equal protection of the law because, while he was prevented from so doing, the owners of a certain class of hotels were permitted to keep a room in which guests might play at the game. If, as argued, there is no reasonable basis for making a distinction between hotels with 25 rooms and those with 24 rooms or less, the plaintiff in error is not in position to complain, because not being the owner of one of the smaller sort, he does not suffer from the alleged discrimination.

There is no contention that these provisions, permitting hotels to maintain a room in which their regular and registered guests might play were evasively inserted, as a means of permitting the proprietors to keep tables for hire. Neither is it claimed that the ordinance is being unequally enforced. On the contrary, the city trustees are bound to revoke the permit granted to hotels in case it should be made to appear that the proprietor suffered his rooms to be used for playing billiards by other than regular guests. If he allowed the tables to be used for hire he would be guilty of a violation of the ordinance and, of course, be subject to prosecution and punishment in the same way, and to the same extent, as the defendant.

Affirmed.

NOTE. The adjustment between the police power of the States and the power of Congress to regulate interstate and foreign commerce has led to several conflicts as to which should control the traffic in intoxicating liquors. In the License Cases (1847), 5 Howard, 504, the court held that in the absence of any assertion of the paramount authority of Congress the police power of the States should govern; but when Leisy v. Hardin (1890), 135 U. S. 100, was decided the doctrine of "the silence of Congress" had developed and the License Cases were overruled. Had the court chosen to hold that the police power of the State continued to control until it conflicted with the superior authority of some express enactment of Congress, its view would have been supported by the uniform attitude of organized society toward the liquor traffic as far back as historic records run. In the oldest laws known, the Babylonian Code of Hammurabi (about 2250 B. C.) secs. 108-110, there are police regulations concerning the sale of liquor. The decision in the case of Leisy v. Hardin was followed by the enactment of the Wilson Act of 1890, 26 Stat. 313, by which intoxicating liquors transported in interstate commerce were made subjeot to the police power of the States immediately "upon their arrival" therein. The constitutionality of this act was sustained in In re Rahrer (1891), 140 U. S. 545, but its effectiveness was much restricted, from the standpoint of the States seeking to exclude the traffic in liquor, by the court's decision in Rhodes v. Iowa (1898), 170 U. S. 412, that the word "arrival" meant actual delivery to the consignee

and not merely actual arrival within the State of destination. See also Rossi v. Pennsylvania (1915), 238 U. S. 62. Dissatisfaction with this result led to the enactment in 1913 of the Webb-Kenyon Act, 37 Stat. 699, which prohibits the shipment into a State of any intoxicating liquor which "is intended by any person interested therein to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such State." This act was vetoed by President Taft on constitutional grounds, but was passed over his veto and was sustained in Clark Distilling Co. v. Western Maryland Ry. (1917), 242 U. S. 311. The adoption of the Eighteenth Amendment has not made the foregoing cases of merely historical interest, for the principles involved may appear in other connections.

As to other legislation for the protection of morals see L'Hote v. New Orleans (1900), 177 U. S. 587 (the segregation of prostitutes within a prescribed area); Booth v. Illinois (1902), 184 U. S. 425 (option contracts in grain may be forbidden); Otis v. Parker (1903), 187 U. S. 606 (sale of stocks on margin may be prohibited); Cronin v. Adams (1904), 192 U. S. 108 (the presence of women in wine rooms may be forbidden); Ah Sin v. Wittman (1905), 198 U. S. 500, Marvin v. Trout (1905), 199 U. S. 212 (gambling may be made a criminal offense); Gatewood v. North Carolina (1906), 203 U. S. 531 (dealing in futures may be restricted); Hoke v. United States (1913), 227 U. S. 308 (The White Slave Act, 36 Stat. 824, forbidding the transportation of women in interstate commerce for an immoral purpose, is valid); St. Louis Poster Advertising Co. v. St. Louis (1919), 249 U. S: 269 (the location, size and structure of billboards may be regulated "in the interest of the safety, morality, health and decency of the community").

SECTION 4. THE PRESERVATION OF SAFETY AND ORDER.

ESCANABA COMPANY v. CHICAGO.

SUPREME COURT OF THE UNITED STATES. 1882.
107 United States, 678.

Appeal from the Circuit Court of the United States for the Northern District of Illinois.

[The Escanaba and Lake Michigan Transportation Company, a corporation formed under the laws of Michigan, owns and operates a line of steamers plying between various ports on Lake Michigan, but principally between Escanaba, Mich., and docks on the south branch of the Chicago river. The navigable part of this stream lies almost wholly within the city of Chicago, and consists of a main stream and two branches which divide the city

into three parts known locally as the North Side, South Side and West Side. The most important part of the business district lies on the South Side, and is reached from the other sections by numerous bridges over which there is a constant stream of traffic, and which are provided with draws through which vessels navigating the river may pass. In order to prevent undue delay, particularly at the beginning and close of business, the city of Chicago, duly authorized thereto by the State of Illinois, enacted ordinances providing that between the hours of 6 and 7 in the morning and 5:30 and 6:30 in the evening, Sundays excepted, the draws should not be opened, while between 7 A. M. and 5:30 P. M. no bridge should be opened for a longer period than ten minutes, and when closed it should be kept closed for at least ten minutes, if necessary, in order to enable foot-passengers and vehicles in waiting to pass over. The Escanaba Company sought to enjoin the enforcement of the ordinance on the ground that it was an unwarranted interference with navigation and invalid. The Circuit Court dismissed the bill, 12 Fed. 777, and the Company appealed.]

MR. JUSTICE FIELD delivered the opinion of the court.

The limitation of ten minutes for the passage of the draws by vessels seems to have been eminently wise and proper for the protection of the interests of all parties. Ten minutes is ample time for any vessel to pass the draw of a bridge, and the allowance of more time would subject foot-passengers, teams, and other vehicles to great inconvenience and delays.

The complainant principally objects to this ten minutes' limitation, and to the assignment of the morning and evening hour to pedestrians and vehicles. It insists that the navigation of the river and its branches should not be thus delayed; and that the rights of commerce by vessels are paramount to the rights of commerce by any other way.

But in this view the complainant is in error. The rights of each class are to be enjoyed without invasion of the equal rights of others. Some concession must be made on every side for the convenience and the harmonious pursuit of different occupations. Independently of any constitutional restrictions, nothing would seem more just and reasonable, or better designed to meet the wants of the population of an immense city, consistently with the interests of commerce, than the ten minutes' rule, and the assignment of the morning and evening hours which the city ordinance has prescribed.

The power vested in the general government to regulate interstate and foreign commerce involves the control of the waters of the United States which are navigable in fact, so far as it may be necessary to insure their free navigation, when by themselves or their connection with other waters they form a continuous channel for commerce among the States or with foreign countries. The Daniel Ball, 10 Wall. 557. Such is the case with the Chicago River and its branches. The common-law test of the navigability of waters, that they are subject to the ebb and flow of the tide, grew out of the fact that in England there are no waters navigable in fact, or to any great extent, which are not also affected by the tide. That test has long since been discarded in this country. Vessels larger than any which existed in England, when that test was established, now navigate rivers and inland lakes for more than a thousand miles beyond the reach of any tide. That test only becomes important when considering the rights of riparian owners to the bed of the stream, as in some States it governs in that matter.

The Chicago River and its branches must, therefore, be deemed navigable waters of the United States, over which Congress under its commercial power may exercise control to the extent necessary to protect, preserve, and improve their free navigation.

But the States have full power to regulate within their limits matters of internal police, including in that general designation whatever will promote the peace, comfort, convenience, and prosperity of their people. This power embraces the construction of roads, canals, and bridges, and the establishment of ferries, and it can generally be exercised more wisely by the States than by a distant authority. They are the first to see the importance of such means of internal communication, and are more deeply concerned than others in their wise management. Illinois is more immediately affected by the bridges over the Chicago River and its branches than any other State, and is more directly concerned for the prosperity of the city of Chicago, for the convenience and comfort of its inhabitants, and the growth of its commerce. And nowhere could the power to control the bridges in that city, their construction, form, and strength, and the size of their draws, and the manner and times of using them, be better vested than with the State, or the authorities of the city upon whom it has devolved that duty. When its power is exercised, so as to unnecessarily obstruct the navigation of the river or its branches, Congress may interfere and remove the obstruction.

If the power of the State and that of the Federal government come in conflict, the latter must control and the former yield. This necessarily follows from the position given by the Constitu tion to legislation in pursuance of it, as the supreme law of the land. But until Congress acts on the subject, the power of the State over bridges across its navigable streams is plenary. This doctrine has been recognized from the earliest period, and approved in repeated cases.

The doctrine declared in these several decisions is in accordance with the more general doctrine now firmly established, that the commercial power of Congress is exclusive of State authority only when the subjects upon which it is exercised are national in their character, and admit and require uniformity of regulation affecting alike all the States. Upon such subjects only that authority can act which can speak for the whole country. Its non-action is therefore a declaration that they shall remain free from all regulation. Welton v. State of Missouri, 91 U. S. 275; Henderson v. Mayor of New York, 92 id., 259; County of Mobile v. Kimball, 102 id., 691.

On the other hand, where the subjects on which the power may be exercised are local in their nature or operation, or constitute mere aids to commerce, the authority of the State may be exerted for their regulation and management until Congress interferes and supersedes it. As said in the case last cited: "The uniformity of commercial regulations which the grant to Congress was designed to secure against conflicting State provisions, was necessarily intended only for cases where such uniformity is practicable. Where, from the nature of the subject or the sphere of its operations, the case is local and limited, special regulations, adapted to the immediate locality, could only have been contemplated. State action upon such subjects can constitute no interference with the commercial power of Congress, for when that acts the State authority is superseded. Inaction of Congress upon these subjects of a local nature or operation, unlike its inaction upon matters affecting all the States and requiring uniformity of regulation, is not to be taken as a declaration that nothing shall be done in respect to them, but is 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."

Bridges over navigable streams, which are entirely within the limits of a State, are of the latter class. The local authority can better appreciate their necessity, and can better direct the man