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cise of any portion of the power that is granted to the United States. In imposing taxes for state purposes, they are not doing what Congress is empowered to do. Congress is not empowered to tax for those purposes which are within the exclusive province of the States. When, then, each government exercises the power of taxation, neither is exercising the power of the other. But, when a State proceeds to regulate commerce with foreign nations, or among the several States, it is exercising the very power that is granted to Congress, and is doing the very thing which Congress is authorized to do. There is no analogy, then, between the power of taxation and the power of regulating commerce."

As to the enactment by the States of quarantine, health, and inspection laws, the validity of which had not been questioned, Marshall pointed out that these fall within the police powers of the States and do not evidence the possession by them of regulative authority over interstate and foreign commerce.

The precise point actually decided in Gibbons v. Ogden was that the federal authority over foreign and interstate commerce is exclusive in so far as that commerce is carried on by water. Interstate commerce upon land was not involved, and it would appear that general contemporaneous construction of the case limited its operation to commerce by water.43

To a certain degree, also, the doctrine laid down by Marshall was obiter in that it was held that the state action which was complained of was in violation of existing acts of Congress, and, therefore, was void whether the federal power over interstate commerce was held conclusive or only concurrent. But however this may be, the language of Marshall, and that of Justice Johnson in a concurring opinion, is much broader, and the case has since come to be the leading authority cited in support of the principle

43 This is quite clearly shown by Mr. Prentice. "There was nothing new," says Prentice, "in the establishment of the rule which to most modern readers seems the great achievement of the case, that federal power over commerce is exclusive. To the extent under consideration, it had always been so regarded. . . . That the federal power was exclusive seems, as the subject was then regarded, to have had little relation to monopolies of transportation, and no relation whatever to land transportation and ferriage." Federal Control over Carriers and Corporations, p. 68.

that the States may not in any way or to any substantial extent directly interfere with, or attempt the regulation of, commerce between the States by whatever agency that commerce may be carried on. 44

A review of the cases which followed Gibbons v. Ogden will show, however, that the doctrine of the Supreme Court as to the exclusiveness of federal authority over commerce has not been a uniform one. Without abandoning the doctrine that the States are constitutionally disqualified from directly interfering with the regulation of commerce, the Supreme Court has at times upheld state acts which have in fact amounted to substantial interferences with interstate and foreign commerce. And, indeed, the language of the court, and even of Marshall himself in certain cases, has implied the adoption of the doctrine that the constitutionality of a state law in regulation of, or interfering with, the freedom of interstate and foreign commerce is to be tested rather by the existence of a conflicting federal statute, than by the exclusiveness of the federal jurisdiction.

In Brown v. Maryland,45 decided three years after Gibbons v. Ogden, the court held void an act of a State requiring importers of foreign goods and persons selling the same to take out a license for which they were to pay fifty dollars. The act was held void not only as in violation of the constitutional provision forbidding the States to levy duties on imports, but as repugnant to the commerce clause, and also in conflict with the acts of Congress authorizing importation. Strictly speaking, therefore, the case did not necessarily involve the question of the exclusiveness of the federal power over interstate and foreign commerce. In the

44 Justice Johnson, in a concurring opinion, argued that the judgment of the court should be based upon an emphatic statement of the exclusiveness of the federal authority over commerce. He said: "The power of a sovereign State over commerce . . . amounts to nothing more than a power to limit and restrain it at pleasure. And since the power to prescribe the limits to its freedom necessarily implies the power to determine what shall remain unrestrained, it follows that the power must be exclusive; it can reside in but one potentate; hence the grant of this power carries with it the whole subject, leaving nothing for the State to act upon."

45 12 Wh. 419; 6 L. ed. 678.

opinion which Marshall rendered that doctrine appears, however, to be accepted. "Any charge," he says, "on the introduction and incorporation of the articles into and with the mass of property in the country, must be hostile to the power given to Congress to regulate commerce." And again, "We cannot admit that [the States' power of taxation] may be used so as to obstruct the free course of a power given to Congress." 46

In Wilson v. Blackbird Creek Co.,47 decided in 1829, we find a much less strict interpretation of the exclusiveness of the federal commercial power. In this case was upheld a state law authorizing the construction of a dam on a navigable stream. It being contended that navigation and, therefore, commerce was interfered with, Marshall, apparently accepting a doctrine of concurrent power, held that inasmuch as Congress had not legislated upon the subject, the law authorizing the dam was valid. He said: "If Congress had passed any act which bore upon the case; any act in execution of the power to regulate commerce, the object of which was to control state legislation over these small navigable creeks into which the tide flows, we should not feel much difficulty in saying that a state law coming in conflict with such act would be void. But Congress has passed no such act." And, later on: "We do not think that the act can, under all circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, as being in conflict with any law on the subject."

It is difficult to harmonize this language with that used only a few years before in Gibbons v. Ogden and Brown v. Maryland, or, indeed, with that employed in cases decided a few years later. Neither in the Blackbird Creek case itself nor in the later cases does Marshall indicate that he intends or had intended to declare a doctrine different from that earlier asserted. It would seem, therefore, that, though not so expressed, Marshall held that the damming of the creek, the purpose of which was to reclaim certain marsh lands was a legitimate exercise by the State of a police 46 A dissenting opinion was filed by Justice Thompson.

47 2 Pet. 245; 7 L. ed. 412.

power which, in the absence of express congressional prohibition, might be justified even though navigation were to some extent evidently affected.

§ 305. New York v. Miln.

In New York v. Miln,48 decided in 1837, the relation of the States' police powers to the regulation of commerce was carefully considered. In this case a state law was upheld which required masters of all vessels arriving at the port of New York to make certain reports as to passengers carried, and imposed certain penalties in case this was not done. The opinion of the court was rendered by Justice Barbour. In this opinion it is declared that, "We shall not enter into any examination of the question whether the power to regulate commerce be or be not exclusive of the States, because the opinion which we have formed renders it unnecessary, in other words we are of opinion that the act is not a regulation of commerce, but of police, and that being thus considered, it was passed in the exercise of a power which rightfully belonged to the States." This police power is, however, so broadly defined, as in effect to give to the States a concurrent power of legislating with reference to matters subject to federal legislation. "Whilst a State is acting within the legitimate scope. of its powers as to the end to be attained," the opinion declares, "it may use whatever means, being appropriate to that end, it may think fit; although they may be the same, or so nearly the same, as scarcely to be distinguishable from those adopted by Congress acting under a different power, subject only, say the court, to this limitation, that in the event of collision the law of the State must yield to the law of Congress. . . . Even then, if the section of the act [of the State] in question could be considered as partaking of the nature of a commercial regulation, the principle here laid down would save it from condemnation, if no such collision [with an act of Congress] exist."

From this language it is apparent that the test as to the validity of the state law is not as to the exclusiveness of the federal au48 11 Pet. 102; 9 L. ed. 648.

thority, but as to the existence of a countervailing act of Congress. In other words, the concurrent theory is, to this extent, adopted.

In a dissenting opinion Justice Story argued strongly for the unconstitutionality of the state law and the exclusiveness of the federal authority and asserted that Marshall, before whom the case was first argued, had been in agreement with him. The existence of police powers in the States he admitted, but not that these powers might ever be used for the regulation of matters placed within the exclusive jurisdiction of the United States. "A State," he declared, "cannot make a regulation of commerce to enforce its health laws, because it is a means drawn from its authority. It may be admitted that it is a means adopted to the end, but it is quite a different question whether it be a means within the competency of the state jurisdiction."

§ 306. License Cases.

The next important construction of the extent of the federal authority over commerce was that given in the group of cases known as the License Cases,49 decided in 1846. These cases involved state laws fixing conditions of, and requiring licenses for, the sale of certain goods imported from other States. The justices, though unanimous in upholding the state laws, were divided as to the grounds upon which their validity should be vested. By several the concurrent theory was relied upon; by others the police power of the States; while, in some cases, both of these grounds were advanced. There was not, however, a majority of the court in support of either one of these positions. It is remarkable, however, that no dissenting opinion was filed in advocacy of the exclusive power of the Federal Government.

The concurrent theory was most clearly and definitely stated by Taney in his opinion. IIe said: "The controlling and supreme power over commerce with foreign nations and the several States is undoubtedly conferred upon Congress. Yet, in my judgment, the State may nevertheless, for the safety or convenience of trade, or for the protection of the health of its citizens, make regulations

49 5 How. 504; 12 L. ed. 256.

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