The Portland daily press., 1890-05-05
TEXT OF THE OPINION.

lu6 pOW6I N6Sltu III OOuBItoo W ItBuldtc
commerce with foreign nations. and among
the several states, and with the Indian
tribes" is the power to prescribe the rule by
which that commerce is to be governed, and
is power complete In itself, acknowledging
no limitations other than those prescribed in
the constitution. It is co-extensive with the
subject on which 1t acts and cannot be
stopped at the external boundary of a state,
but must enter its interior and must be capa-
BILE of authorizing the disposition OF those
articles which it introduces, so that they
may become mingled with the common mass
Of property within the territory entered.
Gibbons v. Ogden 9 Wheat. / Brotcn "
Maryland, II Wheat. 419.
And while, by virtue of its jurisdiction
over persons and property within its limits,
state may provide for the security of the
lives, limbs, health and comfort Of persons
and the protection Of property, so situated,
yet subject matter which has been conid-
ed exclusively to Congress by the constitu-
tion is not within the Jurisdiction Of the po-
lice power of the state unless placed there by
Congressional action. Henderson v. Mayor
Of Neio York, go U. S. 259; r. r. Co. v. H,t-
U. S. 446; Robbins v. Shelby Taxing District,
120 U. S. 4S9. The power TO regulate COM
merce among the states is unit, but If par
ticular subjects within its operation do not
require the application of a general or uni
form system, the states may legislate in re-
gard to them with a view to local needs and
circumstances, until Congress otherwise di-
rects, but the power thus exercised by the
states Is not Identical in its extent with the
power to regulate commerce among the
states The R3MsF t. Pass aSf aaJ IN JEesPs.
antine laws. health laws and laws in
belong to the class of powers
pertaining to locality, essential to local in
accommodation, to the progress and de-
velopment of local prosperity, and to the
.G,Aww 4 H.. -.
ciety, originally necessarily belonging to,
and upon the adoption of the Constitution
reserved by, the states, except so far as fall
ing within the scope Of a power c0nfided to
the general government Where the subject
matter requires a uniform system as between
the states, the power controlling 1t is vested
exclusively in Congress, and cannot be en-
cr0ached upon by the states; but where, in
relation to the sIbject-matter, different rules
may be suitable for different localities, the
states may exercise powers which, though
they may be said to partake of the nature Of
the power granted to the general govern
ment, are strictly not such. but are simply
local powers, which have full operation un-
til or unless circumsclibed by the action Of
Congress in effectuation of the general pow
er. Cooley v. Port Wardens, II How. 300.
1t was stated in the sd number of the
Federdtist that the states might exercise con-
current and independent power in all cases
but three: First, where the power was
lodged exclusively in the Federal Constitu-
tion; second. where 1t was given to the
United States and prohibited to the states
third, where, from the nature and subjects
of the power, it must be necessarily exer-
cised by the national government exclusive
ly. But it is easy to see that Congress may
assert an authority under one of the granted
powers, which would exclude the exercise
by the states upon the same subject OF a diff
that possessed by the general government no
inherent rPpugnancy existed.
Whenever, however, pal lticular power OF
the general government is one which must
necessarily be exercised by it, and Congress
remains silent, this is not only not a cOnces-
sion that the powers reserved by the States
may be exerted as IL the specific power had
not been elsewhere reposed. but, ON the con-
trary, the only legitimate conclusion is that
the general government intended that power
should not be affirmatively exercised, and
the action Of the states cannot be permitted
to effect that which would be incompatible
with such intention. Hence, inasmuch as
Interstate commerce, consisting in the trans
commodities, is national in its character,
and must be governed by 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 untrammeleG. County Of
Mobile v. Kim6dll, 102 U. S. COL; Broom v.
Houston, ia U. 5. 622, 631; Wabash r. Co. v.
Illinois, 118 U. s. 557; Robbins v. She log
IQrlng District, l20 u. .. 4S9, 4q3.
That ardent spirits, distilled liquors, ale
and beer, are subjects of exchange, barter
and traffic like any other commodity in which
a right Of traffic exists, and are SO recognized
by the usages of the commercial world, the
laws of Congress and the decisions of courts,
is notdenied Being thuslarticles Of commerce
can state, in the absence of legislation on
the part of Congress, prohibit their impOrta-
tion from abroad or from sister state? or
when imported prohibit their sale by the
importer? II the Importation cannot be pro
hlbited without the consent OF Congress,
when does property imported from abroad.
or from sister state, so become part of the
common mass Of property within a state as
to be subject to its unimpeded control?
In Brotcn v. Maryland (SlIpra) the act OF
the State legislature drawn In question was
held invalid as repugnant to the prohibition
of the Constitution upon the states to lay any
impost or duty upon imports or exports, and
to the clause granting the power to regulate
commerce; and 1t was laid down by the
great magistrate who presided over this court
for more than third of century, that the
point Of time when the prohibition ceases
and the power Of the state to tax commences,
is not the instant when the article enters the
country, but when the importer has so acted
upon 1t that it has become Incorporated and
mixed up with the mass of property In the
| country, which happens when the original
| package is no longer such in his hands; that
| the distinction Is obvious between tax
| its way to become Incorporated with the gem
| eral mass OF property, and a tax which finds
| the article already Incorporated with that
mass by the act of the importer; that as to
| the power to regulate commerce, none of the
| evils which proceeded from the feebleness of
the federal government, contributed more to
the great revolution which introduced the
present system than the deep and general
conviction that commerce ought to be regu-
lated by Congress that the grant should be
as extensive as the mischief, and should com
prehend all foreign commerce and all COM
merce among the states that that power was
complete in itself, acknowledged no limita-
tions other than those prescribed by the
| constitution, was co-extensive with the sub
Ject on which 1t acts and not to be stopped
at the external boundary of state, but must
be capable OF entering its interior; that the
right to sell any article imported was an IN
separable incident to the right to import ~
and that the principles expounded IN the
case applied equally to importations from q
sister state. Manifestly this must be SO, Ior
the same public policy applied to commerce
among the states as to foreign cou,
merce, and not reason could De asslgneIu
for confiding the power over the one WnicR :
did not conduce to establish the proprlety OF
confiding the power over the other' story