[City of New York v. Miln.]

defendant: "That the act of the legislature of the state of New York, mentioned in the plaintiff's declaration, assumes to regulate trade and commerce between the port of New York and foreign ports, and is unconstitutional and void.”

Upon this question the opinion of the judges being opposed, the same was certified to this Court, at the request of the plaintiffs.

The case was argued at a former term of this Court, and the justices of the Court being divided in opinion, a re-argument was directed.

It was again argued by Mr. Blount and Mr. Ogden, för the plaintiffs; and by Mr. White and Mr. Jones, for the defendant.

Mr. Blount, for the plaintiff, contended that the law in question was constitutional. The case he said was not without difficulty; indeed, the very hesitation of a court constituted as this was, admonished him of the doubts and difficulties attending the solution of the question.

The law was one peculiar to this country, and it grew out of circumstances also peculiar to this country. The emigration to the United States since the American revolution, was unprecedented in history, not merely in numbers, but in its character. It was not a military colonization, like the Greek and Roman colonies; nor was it mercantile, like the East India and American colonies of modern Europe. Neither did it resemble the emigration of the Moors from Spain, or the Huguenots from France. It was a constant and steady migration of civilized Europeans to an independent country, controlled by a civilized people. This migration was peculiar to the United States, and we cannot find legal analogies in other countries. That migration has now reached the amount of sixty thousand five hundred yearly, into the port of New York alone.

It was obvious that laws were needed to regulate such a migration; and the Atlantic states, generally, have passed such laws: and the law in question, is that of New York, providing that masters of vessels bringing passengers to that port, who have no legal settlement in the state, shall give bonds to the city to indemnify it for three years from all charges on account of their maintenance. It also provides for a report to the mayor of the names, &c. of the passengers, and inflicts a penalty for a violation. of the law.

At the previcus argument, the defendant contended that this was

[City of New York v. Miln.j

a regulation of commerce, and that the power to regulate commerce was exclusively vested in congress. Hence this law, passed by a state, was unconstitutional.

We do not admit this law to be a regulation of commerce; but conceding, for the sake of the argument it to be so, it does not follow that it is unconstitutional.

Because congress has the power to regulate commerce, it is not a consequence that it is an exclusive power.

Powers granted to congress are exclusive only.

1st. When granted in terms expressly exclusive.

2d. When the states are prohibited from exercising it.

3d. When exclusive in its nature.

This power clearly does not fall under the first nor second class. Does it under the third class?

The counsel contended that a legislative power is exclusive in its nature, only when its existence in another body would be repugnant to, and incompatible with its exercise by congress.

Not that its exercise by a state legislature would be incompatible with its exercise by congress. That is a conflict between concurrent or co-ordinate powers; and where that takes place, we concede the federal power is supreme.

A power exclusive in its nature, must be such that the states can pass no law upon the subject without violating the constitution. Federalist, No. 32; 5 Wheat. 49; 1 Story on Cons. Law, 432.

Concurrent powers are of two classes.

1st. Where any federal legislation covers the whole ground, and exhausts the subject; as fixing the standard of weights and measures. Here, after congress has legislated, the power of the states is at an end.

2d. Where the power may be exercised in different modes, or on different subjects; or where the object admits of various independent regulations operating together.

In these cases the concurrent laws are all in force, and the state law is void only so far it conflicts with the law of congress.

The 2d section of 6th article of the constitution, providing that the laws of congress made pursuant to the constitution shall be the supreme law of the land, proves that this species of concurrent legislation was contemplated. This Court has sanctioned this view of the subject, 4 Wheat. 122. 196; 5 Ib. 49; 9 Ib. 200.

In the case of Saunders v. Ogden, it was decided that a bankrupt

[City of New York v. Miln.]

law passed by a state was valid, until it conflicted with federal legis

lation.

The counsel, Mr. Blount, contended, that the case of Gibbons v. Ogden, did not touch the case before the Court.

こ 1st. Because, there the power to regulate commerce was regarded as exclusive only so far as it regulated the commerce of the United States as a whole.

2d. Because, there the question decided by the Court was whether a state could regulate commerce, while congress was regulating it. 9 Wheat. 200.

3d. Because it was expressly said in that case by the Court, that it never was intended to deny to the states all legislation, which might affect commerce.

Ib. 204.

That decision therefore does not touch the point, and the Court is now called upon to go farther, and declare all state laws affecting commerce void.

This is the extent of defendant's doctrine.

There is here no conflict of concurrent laws.

Congress has passed no law conflicting with this law.

The acts of 1779, March 2d, and of 1819, March 2, cited by the defendant's counsel in the former argument, are for different purposes.

The first is a revenue law, and the provisions relating to passengers are confined entirely to the entering and landing of baggage, and they are intended to prevent smuggling.

The second is intended to prevent the cupidity of masters and owners from crowding their ships with passengers, and to compel them to provide a sufficient quantity of water and provisions.

The treaties with Brazil, and Austria, and Prussia, are equally inapplicable. They merely secure freedom of commerce and intercourse to the subjects of these countries, they conforming to the laws of this country. This law was then in existence, and the exception provides for the execution of all such laws.

Besides, the defendant here does not appear to be a subject of either of those powers; and of course cannot claim any thing on account of those treaties, even if they were applicable to the case. We do not deny that in regulating commerce the power of congress is supreme, and it may be regulated either under that power, or under the treaty making power. Until that be done, and the conflict occur, the state law is valid. Such are the doctrines of this

[City of New York v. Miln.]

Court, and of the ablest jurists. 1 Story, Cons. Law, 433. "Congress may make that a regulation of commerce, which a state may employ as a guard of its internal policy, or to promote its own peculiar interests."

"If the power to regulate commerce be exclusive, still the legislation of a state acting on subjects within the reach of other powers, besides that of regulating commerce, would be eonstitutional." 2 Story, Cons. Law, 517.

In order to decide the cause for the defendant, the Court must come to the conclusion that the power regulating commerce is so exclusive that all states laws affecting or regulating commerce are necessarily void, even where no conflict exists.

This is beyond any former decision, and we think the Court will not adopt such a conclusion.

1st. Because it is a case where power is claimed by implication, and it is not sufficient to show a possibility of inconvenience. All such cases too are decided upon their own grounds.

2d. It is a question of power, and the Court will require most convincing arguments before denying it to the states.

3d. Such a construction is not necessary to reconcile former decisions.

4th. The regulation of passengers was productive of no conflicting legislation under the old confederation. It was not the evil to be remedied, when the power to regulate commerce was given to congress. Supremacy of federal law is a sufficient remedy, and the Court will not imply power farther than necessary.

5th. This construction would throw upon congress a mass of legislation which it could not perform; and the tendency to alienation from the federal government would be increased by its incompetency to perform its duties.

Among these laws are the laws regulating the discharge of ballast; the harbour regulations; the pilot laws of the states; the health laws; the laws of police as to the conduct of crews of vessels while in port; and a class of laws peculiar to the southern states, prohibiting traffic with slaves, and prohibiting masters of vessels from bringing people of colour in their vessels. Such is the mass of legislation which must be abrogated by such a decision.

But when we look at the course of commerce with foreign countries, at the commencement, the progress, and the conclusion of a voyage; it is difficult to estimate the extent to which such a conclu

[City of New York v. Miln.]

sion must lead the Court. The merchandise that is sent abroad is purchased in the interior, and bills of exchange on the northern cities, and on Europe, given for it. The merchandise that is brought home on the return voyage, is often kept in the original package, and is transported from state to state, with benefit of drawback, until it is again shipped for a foreign market. How much of this falls within the power to regulate commerce with foreign states; and if exclusive, how much must be withdrawn from state legislation?

There is no criterion furnished by referring to the place where the business is transacted, and by declaring that all transacted within the country falls within state jurisdiction, and the residue within federal jurisdiction. The shipping of sailors is within the country, and that is regulated by congress; and so is their discharge and enforcement of the contract. On the other hand, pilotage, a contract commenced upon the ocean, is regulated by state laws.

Again, if the power to regulate commerce with foreign states be exclusive, that of regulating commerce between the states is exclusive also. Both powers are conferred in the same terms, and in the same clause.

Apply the construction contended for by the defendant, and the legislative power of the states is at an end. They become mere municipal corporations; and all legislation relative to commerce, the great business of the country, becomes exclusively vested in congress. Under this head of the argument, therefore, we conclude that, conceding the passenger law to be a commercial regulation, the states have a power concurrent with congress to legislate, but subject to the controlling power of congress.

2d. The law is not a commercial regulation in the sense contemplated in the constitution; but a police regulation. It is a part of the system of poor laws, and intended to prevent the introduction of foreign paupers. This power of determining how and when strangers are to be admitted, is inherent in all communities. 2 Ruth. Inst. 476;

Fathers of families, officers of colleges, and the authorities of walled cities, all have this power as an incident of police. In states it is a high sovereign power. It belonged to the states before the adoption of the federal constitution. It is no where relinquished; nor can it be with safety. It is essential to the very existence of some, and to the prosperity and tranquillity of all. That it was not intended to relinquish it, we infer: