taxing power is exercised upon the transit of persons from State to State, or from foreign countries to a State; and those where the taxing power is exercised upon the transit of freight from State to State. A statute of New York requires the master of every vessel arriving from a foreign port, within twenty-four hours after his arrival, to report in writing to the mayor the name, birthplace and occupation of every passenger not a citizen of the United States; the mayor then requires the owner or consignee of the vessel to give a bond of $300 for each passenger, with two sureties, residents and freeholders of the State, conditioned to indemnify the commissioners of emigration, and every county and city in the State, against any expense for the relief or support of the person named in the bond. The owner was allowed to commute the bond, paying in lieu thereof $1 50 for each passenger. This was considered a tax on the passenger, which he pays for the right to make the voyage, a voyage only completed when he lands on the American shore. After a review of the previous cases on this subject, the court concludes, that the power to regulate commerce extends to persons as well as freight; that the regulation of the right of passengers to land in this country is not only a subject that admits of a uniform plan as to which Congress ought to exercise its exclusive powers, but that is a matter which concerns the relations of the United States with foreign nations, and one peculiarly within the exclusive province of Congress. The statute was declared void as a regulation of commerce.1

A similar statute in California enacted that, when any immigrant was by the commissioner of emigration designated as likely to become chargeable to the public as a pauper, or who was a convicted criminal, or who was a lewd or debauched woman, or who was an idiot or lunatic, such person should not be permitted to land unless a bond was given by the owner or master of the vessel in each case to save harmless every city and county in the State against any expense in curred for the support of such immigrant within two years. It was held, like the other, to be a regulation of commerce, and void.2

(a) Bridges.-Congress, under its power to regulate commerce, may control all the navigable waters of the United States accessible from a State other than that in which they lie. This includes the power to keep them free and open from any obstruction to their navigation, to remove obstructions when they exist, to provide against the occur

1 Henderson et al. v. Mayor of the City of New York and Com'rs of Immigration and North German Lloyd, 2 Otto, 259.

'Chy Lung v. Freeman, 2 Otto, 275.

rence of the evil, and to punish offenders. A coasting license carries with it authority to navigate the waters of a State as far as it is practicable, but does not necessarily interfere with the right of a State to erect a bridge over one of its own tidal and navigable streams. Bridges, turnpikes, streets and railroads are means of commercial transportation, and the commerce which passes over a bridge may be greater than that over the stream whose navigation it obstructs. It is for the State to weigh these considerations, and to decide which shall be preferred, and if, in the exercise of this discretion, a bridge is erected, the fact that it prevents a vessel having a coasting license from navigating the stream over which it is erected does not call upon the courts of the United States to enjoin it. Congress may regulate the navigation of all streams by general or special laws, and may regulate the erection of bridges over them, but the act regulating the coasting trade is not such a regulation. In the first of these cases the bridge was over the Schuylkill, on which a large commerce in coal was caried on; the river was wholly within the State, and ran through the corporate limits of the city of Philadelphia, on both sides of which citizens of the city lived in great numbers. The bridge was a matter of great public convenience, and another bridge just like it had been erected and in use for many years, 500 yards above it. The dissenting judges in the case in 3 Wall. thought the erection of the bridge conflicted with the rights of vessels in the coasting trade.

3

(b) Police Power as to Health.-A statute of New York required the master of every vessel arriving from a foreign port to report to the mayor or recorder of the city of New York an account of all passengers landed, under a penalty of seventy-five dollars. It was held not to be a regulation of commerce, but an exercise of the police power of the State, to prevent the State from being flooded with paupers. The State has jurisdiction over all persons and things within its territorial limits, and the safety, happiness and prosperity of its people may be protected by such laws as it deems best or most conducive to that end. Such laws properly belong to its internal police, and the fact that they may affect commerce indirectly does not destroy their validity. Passengers are the subjects of commerce, and ships the instruments of commerce; yet the alien passenger, as soon as he lands, becomes subject to the criminal laws of the State, and the vessel, as property, becomes subject to civil process; and the laws on

1 Gilman v. Philadelphia, 3 Wall. 713; Wilson v. Blackbird Creek Marsh Co. 2 Peters, 245.

2 Clifford, Wayne and Davis, JJ., 3 Wall. 732.

3 City of New York v. Miln, 11 Peters, 102.

these subjects are not regulations of commerce because they affect these subjects and instruments of commerce within the territorial limits of the State.1

So the inspection laws have a considerable influence on commerce, but the source from which the right to pass them is derived is not the power to regulate commerce. The object of such laws is to improve the quality of articles produced by the labor of a country, and to fit them for exportation or domestic use. They act upon the subject before it becomes an article of commerce with foreign nations, or between the States. These laws, like the quarantine laws, or laws regulating roads and ferries, are a part of that mass of legislation not surrendered by the States, and which can be best exercised by the States themselves. The limitation on these inspection laws. is, that in the duty or tax imposed, they shall not extend beyond what may be absolutely necessary for their execution, and that the net produce of all duties and imposts laid by any State on imports and exports, shall be for the use of the treasury of the United States. Of this character is a statute imposing a penalty on masters of vessels who allow alien passengers to land without giving bond to save the city harmless from expense, in case a passenger shall become chargeable in two years; or a statute directing coal to be weighed and certain fees paid to an inspector.5 The case of Mayor, &c. of N. Y. v. Nichols, in seeming conflict with the latter cases, was decided upon the ground that the ordinance requiring the inspection of hay was in conflict with a statute regulating its sale without inspection.

The State of New York enacted a law allowing the health commissioners to demand and receive from the master of every vessel from a foreign port, for himself and each cabin passenger, $1 50; for each steerage passenger, $1; the moneys received to be denominated hospital moneys, to be used in defraying the expenses of the Marine Hospital; the excess, after defraying all expenses of the trust, to be paid over to the treasurer of the Society for the Reformation of Juvenile Delinquents in the city of New York. The master of the vessel was allowed to recover of each person the sum so paid on his

3

Const. U. S. art. 1, par. 2.

Mayor of New York v. Staples, 6 Cow. 169. But in the case of North German Lloyd v. The Commissioners of Immigration, 2 Cent. L. J. 405, it was held by one of the judges of the United States Circuit Court, disregarding the contrary opinion of the State Supreme Court, that a similar act was unconstitutional.

account. For failure to comply with the law, a penalty of $100 was inflicted. Massachusetts passed a similar law, prohibiting any alien passenger from landing until the master of the vessel shall have paid to the authorities of the city in whose port he arrives the sum of $2 for each passenger; the sums so collected to be paid into the city treasury, to be appropriated as the city may direct for the support of foreign paupers. These statutes gave rise to the celebrated Passenger Cases, in which the majority of the court thought the statutes were a regulation of commerce, and void, while Judges Taney, Daniel and Woodbury thought they were valid and within the principle of the case of City of New York v. Miln; that they were mere police regulations, intended to protect the citizens of the respective States from disease and paupers. No case has ever been before that court which was argued by the counsel and by the court more elaborately. The majority of the court thought the power to regulate commerce with foreign nations and among the States was exclusively vested in Congress, and that it was not like the power vested in Congress as to the militia and bankruptcy; on these subjects the action of the State is local and may be necessary, and such action is valid until suspended by the action of Congress on the subject; that commerce was not merely an exchange of commodities, but included navigation and intercourse; that there was no distinction between the transportation for hire of men and property; that the statutes of New York and Massachusetts were a tax on the transportation of passengers from foreign countries, and a regulation of commerce.3

2

It is difficult to perceive the line of distinction between the case of Miln v. City of New York and the Passenger Cases. It is true in the latter case the acts assumed more distinctly the form of a tax. But the former case prescribed a rule to be observed in reference to passengers arriving from foreign ports. It was not a regulation of internal commerce of the State, but of foreign commerce. The object seems to have been the same in each case-to protect the citizens of the State from disease and the burdens of supporting paupers coming into the State, incident to the landing of immigrants from foreign countries. In each of the cases the statutes are rules governing foreign commerce.

(c) Police Power as to Steamboats and Pilots.-We have seen,

1 Passenger Cases, 7 How. 283; and see North German Lloyd v. Commissioners, 2 Cent. L. J. 405.

2 Id. 401.

3 3 Id. 403, 410.

§ 63, that the half-pilotage fees are not a duty of tonnage. In the same cases it is held that laws imposing these fees are not regulations of commerce;1 but a law which requires every vessel arriving at a port to pay to the port-wardens the sum of five dollars, whether called on to perform any service or not, is a regulation of commerce. The pilot laws have been recognized by Congress, and are based upon services performed or offered to be performed, for which the pilot fees are a compensation; but this law imposes a tax of a specified sum, whether services are performed or not. Where a State in which explosions and collisions of steamboats on its waters had been of frequent occurrence, and laws passed for the protection of life and property on these boats had been rendered inefficient because of the difficulty of ascertaining the owners of these boats, passed an act requiring the owners of all steamboats navigating the waters of the State, before leaving the port of Mobile, to file a statement in writing, in the office of the probate judge of Mobile county, setting forth the name of the vessel, the name of the owner or owners, the residence of the owners, and the interest of each owner, it was held that as to all steamboats which had taken out a coasting license, the act was void as a regulation of commerce, conflicting with the act of Congress on that subject, as to the coasting trade.

(d) Transit of Passengers.—The legislature of Nevada imposed a tax of one dollar upon every person leaving the State by any railroad, stage coach, or other vehicle engaged in the transportation of passengers for hire. This act was held void. It is true the opinion. of Justice Miller does not put the case upon the ground that the law of Nevada was a regulation of commerce among the States, but the chief justice, and Clifford, J., thought it was void as a regulation of commerce, and in a subsequent case it is treated as a regulation of commerce; but in any view of the case it decides that a State cannot tax persons for passing through it or out of it, that interstate transportation of passengers is beyond the reach of a State legislature. And in California the principle of the Passenger Cases has been applied to an act imposing a tax of $2 50 per month on Mongolians over eighteen years of age. Such an act conflicts with the power of Congress to regulate commerce, which extends to commerce in all its branches, and to every species of commercial intercourse. This power has been

1 Steamship Co. v. Joliffe, 2 Wall. 450; Ex parte McNiel, 13 Wall. 236; Cooley v. Board of Wardens, 12 How. 299.

2 Steamship Co. v. Port-warden, 6 Wall. 31.

Sinnot v. Davenport, 22 How. 227.

Crandall v. Nevada, 6 Wall. 37.

Case of the State Freight Tax, Strong, J., 15 Wall. 281.