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$ 372. Federal Taxing Power and Interstate Commerce.

A federal tax may be laid upon interstate commerce, its instrumentalities, the articles carried, or the privilege of engaging in it, either as a revenue measure or as a means of regulation. If the tax should be laid for a regulative purpose, its constitutionality would be dependent wholly upon the Commerce Clause, and, not being, except in form, a tax, would not be subject to the express limitations as to apportionment, etc., imposed by the Constitution upon the exercise of the taxing power by the United

States. 64

A genuine tax imposed for revenue purposes, if assessed upon the commodities of interstate commerce or upon the instrumentalities of commerce as property, would be a direct tax and would have to be apportioned among the States according to their respective populations. That this is so sufficiently appears from the doctrines of Knowlton v. Moore.65

If the tax should be one upon the privilege of engaging in, or carrying on interstate commerce, it would in all probability be construed to be constitutionally an indirect tax. The case that would probably be held controlling as to this are Nicol v. Amese7 in which a stamp act on sales made at an exchange or board of trade was held to be not a direct tax on the property sold, but an indirect tax in the nature of an excise on the facilities offered at the exchanges or boards of trade.68

A more doubtful point, however, is whether such an excise tax upon the right to engage in interstate commerce would not come within the constitutional provision that “ no tax or duty shall be laid on articles exported from any State.” That it would be held to be a tax on exports from a State would seem to follow from the

64 Cf. Veazie Bank v. Fenno, 8 Wall. 533; 19 L. ed. 482.
65 178 U. S. 41; 20 Sup. Ct. Rep. 747 ; 44 L. ed. 969.
66 Although economically a direct tax.
67 173 U. S. 509; 19 Sup. Ct. Rep. 522; 43 L. ed. 786.

68 See ante, p. 618. In Polluck v. Farmers' L. & T. Co. (158 U. S. 601; 15 Sup. Ct. Rep. 912; 39 L. ed. 1108) the court by way of caution say: “ We do not mean to say that an act .. might not lay excise taxes on busiDess, privileges, employments and vocations,” without needing to be apportioned.

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reasoning of the court in Brown v. Maryland ; 89 but, if the doctrine of Woodruff v. Parhamo be followed, it will be held that the prohibition of the Constitution applied only to exports from a State to foreign countries.

$ 373. Federal Control of Navigable Waters.

In a later chapter will be considered the federal powers, both judicial and legislative, which How from the provision of Section II, Article III of the Constitution, which provides that the federal judicial power shall extend “ to all cases of admiralty and maritime jurisdiction.” It will there appear that, under this grant of authority, the National Government has been construed to hare a general authority over all acts directly connected with or occurring upon the narigable waters of the United States. These navigable waters have been construed to be all waters, whether tidal or not, and whether located wholly within a single State or not, which are navigable in fact, or are susceptible of being so used, as highways over which trade and travel may be conducted. Navigability has thus been accepted as the test of federal admiralty jurisdiction. It is thus apparent that the federal authority thus obtained is a more comprehensive one than that derived from the Commerce Clause.

Congress has by various acts established regulations governing the use of the “navigable waters of the United States," which have been defined to be, as distinguished from the navigable waters of the States (concerning which Congress has not seen fit to legislate), those waters which“ form in their ordinary condition, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.” 11

In the absence of conflicting congressional legislation, the States are left free to regulate transportation upon the navigable waters within their respective borders. In all cases Congress has, of course, authority to supersede the regulations of the States which are considered to operate as an obstruction to navigation."2

69 12 Wh, 419; 6 L. ed. 678. 70 8 Wall. 123; 19 L. ed. 382. 71 The Daniel Ball, 10 Wall. 557; 19 L. ed. 999.

$ 374. Federal Control of Foreign Commerce.

The same clause which gives to Congress the power to regulate commerce among the States extends the power to commerce with foreign nations. It has been declared that “the power to regulate commerce among the several States is granted to Congress in terms as absolute as is the power to regulate commerce with foreign nations.” 73

This is true, and yet the control which the United States may exercise over foreign commerce is broader than that which it may exercise over interstate commerce for the reason that it is able to draw additional powers from constitutional sources other than the Commerce Clause. Thus, especially from the exclusive and plenary authority over foreign relations, granted to it, the Federal Government is able to control the admission of aliens, to provide for their deportation, to grant special commercial privileges by treaty, and to lay a total or partial embargo upon foreign commerce. In Buttfield v. Stranahanthe court also suggest the possibility that the federal authority over interstate commerce may be, in certain directions, limited by the reserved rights of the States, which limitations would not apply to foreign commerce.75

72 For an excellent statement in detail of the specific powers of the States and of the United States with reference to navigable waters, and the manner in which these powers have been exercised, see Prentice and Egan, The Commerce Clause, pp. 95–139.

73 Brown v. Houston, 114 U. S. 622; 5 Sup. Ct. Rep. 1091; 29 L. ed. 257. 74 192 U. S. 470; 24 Sup. Ct. Rep. 349; 48 L. ed. 525.

75 In this case the court say: “The power to regulate foreign commerce is certainly as efficacious as that to regulate commerce with the Indian tribes. And this last power was referred to in United States v. 43 Gallons of Whiskey (93 U.S. 198; 23 L. ed. 846), as exclusive and absolute, and was declared to be *as broad and as free from restrietions as that to regulate commerce with foreign nations. In that case it was held that it was competent for Congress to extend the prohibition against the unlicensed introduction and sale of spirituous liquors in the Indian country to territory in proximity to that occupied by the Indians, thus restricting commerce with them. We entertain By Clause 6 of Section IX of the Constitution the limitation is laid upon the power granted in the Commerce Clause that "no preference shall be given by any regulation of commerce or revenue to the ports of ne State over those of another; nor shall resny doubt that it was competent for Congress, by statute, under the power to regulate foreign commerce, to establish standards and provide that no right should exist to import teas from foreign countries into the United States, unless such teas should be equal to the standards. As a result of the complete power of Congress over foreign commerce, it necessarily follows that no individual has a vested right to trade with foreign nations which is so broad in character as to limit and restrict the power of Congress to determine what articles of merchandise may be imported into this country and the terms upon which a right to import may be exercised. This being true, it results that a statute which restrains the introduction of particular goods into the United States from considerations of public policy does not violate the due process clause of the Constitution.”

As has been already seen, it is held that the prohibition laid upon the States that they shall not, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing their inspection laws, has been held to impose upon them limitations which do not apply to interstate commerce.76 “ In regulating commerce with foreign nations, the power of Congress does not stop at the jurisdictional lines of the several States. It would be a very useless power if it could not pass those lines. The commerce of the United States with foreign nations is that of the whole United States. Every district has a right to participate in it. The deep streams which penetrate our country in every direction, pass through the interior of almost every State in the Union and furnish the means of exercising this right. If Congress has the power to regulate it, that power must be exercised whenever the subject exists. If it exists within the States, if a foreign voyage may commence or terminate at a port within a State, then the power of Congress may be exercised within a State. This principle is, if possible, still more clear when applied to commerce ' among the several

States.' » 77

76 Woodruff v. Parham, 8 Wall. 123 ; 19 L. ed. 382; Brown v. Houston, 114 U. S. 622 ; 5 Sup. (t. Rep. 1091; 29 L. ed. 257.

77 Gibbons v. Ogden, 9 Wh. 1; 6 L. ed. 23.

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sels bound to, or from, one State, be obliged to enter, clear, or pay duties in another."

This clause has received little judicial construction. One of the few cases in which the meaning of the clause has been considered is Pennsylvania v. W. & B. Bridge Co.78 In that case it was urged that "the interruption of the navigation of the steambeats engaged in commerce and the conveyance of passengers upon the Ohio River at Wheeling from the erection of the bridge virtually operated to give a preference to that port over that of Pittsburg.” The court, however, say: “ Conceding all this to be true, a majority of the court are of the opinion that the Act of Congress is not inconsistent with the clause of the Constitution referred to - in other words, that is not giving a preference to the ports of one State over those of another, within the true meaning of that provision. There are many Acts of Congress passed in the exercise of this power to regulate commerce, providing for a special advantage to the port or ports of one State and which very advantage may incidentally operate to the prejudice of the ports in a neighboring State, which have never been supposed to conflict with this limitation upon its power. The improvement of rivers and harbors, the erection of lighthouses, and other facilities of commerce, may be referred to as examples. It will not do to say that the exercise of an admitted power of Congress conferred by the Constitution is to be withheld, if it appears, or can be shown, that the effect of the operation of the law may incidentally extend beyond the limitation of the power. ['pon any such interpretation, the principal object of the framers of the instrument would be sacrificed to the subordinate consequences resulting from its exercise. These consequences and incidents are very proper considerations to be urged upon Congress for the purpose of dissuading that body from its exercise, but afford no ground for denying the power itself, or the right to exercise it.

The power to establish their ports of entry and clearance by the States was given up, and left to Congress. But the rights of the States were secured, by the exemption of the vessels from

78 18 Wall. 421; 15 L. ed. 435.

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