc. Tel, Go. 96 U. S. 1. Veazie v Moor 14 How. 568 U. S. V DeWitt 9 Wall 41. Welton V Missouri 91 U. S. 275.' 37 MoraJi V New Orleans lis U. S. 69. Brown v Maryland 12 wheaton 419. Waring v The Mayor 8 Wall 110. PasBenger Casec 7 How. 283. Henderson v Mayor 9S U. S. 259. Almy V Oal. 24 How. 169. State V Ind. & Ohio Gas Oo. 120 Ind- 575. Ooe V Snol 116 U. S. 517. Kidd V Pearson 128 U. 3.1' State Freight Tax 15 Wall. 23S. Pullman Palace Gar Co. v Pa. 11 Sup. Ct. Reports 876, W. U. Tel. Co. V Mass. 125 U. S. 530. Bertholf v O'Reilly 74 N- Y. 509. Thorpe v Rutland etc. R. R. 27 Vt. 150. Slaughter House Oases 16 Wall. 36 38 liicense Oases 5 How. 50-1. Kfogler V Kansas 123 U. S.683. Powell V Perm. 187 U. S. 678 R. R. Go. V Husen 95 U. S. 465. Sprague v Thompson 118 u. S. 90. Smith V Alabama 1S4 U. S. 465. Perry Co. v East St. Louis 107 U. S. 365. Gilman v Philadelphia 3 Wall. 713. CHouoester Perry Oo. v Penn. 114 U. S. 196. In re Barber 39 Fed. R. 641. Mugler V Kansas 123 U. S. 623.