CHAPTER III

STATE CONTROL AND REGULATION

A State has the exclusive power to regulate its own internal commerce; but it cannot regulate interstate or foreign commerce except by such laws as only incidentally affect interstate commerce and do not conflict with any act of Congress on the subject. That its purely internal or domestic commerce is under the full and exclusive control of a State, is a proposition requiring no discussion after our examination of the source, scope, and nature of the power of Congress.1 With such commerce, such as does not affect other nations or States or the Indian tribes, Congress has nothing to do. When, however, a State intentionally or otherwise, imposes a direct burden upon interstate commerce, as by making payment of a license tax a condition precedent to engaging in the same, it encroaches upon the exclusive power of Congress previously defined.3

§ 17. Construction of State Statutes. What a particular State statute means as affecting interstate commerce— whether it is intended to be confined to mere internal commerce, for instance-is a matter for the determination of the court of that State, and its construction will ordinarily be accepted as conclusive. But when a statute is attacked as a roundabout means to invade the domain of Federal authority, the Supreme Court of the United States will look into its actual operation and effect, despite the construction placed upon it by the State court. An express 1 Addyston Pipe Co. v. U. S., 175 U. S. 211.

2 Lord v. Steamship Co., 102 U. S. 541.

3 Hall v. DeCuir, 95 U. S. 485; McNeill v. So. R. R. Co., 202 U. S. 543, 26 Sup. Ct. Rep. 722, 50 L. ed. 1142.

4 Waters-Pierce Oil Co. v. Texas, 177 U. S. 28; C. & O. R. R. v. Ky. 179 U. S. 388.

5 Morgan's S. S. Co. v. La. Board of Health, 118 U. S. 455.

declaration that a statute is passed in pursuance of the police power of the State and as a police measure, will not be binding upon the Federal courts if the act in fact trenches on that which is within the exclusive power of Congress. After the State court has construed the statute, the Federal question remaining is whether the statute as so construed is valid. It is when the construction of the statute enters into the question of its relationship to the commerce clause, that the construction placed by the State court is not binding upon the Federal court. In 1895 the State of South Carolina passed a liquor dispensary law which was intended as a bona fide exercise of its police power; but the Federal Supreme Court construed it as in effect discriminating against the bringing in of liquors from other States, and as such, void as a hindrance to interstate commerce."

No better summary of the scope of the power of the States over commerce, nor better examples of proper and improper State regulations thereof, can be found than in the following quotation from the leading case of Covington Bridge Co. v. Kentucky:8

"The adjudications of this court with respect to the power of the States over the general subject of commerce are divisible into three classes: First, those in which the power of the state is exclusive; second, those in which the States may act in the absence of legislation by Congress; and third, those in which the action of Congress is exclusive and the States cannot interfere at all.

"The first class, including all those wherein the States have plenary power, and Congress has no right to interfere, concern the strictly internal commerce of the State, and while the regulations of the State may affect interstate commerce indirectly, their bearing upon it is so remote that it cannot be termed in any just sense an interference. Under this power, the States may authorize the construction of highways, turnpikes, railways, and canals between points in the same State, and regulate the tolls for the use of the same........and may authorize the building of bridges 6 Brennan v. Titusville, 153 U. S. 289. 8 154 U. S. 204.

Scott v. Donald, 165 U. S. 58.

over non-navigable streams, and otherwise regulate the navigation of the strictly internal waters of the Statesuch as do not, by themselves or by connection with other waters, form a continuous highway over which commerce is or may be carried on with other States or foreign countries.... . . . . . This is true, notwithstanding the fact that the goods or passengers carried or traveling over such highway between points in the same State may ultimately be destined for other States, and, to a slight extent, the State regulations may be said to interfere with interstate commerce. The States may also exact a bonus, or even a portion of the earnings of such corporation, as a condition to the granting of its charter . . . Under this power the States may also prescribe the form of all commercial contracts, as well as the terms and conditions upon which the internal trade of the State may be carried on.

and the

"Within the second class of cases-those of what may be termed concurrent jurisdiction—are embraced laws for the regulation of pilots; . . . quarantine and inspection laws and the policing of harbors; the improvement of navigable channels; . . . the regulation of wharves, piers, and docks; the construction of dams and bridges across the navigable waters of a State; establishment of ferries. Of this class of cases it was said by Mr. Justice Curtis in Cooley v. Philadelphia Port Wardens: 'If it were admitted that the existence of this power in Congress, like the power of taxation, is compatible with the existence of a similar power in the States, then it would be in conformity with the contemporary exposition of the Constitution, and with the judicial construction, given from time to time by this court, after the most deliberate consideration, to hold that the mere grant of such a power to Congress did not imply a prohibition on the States to exercise the same power; that it is not the mere existence of such a power, but its exercise by Congress, which may be incompatible with the exercise of the same power by the States, and that the States may legislate in the absence of Congressional regulations.' But even in the matter of building a bridge, if Congress chooses to act, its action necessarily supersedes the action of the State. As matter of fact, the building of bridges over waters dividing two States is now usually done by Congressional sanction. Under this power the States may also tax the instruments of interstate commerce as it taxes other similar property, provided such tax be not laid upon

the commerce itself. But wherever such laws, instead of being of a local nature and not affecting interstate commerce but incidentally, are National in their character, the non-action of Congress indicates its will that such commerce shall be free and untrammelled, and the case falls within the third class of those laws wherein the jurisdiction of Congress is exclusive. . . . Subject to the exceptions above specified, as belonging to the first and second classes, the States have no right to impose restrictions, either by way of taxation, discrimination, or regulation, upon commerce between the States. That, while the States have the right to tax the instruments of such commerce as other property of like description is taxed, under the laws of the several States, they have no right to tax such commerce itself, is too well settled even to justify the citation of authorities. The proposition was first laid down in Crandall v. Nevada and has been steadily adhered to since. That such power of regulation as they possess is limited to matters of a strictly local nature, and does not extend to fixing tariffs upon passengers or merchandise carried from one State to another, is also settled by more recent decisions, although it must be admitted that cases upon this point have not always been consistent."

Of other subjects to which local and special regulation are applicable, so long as Congress has passed no conflicting laws upon the same subject, the following may be taken as typical: the hours during which a bridge over the Chicago River may be opened;10 the protection of the game of a State, even to the extent of forbidding the killing of it for shipment out of the State;11 the use of the arms or great seal of a State for advertising purposes.12 All these subjects are principally matters of local concern, and their regulation by the several States is generally justified in the theory that the legislation is in fact an aid to commerce. Whether, however, aids to commerce or checks upon it, such local regulations constitute no interference with the

96 Wall. 35.

10 Escanaba Transp. Co. v. Chi., 107 U. S. 678; Cardwell v. Amer. Bridge Co., 113 U. S. 205.

11 Geer v. Conn., 161 U. S. 519.

12 Com. v. R. I. Sherman Mfg. Co., 189 Mass. 76.

commercial power of Congress for the reason that when Congress acts the State authority is superseded.18

14

§ 18. State Police Power as Affecting Commerce. Aside from purely local regulations, if State legislation affects commerce that is within the commerce clause, it must in the last analysis be justified as an enactment of the police power of the State,11 and must, in addition, not conflict with any Act of Congress. Just what this police power is it is difficult to say with any degree of definiteness. "It is generally said to extend to making regulations promotive of domestic order, morals, health, and safety. All these exertions of power are in immediate connection with the protection of persons and property against noxious acts of other persons, or such a use of property as is injurious to the property of others. They are selfdefensive. ''15

Promotion of Public Health. The power to legislate for the protection of their citizens is reserved to the several States. In order to secure the general health and welfare of its people, a State may, therefore, adopt precautionary measures against disease by excluding from its limits persons or property having contagious or infectious diseases.16 It may provide that whoever permits diseased cattle in his possession to run at large in the State shall be liable for any damages caused by the spread of the disease occasioned thereby.17 Quite apart from the desirability of preventing fraud and deception, and equal justification for the police laws affecting interstate commerce, a State may insure the purity of imported coffee by prohibiting the bringing in of coffee so adulterated as to conceal damage.18 But while a State may forbid altogether the manufacture or sale of oleomargarine colored in imitation of butter,19 it 13 Mobile County v. Kimball, 102 U. S. 691; Gilman v. Phila., 3 Wall. 713; Cardwell v. American Bridge Co., 113 U. S. 205.

14 Robbins v. Shelby County Tax Distr., 120 U. S. 489.

15 R. R. v. Husen, 95 U. S. 465, 470.

16 R. R. v. Husen, 95 U. S. 465.

17 Brimmer v. Rebman, 138 U. S. 78.

18 Crossman v. Lurman, 192 U. S. 189.

19 Plumley v. Mass., 155 U. S. 461.