rendered its observance useless to one of the contracting parties.1

§ 373 e.2 Tax on Manufactures. This subject was much considered in the late case of Welton v. State of Missouri, 91 U. S. 275. Welton sold in Missouri sewing-machines manufactured without that state. He had no license, as a statute of that state required, and was accordingly arrested and fined. The Supreme Court of the state affirmed that judg

ment.

The first section of the statute in question enacts that "Whoever shall deal in the selling of patent or other medicines, goods, wares, or merchandise, except books, charts, maps, and stationery, which are not the growth, produce, or manufacture of this state, by going from place to place to sell the same, is declared to be a peddler."

Other sections prohibit peddling without a license, and provide a penalty. No license is required in selling from place to place the growth, produce, or manufactures of the state. The state statute was held unconstitutional. Mr. Justice Field, in his opinion, said: "The license charge exacted is sought to be maintained as a tax upon a calling. This license tax is, in effect, a tax upon the goods. 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.

"It would be premature to state any rule which would be universal in its application to determine when the commercial power of the federal government over a commodity has ceased and the power of the state has commenced. It is sufficient now to hold that the commercial power continues until the commodity has ceased to be the subject of discriminating legislation by reason of its foreign character."

↑ Railroad Co. v. Richmond, 19 Wall. 584, 589.

2 This and the following sections, to § 374, were added by the editor.

§ 373 f. Tax on Passengers. -State laws taxing foreign passengers are also invalid. In the recent case of Henderson v. Mayor of New York, 92 U. S. 259,1 Miller, J., in an interesting opinion on the right to tax passengers, said: "If it is apparent that the object of this statute, as judged by that criterion [viz., its natural and reasonable effect], is to compel the owners of vessels to pay a sum of money for every passenger brought by them from a foreign shore and landed at the port of New York, it is as much a tax on passengers, if collected from them, or a tax on the vessel or owners, for the exercise of the right of landing their passengers in that city, as was the statute held void in the Passenger Cases."

Attention was then called to the manner of the decision of the Passenger Cases, and the hope was expressed that the present court may be more unanimously agreed.

"Commerce," said the learned judge, "means trade, and it means intercourse. It means commercial intercourse between nations and parts of nations, in all its branches. It includes navigation, as the principal means by which foreign intercourse is effected. To regulate this trade and intercourse is to prescribe the rules by which it shall be conducted."

"Laws governing the transportation of passengers from Liverpool to New York are regulations of commerce. The authority under which New York claims to act is her police power."

"Whatever may be the nature and extent of that power, where not otherwise restricted, no definition of it, and no urgency for its use, can authorize a state to exercise it in regard to a subject-matter which has been confided exclusively to the discretion of Congress by the Constitution."

"It is clear, from the nature of our complex form of government, that, whenever the statute of a state invades the domain of legislation which belongs exclusively to the Congress of the United States, it is void, no matter under what

1 And see Edye v. Robertson, 18 Fed. Rep. 135; Kaeiser v. Ill. Cent. R. R. Co. Ib. 151; Louisville &c. R. R. v. Tennessee R. R. 19 Ib. 679; Ill. Cent. R. R. v. Stone, 20 Ib. 468; Cole v. Johnson, 10 Daly, 258. Ed.

class of powers it may fall, or how closely allied to powers conceded to belong to the states."

"It is argued that there is a neutral ground in the regulation of commerce which may be occupied by the states so long as they do not interfere with Congress. This doctrine has never been agreed to in this court without dissent. However, this matter of the transportation of passengers requires exclusive action by Congress. The subject is of international concern. The system ought to be uniform as applied to all the ports of the country.”

"We are of opinion that this whole subject has been confided to Congress by the Constitution; that Congress can more appropriately and with more acceptance exercise it than any other body known to our law, state or national; that by providing a system of laws in these matters, applicable to all ports and to all vessels, a serious question, which has long been matter of contest and complaint, may be effectually and satisfactorily settled."1

§ 373 g. Liability for Marine Torts.-In Sherlock v. Alling, 93 U. S. 99, it was declared that a statute of Indiana concerning liability for injuries caused by "marine torts (i. e. tort on the Ohio River) does not interfere with the power of Congress to regulate commerce. Mr. Justice Field, in his opinion, says: "In all the cases [where the statute was held to interfere with the power of Congress] the legislation condemned operated directly upon commerce, either by way of tax upon its business, license upon its pursuit in particular channels, or conditions for carrying it on." Passenger Cases, 7 How. 283; Wheeling Bridge Case, 18 How.

421.

The statute in this case "in no respect interferes with any regulations for the navigation and use of vessels. It only declares a general principle respecting the liability of all persons within the jurisdiction of the state for torts resulting in the death of parties injured."

"General legislation of this kind, prescribing the liabili ties or duties of citizens of a state, without distinction as to

1 See also Chy Lung v. Freeman, 92 U. S. 275. ED.

pursuit or calling, is not open to any valid objection because it may affect persons engaged in foreign or interstate commerce."

"And it may be said, generally, that the legislation of a state, not directed against commerce or any of its regulations, but relating to the rights, duties, and liabilities of citizens, and only indirectly and remotely affecting the operations of commerce, is of obligatory force upon citizens within its territorial jurisdiction, whether on land or water, or engaged in commerce, foreign or interstate, or in any other pursuit." § 373 h. Survey of Steamers. The act of the legislature of Louisiana, approved March 6, 1869, in relation to the survey of the hatches of every sea-going steamer arriving at New Orleans, and of the damaged goods coming on board of her, etc., being a regulation of commerce with foreign na tions and among the several states, is in violation of the Constitution of the United States and therefore void.1

-

§ 373 i. Wharfage Fees. The power of states, or of towns and cities acting under state authority, to regulate the use of wharves on navigable waters, and impose charges for such use, has been often declared. In the late case of Packet Co. v. Keokuk,2 it was said by Strong, J., "The principal question presented by the record of this case is, whether a municipal corporation of a state, having by the law of its organization an exclusive right to make wharves, collect wharfage, and regulate wharfage rates, can, consistently with the Constitution of the United States, charge and collect wharfage proportioned to the tonnage of the vessels from the owners of enrolled and licensed steamboats mooring and landing at the wharves constructed on the banks of a navigable river."

"If the charge is clearly a duty, a tax, or burden, which in its essence is a contribution claimed for the privilege of entering the port of Keokuk, or remaining in it, or depart

1 Foster v. Master and Wardens of the Port of New Orleans, 94 U. S. 246. ED.

2 95 U. S. 80; affirmed in Packet Co. v. St. Louis, 100 U. S. 428 ED.

ing from it, imposed, as it is, by authority of the state, and measured by the capacity of the vessel, it is doubtless embraced by the constitutional prohibition of such a duty. But a charge for services rendered or for conveniences provided is in no sense a tax or duty. . . . 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. . . . A passing vessel may use the wharf or not, at its election, and thus may incur liability for wharfage or not, at the choice of the master or owner. . . It has always been held that wharfage dues may be exacted. Cannon v. New Orleans, 20 Wall. 577." The argument that the charge is one of tonnage because proportioned to the tonnage of the vessels was declared unsound, and the case of State Tonnage Tax Cases, 12 Wall. 204, was explained. "What was intended by the provisions of the second clause of the tenth section of the first article was to protect the freedom of commerce, and nothing more." Cooley v. Port Wardens, 12 How. 299; Cannon v. New Orleans, 20 Wall. 577, were expressly approved.

In a still later case, Transportation Co. v. Parkersburg,1 the main question was whether the ordinance of March, 1865, of the city of Parkersburg was valid. The ordinance imposed a wharfage due upon all vessels discharging or receiving freight at the city's wharves on the Ohio River. The bill alleged that the charge was not one of wharfage but in reality of tonnage. Whether a charge is one of wharfage, or a duty of tonnage, must be determined by the terms of the ordinance or regulation which imposes it. They are not the same thing; a duty of tonnage is a charge for the privilege of entering, or trading, or lying in a port or harbor; wharfage is a charge for the use of a wharf. The remedy for exorbitant wharfage charges is different from that for exorbitant tonnage charges. Whether the charge is one or the other is not a question of intent but one of fact and law; of fact, as whether the charge is made for the use of a wharf, or for entering the port; of law, as whether, ac1 107 U. S. 691. ED.