ROBERT MATHER.

lar power was void because that power was denied to the States by the commerce clause of the Constitution. As was afterwards said in Smith v. Alabama: "In such cases the existence of the power to regulate commerce in Congress has been construed to be not only paramount but exclusive, so as to withdraw the subject as the basis of legislation altogether from the States."

The logical ground, therefore, on which to place the decision in Bowman v. Railway Company, so long as it was expressly based upon the distinction between the subjects of the power defined in Cooley v. Board of Wardens was that, the subject of the transportation of property between the States being one of those which require exclusive legislation by Congress, any attempt on the part of the State to regulate such transportation must be unconstitutional, in that it invades a field of power from which the commerce clause excludes it. But it is to be observed that the Bowman decision is put on quite a different ground. The law of Iowa is not declared to be unconstitutional as the exercise of a power denied to it by the commerce clause, but is held void as being in conflict with the will of Congress. The transaction out of which the Bowman case arose took place before the passage of the Interstate Commerce Act. There was, therefore, no express act of Congress with which the State law was held to be in conflict. It was held to conflict, however, with an implied law of Congress, the existence of which is presumed under a rule thus stated: "The absence of any law of Congress on the subject is equivalent to its declaration, that commerce in that matter shall be free." Webster had foreshadowed this pronouncement in his argument in Gibbons v. Ogden; Mr. Justice Grier had made use of it in his opinion in The Passenger Cases; the idea had been enlarged upon by Mr. Justice Field in Welton v. Missouri (91 U. S., 275). The suggestion, thus made arguendo, had been taken up and amplified in successive cases until, when the Bowman case was decided, it was the established doctrine of the Court that the silence of Congress on those subjects of commerce among the States, which are national in their character and therefore require exclusive legislation by Congress, is an expression of the Congressional will that those subjects shall remain free and unregulated. And the substance of the holding in the Bowman case is that the State law is void, because opposed to the Congressional will, thus ascertained.

The logical result of this position is this: A State law regulating, under the concurrent power, a subject of commerce among the States which Congress, by express enactment, has already regulated, is void as being in conflict with the Congressional act; a State law

SPECIAL ADDRESS.

attempting to regulate a subject of commerce among the States, as to which Congress, though possessing the exclusive power to regulate it, has enacted no regulation, is void as being in conflict with the will of Congress, presumed from its silence, that the subject shall be free from regulation. In other words, whether Congress has acted or not, Congress has regulated the subject; in the one instance by enacting a regulation, in the other instance by failing to enact a regulation.

Such refinement of reasoning would seem to be unnecessary. Cooley v. Board of Wardens has established, as an unquestioned principle in our jurisprudence, the proposition that the Federal power over commerce is, as to some subjects, exclusive and, as to others, concurrent. We may dismiss from the present view those subjects which admit of the exercise of the concurrent power; it is conceded that, as to them, State regulation is valid until it comes in conflict with the will of Congress, expressed in its regulation. But as to those subjects which admit only of the exercise of the exclusive power of Congress, State regulation is excluded, not by the will of Congress, express or implied, but by the voice of the Constitution itself. As to those subjects, the Constitution says, in the commerce clause, there is no power of the States; and the will of Congress is powerless either to annul or to vivify that which, by force of the Constitution, is not.

The doctrine which we have just been considering has been called the doctrine of the silence of Congress (The Federal Power over Commerce, by Wm. Draper Lewis, page 114). It seems to be the forerunner of what may be called the doctrine of the permission of Congress. The first suggestion of this doctrine, I believe, is found in the opinion of Mr. Justice Matthews in the Bowman case, (p. 485). Speaking of certain acts of Congress, he says:

"So far as these regulations made by Congress extend, they are certainly indications of its intention that the transportation of commodities between the States shall be free, except where it is posi tively restricted by Congress itself, or by the States in particular cases by the express permission of Congress."

Farther on he says: "It (a State) cannot, without the consent of Congress, express or implied, regulate commerce between its people and those of the other States of the Union." This idea is repeated in the opinion of the Chief Justice in Leisy v. Hardin in this language: "Hence, inasmuch as interstate commerce, consisting in the transportation, purchase, sale and exchange of commodities, is national

ROBERT MATHER.

in its character and must be governed by a uniform system, so long as Congress does not pass any law to regulate it, or allowing the States so to do, it thereby indicates its will that such commerce shall be free and untrammeled." The two quotations which I have given from the Bowman case are then incorporated into the opinion in Leisy v. Hardin, and the doctrine of the permission of Congress still further suggested in this language (p. 119): "The conclusion follows that as the grant of the power to regulate commerce among the States, so far as one system is required, is exclusive, the States cannot exercise that power without the assent of Congress."

The doctrine thus suggestively insinuated bore fruit in the passage by Congress in 1890 of the Wilson bill, which reads as follows: "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 laws of such State or Territory enacted in the exercise of its police power, 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."

The case of In Re Rahrer (140 U. S., 545), gave to substantially the same court (differing in only one of its members) which had decided Leisy v. Hardin, the opportunity to condemn or justify this act of congressional legislation. Rahrer had been doing an original package business in Topeka, Kansas, and, on the day after the Wilson bill was approved, sold one pint of whisky in the original package in which it was shipped from Missouri into Kansas, and for this sale was prosecuted and convicted under the prohibitory laws of Kansas. Being in custody in pursuance of the judgment of conviction, he applied for the writ of habeas corpus. He was undoubtedly entitled to his liberty, under the doctrine of Leisy v. Hardin, were it not for the operation and effect of the Wilson bill. The position of Mr. Chief Justice Fuller, in sustaining the validity of the State prohibitory law, under the sanction of the Wilson bill, is fairly outlined in the following quotation:

"The laws of Iowa under consideration in Bowman v. Railway “Company, 125 U. S., 465, and Leisy v. Hardin, 135 U. S., 100, were "enacted in the exercise of the police power of the State, and not at "all as regulations of commerce with foreign nations and among the "States, but as they inhibited the receipt of an imported commodity, "or its disposition before it ceased to become an article of trade be

SPECIAL ADDRESS.

66

46

66

66

'tween one State and another, or another country and this, they "amounted in effect to a regulation of such commerce. Hence, it was "held that, inasmuch as interstate commerce, consisting in the trans"portation, purchase, sale and exchange of commodities, is national in "its character and must be governed by a uniform system, so long as 'Congress did not pass any law to regulate it specifically, or in such a way as to allow the laws of the State to operate upon it, Congress "thereby indicated its will that such commerce should be free and "untrammeled, and therefore that the laws of Iowa, referred to, were 'inoperative, in so far as they amounted to regulations of foreign or "interstate commerce, in inhibiting the reception of such articles "within the State or their sale upon arrival, in the form in which they were imported there from the foreign country or another State. It "followed as a corollary, that, when Congress acted at all, the result "of its action must be to operate as a restraint upon that perfect "freedom which its silence insured. Congress has now spoken, and "declared that imported liquors or liquids shall, upon arrival in a "State, fall within the category of domestic articles of a similar "nature. * * * In so doing Congress has not attempted to delegate "the power to regulate commerce, or to exercise any power reserved to "the States, or to grant a power not possessed by the States, or to "adopt State laws. It has taken its own course and made its own regulation, applying to these subjects of interstate commerce one "common rule, whose uniformity is not affected by variations in State "laws in dealing with such property. * * * Congress did not use "terms of permission to the State to act but simply removed an im"pediment 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."

The Justices who had dissented in Leisy v. Hardin, namely, Harlan, Gray and Brewer, concurred in the judgment in In Re Rahrer, but not in all the reasoning of the opinion of the Court.

The influence on the Rahrer decision of the doctrine of the silence of Congress is seen in the statement in the opinion that the "impediment to the enforcement of the State laws in respect to imported packages in their original condition" was "created by the absence of a specific utterance" on the part of Congress. The connection between this statement and the doctrine of the silence of Congress is traced in this analysis: The silence of Congress on a given subject of interstate commerce indicates the will of Congress that this sub

ROBERT MATHER.

ject shall remain free and unregulated. The will of Congress on this question having changed, it only remains for Congress to replace its silence with its voice, and at once the subject becomes open to regulation by the States.

The doctrine of the silence of Congress was never designed to have such a scope, or to carry with it, as a corollary, such a consequence. It was first promulgated, as we have seen, as a part of Webster's argument in support of the doctrine of the exclusiveness of the Federal power. The gist of his contention was that the States had not the power, in any event, to regulate commerce among the States. There was no room for implication in this argument, that Congress could remove the impediment to State action, which Webster found in the want of State power. Nor is room for such implication to be found in any of the subsequent announcements of this doctrine until Mr. Justice Matthews, in Bowman v. Railway, and Mr. Chief Justice Fuller, in Leisy v. Hardin, deduced from it the idea that Congress might "allow the States" to regulate interstate commerce. On the contrary, in all the cases in which the doctrine of the silence of Congress is announced, from Welton v. Missouri until Bowman v. Railway, it is coupled with the express declaration that, as to those subjects which admit of a national system of regulation, the Federal power is exclusive.

Henderson v. Mayor of New York, 92 U. S., 259.

Hall v. DeCuir, 95 U. S., 485.

County of Mobile v. Kimball, 102 U. S., 691.

Wabash Railway Co. v. Illinois, 118 U. S., 557.
Brown v. Houston, 114 U. S., 630.

Walling v. Michigan, 116 U. S., 460.

The statement that the "impediment to the enforcement of the "State laws * * * was "created by the absence of a specific "utterance" by Congress, is not only unjustified by the doctrine of the silence of Congress, but can only be accepted by obliterating the line of distinction between the exclusive and the concurrent power. For the statement carries with it the necessary implication that the State laws have potency to regulate these subjects of commerce, if only impediments to their action, created by the will of Congress, are removed. That is, the States suffer from no organic infirmity rendering them powerless to act on these subjects, but are restrained from so acting by the Congressional will. This is a fair statement of the doctrine of the concurrent power, in the exercise of which, under the principle of Cooley v. Board of Wardens, the States may regulate those subjects of commerce which are local in their nature.