XII. As an exer cise of State police power. affected; such power flowing from the duty of the Chapter State to preserve for its people a valuable food supply, which belongs in common to all the people of the State, which can only become the subject of ownership in a qualified way, and which can never be the object of commerce except with the consent of the State and subject to the conditions which it may deem best to impose for the public good." Fisheries within the territorial jurisdiction of a State are subject to State regulation and protection. In holding a Massachusetts statute, passed for the protection of the fisheries "within the jurisdiction. of this commonwealth" valid, Mr. Justice Blatchford, in writing the opinion of the court in Manchester v. Massachusetts," said that the statute 8 A State may prohibit the exportation of game. Organ v. State, (1892) 56 Ark. 267; American Express Co. v. People, (1890) 133 Ill. 649. Contra, State v. Saunders, (1877) 19 Kan. 127. In In re Davenport, (1900) 102 Fed. Rep. 540, it was held that importation of game from another State cannot be prohibited. But in Stevens v. State, (1899) 89 Md. 669, the court said that the total prohibition of having game, from whatever source derived, in possession during the closed season, is a reasonable if not necessary means of protecting the domestic game of the State making the prohibition. To the same effect see Magner v. People, (1881) 97 Ill. 320; People v. O'Neil, (1896) 110 Mich. 324; State v. Judy, (1879) 7 Mo. App. 524; Phelps v. Racey, (1875) 60 N. Y. 10. In Ex p. Maier, (1894) 103 Cal. 476, the court held that such a statute covered a sale of deer meat from an animal imported into the State, as the original package had been broken, saying: "Whether petitioner could have sold the meat as an entire carcass is a question which does not confront us, and which it is not, therefore, necessary to determine." In People v. Hesterberg, (1906) 184 N. Y. 126, it was held that under the Act of Congress of May 25, 1900, c. 553, § 5, 3 Fed. Stat. Annot. 152, providing that game animals or birds, or the bodies of such, imported into a State, shall be subject to the operation of the laws enacted in the exercise of its police powers, a State may prohibit the importation or possession of the bodies of game animals or birds during the close season. 9 (1891) 139 U. S. 240, affirming (1890) 152 Mass. 230. State profisheries. tection of XII. Swimming fish. Chapter "was evidently passed for the preservation of the fish, and makes no discrimination in favor of citizens of Massachusetts and against citizens of other States. If there be a liberty of fishing for swimming fish in the navigable waters of the United States common to the inhabitants or the citizens of the United States, upon which we express no opinion, the statute may well be considered as an impartial and reasonable regulation of this liberty; and the subject is one which a State may well be permitted to regulate within its territory, in the absence of any regulation by the United States. The preservation of fish, even although they are not used as food for human beings, but as food for other fish which are so used, is for the common benefit; and we are of opinion that the statute is not repugnant to the Constitution and laws of the United States. We do not consider the question whether or not Congress would have the right to control the menhaden fisheries which the statute of Massachusetts assumes to control; but we mean to say only that, as the right of control exists in the State in the absence of the affirmative action of Congress taking such control, the fact that Congress has never assumed the control of such fisheries is persuasive evidence that the right to control them still remains in the State." And so the question was left open as to the right of Congress to control fisheries in the bays, inlets, harbors, and ports of the United States.1 Menhaden ish. 1 A State may prohibit the taking of fish during certain seasons, though they may be taken with the purpose to ship them to another State. Ex p. Fritz, (1905) 86 Miss. 210. And a State may make it unlawful to have certain fish in possession during the close season, though such fish were taken in foreign waters. People v. Lassen, (Mich. 1906) 106 N. W. Rep. 143. See People v. Buffalo Fish Co., XII. State prooyster tection of culture. A State may protect the growth of oysters in Chapter the waters of the State by prohibiting the use of particular instruments in dredging for them. This power results from the State ownership of the soil, from the legislative jurisdiction of the State over it, and from the duty to preserve unimpaired those public uses for which the soil is held. It is within the power of the State to authorize the seizure, detention, and forfeiture of a vessel enrolled and licensed for the coasting trade of the United States, for a disobedience by those on board of the commands of such a law.2 License fees may be exacted of those engaged in the business of planting, growing, and taking oysters.3 And the citizens of other States can be prohibited from planting oysters in a stream in that State where the tide ebbs and flows, when its own citizens have that privilege. As the State owns the land under water adapted to the propagation and improvement of oysters, it may grant the exclusive use of it for that purpose to its own citizens. "There is here no question of transportation or exchange of commodities, but only of cultivation and production. Commerce has nothing to do with land while producing, but only with the product after it has become the subject of trade." (1900) 164 N. Y. 93, wherein the majority of the court assented to the position that the statute was applicable only to fish taken within the State. (U. S.) 71. See also Cor- 2 Smith v. Maryland, (1855) 18 How. field v. Coryell, (1823) 4 Wash. (U. S.) that a State may prohibit the taking of oysters at certain times and with destructive instruments. 3 Dize v. Lloyd, (1888) 36 Fed. Rep. 651; State v. Corson, (1901) 67 N. J. L. 178; Johnson v. Loper, (1884) 46 N. J. L. 321; Haney v. Compton, (1873) 36 N. J. L. 507. 4 Per Chief Justice Waite, in McCready v. Virginia, (1876) 94 U. S. 391. See also State v. Harrub, (1891) 95 Ala. 176; State v. Medbury, (1855) 3 R. I. 138. Chapter Plenary power of Congress. ADMISSION AND EXCLUSION OF ALIENS. In the Japanese Immigrant Case Mr. Justice Harlan said: "That Congress may exclude aliens of a particular race from the United States; prescribe the terms and conditions upon which certain classes of aliens may come to this country; establish regulations for sending out of the country such aliens as come here in violation of law; and commit the enforcement of such provisions, conditions, and regulations exclusively to executive officers, without judicial intervention, are principles firmly established by the decisions of this court." Congress may exclude some and admit others, and the reasons for its discrimination are not open to challenge in the courts, and it has the right to make the exclusion effective by punishing those who assist in introducing, or attempting to introduce, aliens in violation of its provisions. The Act of Congress of March 3, 1903, declaring that the following, among others, shall be excluded from admission into the United States: "anarchists, or persons who believe in or advocate the overthrow by force or violence of the government of the United States or of all governments or of all forms of law, or the (1903) 189 U. S. 86. • See also Lem Moon Sing v. U. S., (1895) 158 U. S. 538. It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. Nishimura Ekiu v. U. S., (1892) 142 U. S. 651. See also Wong Wing v. U. S., (1896) 163 U. S. 228; Fong Yue Ting v. U. S., (1893) 149 U. S. 698; Chinese Exclusion Case, (1889) 130 U. S. 581; In re Florio, (1890) 43 Fed. Rep. 114; U. S. v. Craig, (1886) 28 Fed. Rep. 795. Lees v. U. S., (1893) 150 U. S. 476. XII. assassination of public officials," is not open to con- Chapter stitutional objection.s 9 "That there Head An Act of Congress provided: shall be levied, collected, and paid a duty of fifty cents for each and every passenger, not a citizen of the United States, who shall come by steam or sail vessel from a foreign port to any port within the United States." To the objection that the statute was in violation of the first clause of section 8 of Article I of the United States Constitution, providing that the Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States," the Supreme Court said: "But the true answer to all these objections is that the power exercised in this instance is not the taxing power. The burden imposed on the ship owner by this statute is the mere incident of the regulation of commerce of that branch of foreign commerce which is involved in immigration." And even if such a statute violates provisions contained in prior treaties of the United States with friendly nations, the statute must prevail in all the judicial courts of this country.2 The right to expel or deport foreigners who have not been naturalized nor taken any steps towards becoming citizens of this country is as absolute and 8 U. S. v. Williams, (1904) 194 U. S. 279. Act of August 3, 1882, 3 Fed. Stat. Annot. 294. By the Act of August 18, 1894, c. 301, 3 Fed. Stat. Annot. 295, the amount of the head money was increased to one dollar. 1 Per Mr. Justice Miller, in Head Money Cases, (1884) 112 U. S. 580. See also Thingvalla Line v. U. S., (1889) 24 Ct. Cl. 255. 2 See Chinese Exclusion Case, (1889) 130 U. S. 581. money tax on alien passengers. Power to expel or de port aliens. |