sale at any port or place in the United States any sponges taken by means of diving or diving apparatus from the waters of the Gulf of Mexico or Straits of Florida: Provided, That sponges taken or gathered by such process between October first and May first of each year in a greater depth of water than fifty feet shall not be subject to the provisions of this Act: And provided further, That no sponges taken from said waters shall be landed, delivered, cured, or offered for sale at any port or place in the United States of a smaller size than four inches in diameter."

Broadly the act, it is insisted, is repugnant to the Constitution because, in one aspect, it deals with a matter exclusively within the authority of the States, and in another because irrespective of the question of State authority, the statute regulates a subject not within the national grasp and hence not embraced within the legislative power of Congress. The first proceeds upon the assumption that the act regulates the taking or gathering of sponges attached to the land under water within the territorial limits of the State of Florida and it may be of other States bordering on the Gulf of Mexico, prohibits internal commerce in sponges so taken or gathered, and is therefore plainly an unauthorized exercise of power by Congress. The second is based on the theory that even if the act be construed as concerned only with sponges taken or gathered from land under water outside of the jurisdiction of any State, then its provisions are in excess of the power of Congress, because, under such hypothesis, the act can only apply to sponges taken from the bed of the ocean, which the National Government has no power to deal with.

We briefly consider the two propositions. If the premise upon which the first rests be correct, that is to say, the assumption that the act when rightly construed applies to sponges taken or gathered from land under water within the territorial limits of the State of Florida or other States, the repugnancy of the act to the Constitution would plainly be established by the decisions of this Court. In McCready v. Virginia, 94 U. S. 391, the question for decision was whether the State of Virginia had such exclusive authority over the planting and gathering of oysters upon the soil in tide waters within the territorial limits of the State as not only to give the State the power to control that subject, but to confer the right to exclude the citizens of other States from participating. In upholding a statute exerting such powers the doctrine was declared (p. 394) to be as follows: "The principle has long been settled in this Court, that each State owns the beds of all tide-waters within its jurisdiction, unless they have been granted away. Pollard's Lessee v. Hagan, 3 How.

212; Smith v. Maryland, 18 How. 74; Munford v. Wardwell, 6 Wall. 486; Weber v. Harbor Commissioners, 18 id. 66. In like manner, the States own the tide-waters themselves, and the fish in them, so far as they are capable of ownership while running. For this purpose the State represents its people, and the ownership is that of the people in their united sovereignty. Martin v. Waddell, 16 Pet. 410. The right which the people of the State thus acquire comes not from their citizenship alone, but from their citizenship and property combined. It is, in fact, a property right, and not a mere privilege or immunity of citizenship." True it is that the rights which were thus held to exists in the States were declared to be "subject to the paramount right of navigation, the regulation of which, in respect to foreign and interstate commerce has been granted to the United States," but with that dominant right we are not here concerned.

Again, in Manchester v. Massachusetts, 139 U. S. 240, in upholding a statute of the State of Massachusetts regulating the taking of Menhaden in Buzzard's Bay, the doctrine of the case just cited was expressly reiterated. True, further in that case, probably having in mind the declaration made in the opinion in the McCready case, that fish running within the tide waters of the several States were subject to state ownership "so far as they are capable of ownership while so running," the question was reserved as to whether or not Congress would have the right to control the Menhaden fisheries. But here also for the reason that the question arising relates only to sponges growing on the soil covered by water we are not concerned with the subject of running fish and the extent of State and National power over such subject.

The obvious correctness of the deduction which the proposition embodies that the statute is repugnant to the Constitution when applied to sponges taken or gathered within State territorial limits, however, establishes the want of merit in the contention as a whole. In other words, the premise that the statute is to be construed as applying to sponges taken within the territorial jurisdiction of a State is demonstrated to be unfounded by the deduction of unconstitutionality to which such premise inevitably and plainly leads. This follows because of the elementary rule of construction that where two interpretations of a statute are in reason admissible, one of which creates a repugnancy to the Constitution and the other avoids such repugnancy, the one which makes the statute harmonize with the constitution must be adopted. United States v. Delaware & Hudson Co., 213 U. S. 366, 407, and cases cited.

While it is true that it would be possible to interpret the statute as applying to sponges taken in local waters, it is equally certain that it is susceptible of being confined to sponges taken outside of such waters. In view of the clear distinction between State and National power on the subject, long settled at the time the act was passed and the rule of construction just stated, we are of opinion that its provisions must be construed as alone applicable to the subject within the authority of Congress to regulate, and, therefore, be held not to embrace that which was not within such power.

In substance the argument is that this case does not come within the rule, since it is insisted to confine the statute to sponges taken or gathered outside of State territorial limits would also, although for a different reason, cause it to be plainly unconstitutional. This but assumes that the second proposition, denying all power in Congress to exert authority in respect to the landing of sponges taken outside of the territorial jurisdiction of a State is well founded, and we come therefore to the consideration of that proposition. For the sake of brevity we do not stop to review the general considerations which the proposition involves for the purpose of demonstrating its inherent inaccuracy, or to point out its conflict with the law of nations, and its inconsistency with the practices of the Government from the beginning. We thus refrain since there is a simpler and yet more comprehensive point of view disposing of the whole subject.

Undoubtedly, (Lord v. Steamship Company, 102 U. S. 541), whether the Abby Dodge was a vessel of the United States or of a foreign nation, even although it be conceded that she was solely engaged in taking or gathering sponges in the waters which by the law of nations would be regarded as the common property of all and was transporting the sponges so gathered to the United States, the vessel was engaged in foreign commerce, and was therefore amenable to the regulating power of Congress over that subject. This being not open to discussion, the want of merit of the contention is shown, since the practices from the beginning, sanctioned by the decisions of this Court, establish that Congress by an exertion of its power to regulate foreign commerce has the authority to forbid merchandise carried in such commerce from entering the United States. Buttfield v. Stranahan, 192 U. S. 470, 492-493, and authorities there collected. Indeed, as pointed out in the Buttfield case, so complete is the authority of Congress over the subject that no one can be said to have a vested right to carry on foreign commerce with the United States.

WEBER v. FREED (1915)

239 U. S. 325, 328; 60 L. Ed. 308.

Congress may prohibit the introduction into this country of any subject of foreign commerce, and its motive cannot be considered in determining its power.

Mr. Chief Justice WHITE: The act of July 31, 1912, § 1, c. 263, 37 Stat. 240, makes it unlawful "to bring or to cause to be brought into the United States from abroad, any film or other pictorial representation of any prize fight or encounter of pugilists, under whatever name, which is designed to be used or may be used for purposes of public exhibition." With this provision in force, in April, 1915, the appellant brought to the port of entry of the City of Newark in the State of New Jersey photographic films of a pugilistic encounter or prize fight which had taken place at Havana and demanded of the deputy collector of customs in charge the right to enter the films. On refusal of the official to permit the entry appellant filed his bill of complaint to enforce the right to enter by a mandatory injunction and by other appropriate relief to accomplish the purpose in view. The ground relied on for the relief was the averment that the prohibition of the act of Congress in question was repugnant to the Constitution because in enacting the same "Congress exceeded its designated powers under the Constitution of the United States and attempted, under the guise of its powers under the Commerce Clause, to exercise police power expressly reserved in the States." The collector moved to dismiss on the ground that the bill stated no cause of action because the assailed provision of the act of Congress was constitutional and therefore on the face of the bill there was no jurisdiction to award the relief sought.

The motion was sustained and a decree of dismissal was rendered, and it is this decree which it is sought to reverse by the appeal which is before us, the propositions relied upon to accomplish that result but reiterating in various forms of statement the contention as to the repugnancy to the Constitution of the provision of the act of Congress. But in view of the complete power of Congress over foreign commerce and its authority to prohibit the introduction of foreign articles recognized and enforced by many previous decisions of this Court, the contentions are so devoid of merit as to cause them to be frivolous. Buttfield v. Stranahan, 192 U. S. 470; The Abby Dodge, 223 U. S. 166, 176; Brolan v. United States, 236 U. S. 216.

It is true that it is sought to take this case out of the long-recognized rule by the proposition that it has no application because the assailed provision was enacted to regulate the exhibition of photographic films of prize fights in the United States and hence it must be treated not as prohibiting the introduction of the films, but as forbidding the public exhibition of the films after they are brought in a subject to which, it is insisted, the power of Congress does not extend. But aside from the fictitious assumption on which the proposition is based, it is obviously only another form of denying the power of Congress to prohibit, since if the imaginary premise and proposition based on it were acceded to, the contention would inevitably result in denying the power in Congress to prohibit importation as to every article which after importation would be subject to any use whatever. Moreover, the proposition plainly is wanting in merit, since it rests upon the erroneous assumption that the motive of Congress in exerting its plenary power may be taken into view for the purpose of refusing to give effect to such power when exercised. Doyle v. Continental Ins. Co., 94 U. S. 535, 541; McCray v. United States, 195 U. S. 27, 53-59; Calder v. Michigan, 218 U. S. 591, 598.

Affirmed.

SECTION 3. TO PROHIBIT INTERSTATE COMMERCE IN PARTICULAR SUBJECTS WHICH TEND TO ACCOMPLISH HARMFUL REsults.

LOTTERY CASE (1903)

188 U. S. 321; 47 L. Ed. 492.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS

Congress may prohibit the carriage of lottery tickets in interstate commerce with a view to keeping the channels of commerce free from such use and the promotion of lottery schemes.

The general question arising upon this appeal involves the constitutionality of the first section of the act of Congress of March 2d, 1895, chap. 191, entitled "An act for the Suppression of Lottery Traffic through national and interstate commerce and the postal service subject to the jurisdiction and laws of the United States." 28 Stat. 963.