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Further difficulties arise out of the question whether and how far the constitutional authority of congress is an exclusive one, i. e., whether and how far the states possess concurrent power. When congress enacts a law, then, according to the judicial decisions, all state legislation is overruled, even if it does not immediately concern the same subject-matter.1 Strictly taken, the authority of congress is an "exclusive" one, and a "concurrent" power of the states cannot be recognized.-' But, in spite of this, legislative action on the part of the states, within the range of the constitutional authority of congress, is admissible. If congress has not made use of its powers, the inference may be drawn either that it does not wish any legislation on the matters in question, or else that it wishes to let the particular local circumstances control, and that it therefore commits the matter to the states or state concerned. Thus, for instance, if congress were entitled to enact a general pilot law on the ground that the pilot system belongs to navigation, and the regulation of navigation is included in the right to regulate commerce, and if it should nevertheless refuse to enact such a law, it would thereby say that it does not regard the pilot system as adapted to a general and entirely homogenous regulation. In such a case the state laws concerning pilotage could not be declared to be unconstitutional encroachments upon the domain of congress.3 The states are by no means always entitled to legislate, if, and so

1 The Passenger Cases, Howard, VII., 283. The reasons for the decision of the court as such were not given in this case; only the individual judges gave reasons; but five of them maintained the opinion stated in the text.

2 See Judge McLean's remarks in the Passenger Cases, cited supra, upon Marshall's decision in Gibbons vs. Ogden, and Story's reference thereto in New York vs. Miln.

'Cooley vs. The Port Wardens, Howard, XII., 299.

long as, congress does not exercise its authority, but according to the above decision the exclusiveness of the authority of congress is not always absolute. In what case it is or is not to be regarded as such is manifestly not always quite certain from a legal standpoint. The courts must base their decision more or less upon considerations of a practical political nature, and therefore it may often be highly doubtful to which category the case in hand should be referred.

Difficulties grow apace because, as the federal supreme court has decided, "it is not everything that affects commerce that amounts to a regulation of it, within the meaning of the constitution;" 1 and the states, moreover, have certain powers by the exercise of which they may very easily come into conflict with the congressional legislation which regulates commerce. First and foremost of these are the police powers of the states. Drawing the line up to which a direct or indirect invasion of the province of congressional legislation on trade and commerce will be acknowledged as authorized, must necessarily be a somewhat arbitrary process. Thus, for instance, health and quarantine laws fall within the domain of the state.- It is very evident, however, that such laws could readily be made to interfere with many of the provisions of congressional legislation about trade and commerce. Moreover the supreme court in the License Cases (Howard, V., 504) decided that the states might, under certain restrictions, require the trade in liquors imported or brought from another state to be licensed, while in an older case {Brown vs. Maryland, Wheaton, XII., 419) it was decided that in general the importer's right of sale must not be interfered with by the state's requiring him

1 State Tax on Railway Gross Receipts, Wallace, XV., 293. * Gibbons vs. Ogden, Howard, IX., 203.

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to buy a license. The judges, however, assigned the most diverse reasons for their decision in the License Ca#e$. And it can by no means be discovered from these reasons how far the states may go in the exercise of their police power in restricting commerce in articles which they regard, for any reason whatever, as injurious or dangerous to the community. Similar conflicts may arise from the right of taxation possessed by the states. In inter-state or international commerce, neither the goods nor the transportation of property or persons can be taxed by the states.1 But the business as such and the capital used in it are subject to the state's right of taxation. The correctness of this principle certainly cannot be attacked, but just as little can it be disputed that it gives the states the power of encroaching very seriously upon the congressional domain, if they are only careful about the way in which they do so.-' The courts indeed are in no wise bound to permit the simple question of the sufficiency of the form in which a state carries out its right of taxation to determine their decisions, and they do not do so. As soon as they enter upon the question, whether the tax-laws of a state materially encroach upon the right of regulating international and inter-state commerce, subjective views are again given more or less sway.

These observations will be sufficient to show why an accurate judgment of the extent of this constitutional provision in all its ramifications is possible only in connection with all the judicial decisions to which it ha:;

1 State Freight Tax, Wallace, XV., 232; The Passenger Cases, Howard, VII., 283.

2 How easily and in what various ways this may occur will be sufficiently indicated by pointing to the decision in Liverpool Insurance Company vs. Massachusetts, Wallace, X., 566, according to which a state can tax a foreign corporation higher than similar corporations created by its own laws.

given rise. And they also show why no general and fixed commercial law, in the European sense of the word, has been developed in the United States. The narrow frame of this work makes it necessary to let this suffice and only to mention briefly the matters subject to the authority of congress, under this general provision, either by force of custom or of judicial decisions.

This authority extends to the places, the means and the subjects of trade and commerce.

As to the places, congress must not only provide where, under what conditions, and how certain events in international and inter-state commerce — such as the departure and arrival of vessels, the discharge of their freight, the payment of duties, etc.— shall take place, but it must also take care that the places meet the demands of commerce and trade. That is, it must put and keep the harbors in good condition, must improve the navigability of the rivers, must build light-houses, piers, etc.

As to the means, the principle prevails that the authority of congress is not restricted to those means which were known and in use at the time of the adoption of the constitution. Steamboat and railroad traffic and the telegraph system are as much subject to congressional regulation as were the media of commercial intercourse of earlier times. Its powers " keep pace with the progress of the country and adapt themselves to the new developments of time and circumstances As they were

entrusted to the general government for the good of the nation, it is not only the right but the duty of congress to see to it that intercourse among the states and the transmission of intelligence are not obstructed or unnecessarily encumbered by state legislation." 1• Whether and how far congress is entitled to itself provide media of

1 Pensacola Tel. Co. vs. Western Union Tel. Co., Otto, VI., 124; Cooley, Principles, 65, 66.

commerce, i. e., to establish highways, to build or materially aid in building railroads, etc., is one of the oldest and most important questions, and one which has not yet received, a final and comprehensive legal decision. But the tendency of actual development has always been towards the subordination of legal arguments to considerations of expediency. On the other hand the power of congress to use its authority to regulate trade in such a way as to indirectly accomplish other objects is generally recognized.1 Congress has done this in the numerous laws usually referred to under the name of registration and navigation laws. These are in great part designed to give American ship-builders and ship-owners an advantage over their foreign competitors. To the power to regulate the means of commerce we must also refer the laws as to building and outfitting of vessels, the number and safety of the crews, as well as of the passengers, the discipline, the legal rights and duties of the sailors, etc.2

1 How far congress may do this has, however, been a hotly contested question in the battles between protection and free trade.

-' The influence of the federal government upon the means of commercial intercourse — apart from those used in navigation — has been up to the present time comparatively very limited. As to the railroads, it has reserved a somewhat more comprehensive power only as to the roads in the construction of which, to be discussed further on, it assisted in part. In the discharge of its constitutional duties, in which it could not do without the railroads, as in the carrying of the mails, congress promptly used its legislative powers as far as the public interests seemed to demand. But as to the rest, the federal laws contain little more in reference to the railroads than the provisions that relate to all "common carriers." But that this is not due to any doubts as to its own authority is plain from the act of March 3, 1873, which was dictated solely by a humanitarian regard for the rest, feeding and watering of cattle transported by rail or water. (Stat, (it Large, XVII., 584, 585.) For years, however, congress has debated a considerable number of proposed laws of every kind which cut deeply into the autonomy of railroad companies and in part also

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