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 consider 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 Inter-state 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 ex-ing has been called the doctrine of the silence of istence 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 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. 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 positively 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 inter-state commerce, consisting in the transportation, purchase, sale and exchange of commodities, is national 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 to do so, 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 stor age 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 appled 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 between 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 inter-state commerce, consisting in the transportation, purchase, sale and exchange of commodities, is national in its character and must be governed by a uniform system, so long as congress does 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 inter-state commerce, in inhibiting the ** In 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. 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 inter-state 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 impediment 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 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 subject 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 impedi ment 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 inter-state 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; Welling v. Michigan, 116 U. S. 460.) virtue of its own power;" and that "Congress cannot enable a State to legislate." As late at Stoutenburg v. Hennick (129 U. S. 141), it had been solemnly adjudicated that congress could not delegate to the Legislative Assembly of the District of Columbia power to pass an act amounting to a regulation of inter-state commerce. The opinion in the Rahrer case recognizes these principles and seeks to save its decision from their condemnation. It is said: "Congress did not use terms of permission to the State to act. * * * It imparted no power to the State not then possessed, but allowed imported property to fall at once upon arrival within the local jurisdiction." But was it not expressly to prevent imported property from falling "at once upon arrival within the local jurisdiction," that the commerce clause of the Constitution was adopted? This clause," said Mr. Justice Miller in Wabash Railway v. Illinois, as this court has said before, was among the most important of the subjects which prompted the formation of the Constitution. And it would be a very feeble and useless provision, but poorly * * * among the States which was deemed essential to a more perfect union by the framers of the Constitution, if, at every stage of the transportation of goods and chattels through the country, the State within whose limits a part of this transportation must be done could impose regulations concerning the price, compensation, or taxation, or any other restrictive regulation interfering with and seriously embarrassing this commerce." 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 oblitera-adapted to secure the entire freedom of commerce ting 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 the 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 subiects of commerce which are local in their nature. But the subjects Does not the decision in re Rahrer make of the commerce clause of the Constitution the "very feeble and almost useless provision" which this language of the learned justice deplores? It is to be noted of intoxicating liquors as menaces to the health or that the decision does not depend upon the nature morals of the community. Their established character as legitimate articles of commerce is neither impeached nor assailed. If congress may allow these articles of commerce "to fall at once upon with which the court dealt in Rahrer's case have ever been held to be of that national nature which admits only of the exercise of the exclusive federal power. If upon those subjects the State laws may act whenever congress removes its own impedi-arrival within the local jurisdiction," it may, in like ments, then the federal power to regulate those subjects is no longer exclusive but concurrent. The power to regulate is admitted to be in the States; the occasion of its exercise only depends on the will of congress. No justification for this confusing of the lines distinctly drawn in Cooley v. Board of Wardens, is to be found in any of the cases except in Bowman v. Railway and Leisy v. Hardin, in their subtle suggestions of the doctrine of the permission of congress. Those suggestions, there can be no doubt, were responsible for the passage of the Wilson bill As early as Gibbons v. Ogden it had been said that "Congress cannot give a right to a State in manner, allow any, or all, articles of commerce to fall, at the same time, within the local jurisdiction. In other words, "that freedom of commerce from the restraints which the States might choose to impose upon it, that the commerce clause was intended to secure," is no longer secured by the commerce clause, but may be surrendered to the shackles of State regulations by an act of congress. It is not within the power of congress, in my judgment, thus to supplant by its own will this provision of the Constitution and to undermine the great bulwarks of freedom of commerce among the States that constitutional construction has builded upon the commerce clause. Yet to this result, as it seems to me, the decision in Rahrer's case logically leads. It has already nullified the decision in Leisy v. Hardin. It needs but another short step to remove Bowman v. Railway Company from among the living forces in the regulation of inter-state traffic. The provision of the prohibitory laws of Iowa that was adjudged in that case to be invalid as a regulation of inter-state commerce, forbids a carrier to transport intoxicating liquors into the State except for persons licensed by the State, and subjects liquors thus transported to forfeiture and the carrier and its agents to punishment. Under the Wilson bill, as construed in the Rahrer case, the liquors fall at once upon arrival within the operation of this law. That is, the liquors, which are legitimate articles of commerce in Illinois, may be confiscated and destroyed the instant they pass the boundary line into Iowa; and the carrier, who is compelled by the law of Illinois to receive and carry them (Bowman v. Railway Company, 125 U. S. 473, 4) is punished by the law of Iowa for doing the act which the law of Illinois compels. So the Supreme Court of Iowa has held. (State v. Rhodes, 90 Ia. 496.) "bers of the court in former times and to modify “in some degree certain dicta and decisions that have occasionally been made in the intervening time. This is always done, however, with great caution, "and an anxious desire to place the final conclu"sion reached upon the fairest and most just con"struction of the Constitution in all its parts." If the court, in the next case presenting the question of the validity of an act of congress which allows articles of inter-state commerce to fall at once upon arrival within the local jurisdiction, shall recur to those "fundamental principles," in the spirit which prompted this confession, I cannot but believe that the conclusion will be reached that a regulation of that commerce, affecting a subject of such a national nature as the transportation and sale of commodities, is, in the language of Mr. Justice Story, "a means cut off from the range of State sovereignty and State legislation." If this conclusion shall force a modification of the Rahrer opinion, and the holding that the impediment to the action of State laws regulating inter-state commerce is found not in the silence of congress, but in the voice of the Constitution, "the fundamental principles stated and illustrated by Chief Justice Marshall and other members of the court in former times," will have but received a latter day application. Notes of American Decisions. NATIONAL BANKS-SUBSCRIPTIONS AND CAPITAL. The situation of inter-state commerce, depicted and deplored by Mr. Justice Matthews in the Bowman case will have been produced, as to the transportation of intoxicating liquors, when the Supreme Court shall have applied the principle under which the Wilson bill is justified in the Rahrer case, to a case of the transportation of such liquors from a neighboring State into the State of Iowa. And when it is recalled that not only intoxicating liquors, but every legitimate article of commerce may, by enactments similar to the Wilson bill, be allowed to fall at once upon arrival within the local juris-paid-up stock to pay an additional amount equal to diction, it is seen to become merely a question of the par value of their stock under section 5151, Rev. desire, and not of power on the part of congress, St, constitute a trust estate sacredly pledged for whether all commerce among the States shall be the security of the creditors of a national banking assubject to the discriminating and restrictive regula-sociation. (Stuart v. Hayden, [U. S. C. C. of App. ], tions of the States, the prevention of which “ was among the most important of the subjects which prompted the formation of the Constitution." The capital, the unpaid subscriptions to the capiital stock, and the liability of the holders of the 72 Fed. Rep. 402.) PARTNERSHIP.-Where one partner purchases real property with partnership assets, and takes the title thereto in the name of his wife, without the consent of the other partner, a trust results to the partnership and its creditors. (Claflin v. Ambrose, Fla., 19 South. Rep. 628. In Leloup v. Port of Mobile (127 U. S. 640) the court overruled its decision in Osborne v. Mobile (16 Wall. 479); and Mr. Justice Bradley, in delivering the opinion of the court, took occasion to say: "A great number and variety of cases, involv"ing the commercial power of congress have been brought to the attention of this court during the 'past fifteen years, which have frequently made it necessary to re-examine the whole subject with "care; and the result has sometimes been that, in "order to give full and fair effect to the different "clauses of the Constitution, the court has felt "constrained to recur to the fundamental principles "stated and illustrated with so much clearness and "force by Chief Justice Marshall and other mem- | 693.) REVIVOR OF JUDGMENTS-SCIRE FACIAS-LIMITATION OF ACTIONS.-In Pennsylvania scire facias to revive a judgment is held to be a substitute for an action of debt elsewhere, and the judgment is quod recurperet, instead of mere award of execution: Held, that a judgment so revived in Pennsylvania, without service or appearance, has no binding force as against a defendant who resides in another State. (Owens v. McCloskey, [U. S. S. C.], 16 S. C. Rep. The Albany Law Journal. ALBANY, JUNE 13, 1896. Current Topics. All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.] T last Congress has adjourned! AT As nearly every one surmised, it has been a session in which nothing worth mentioning was accomplished to relieve the hard times. At the beginning of the session, the country was settling down to a fair degree of prosperity and peace, under the new tariff law. Men felt that a short session, with a decided stand on the money question, would be of material benefit to the country. Unfortunately this was not to be. There were only two things which the country needed, when the session commenced, and they were conservative action in regard to our foreign affairs, and the proper legislation to prevent the continual exhausting of our gold reserve by drains on the treasury, and to assure the country that the United States proposed to be on a gold basis. At the opening of Congress, President Cleveland sent in his Venezuelan message. This was at once seized as an opportunity, by many Senators and Representatives, to indulge in the most rampant jingoistic talk and action. This was followed by the Armenian and Cuban questions, and it was not the fault of the majority in Congress that this country was not involved in serious complications with Spain, Turkey, Great Britain and other foreign nations. Some members of this Congress, especially members of the House, were so extreme in their denunciations that it seems almost miraculous that war with one or the other of these nations was averted. Certain members of both branches seem to vie with each other in their attempts to be extreme, and in their endeavors to strut about in an absolutely needless and most obstreperous manner. Most of the war "talk" has been done in the Senate, and yet that body has refused to follow the lead made by the House to provide for the increase of the fighting forces of the navy by the addition of four battle ships, and one of the last acts of the session was the compromise by which only three battle ships were allowed. The Congressional Record has had spread over hundred of its pages this mere talk of war. It amounted to nothing else, and the earnestness of the speechmakers may be judged by the fact that they failed to provide those things which if war was declared, seem to be necessary to strengthen the fighting forces of the nation. The army, too, has not been benefited by any of this war talk in any way, for it was refused modern arms which have revolutionized mili tary tactics and led to a reorganization of the armies of Europe. Absolutely nothing has been done for the army beyond the passage in the senate of a bill giving non-commissioned officers of the army a slight increase in their pay. The so-called "Lamont " bill, which provided for the reorganization of the army on modern lines, especially of the artillery branch of the service, and the increase of its enlisting strength, was favorably acted upon by the Senate committee on military affairs, but it never went any further. Though legislation for the reorganization of the personnel of the navy is reported as being needed, owing to the stagnation of promotion in the line, nothing was accomplished in that direction beyond the agreement of the sub-committee of the House committee on naval affairs to a bill which aims to remedy some of the evils under which the line is suffering. Both houses passed a bill to impose a tax upon the manufacturers and dealers in filled cheese and to require said cheese to be marked. Two other bills have been especially urged by the commissioner of internal revenue and which repeal the provisions of the Wilson tariff bill, allowing a rebate on the alcohol used in arts and manufactures and permitting fruit brandies being made of other fruits besides apples, peaches and grapes. The pension bills, both in number and amount appropriated, exceed that of any Congress since the Fifty-first. The pension committees of both houses have been about the hardest worked in Congress. Some of the more objectionable ones have been stopped by the President, and some have been passed over his veto. The present Congress has been particularly capable of wasting the public money in appropriation. |