mileage basis as a means, prima facie, of arriving at the value of the property within the state, that is, the state's proportionate part of the value of the entire property.1 The rule of the "average habitual use" has also been formulated in the taxation of railroad cars, so that a state may tax its proportionate part of the property actually employed in its jurisdiction.2 Thus, also, while the receipts from interstate commerce cannot be taxed as such, the tax may be levied upon the corpora tion, as an excise or franchise tax, which may be apportioned on the basis of the proportion of the mileage within the state to the total mileage.3 These rules, however, are only admissible in determining the actual value of the property in the state for the purpose of taxation, and will not authorize the taxing by a state of the privilege of carrying on interstate commerce among the states, nor the taxation of property permanently outside of its jurisdiction.1 $20. State power of taxation of corporations engaged in interstate commerce summarized. In a recent case the Supreme Court, in holding that a city could recover from an inter 1 State Railroad Tax Cases, 92 U. S. 575 (1875), 23 L. Ed. 663; Kentucky Railroad Tax Cases, 115 U. S. 321 (1885), 29 L. Ed. 414; Pittsburgh etc. R. Co. v. Backus, 154 U. S. 421 (1894), 38 L. Ed. 1031; C. C. C. & St. L. R. Co. v. Backus, 154 U. S. 439 (1894), 38 L. Ed. 1041; Western Union Tel. Co. V. Massachusetts, 125 U. S. 530 (1888), 31 L. Ed. 790: Massachusetts v. Telegraph Co., 141 U. S. 40 (1891), 35 L. Ed. 628; Western Union Tel. Co. v. Taggard, 163 U. S. 1 (1896), 41 L. Ed. 49; Adams v. Ohio, 165 U. S. 194 (1897), 41 L. Ed. 683; Adams Express Co. v. Kentucky, 166 U. S. 171 (1897), 41 L. Ed. 960; Henderson Bridge Co. Kentucky, 166 U. S. 150 (1897), 41 L Ed. 953. W. U. Tel. Co. v. Gottlieb, 190 U. S. 412 (1903), 47 L. Ed. 1116. 2 Pullman Palace Car Co. v. Pennsylvania, 141 U. S. 18 (1891), 35 L. Ed. 613; Marye v. B. & O. R. Co., 127 U. S. 117 (1888), 32 L. Ed. 94; American 3 The State Freight Tax Cases, 15 Wall 232 (1872), 21 L. Ed. 146; Maine v. Grand Trunk R. Co., 142 U. S. 217 (1891), 35 L. Ed. 994. Four judges dissenting. 4 Fargo v. Hart, 193 U. S. 490 (1904). 48 L. Ed. 761. For consideration of the many questions arising in the adjustment of the taxing power of the state to the paramount authority of congress in interstate commerce, see author's "Power of Taxation," chapters. III and VIII. 5 Atlantic, etc. Tel. Co. v. Philadel phia, 190 U. S. 160 (1896), 47 L. Ed. 995. state telegraph company a reasonable license fee for the occupation of its streets by telegraph poles, subject however to the determination by a jury of the reasonableness of the charge, said that there were few questions more important or more embarrassing than those arising from the efforts of the states or municipalities to increase their revenues by collections from corporations engaged in interstate commerce, but that the following propositions had been so often adjudicated as to be no longer open to discussion: First. The constitution of the United States having given to congress the power to regulate commerce not only with foreign nations but among the several states, that power is necessarily exclusive whenever the subjects of it are national in their character or admit of only one uniform system or plan of regulation. Second. No state can compel a party, individual or corporation, to pay for the privilege of engaging in interstate commerce. Third. This immunity does not prevent a state from imposing ordinary property taxes upon property having a situs in its territory and employed in interstate commerce. Fourth. The franchise of a corporation, although that franchise is the business of interstate commerce, is, as a part of its property, subject to state taxation, provided the franchise is not derived from the United States. Fifth. No corporation, even though engaged in interstate commerce, can appropriate to its own use property, public or private, without liability to charge there for. 1 The soliciting of traffic for an interstate railroad is exempt from taxation. McCall v. Cal., 136 U. S. 134 (1890), 34 L. Ed. 391. In 1868 before the adoption of the fourteenth amendment it was held in Crandall v. Nevada, 6 Wall. 35, 18 L. Ed. 745, that a state tax upon through passengers was void as inconsistent with the rights of citizens of the United States, in free travel through the states, and not merely as an attempted regulation of commerce among the states. The opinion of Justice Miller quotes from the dis senting opinion of Chief Justice Taney of the Passenger Cases, infra. 21, where he concedes that the state tax inposed on foreigners would be invalid, if imposed on citizens. CHAPTER II. THE CONCURRENT AND EXCLUSIVE POWERS. § 21. The concurrent and exclusive powers distinguished.. 22. The supreme court on the three classes of commerce cases..... 23. The concurrent state power... 24. The state power as to interstate telegraph companies... 25. Concurrent power in interstate railroad transportation. 26. State Sunday laws and interstate traffic. 32 33 34 35 36 27. State laws as to qualifications of employees and safety of public 36 28. State laws concerning separation of races in interstate traffic... 37 29. Limitation of state power in stoppage of through trains... . . . . 37 30. State regulation of contractual relations of interstate railroad and shippers....... 38 31. State regulation under rules of common law in state courts.... 39 32. The concurrent jurisdiction in live stock inspection laws... 33. Effect of congressional legislation upon concurrent power of state 34. State quarantine laws 35. Freedom of interstate commerce... 36. Congressional inaction in foreign and interstate commerce dis tinguished........ 37. Attachment of foreign railroad cars .. 38. Rulings of the state courts on the commerce clause... 40 40 41 42 45 45 46 $21. The concurrent and exclusive powers distinguished. The supremacy of the federal power in interstate commerce was declared in 1821, in Gibbons v. Ogden (supra, § 5), in a case wherein congress had exercised its power by authorizing the granting of coasting licenses, and the decision of the court therefore was based upon the claim of an exclusive grant by the state as against this right, under authority of congress, in the navigation of the public waters of the state. The question of the power of the state to legislate affecting interstate commerce, when congress had not legislated upon the subject, was not directly involved or decided; and this remained a verata questio, and widely different views were expressed by members of the court, until a definite rule was declared in 1851. Thus it was contended on the one hand that the power Black Bird Creek Cases, 5 How. 504 (1847), 12 L. Ed. Marsh Co., 2 Peters. 245 (1829), 7 L. 256: Passenger Cases, 7 How. 283 Ed. 412; New York v. Miln, 11 Peters, (1849), 12 L. Ed. 702. 102 (1837), 9 L. Ed. 648; License. 1 Wilson V. to regulate interstate commerce was itself a unit, and the grant to congress was necessarily exclusive, and no part of this regulation could be exercised by a state; and on the other hand that the grant to congress was not itself a prohibition to the states, and that this authority of the states in the exercise of their sovereign police powers was complete and exclusive.1 The uncertainty produced by these differing opinions was shown in sustaining a New York statute requiring masters of passenger vessels to report to the state authorities as to arriv ing passengers; while a few years later statutes of New York and Massachusetts imposing a tax upon passengers arriving from other states or foreign countries, for defraying expenses of police laws excluding paupers and convicts, the surplus to be applied to state purposes, were held void.* In 1846 the laws of certain of the New England states, prohibiting or restraining the introduction of spirituous liquors were sustained, all the six judges filing opinions, and concurring in the judgment, though on different grounds. Finally, in 1851, the rule was declared, which has been the basis of subsequent adjudications," that the power to regulate commerce is one which includes many subjects, various and quite unlike in their nature, and that whenever these subjects are in their nature national, or admit only of one uniform system or plan of regulation, they may be justly held to belong to that class over which congress has exclusive power of regula tion; but that local and limited matters, not national in their nature, may be regulated by the states during the non-action of congress. The action of congress however renders void. such regulations of the states as conflict with it." 22. The supreme court on the three classes of commerce cases. The supreme court in denying the power of a 1 See opinions in the Passenger and License Cases, supra. 2 New York v. Miln, supra. 6 The rule has been stated in subsequent opinions without the qualification of the word "only." so as to 3 Passenger cases, supra, four jus- read "admit of one uniform system tices dissenting. 4 License cases, supra. This decision was overruled in 1890; Leisy v. Harding, supra, § 16. 5 Cooley v. Board of Wardens, 12 How. 299 (1851), 13 L. Ed. 996. or plan of regulation." See state Freight Tax, 15 Wall. 243, 21 L. Ed. 146: Welton v. Missouri, 91 U. S. 1. c. 280 (1875), 23 L. Ed. 349; Henderson v. Mayor, 92 U. S. 1. c. 273 (1875), 23 L. Ed. 823. state to regulate tolls upon an interstate bridge without the assent of congress, reviewed its decisions upon the construction and application of the commerce clause of the constitution, and said they were divisible into three distinct classes. The first, where the power of the state was exclusive, including the construction of highways, turnpikes, railroads and canals, between points in the same state, and their regulation for public use, the operating of bridges over navigable streams and regulating navigation over internal waters which did not by themselves or in connection with other waters form a continuous highway for interstate or foreign commerce. In the second class were included the cases of concurrent jurisdiction of the states, and wherein it is not the existence, but the exercise of the power of congress which is incompatible with the exercise of the same power by the states. In the third class the court included those cases where the power of congress was exclusive, and it was not the exercise but the existence of the power in congress which excluded the power of the state. The first class requires no distinct consideration. The dividing line between the second and third class has, however, been questioned in a number of cases, as will be seen in the succeeding sections. 23. The concurrent state power. The concurrent jurisdiction of the states, as it is called, may be exercised in the second of the classes of cases mentioned in the preceding section, where it is not the existence but the exercise of the power of congress which is incompatible with the exercise of the state power. Thus, the regulation of pilots has an intimate connection with commerce, and discriminating state laws might be enacted on the subject, yet the nature of the power is such that it is likely to be best provided for by the legislative discretion of the several states, adapted to local needs." In this essentially local class are the state inspection laws," state quarantine laws, and laws regulating the improvement of navigable waters within the jurisdiction of a state, or the |