United States Decisions.

Decisions of the Supreme Court of the United States-rendered generally after exhaustive arguments in contests between the State and Federal Governments are cited, for the reason that they are often a guide, if not an authority, in defining the extent of the powers over the same matters which are in similar language committed by the Constitutional Act of this Dominion upon the Federal Government. It must be borne in mind that, although such powers as are not delegated to the U. S. Federal Government are reserved to the States, still, "the sovereignty of the United States, though limited as to specified objects, is plenary as to those objects." (Gibbons v. Ogden, 9 Wheat. 194).

And thus, though in the distribution of powers the objects and classes of subjects over which the legislative control has been given to the United States Federal Government has been limited and restricted, this does not affect its supreme power of legislation upon such objects as have been confided to it.

In the distribution of powers between the Federal and State Governments, the United States Constitution has confided to the general Government "the regulation of commerce" (Art. 1, sec. 8, sub-s. 3), but not the regulation of trade generally.

Still the following decisions of the Supreme Court of the United States giving a judicial consideration and construction of the "Commerce power vested by the U. S. Constitution in the Federal Government of that Republic, show that Congress has an unlimited jurisdiction in the regulation of every species of inter-State and foreign commercial intercourse.

In Brown v. State of Maryland (12 Wheaton, U. S., S. C. 419), Held : That an Act of a State Legislature requiring importers of foreign goods to take out a license, for which they shall pay 50 dollars, and in case of neglect or refusal to take out such license subjecting them to certain penalties, is repugnant to that provision of the Constitution of the United States which declares that "no State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws," and to that which declares that Congress shall have "power to regulate commerce with foreign nations, and among the several States."

Held, also, that a tax on the occupation of an importer was a tax on importation.

In Cook v. State of Pennsylvania, (97 U. S., S. C. 566) 1878, Held : That the Statute of Pennsylvania of May 20, 1853, modified by that of April 9, 1859, requiring every auctioneer to collect and pay into the State treasury a tax on his sales, is, when applied to imported goods, sold in the original packages for the importer, in conflict with Art. 1 of the Constitution of the United States, and therefore void,

first, as laying a duty on imports (forbid by sec. 10), and, second, as being a regulation of commerce, a power given exclusively to the general Government.

Held, also, that a State tax on sales made by an auctioneer is a tax on the goods sold.

In Welton v. State of Missouri (91 U. S., S. C. 280), Held:

That a license tax required by a State of travelling traders, for the sale of goods not of its own product or manufacture is, in effect, a tax, upon the goods themselves. It is an attempt to discriminate injuriously against the products of other States and the rights of their citizens, and an infringement of the power vested in Congress to insure uniformity of commercial regulation against discriminating State legislation.

Mr. Justice Field, in delivering the opinion of the Court, said: Commerce is a term of the largest import. It comprehends intercourse for the purposes of trade in any and all its forms, including the transportation, purchase, sale and exchange of commodities between the citizens of our country and the citizens or subjects of other countries, and between the citizens of different States. The power to regulate it, embraces all the instruments by which such commerce may be conducted. The non-exercise by Congress of its power to regulate commerce among the several States is equivalent to a declaration by that body that such commerce shall be free from any restrictions.

In Railroad Co. v. Husen (95 U. S., S. C. 465),

Held :

That the Statute of Missouri, which prohibits driving or conveying any Texas, Mexican or Indian cattle into the State between the first day of March and the first day of November in each year, is in conflict with the clause of the Constitution that ordains "Congress shall have power to regulate commerce, &c." Mr. Justice Strong, who delivered the opinion of the Court, said: "Neither the unlimited powers of a State to tax, nor any of its large police powers, can be exercised to such an extent as to work a practical assumption of the powers properly conferred upon Congress by the Constitution.

Many Acts of a State may indeed affect commerce, without amounting to a regulation of it, in the constitutional sense of the term. While we unhesitatingly admit that a State may pass laws for the protection of life, liberty, health, or property within its borders . it may not interfere with transportation into or through the State beyond what is absolutely necessary for its self-protection."

In Inman Steamship Co. v. Tinker (94 U. S., S. C. 246), Held :
That a State Statute empowering and requiring all vessels entering

a harbor in the State to pay a tax of three cents per ton is unconstitutional as imposing a duty on tonnage.

In Norris v. City of Boston (Passenger Tax Case, 7 How. 283), Held: That the Statutes of the States of New York and Massachusetts imposing a tax upon passengers, either foreigners or citizens, arriving in those States, either in foreign vessels or vessels of the United States, from foreign nations or from ports in the United States, are unconstitutional and void, being in their nature regulations of commerce contrary to the grant in the Constitution to Congress of the power to regulate commerce with foreign nations and among the several States.

2. That the States of this Union cannot constitutionally tax the commerce of the United States for the purpose of paying any expense incident to the execution of their police laws; and that the commerce of the United States includes an intercourse of persons as well as the transportation of merchandise.

3. That the Acts of Massachusetts and New York, in question in these cases, conflict with treaty stipulations existing between the United States and Great Britain, permitting the inhabitants of the two countries freely and securely to come with their ships and cargoes to all places, ports and rivers in the territories of each country to which other foreigners are permitted to come.

In Henderson et al. v. Mayor of New York et al. (92 U. S., S. C. 265), Held:

That a State Law which, under the pretence of protecting the State from pauper immigration, compels the owner or consignee of every vessel arriving at the port of New York to give a bond of indemnity for every passenger in a penalty of $300, against any expenses that may be incurred for his relief or support for four years thereafter; or, instead and as a commutation of such bond, to pay a tax of $9.50 for each passenger within 24 hours after his landing, is, in effect, a tax on the passenger and a regulation of commerce, and, when applied to passengers from foreign countries, is a regulation of commerce with foreign nations.

Held:

In Crandall v. State of Nevada (6 Wall, U. S., S. C. 35), That a State law requiring those in charge of all the stage-coaches and railroads doing business in the State to make report of every passenger who passed through the State, or went out of it by their conveyance, and to pay a tax of one dollar for every such passenger, was unconstitutional and void, as inconsistent with objects for which the Federal Government was established and with rights of transit conferred by the Constitution on the people

That such a tax is a tax on the passenger for the privilege of passing through the State by the ordinary modes of travel, and is not a simple tax on the business of the Companies.

In Hall v. De Cuir (95 U. S., S. C. 487), Held:

That an Act of the State of Louisiana requiring all those engaged in inter-State commerce to give all persons travelling in that State, upon the public conveyances employed in such business, equal rights and privileges in all parts of the conveyance without distinction of race or color is a regulation of inter-State commerce, and seeks to impose a direct burden thereupon, and, therefore, to that extent, unconstitutional and void.

In Cook v. State of Pennsylvania (97 U. S., S. C. 566), Held :

That a tax laid by a State on the amount of sales of goods made by an auctioneer is a tax on the goods so sold.

And when applied to imported goods in the original packages by him sold for the importer is in conflict with sect. 8 and 10 of Art. 1 of the U. S. Constitution, and therefore void as laying a duty on imports and being a Regulation of Commerce.

In Chy Lung v. Freeman et al (92 U. S. S. C. 275), Held:

That a Statute of California which forbids the landing of certain classes of alien passengers from a vessel, unless the master or owner of the vessel gives a separate bond for each of such passengers, for the future protection of the State against the support of such passenger, or, pays such sum as the Commissioner of Immigration chooses to exact, invades the right of Congress to regulate commerce with foreign nations, and is therefore void.

Mr. Justice Miller, in delivering the opinion of the Court, said: "We are not called upon by this Statute to decide for or against the right of a State, in the absence of legislation by Congress, to protect herself by necessary and proper laws against paupers and convicted criminals from abroad, nor to lay down the definite limit of such right, if it exist. Such a right can only arise from a vital necessity for its exercise, and cannot be carried beyond the scope of that necessity."

A Provincial tax upon Chinese Immigrants has been declared by the Supreme Court of British Columbia as ultra vires of the Local Legislature.

See Todd's Parl. Gov. in Col. (pp. 154-159) for a critical review of the Colonial legislation designed to prevent Chinese immigration.

It appears from this review that an attempt was made to put a stop to the rapid influx of Chinese immigrants into the Colony of Queens

K

land, by means of a Bill discriminating against all Asiatic or African aliens. This Bill imposed a tax upon such immigrants of ten pounds for a business license, and a tax of three pounds for a miner's license, the ordinary tax being ten shillings for a miner's license and four pounds for a business license. The Bill was reserved by the Governor for the Royal approval as being at variance with Treaty stipulation of the Imperial Government.

The conduct of the Governor was approved by the Colonial Secretary (Lord Carnarvon), and the Governor was informed that the Colonial Secretary could not advise the Queen that the Bill in that shape should receive the Royal assent. Subsequently a Bill without these objectionable features was passed and received the Royal assent.

In Foster v. Master and Wardens of the Port of New Orleans (94 U. S., S. C. 246), Held:

That the Act of the Legislature of Louisiana providing for the inspection of the hatches of every seagoing vessel coming to the Port of New Orleans, and attaching a penalty to the neglect of this duty by ship owners, was a Regulation of Commerce, and unconstitutional and void, and that it was not to be classed as an inspection law, the object of which is to certify the quantity and value of the articles inspected, for the protection of buyers and consumers.

Swayne, J., in delivering the opinion of the Court, said:

Besides the unreason and the oppressive character of the Act as regards ship owners and consignees, it is an invasion of the rights of persons outside of these classes. If such a monopoly sustained by such a sanction may be validly given to the master and wardens, why may they not also, at prices not agreed upon by the parties, nor according to the market value, but at rates arbitrarily fixed by law, be authorized exclusively to load and unload ships, to furnish them with all needful supplies, and to perform all the services of consignees, commission merchants, and ship-brokers touching incoming and outgoing cargoes?

In expressing these views we have no purpose to impugn anything heretofore said by this Court as to the power of the States to establish inspection, quarantine, health and other regulations, within the sphere of their acknowledged authority.

The constitutional validity of such regulations is as clear as the power of Congress to establish regulations of commerce. It is no objection to the former that both operate upon the same subject. In Steamship Company v. Port Wardens (6 Wall. 31), Held: