The DeSmet leader. (DeSmet, Kingsbury Co., Dakota [S.D.]) 1883-1891, 1890-05-24

lation TO which congress had not exercised its
power. But the law Of New Hampshire acts
directly upon an import from one state TO an
other, while In the hands Of the importer for
sale and Is therefore a regulation OF commerce,
acting upon the article white IL Ia within the
admitted jurisdiction Of the general govern
ment and subject To It's control and regulation
The question, therefore, brought mp for deci-
sion Is, whether state IL prohibited by the con-
sttutton OF the United States from making Rny
regulations Of foreign commerce or Of com
merce with another state, although such regula-
| tion IL confined To its own territory, and
made for It's own convenience or interest, and
does not come in conflict With any law OF con-
gress In other words, whet her the grlnt of
power to congress IL Of itself u prohibition To
| the state aud renders all state laws upon the
subject null and void" He declares II to ap-
pear 10 him very clear that the mere grant of
! power 20 tho general government, cannot, upon
| any just principles OF construction, be con-
! strued to be an absolute prohibition TO the eX-
| erCise Of any power over the same subject by
| the states. The controlling and supreme power
over commerce with foreign nations and the
| several states In 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 OF commerce for its
| own ports and harbOrs, and for its own terri
| tory; aud such regulations are valid unless they
! come In conflict with a law Of congress. He
comments on the omission Of any prohibition
terms, and concludes that II, as he thinks. "the
| farmers of the constitution tknowing that a
/ multitude OF minor regulations must he hoces-
| could never tind time 10 consider and providel
intended merely to make the power OF the fed
eral government supreme upon this subject
over that OF the states, then the omission of
any prohibition Is accounted for and IL con-
sis ent with the whole instrument. The su-
premacy Of the laws OF congress. In cases of col
lsiOn with state laws, IL secured In the article
which declares that the laws of congress-. passed
In pursuance of the powers granted shall he the
supreme law: and 10 Is only where both govern
ments may leVislate on the same subject that
49,. NNuans a
the legislation Of congress aud che states has
confoTmed to this construction from the
foundation OF the government, rs eXemDlified
in state laws in relation to pilOts and pilotage
and health and quarantine laws.
But concedinG the weight properly to he as-
cribed TO the judicial utteranCcs Of this emf
| nent jurist, we are constrained TO say that the
distinction between subjects in respect OF which
| there can be of nece ssity only system or
plan Of regulat ION for the whole country, and
subjects local In their nature and, 30 far as re-
lattnU To commerce, mere ads rather than reg
ulatiOns. does not appear 10 us TO have been
sufficiently recognized by him In arriving at he
conclusions announced. That distinction haE
been settled by repeated decisions OF this court
aud can no longer be regarded as open TO exam
nation. After all, IL amounts to no moro than
drawing the line between the exercise Of power
over commerce with foreign nations and among
the states and the exercise Of power over purely
local commerce aud local concerns
The authority OF Pierce vs. New Hampshire.
In so far H. rests on the view that the law Of
New ilampshire was valid because congress had
made no regulation on the subject, must be re-
garded as having been distinctly Overthrown
Dy the numerous cases hereinafter referred to-
The doctrine now firmly established II, as
stated by Mr.. Justice Field, in Bowman v Chi
caRo, etc, Railway COmAny. l25 u. \ 507:
That where the subject upon which congress
can act under its commercial power Ia local in
it's nature or sphere Of operation. such as har-
Dor pilOtage the improvement Of harbOrs, the
establishment Of beacons and buoys to guide
vessels in and out Of port, the construction Of
bridges over nayigable rivers, the erection of
wharyes, piers aud docks, and the Ike which
can be properly regulated only by special pro-
visions adapted TO their localities. the state can
act until congress interferes and supersedes it's
authority: but where the subject IL national In
its character, and admits and requires uniform
ity of regulation affecting alike all the states
such a. transportation between the states, In
Guiding the importation of goods from one state
into another, congress can alone act npon IL
and provide the needed regulations. The alb
sence of anv law OF congress on tho subject Is
equivalent to Its declaration that commerce In
that matter shall be free. Thus the absence OF
regulations as TO in Ler state commerce with ref
erence TO any particular subject Is taken rs a
declaration that the importation Of that article
into the states shall be unrestricted. IT is only
after the importation IL completed. aud the
property imported Is mingled with and become
a part of the general property OF the state, that
it's regulations can act upon IL, except so far as
may be necessary to insure safety In the dtspO-
sition of the import until thus mingled
The conclusion follows that the grant Of
the power to regulate commerce among the
states, 80 far "a one sysbem 10 required Is ex-
elusive, the states cAunOt exercise that power
without the assent of congress- and, In the alb
sonce Of legislation. 1t II left tor The courts TO
determine when state action does does not
amount TO such exercise, or, In other words
what Is or IL not a regulation OF such COM
merce. When that IL determined, controversy
In at an end. Illustrations exemplifying the
general rule are numerous. Thus we have
held the following To be regulations Of inter-
state commerce: tax upon freight transport
ed from state 10 state, Case OF the State Freight
Tax, l5 Wall 232: q statute imposing q burden
some condition on ship masters as a prereaui-
site To the landing Of passengers, Henderson "
Mayor. &c, 92 u. 4. 259; a statute prohibiting
the driving or conveying Of any Texas. Mexi-
can, or Indian cattle. whether sound or dis
eased, into the state between the first day Of
March and the first day OF November In each
year, Railroad Co, " Husen, 95 U. T. 465; a
statute requiring every auctiOneer TO collect
and pay into the state treasury q tax on his
SAILS. when applied To imported goods in the
original packages by him sold for tho import
er, CuUk, v. Pennsylvania, 81 U. :. 5O6: sta
tuto intended 10 regulate or tax, or 20 impose
any other restriction upon. the transmission Of
persons or property, or telegraphic messages
from one state to another, wabash. &c Railway
Co., " Illinois. l1S U. s. 557: q statute levying
a tsx upon nonresident drummeTs Offering for
sale or selling gOOdC. wares, or merchandise by
sample man ufacturGd ar belonging 10 citizens Of
OF her states. Robins " Shelby Taxing District,
l20 u. s. 4S9
On the other hand, we bave decided In Couu-
ty OF Mobile v. Ktmball, lO2 U. b. 60l, that n
state statute providing for the improvement of
the river, bay. and harbOr OF Mobile since
what Was authorized TO be done was only Rs n
mere aid TO commerce, was, IN the absence OF
action by congress, not In conflict with the
con stitutisn in Escanabs Co v. Chicago lO7 U.
s. 67s, that the state OF Illinois could lawfully
authorize the city Of Chicago TO deepen, widen.
and change the channel Of and construct
bridges over the Chicago river: In TranspoTta-
tion Go. v. Parkersburg, Id 69l. that the Jur-
isdiction and control OF wharVes properly be-
long TO the states IN which they are situated
unless otherwise provided: I'm Brown " HOuS-
ton ia u. :. 622, that a general state tax laid
alike upon all property iS not uncOustttu i0nal,
becsuse IL happens 10 fall upon goods, which
though not then intended for expectation are
subseau ntlv exported; In MorRans Steamship
COMPANY v. Louisiana Board Of Health, llS
u. s. 4S5, that a state law requiring each vessel
passing quarantine station to pay fee for ex-
animation az To ner sanitary condition and the
ports from which she came, was riRhtful exrr-
cise OF police power: In Smith v. Alabama, l2l
U. s, 465, and in Railway Co. v. Alabama, l2S
u. &, 90, that a state statute requiring locOmn-
| tive engineers to be examined and obtain q H..
cense was not In It's nature q regulation OF COM
meroe: and In Kimmish v. Ball. l28 U. 2l7,
that a statute providing that person having in
his possession Texas cattle, which had not been
winteTed north Of the Southern boundary OF
Missouri at least one winter shall be liable for
any damages which may accrue from allowing
them to run at large, and thereby spread the
disease known as the Texas fever, was oonsti-
tutioEaL
We held also IN Welton y. The State ot Mis-
souri,, 81 u. :. 275, that state statute requir-
ing the payment OF n license tax from persons
dealing In goods, wares and merchandise, which
are not the growth produce or manufacture OF
the state by going from place 10 place 60 sell
the same IN the state. and requiring no such
license tax from persons selling in a similar way
goods which are the growth, produce or manu-
tacture OF the state. ts an unconstitutional Tegu
lation: and To the Same effect in Walling ".
Michigan, ll6 u. \. 416, in relation to q tax up
on non residents sellers Of Intoxicating liquors
to be shipped into a state from places without
10. Bat IL was held In Patterson ". Kentucky,
81 u. S. sol. and IN Webber v. Virginia, 1913 U.
| i. 344, that the right conferred by the patent
laws Of the United states did not remove the
| tangipIe property IN which an invention might
| take form from the operation Of tie laws OF the
| state nor restrict the power Of The latter TO
protect the community from direct danger IN
| herent In particular articles
In Mugler v, Kansas, l23 U. & 623, it was
adiudged that
| State legislation which prohibits the manu-
facture OF spirituous, malt, vtnons, iermenLed,
or other intoxicating liquors within the limits
OF the state TO he there sold or bartered for gen
eral use as beverage does not necessarily In
fringe any right, privilege or immunity secured
by the constitution Of the United Statess or by
the amendments thereto
Aud this waS IN accordance with our decisions
| In RaTtemeyer v, Iowa, ~ wall, 1913; Beer Com