ÆäÀÌÁö À̹ÌÁö
PDF
ePub

and property of its inhabitants. Thus, if a state legislature, deeming it dangerous to permit poisons to be sold without restriction, should pass a statute requiring a license from the druggist, or placing him under any other species of restraint, such law would be unobjectionable, although certain poisonous substances, as opium, are chiefly or wholly the products of foreign countries, and therefore the objects of commerce. Again, most of the states have enacted statutes prohibiting the sale of spirituous liquors in certain quantities, and at certain times and places, except by those persons who have complied with the provisions of the statute, and have received licenses for that purpose. Such laws are within the power of the states to pass. This entire class of statutes establishing police regulations is within the purview of state legislation, whether Congress has legislated for the same or similar purposes or not. Among them may be mentioned laws establishing quarantine, licensing and controlling pilots, declaring the order in which ships shall come to wharves and docks, regulating the use of wharves and docks, managing the internal order of harbors, licensing the sale of spirituous liquors, poisons, and the like.

§ 330. (2.) In respect to measures which are properly, though perhaps indirectly, regulations of commerce, if Congress, proceeding under the general power conferred upon it, has already legislated upon any subject connected with foreign commerce, or with that among the states, the several states are entirely deprived of any authority over the same subject-matter; they are entirely cut off and debarred from the exercise. of the legislative function; the prior occupation of the field by the national legislature excludes any participation therein by the individual states. But if Congress have not legislated; if their power as given by the Constitution lies dormant, the states are free to act; their action, however, is not absolute and final; it is only conditional; it is constantly subject to be displaced by the laws of Congress, if that body should see fit to exercise its power, and regulate the particular subject.

All the cases are agreed as to the correctness of this prop Dsition; but in its application there may be some diversity

nor can the decisions of the Supreme Court be perfectly reconciled. This discrepancy arises, not from any difference in the statement of the rule, but from the different meanings which have been attributed to it. In most of the cases decided by the Supreme Court, it has been held sufficient to displace the state authority, if Congress had legislated so as to cover the subject-matter in a general way; if the relation of the national legislation to the object contemplated by the state law was indirect and incidental. One or two cases, however, and several judges, seem to have so construed the rule as to require that Congress should directly legislate upon the self-same subject-matter as that contained in the state. statute, in order that the latter should be ineffectual.

§ 331. In the latest reported case to be cited hereafter -the Supreme Court of the United States has expressed the rule governing the relations of the nation and the states in an entirely different form; although it was probably not the intention of the court to introduce any new principle. It was there said: The power to regulate commerce covers a wide field, and embraces a great variety of subjects. Some of these subjects call for uniform rules and national legislation; others can be best regulated by rules and provisions suggested by the varying circumstances of different localities, and limited in their operation to such localities respectively. To this extent the power to regulate commerce may be exercised by the states. But even in respect to this latter class of rules and provisions, Congress may interpose whenever it shall be deemed necessary by general or special laws; and their interposition would sweep away the local state legislation. Within the sphere of their authority, both the legislative and the judicial powers of the nation are supreme. A different doctrine finds no warrant in the Constitution, and is abnormal and revolutionary.

§ 332. I shall now add an abstract of the cases which have been decided in the Supreme Court of the United States, and from which the foregoing propositions have been derived. As many of these judgments are among the ablest and most celebrated ever emanating from that high tribunal, I shall refer to

them with some particularity, and extract from them with some fulness. This course is adopted the more readily, because the opinions of the judges, while the most authoritative expositions of the Constitution, contain nothing which is technical; they may be appreciated and understood by any intelligent citizen as well as by the professional lawyer; and they deal in questions of the greatest magnitude, -questions which lie at the bottom of schemes of policy and of political controversies, and involve the very nature of the government itself.

§ 333. Gibbons v. Ogden: Facts and question at issue. — The case first in point of time (1824), and most important in principle, is that of Gibbons v. Ogden.1 The facts were few and brief. The State of New York, by a statute of its legislature, gave to Robert R. Livingston and Robert Fulton the exclusive right to navigate all waters within the jurisdiction of the state with vessels propelled by steam, for a certain term of years. Gibbons, notwithstanding this statute, navigated the bay of New York with a steamboat running between New York City and Elizabethport in New Jersey, which steamboat had been duly enrolled and licensed as a coasting vessel, under the acts of the United States Congress regulating the coasting trade. Ogden, who had succeeded to the rights of Livingston and Fulton, commenced a suit in the New York courts to restrain this proceeding of Gibbons. The state courts having decided in favor of Ogden's claim, and having held the statute of New York valid, an appeal was taken by the other party to the Supreme Court of the United States. The contention on the part of Gibbons was, that the New York statute contravened the clause of the Constitution which confers upon Congress the power to regulate commerce among the states, and was therefore void. This proposition was denied by Ogden; and the issue thus raised was the only one to be decided by the court.

[ocr errors]

§ 334. The Arguments. The cause was argued with the utmost learning and ability by Mr. Webster and Mr. Wirt for Gibbons, and by Mr. Oakley and Mr. Emmet for Ogden. We may well assume that the arguments on both sides were exhausted.

19 Wheaton's R. 1.

In support of the New York statute it was urged, (1.) that the act in question did not interfere with the preroga tives of Congress, as it was not a regulation of commerce, but only a police regulation analogous to those respecting quarantines and pilots. (2.) That Congress had no exclusive power at all over the subject, but that the power was absolutely concurrent in the national and state legislatures, so that by no possibility could there arise a conflict of jurisdiction. (3.) That if the latter proposition was overruled, still the power was held by the states concurrently, and they might legislate thereby, unless Congress had already legislated upon exactly the same subject-matter as that over which the state had assumed control; and that as Congress had never legislated in regard to the navigation of state waters with steamboats, the statute in question was valid.

On the other side it was contended: (1.) That the New York law was a regulation of commerce, and the powers of the national government were discussed at large. (2.) That the jurisdiction of Congress was absolutely exclusive, or at least, (3.) That Congress having legislated upon the general topic of navigation, and prescribed certain steps to be taken in order to entitle a person to employ his vessel in the coasting trade, namely, the procuring it to be enrolled and licensed, no state had authority to add any further conditions to the use of a vessel.

§ 335. Opinion of the Court. Extent of the power to reg ulate. How far exclusive. The opinion of the court was delivered by C. J. Marshall, and is confessedly one of his masterpieces. It should be diligently read by all students of our Constitution and civil polity. I shall only quote the salient points.

After speaking of the meaning and nature of commerce, and the sort of rules which Congress may legitimately ordain by virtue of the constitutional grant, the Chief Justice proceeds to meet the important question under consideration. He says: :1 "We are now arrived at the inquiry, What is this power? It is the power to regulate; that is, to prescribe the rule by

19 Wheaton's R. 196.

which commerce is to be governed. This power, like all others vested in Congress, is complete in itself; may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar." "But it has been urged with great earnestness, that, although the power of Congress to regulate commerce with foreign nations, and among the several states, be coextensive with the subject itself, and have no other limits than are prescribed in the Constitution, yet the states may severally exercise the same power within their respective jurisdictions. .. The appellant [Gibbons] contends that the full power to regulate, particular subject, implies the whole power, and leaves no residuum; that a grant of the whole is incompatible with the existence of a right in another to any part of it." The Chief Justice then proceeds to show that there is no analogy between the power of taxation, and the power to regulate commerce. Congress has general power to tax; and yet it is universally admitted that the states may also tax. The reason is that the Constitution recognizes the states as bodies-politic, and to their very existence as such, the power to lay and collect taxes is absolutely essential, while the power to regulate commerce is not. No argument can, therefore, be drawn from the conceded concurrent power of the states to exercise the function of taxation, in favor of a like concurrent jurisdiction over commerce. Having disposed of this apparent analogy, the Chief Justice proceeds: 2 "In discussing the question whether this power is still in the states, in the case under consideration, we may dismiss from it the inquiry whether it is surrendered by the mere grant to Congress, or is retained until Congress shall exercise the power. We may dismiss that inquiry because it has been exercised, and the regulations which Congress deemed it proper to make, are now in full operation. The sole question is, can a state regulate commerce with foreign nations, and among the states. while Congress is regulating it?"

19 Wheaton's R. 197.

2 Ibid. 200.

« ÀÌÀü°è¼Ó »