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tive duty of the state to provide for the preservation and protection of the health of its people, and although the power, when exercised, may in a greater or less decree affect commerce, yet such laws passed in the exercise of this power are not enacted for the purpose of affecting commerce. They are enacted for the sole purpose of preserving the public health, and if they injuriously affect commerce, congress, under the power to regulate it, may control the operation of such laws. Quarantine laws of necessity operate on vessels engaged in commerce, and may cause delay or inconvenience to such vessels and the commerce in which they are engaged, but they are still lawful and valid when they do not contravene any constitutional provision, or any constitutional enactment of congress. But while the state has the power to establish, maintain and execute, quarantine regulations, and to raise revenue necessary for that purpose, it is also true that no state can levy a tonnage tax upon ships and vessels entering its harbors in the pursuit of commerce, for the purpose of raising a revenue to meet the expenses of its quarantine regulations."1

§ 372. Whether a charge is wharfage or a tonnage duty is a question of fact and law.-Wharfage is a charge for the use of a wharf, made by the owner thereof by way of rent or compensation; while a duty of tonnage is a tax or duty charged for the privilege of entering or loading or lying in a port or harbor. Whether a charge is wharfage or a duty of tonnage, is a question, not of intent, but of fact and law; of fact, whether it is imposed for the use of a wharf, or for the privilege of entering a port; of law, whether according as the fact is shown to exist, it is wharfage or a duty of tonnage.62

§ 373. Whether wharfage is reasonable must be determined by the local law. It is a general rule of law that charges for the use of a public wharf must be reasonable; but this rule is established by the local municipal law, and by that law the question, whether wharf charges are reasonable or extortionate, must be determined. The reasonableness of wharf charges does not present a federal question, and a circuit court of the United States has no jurisdiction to entertain a bill in equity

61 Peete v. Morgan, 19 Wall. 581 (22:201).

62 Transportation Co. v. Parkersburg, 107 U. S. 691 (27:584).

for relief against exorbitant wharfage, as a case arising under the constitution and laws of the United States.63

§ 374. Purpose and design of the constitutional prohibition against state tonnage duties.-The intent, purpose and design of the constitutional provision, prohibitng the states from laying tonnage duties, were to guard against local hindrances to commerce, trade and carriage by ships and vessels, and not to relieve them from liability to claims for assistance rendered, and facilities and local aids furnished to trade and commerce. It is a tax or duty that is prohibited; something imposed by virtue of sovereignty, not claimed in right of proprietorship. Wharfage is of the latter character. Providing a wharf to which vessels may make fast, or at which they may conveniently load or unload, is rendering them a service. The character of the service is the same whether the wharf is built and offered for use by a state, a municipal corporation or a private individual; and when compensation is demanded for the use of the wharf, the demand is an assertion, not of sovereignty, but of a right of property."4

63 Transportation Co. v. Parkersburg, 107 U. S. 691 (27:584); Packet Co. v. Aiken, 121 U. S. 444 (30:978).

64 Keokuk Northern Line Packet Co. v. Keokuk, 95 U. S. 80 (24: 377).

CHAPTER VII.

THE FEDERAL JUDICIARY.

§ 375. Judicial power requisite to the existence of government.

376. The vital principle which

supports written constitutions-The duty of the judiciary.

377. The legislative, executive and judicial departments of government to be kept separate.

378. The confederacy under the articles of confederation was a league of sovereign states and not a government.

379. Same-No judiciary under the confederacy.

380. Same- The confederation had no power to enforce its laws.

381. The federal government created and invested with full judicial power. 382. The limits of the judicial power defined in the constitution, but the power not distributed by it.

383. Same-Limits of the grant of judicial power.

384. Same-Constitutional

dis

tribution of judicial power to the supreme court. 385. The constitution requires

the judicial power to be vested in a system of federal courts-Not in the state courts.

386. Same-"Inferior courts" of

the United States.

§ 387. Constitutional provision securing the independence of the federal judiciary.

388. The constitution mandatory upon congress to organize the federal judiciary.

389. Same-The

federal judi

ciary organized by congress under the original judiciary act.

390. Same-Creation of the United States circuit courts of appeals.

391. Courts constituting the federal judicial system. 392. Same-Inferior courts not inferior in the common law sense.

393. The jurisdiction of the federal judiciary is co-extensive with the legislative power.

394. The federal judiciary necessary to enforce the constitutional limitations upon the states.

395. The federal judiciary necessary to restrain federal legislation within

constitutional limits. 396. The federal judiciary nec

essary to maintain the supremacy of the federal constitution and the au

thority of the federal government.

397. The federal judiciary a

peaceful means of remov

ing obstructions to interstate commerce.

§ 398. Relation of the federal judiciary to the national

peace.

399. Relation of the federal ju

diciary to domestic tranquility and peace.

§ 400. Territorial courts not courts of the United States.

401. The court of claims a special court.

§ 375. Judicial power requisite to the existence of government. The judicial power is a co-ordinate constituent principle of all just civil government; and, in every well-constituted government, the judicial power must be co-extensive with the legislative power, and vested in a separate and distinct judicial department, capable of receiving and exercising jurisdiction in all cases arising under its constitution and laws, and of deciding all judicial questions arising out of them, and vested with the power of enforcing its judgments and decrees, whoever may be parties.1

1 Cohens v. Virginia, 6 Wheat. 264 (5:257); Osborne v. Bank, 9 Wheat. 738 (6:204); Federalist, Nos. XLVI and LXXX; 1 Spirit of Laws (Rev. Ed.) 151.

Montesquieu, in The Spirit of Laws, says: "In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law.

"By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that bave been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other sim

ply the executive power of the state.

"The political liberty of the subject is tranquility of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another.

"When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

"Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legisla

§ 376. The vital principle which supports written constitutions-The duty of the judiciary. The vital principle in political science which supports all written constitutions, and which is essential to the existence of governments founded on them is that: A nation or political community in adopting a written constitution intends that it shall form and constitute the fundamental and paramount law of the land, and that all acts of the legislature repugnant thereto shall be absolutely null and void, and wholly inoperative for any purpose whatever; and the judicial department, as well as the other departments of the government, is bound by the constitution; and, it being the, special province and duty of the courts to interpret and declare the law, the judiciary is bound, in all cases where a statute conflicts with the constitution, to pronounce such statute void.2

§ 377. The legislative, executive and judicial departments of government to be kept separate.-The legislative, executive and judicial departments of government ought to be kept separate and distinct, and each confided to a separate magistracy. The assembling of the whole power of these three departments, or any two of them, in the same hands, is subversive of the fundamental principles of free government. There can be no liberty under a government so constituted. But this principle is not violated by the trial of impeachments before the upper house of the legislature.3

§ 378. The confederacy under the articles of confederation was a league of sovereign states and not a government.-The "confederacy" under the articles of confederation was not a government, but "a league of friendship" of sovereign states, "for their common defense, the security of their liberties, and their mutual and general welfare," in which each state retained its sovereignty, freedom and independence, and every

tor. Were it joined to the executive power the judge might behave with violence and oppression.

"There would be an end of everything were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing

the public resolutions, and of trying the causes of individuals." 1 Spirit of Laws (Rev. Ed.) 151, 152.

2 Marbury v. Madison, 1 Cranch, 137 (2:60); Federalist, No. LXXVIII.

3 Federalist, Nos. XLVI and XLVII; 1 Spirit of Laws (Rev. Ed.) book XI, pp. 149-182.

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