when their influence upon interstate or foreign commerce is an incidental, indirect one. In other words, as to matters of local concern, the States are recognized to have a concurrent legislative power in the fields of interstate and foreign commerce; while as to police measures (and the same is true as to tax laws or other state laws for the regulation of domestic commerce) the States have an authority which is not concurrent with that of the United States, but which is, when kept within its proper sphere, exclusive of federal control. Thus, local regulations even though they operate directly upon interstate and foreign commerce are valid unless and until there is federal legislation concerning the same subject. Tax laws, laws for the regulation of domestic commerce and police regulations, upon the other hand, have no constitutional validity whatever if they operate directly and primarily as a restraint upon interstate or foreign commerce as such.

To the writer it would seem that the foregoing distinction be tween the concurrent local legislative powers and the police. powers of the States with reference to interstate and foreign commerce is an unnecessary and confusing one, for the fact is to be noted that all of the local regulations which have been referred to in the preceding section may properly be described as police regulations and justified as such. If, and when, so justified, it will be possible for the courts, without changing substantially the effect of its holdings, to accept finally and completely the doctrine of the exclusiveness of the federal authority over interstate and foreign commerce, and base the validity of local state commercial regulations not upon a state concurrent legislative power as to local matters, but upon the States' police or other reserved powers. However, the courts still recognize the distinction between the two sources of state power to affect interstate commerce by their legislation, and this practice is, therefore, here followed.

56a

That a state law which, in its essential nature, is a legitimate exercise of the police power is not rendered invalid by reason of the fact that interstate commerce is thereby incidentally affected is well established.

56a See Cooke, Commerce Clause, § 55.

57

In Hennington v. Georgia, in which case was upheld the validity of a state statute prohibiting the running of freight trains on Sundays, the court, after a review of adjudged cases, say: "These authorities make it clear that the legislative enactments of the States, passed under their admitted police powers, and having a real relation to the domestic peace, order, health, and safety of their people, but which, by their necessary operation, affect to some extent or for a limited time the conduct of commerce among the States, are yet not invalid by force alone of the grant of power to Congress to regulate such commerce, and, if not obnoxious to some other constitutional provision or destructive of some right secured by the fundamental law, are to be respected in the courts of the Union until they are superseded and displaced by some act of Congress passed in execution of the power granted to it by the Constitution. Local laws of the character mentioned have their source in the powers which the States reserved, and never surrendered to Congress, of providing for the public health, the public morals, and the public safety, and are not, within the meaning of the Constitution, and considered in their own nature, regulations of interstate commerce simply because, for a limited time or to a limited extent, they cover the field occupied by those engaged in such commerce. The statute of Georgia is not directed against interstate commerce. It establishes a rule of civil conduct applicable alike to all freight trains, domestic as well as interstate. It applies to the transportation of interstate freight the same rule precisely that it applies to the transportation of domestic freight." 58

57 163 U. S. 299; 16 Sup. Ct. Rep. 1086; 41 L. ed. 166.

58 This equality of treatment of interstate and domestic commerce is not, it is to be observed, an infallible test as to the validity of state law affecting interstate commerce. Thus in Robbins v. Taxing District of Shelby Co. (120 U. S. 489; 7 Sup. Ct. Rep. 592; 30 L. ed. 694) the court were obliged to abandon this rule. The court there say: "It is strongly urged, as if it were a material point in the case, that no discrimination is made between domestic and foreign drummers those of Tennessee and those of other States -that all are taxed alike. But that does not meet the difficulty. Interstate commerce cannot be taxed at all, even though the same amount of tax should be laid on domestic commerce, or that which is carried on solely within the State. This was decided in the case of The State Freight Tax Cases (15 Wall. 232; 21 L. ed. 146)."

This interference with interstate and foreign commerce, it is to be emphasized, is permitted only when the necessities and the convenience of the public seem to demand it and when the regulation provided for is a reasonable and just one. In other words, the States may not, under the guise of an exercise of their police powers, attempt what in effect amounts to a direct regulation of interstate and foreign commerce, or impose an unnnecessary or arbitrary burden upon interstate carriers. As will later appear the same principle applies to the exercise of the other powers of the States, as for example, the power to tax, or to regulate domestic commerce. In the exercise of these powers it is often the case that interstate and foreign commerce are indirectly and even substantially affected. But in no case can regulation of interstate and foreign commerce be the direct or primary aim of the State's action. If this is the aim or effect, no support for the validity of the law may be obtained by calling the law a police regulation. "The substantial question in any given case is," say the court in Henderson v. Mayor,59 "whether or not there is a valid exercise of a power reserved to the States, whether or not within the scope of the police power.' It has been well said as to the police power, that no definition of it and no urgency for its use can authorize a State to exercise it in regard to a subject-matter which has been confided exclusively to the discretion of Congress by the Constitution. Nothing is gained in the argument by calling it the police power.'" 60

An interesting and recent case in which it is shown that the court will not permit interstate carriers to be subjected to unnecessary or unreasonable police regulations is Houston, etc., R. R. Co. v. Mayes. In this case it was held that a state law which penalized the failure of a railway company to furnish shippers with cars within a certain number of days after notice, and permitted no excuse except inability arising from strikes or other public calamity, was unconstitutional in so far as it applied to

59 92 U. S. 259; 23 L. ed. 543.

60 Cf. L. S. & M. S. Ry. Co. v. Ohio, 173 U. S. 285; 19 Sup. Ct. Rep. 465; 43 L. ed. 702.

61 201 U. S. 321; 26 Sup. Ct. Rep. 491; 50 L. ed. 772.

interstate carriers. The court say: "Although it may be admitted that the statute is not far from the line of proper police regulation, we think that sufficient allowance is not made for the practical difficulties in the administration of the law, and that, as applied to interstate commerce, it transcends the legitimate powers of the legislature."

It is thus evident that the federal court will examine a state police regulation not only with reference to the fact whether or not it amounts to a direct regulation of interstate commerce, but whether its provisions are in themselves sufficiently reasonable, practicable, and just, as to furnish an excuse and justification for the incidental interference with interstate commerce which their enforcement will necessitate.

Finally, with reference to the police powers of the States and interstate commerce, it is to be observed that however incidental their effect upon such commerce they have, of course, no validity in so far as they conflict with existing federal statutes. In Houston v. Mayes the court say: "Of course such [police] rules are inoperative if conflicting with regulations upon the same subject enacted by Congress."

62

§ 311. Applications of the Doctrine of the Police Powers of the State in Their Relation to Interstate Commerce.

The general principles governing the exercise of police powers by the States in their relation to interstate commerce have been stated. It remains but to enumerate certain of the applications which, in specific instances, these doctrines have received.

§ 312. State Regulation of Interstate Trains.

A series of cases have been decided by the Supreme Court with reference to the validity of state laws seeking to control the manner of running and operating trains. When the provisions of these laws have been found reasonably necessary for the protec tion and convenience of the people, and not discriminative against interstate trains, they have been upheld in their application to such interstate trains. Thus state laws have been sustained which

62 201 U. S. 321; 26 Sup. Ct. Rep. 491; 50 L. ed. 772.

69

66

.63

67

have forbidden the running of freight trains on Sunday; forbidding heating cars by stoves; requiring trains to stop at county seats; and other populous centers; requiring locomotive engineers to be examined and licensed by the state authorities; requiring such engineers to be examined from time to time with respect to their ability to distinguish colors; requiring telegraph companies to receive dispatches and to transmit and deliver them with due diligence, as applied to messages from outside the State; requiring railway companies to fix their rates annually for the transportation of passengers and freight, and also requiring them to post a printed copy of such rates at all their stations;70 forbidding the consolidation of parallel or competing lines of railway;"1 regulating the heating of passenger cars, and directing guards and guard posts to be placed on railroad bridges and trestles and the approaches thereto;72 providing that no contract shall exempt any railroad corporation from the liability of a common carrier or a carrier of passengers, which would have existed if no contract had been made;73 and declaring that when a common carrier accepts for transportation anything directed to a point of destination beyond the terminus of his own line or route, 63 Hennington v. Georgia, 163 U. S. 299; 16 Sup. Ct. Rep. 1086; 41 L. ed. 166.

64 N. Y., etc., Ry. v. N. Y., 165 U. S. 628; 17 Sup. Ct. Rep. 418; 41 L. ed.

853.

65 Gladsen v. Minnesota, 166 U. S. 427; 17 Sup. Ct. Rep. 627; 41 L. ed. 1064.

66 Lake Shore, etc., Ry. v. Ohio, 173 U. S. 285; 19 Sup. Ct. Rep. 465; 43 L. ed. 702; Wisconsin M. & P. Ry. Co. v. Jacobson, 179 U. S. 287; 21 Sup. Ct. Rep. 115; 45 L. ed. 194.

67 Smith v. Alabama, 124 U. S. 465; 8 Sup. Ct. Rep. 564; 31 L. ed. 508. 68 Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96; 9 Sup. Ct. Rep. 28; 32 L. ed. 352.

69 Western Union Telegraph Co. v. James, 162 U. S. 650; 16 Sup. Ct. Rep. 934; 40 L. ed. 1105.

70 Chicago & N. W. R. Co. v. Fuller, 17 Wall. 560; 21 L. ed. 710.

71 Louisville & N. R. Co. v. Kentucky, 161 U. S. 677; 16 Sup. Ct. Rep. 714; 40 L. ed. 849.

72 New York, N. H. & H. R. Co. v. New York, 165 U. S. 628; 17 Sup. Ct. Rep. 418; 41 L. ed. 483.

73 Chicago, M. & St. P. R. Co. v. Solan, 169 U. S. 133; 18 Sup. Ct. Rep. 289; 42 L. ed. 688.