commerce, which are best regulated by one uniform rule applicable alike to all the seaports of the United States; and the statute was held to be void because legislation on the subject covered by it was confided exclusively to congress, by article 1, § 8, of the constitution of the United States, which confers power on congress "to regulate commerce with foreign nations." By the statute of New York the master of a vessel, arriving at the port of New York from a foreign port, was required to give a bond for each passenger not a citizen of the United States, conditioned to indemnify against expense for the relief or support of such passenger for four years, with the alternative of commuting for the bond by paying for the passenger, within 24 hours after his landing, the sum of $1.50. In default of giving the bond, or paying the commutation tax, a penalty of $500 for every such passenger was imposed, which was made a lien on and enforceable against the vessel. Although the penalty for failure to pay did not accrue till 24 hours after the passenger was landed, it was held, in the Henderson Case, that the penalty was incurred by the act of landing him without payment, and that it was, in fact, for the act of bringing him into the state.

In the case of People v. Compagnie Generale Transatlantique,-Sup. Ct., 107 U. S. 59; [S. C. 2 Sup. Ct. Rep. 87;] Cir. Ct., 10 FED. REP. 357, at the last term of the United States supreme court, a subsequent statute of New York, requiring the master, owner, agent, or consignee of every vessel bringing an alien passenger from a foreign port to the port of New York to pay a duty of one dollar for each such passenger, within 24 hours after the entry of the vessel into port, was held void on the ground that such a tax was "a regulation of commerce with foreign nations, confided by the constitution to the exclusive control of congress."

But it is contended that because the act of congress, now in question, in regulating commerce, imposes a duty of 50 cents for each passenger, not a citizen of the United States, who comes by steam or sail vessel from a foreign port to a port within the United States, it violates several provisions of the constitution.

It is said that the duty is a capitation tax, and that article 1, § 9, of the constitution requires that "no capitation or other direct tax shall be laid, unless in proportion to the census." But the act is manifestly, in its general purpose and effect, an act regulating commerce. It was passed because state laws of the same character had been held void. It applies to all the sea-ports of the United States, and to all steam-vessels and all sail-vessels coming from a foreign port. Having power to prohibit the commerce in question, congress had power to authorize it on conditions to be observed. Such conditions are regulations. The permission to bring in alien passengers in steam or sail vessels from foreign ports, on paying the duty, is, in fact, the granting of a license to carry on such commerce, and the duty is a license fee, measured by the number of passengers. Grant

ing such license, for a fee, is regulating commerce.

The tax or duty

or fee is a part of the regulation, and it should be clearly shown that there is no power in congress to exact the duty.

shown.

This is not

Besides, this tax is not within the definition of a capitation tax, as always recognized. It is not a tax on the poll, without regard to property, business, or other circumstances. Hylton v. U. S. 3 Dall. 171. It is a tax on the owner of the vessel, and made a lien on his vessel, because he brings alien passengers in his vessel. It is a tax on the business he carries on, measured by the number of such passengers. Being imposed to regulate commerce, it is not to be regarded as a tax on the alien passenger, in the sense of a capitation tax, even though the presumption may be that the owner will make the passenger pay the tax.

It is also said that the act violates the following provisions of article 1, § 8, of the constitution: "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 argument is that this is a tax or duty; that it is not collected to provide for the general welfare of the United States; and that it is not uniform throughout the United States, because aliens may come to the United States from a foreign port by other vessels than steam or sail vessels, and by other means than by a vessel, and no duty is imposed for them.

The answer to this view is, that the act is not passed in the exercise of the power of laying taxes. As before said, the business of bringing aliens in these vessels, instead of being prohibited, as it might have been lawfully, is permitted on payment of this license fee, and the moneys collected are made a special fund, to be devoted exclusively to the purposes named in the act,-the expense of regulating immigration, the care of immigrants, the relief of such as are in distress, and the general purposes and expenses of carrying the act into effect. These expenses are fairly limited, and to be limited, to purposes which are within the regulation of commerce, and to objects fairly made necessary by the exercise of the privilege or license granted. It is not, for the purpose of invalidating the act, to be intended that the objects specified in the act go beyond what is constitutional, or that abuses will be allowed in executing the act. None are alleged. If any shall appear, it is to be presumed that congress will so legislate on the subject as to avoid all excess of power. No such excess appears in the act.

Aside from this, the tax applies uniformly to all steam and sail vessels coming to all ports in the United States, from all foreign ports, with all alien passengers. The tax being a license tax on the business, the rule of uniformity is sufficiently observed if the tax extends to all persons of the class selected by congress; that is, to all

owners of such vessels. Congress has the exclusive power of selecting the class. It has regulated that particular branch of commerce which concerns the bringing of alien passengers on steam and sail vessels from foreign ports, and has selected such vessels and their owners for taxation everywhere throughout the United States.

The case is not one where a court can say the tax is not laid for the general welfare of the United States. No court can say that it is not for the general welfare of the United States to lay such a tax as this to defray the expense of regulating the immigration of aliens, and of caring for immigrants as they arrive, and of relieving such as are in distress when they arrive, and of supervising the business, and of supporting and relieving such immigrants as may fall into distress or need public aid, and of protecting the United States and the immigrants from fraud and loss. As the ship-owners have the privilege of bringing the immigrants here, and setting before them the inducements to come, it is for the general welfare of the United States that those who come shall be directed to their destinations, and guarded from being defrauded and robbed on arrival, and kept from becom ing at once a public charge through want of means, if needy. It is a tax laid to create a fund to be so used, which it must be assumed congress has said is a tax laid to provide for the general welfare of the United States; and it is not the province of a court to say to the contrary. The course of legislation and judicial decision shows that the objects specified in this act are objects which can be attained only through enactment by congress, which shall operate equally throughout the states, and are thus for the general welfare of the United States.

In respect to this case, and other cases arising under the act, it is alleged that treaties existed before the act was passed between the United States and the various foreign countries of which the owners of the vessels bringing the passengers were citizens or subjects, and that the act violates the treaties in imposing the tax. The argument is, that the tax is really a tax on the passenger, and that the treaties forbid the laying of the tax. Inasmuch as the tax is laid on owners who are citizens of the United States and their vessels, as well as on foreign owners and their vessels, engaged in the same business, and because of that business, it is not perceived how there is any violation of any provision of any treaty, or how any provision for freedom of commerce or navigation, properly construed, can require more than this. Otherwise, the one nation would be prevented, under such provisions, from imposing on any goods imported from the other any higher duties than those imposed by the latter on like goods coming from the former. There is all the freedom of commerce and navigation which the treaties require, when all persons engaged in a given business are treated alike, in the way of license fee or taxation. The passengers do not carry on the commerce or navigation by being passengers in the vessel, and there is no viola

tion of the true meaning of any treaty, in imposing the tax only for passengers who are not citizens of the United States.

So

But, aside from this, the act of congress, if in conflict with the prior treaties, supersedes them. It is provided as follows by article 6 of the constitution: "This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties. made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." The constitution requires that judicial officers shall be bound by oath to support the constitution. This requires them to see that both laws and treaties shall be the supreme law in an equal degree, neither more than the other. By article 2, § 2, of the constitution, the president has power, by and with the advice and consent of the senate, to make treaties. far, the treaties are only compacts, binding on the two contracting parties, as between themselves as nations. But, when it is further provided that all laws becoming such in the manner provided in the constitution, and all treaties, shall be the supreme law of the land, treaties become law, and laws become law, and judicial officers must treat both as of equal weight. A treaty is not the law of the land at all, and is nothing but a contract, except by virtue of the clause which makes treaties and laws equally the law. Without that clause a treaty would not supersede a prior conflicting statute. As it does, so it must itself be, as the supreme law of the land, superseded by a subsequent conflicting statute; otherwise, the clause as to laws and treaties being both of them the supreme law would have no operation. A treaty would, as against a prior conflicting statute, have no effect as the supreme law until a new statute had abrogated the old statute, and a statute would, as against a prior conflicting treaty, have no effect as the supreme law until a new treaty had superseded the old treaty. The judicial decisions are to that effect. Taylor v. Morton, 2 Curt. C. C. 454; The Cherokee Tobacco, 11 Wall. 616; Ropes v. Clinch, 8 Blatchf. C. C. 304; The Clinton Bridge, 1 Woolw. 155; Bartram v. Robertson, 15 FED. REP. 212.

It is urged that children under one year of age are not passengers, under the provisions of the act, so as to be chargeable with the duty, because in section 1 of the act of August 2, 1882, (22 St. at Large, c. 374, p. 186,) "to regulate the carriage of passengers by sea," it is provided that in calculating the number of cubic feet of space to be allowed for each passenger, in a vessel bringing passengers other than cabin passengers from a foreign port, children under one year of age shall not be included. It is also urged that two children between one and eight years of age should be counted as one passenger, because it is so provided in section 1 of the last-named act, in regard to the cubic feet of space. The two statutes have no relation to each other. Each of the children is a passenger, and is to count as one passenger unless expressly excluded. In respect to cubic feet of space for sanitary purposes, there is a special provision in the one statute

as to children. In respect to the tax for the business, there is no special provision in the other statute regarding children, and each person carried is a passenger.

There must be a judgment for the defendant, with costs. The same result is reached in regard to the other actions tried by the court at the same time, brought against the same defendant, for like causes of action, the facts being of the same character as in this suit. Those suits are brought by the Liverpool & Great Western Steam Company, the Nord Deutscher Lloyd, Die Hamburg Amerikanische Packet Actien Gesellschaft, and De Koninglyk Nederlandsch Stoomvaart Maatschappy.

POWERS OF UNITED STATES GOVERNMENT. By the revolution the pow ers of government devolved upon the people of the United States;1 the body of electors composing the state; 2 the sovereign people; every citizen being a constituent member, who had the power to invest the general government with all the powers they might deem proper and necessary, and to prohibit the states from exercising any powers incompatible with the objects of the general compact.4 The government of the United States is one of delegated powers alone, limited in the number of powers enumerated in the federal constitution, but supreme within the scope of its delegated powers, while state constitutions are but limitations on sovereign powers already existing; and it is clothed with absolute sovereignty to the extent of its powers, separate and distinct from state sovereignty, although they may operate on the same subject; but in case of conflict the general government is supreme. The powers actually granted must be such as are expressly given, or given by necessary implication; 11 and in the exercise of all those means, and the employment of all those agencies and instrumentalities, "necessary and proper for carrying into execution its granted powers," the government of the United States is as supreme and independent as the states which created it.12 Whenever any act done under its authority is challenged, the proper sanction must be found in its charter, or the act is ultra vires and void.13 The constitution divides the government into three departments,-the executive, legislative, and judicial, the lines of separation being clearly defined and closely followed, neither being permitted to encroach on the power exclusively confided to the other. 14 Among the powers expressly granted is the power of taxa

1 McCulloch v. Maryland, 4 Wheat. 316; Dartmonth College Case, 4 Wheat. 518; Green v. Biddle, 8 Wheat. 1; Ogden v. Saunders, 12 Wheat. 213; Cherokee Nation v. Georgia, 5 Pet. 1. 2 Penhallow v. Doane, 3 Dall. 93.

3 Scott v. Sandford, 19 How. 404.

4 Martin v. Hunter's, Lessee, 1 Wheat. 325. 5U. S. v. Cruikshank, 92 U. S. 550; 1 Woods, 308; McCulloch v. Maryland, 4 Wheat. 316; Scott v. Sandford, 19 How. 393; Ableman v. Booth, 21 How. 505; Lane Co. v. Oregon, 7 Wall. 76; Dobbins v. Erie Co. 16 Pet. 435; Gibbons v. Ogden, 9 Wheat. 1; Briscoe v. Bank of Ky. 11 Pet. 257; Frasher v. State, 3 Tex. Ct. App. 273; Fifield v. Close, 15 Mich. 505; State v. Garton, 32 Ind. 1; State v. Gibson, 36 Ind. 389; People v. Brady, 40 Cal. 198; Bradwell v. State, 16 Wall. 130.

6 Ohio Life Ins. & T. Co. v. Debolt, 16 How. 428. 7 Metrop. Bank v. Van Dyck, 47 N. Y. 407.

8 Ableman v. Booth, 21 How. 506; Newell v. People, 7 N. Y. 93; People v. N. Y. Cent. R. Co. 24 N. Y. 486; Metrop. Bank v. Van Dyck, 27 N. Y. 411.

9 Brown v. Maryland, 12 Wheat. 419; Weston v. Charleston, 2 Pet. 449; Dobbins v. Erie Co. 16 Pet. 435; Collector v. Day, 11 Wall. 113; Nat. Bank v. Com. 9 Wall. 353; Sweatt v. Boston, etc., R. Co. 5 N. B. R. 249; Passenger Cases, 7 How. 283; Tarble's Case, 13 Wall. 397.

10 Tarble's Case, 13 Wall. 397; Matter of Far rand, 1 Abb. (U. S.) 146.

11 Andrews v. Auditor, 28 Grat. 121.

12 Id.; Bank of Commerce v. N, Y. City, 2 Black, 620; Bank Tax Case, 2 Wall. 200; Osborn v. Bank of U. S. 9 Wheat. 738.

13 Pacific Ins. Co. v. Soule, 7 Wall. 444.

14 Kilbourn v. Thompson, 103 U. S. 163; Ex parte Stephens, 70 Mass. 559; Hayburn's Case, 2 Dall. 409, note,