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§ 389. “Trade Commerce and Intercourse…shall be Absolutely Free.”

FREEDOM OF INTER-STATE TRADE.—This section is intended to provide for the perfect freedom of trade and commerce among the States, from the moment of the imposition of uniform duties. In order to secure that object the strongest possible words have been used. Nothing has been left to implication. In this respect the Constitution of the Commonwealth is more explicit than the Constitution of the United States, which merely forbids the States to lay any duties on imports or exports without the consent of Congress. (Art I. sec. x. subs. 2.) But it was held in Brown v. Houston, 114 U.S. 622, and Woodruff v. Parham, 8 Wall. 123, that the prohibition did not apply to goods carried from one State of the Union to another; such goods were not imports or exports; imports were commodities coming from foreign countries into the Union, and exports were those proceeding out of the Union into foreign countries. In America, therefore, inter-state free-trade depends solely on the rule of construction that the regulation of trade and commerce, in matters requiring uniformity of legislation, is exclusively vested in Congress, and that the States are, ipso facto, deprived of the power to impose duties on goods proceeding from one State into another. Under the Constitution of the Commonwealth there are two express guarantees for freedom of trade between the States; sec. 90, which provides that on the imposition of duties of customs the power of the Parliament to deal with that subject becomes exclusive; and sec. 92, which provides that thenceforth trade, commerce, and intercourse among the States shall be absolutely free.

This section, and all the cases cited in illustration of its meaning, must be read subject to the special provisions of sec. 113, which enacts that “All fermented, distilled, or other intoxicating liquids passing into any State or remaining therein for use, consumption, sale, or storage, shall be subject to the laws of the State as if such liquids had been produced in the State.”

THE ELEMENTS OF INTER-STATE FREE-TRADE.—Two questions have to be considered in connection with sec. 92 in order to grasp its significance; first, what is absolute freedom of trade, commerce, and intercourse? and secondly, during what period of time or within what limits of space do inter-state trade and commerce operate, so as to remain protected by the shield of Federal freedom? In reference to the first question, absolute freedom of trade, commerce, and intercourse may be defined as the right to introduce goods, wares, and merchandise from one State into another, the right to sell the same, and the right to travel unburdened by State restrictions, regulations, or obstructions. Freedom of trade necessarily means the right to sell as well as the right to introduce, and the right to travel in order to sell. The right of introduction without the right of disposition would reduce freedom of trade to an empty name. The second question may be conveniently discussed under the headings, (1) When does exportation begin? and (2) When is importation complete?

WHEN EXPORTATION BEGINS.—It has been held that exportation does not begin until the goods are committed to the custody of a carrier for transportation out of a


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State. Until then they remain subject to State laws and are taxable as a part of the general mass of property in the State. (Coe v. Errol, 116 U.S. 517. See other cases cited p. 519, supra.)

WHEN IMPORTATION IS COMPLETE.—Articles of foreign or inter-state commerce become subject to State laws and State taxation from the moment when they are divested of their inter-state or foreign quality. This happens as soon as they pass from the original importer into the hands of the purchasers of the original packages, or as soon as they have been broken up for retail by the original importer. (Brown v. Maryland, 12 Wheat. 419; Turpin v. Burgess, 117 U.S. 504. Burgess, Political Sci. ii. p. 135.)

DOCTRINE OF ORIGINAL PACKAGE.—An original package has been defined as the unbroken package, in the condition in which it was prepared by the exporter, received and transported by the carrier, and brought into the importing State. (McGregor v. Cone, 1898, 73 N.W. Rep. 1041.) Thus boxes and barrels are original packages. In some cases it has been held that where bottles of liquor were packed in barrels and boxes, and transported into a State, the bottles were the original packages and were within the protection of the Federal commercial law, after they had been removed from the barrels and boxes. These cases, however, have been overruled, and it is now held that the barrels or boxes, and not the bottles, are the original packages. (Prentice and Egan, Commerce Clause, p. 82.) It has been further held that the question, what constitutes an original package, is partly one of good faith, and that the importer may determine for himself the form and size of the package which he buys. (Guckenheimer v. Sellers, 81 Fed. Rep. 997.) The importer may sell his goods in the original package, by wholesale or by retail. (Schollenberger v. Pennsylvania, 171 U.S. 1.) An original package becomes subject to State jurisdiction as soon as it is broken. (Brown v. Maryland, 12 Wheat. 419; Leisy v. Hardin, 135 U.S. 100.) The original package is not broken merely by the fact of lifting the lid for the examination of its contents. (Re McAllister, 51 Fed. Rep. 282.) The drawing of a bung from a barrel, in order to obtain a small quantity of its contents for testing purposes, does not constitute a breaking of the package. (Wind v. Iler, 93 Iowa, 316.)

METHODS OF FETTERING INTER-STATE COMMERCE.—The principal methods resorted to by some of the States of America, in order to avoid the rule of freedom of trade, may be thus classified—(1) By the imposition of taxes on imported goods, after their entry into the State, this being done in the pretended exercise by the State of the right to tax all property within its jurisdiction. (2) By requiring persons engaged in selling goods introduced or coming from another State to pay for licenses to sell, this being also done in the pretended exercise of State taxing power. (3) By restricting the actual introduction of goods from another State, on alleged sanitary or moral grounds, this being done in the pretended exercise of the police power of the State.

TAXES ON INTER-STATE COMMERCE.—The following are instances of taxes on inter-state commerce, violating the law of commercial freedom:—A tax on goods coming from other States unaccompanied by equal taxes on similar local goods, held to be unconstitutional and void (Brown v. Houston, 114 U.S. 622); a tax on the earnings of carriers conveying freight and passengers, from one State into another, held unconstitutional (Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196); a tax on persons selling goods manufactured out of the taxing State, and no similar tax exacted from those engaged in the sale of like goods manufactured in that State, held unconstitutional (Walling v. Michigan, 116 U.S. 446); a tax on cars belonging to a carrying company which run from point to point within the taxing State to points without the State, held unconstitutional (Pickard v. Pullman Car Co., 117 U.S. 34); a tax on every ton of freight, carried by a railway in and through a State, held unconstitutional (The State Freight Tax Case, 15 Wall. 232); a tax on all messages sent by a telegraph company, se far as it applied to messages sent to or received from points in other States, held unconstitutional (Telegraph Co. v. Texas, 105 U.S. 460); a tax on all persons soliciting orders for goods, so far as it applied to those canvassing for


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persons outside the State, held unconstitutional (Asher v. Texas, 128 U S. 129); a tax on all non-residents who sold liquors, held unconstitutional (Walling v. Michigan, 116 U.S. 446); a tax on a carrying company for every alien passenger brought by it to the ports of a State, held unconstitutional (People v. Compagnie Generale, 107 U.S. 59; Henderson v. Mayor of New York, 92 U.S. 259); a tax on the gross receipts of common carriers, so so far as it applied to receipts from inter-state business, held unconstitutional (Fargo v. Michigan, 121 U.S. 230); a tax on all vessels touching the wharves of a State, so far as it applied to vessels engaged in inter-state business, held unconstitutional (Inman S.S. Co. v. Tinker, 94 U.S. 238); a tax on the franchise of a railroad company which had been granted by the Federal legislature, held unconstitutional (California v. Central Pacific R. Co., 127 U.S. 1); a tax on the tonnage of vessels, even though such tax was exacted in aid of quarantine inspection, held unconstitutional; a tax collected from auctioneers on their sales of imported goods in their original packages, held unconstitutional (Cook v. Pennsylvania, 97 U.S. 566); a tax on bills of lading for the transportation of gold or silver from one State to another, held unconstitutional (Almy v. California, 24 How. 169); a tax of 5 dollars on each vessel entering a port of a State, such tax being supplied to support the Port Wardens, and collected, whether the vessel required their services or not, held unconstitutional (Steamship Co. v. Port Wardens, 6 Wall. 31); a tax on a non-resident railway company engaged in inter-state traffic, for the right to maintain an office in the taxing State, in order to promote its business, held unconstitutional (Norfolk and Western R. Co. v. Pennsylvania, 136 U.S. 114).

LICENSES TO ENGAGE IN INTER-STATE COMMERCE.—The following are instances in which State laws taxing persons engaged in inter-state commerce have been held to violate the rule of commercial freedom, viz., laws requiring pedlars selling goods not grown or manufactured in the taxing State to hold licenses, whilst no licenses were required of persons selling similar articles grown or manufactured in the State, held unconstitutional (Welton v. Missouri, 91 U.S. 275); requiring commercial travellers canvassing for the sale, by sample, of goods at the time outside the State to hold licenses, held unconstitutional (Asher v. Texas, 128 U.S. 129; Robbins v. Shelby Taxing District, 120 U.S. 489; Stoutenburgh v. Hennick, 129 U.S. 141); requiring persons selling malt liquor, the product of another State, to hold licenses, held unconstitutional (Tiernan v. Rinker, 102 U.S. 123); requiring persons selling goods, not the product or manufacture of the vendors, to hold licenses, held unconstitutional (Corson v. Maryland, 120 U.S. 502); requiring the officers of foreign corporations engaged in inter-state commerce to hold licenses, held unconstitutional (McCall v. California, 136 U.S. 104); requiring persons engaged in inter-state occupations to hold licenses, held unconstitutional (Moran v. New Orleans, 112 U.S. 69); requiring the owners of inter-state ferry boats touching the wharves of a State to hold licenses, held unconstitutional (St. Louis v. Wiggins Ferry Co., 11 Wall. 423); requiring a telegraph company established by the federal legislature to hold a license, held unconstitutional (Leloup v. Port of Mobile, 127 U.S. 640); requiring a license to be held by an agent of a foreign express company, held unconstitutional (Crutcher v. Kentucky, 141 U S. 47); requiring an agent of a company having a railway in a distant State, and soliciting business for that railway, to hold a license, held unconstitutional (McCall v. California, 136 U.S. 104); requiring a license fee for the use of a stream in prosecuting inter-state commerce, held unconstitutional (Harman v. Chicago, 147 U.S. 396).

POLICE POWERS EXERCISED TO RESTRICT INTER-STATE COMMERCE.—The following are examples of State laws, passed in the exercise of police powers, which obstruct and restrict inter-state commerce, and which consequently violate the rule of commercial freedom, viz., a law prohibiting the introduction into a State of cattle or goods during certain periods of the year, ostensibly for sanitary purposes, but in reality for State protective purposes, held unconstitutional (Railroad Co. v. Husen, 95 U.S. 465); prohibiting the introduction into a State of certain kinds of human food, unless inspected before its preparation, ostensibly for sanitary reasons, but in reality for State protective


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purposes, held unconstitutional (Minnesota v. Barber, 136 U.S. 313); prohibiting the introduction of certain goods, such as intoxicating liquors, ostensibly to preserve the morals of the people, held unconstitutional (Bowman v. Chicago, &c., R. Co., 125 U.S. 465; Leisy v. Hardin, 135 U.S. 100; see, however, the Wilson Act (America), and sec. 113 of this Constitution.)

TAXES BY STATES IN EXERCISE OF THEIR TAXING POWERS.—In the cases cited, in which taxes imposed by States were held to be unconstitutional and void, the taxes were for the most part of a discriminating character, in taxing the means of commerce and the subjects of commerce coming from other States, or they were so thinly veiled as to be reasonably suspected of an intention to tax inter-state commerce and so impair its freedom. Discrimination is one of the principal tests applied in determining the constitutionality of a State tax. (Tiernan v. Rinker, 102 U.S. 123.) A discriminative tax on imported goods would be unconstitutional, even if imposed on the goods after they had left the hands of their original importers, and even after their original packages had been broken. But discrimination is not the only test. A tax on inter-state trade and traffic may be blended in a tax on domestic trade and traffic. In such a case the discrimination intended might not be apparent, and yet the Courts might discern the intention to tax inter-state trade and traffic, so lurking in the plan of taxation as to bring it within the prohibition. The people of a State might find it compatible with their views and interests to impose a tax on a portion of their own trade and business, in order to have the privilege of taxing the larger volume of inter-state trade and business of the same kind. Consequently in the State Freight Tax Case (15 Wall. 232) a tax imposed by a State on all the freight, both domestic and inter-state, conveyed by a railway company in and through a State was held unconstitutional. A similar principle was affirmed in Telegraph Co. v. Texas, 105 U.S. 460.

There are several cases, however, in which it has been distinctly held that a State may adopt a general system of taxation which may indirectly affect every branch of commerce, and yet be within its constitutional right. The first was that of Brown v. Houston, 114 U.S. 622, which is described by Dr. Pomeroy as one of the most interesting and delicate cases involving the power of a State to tax goods of an inter-state origin. In this case coal was mined in the State of Pennsylvania, and then shipped to New Orleans in the State of Louisiana to be sold in the open market for the Pennsylvanian owners. The coal was not landed at New Orleans, but remained on board the vessel in which it arrived in port, and was sold whilst on board that vessel, the purchasers intending to take it out of the country in a foreign bound vessel. The city corporation of New Orleans claimed a tax on the coal under the terms of a general law taxing property within the State. It was held by the Court that the coal had become intermingled with the general property of the State; that it was properly taxable according to the recognized rule, that after goods have arrived at their place of destination in a State, either for use or for trade, they become subject to any general tax laid on all property alike, without discrimination, in the State. The decision in Brown v. Houston is not considered to be in conflict with the rule of the immunity of original packages, because the bulk had been broken and the first sale had taken place.

In the case of Emert v. Missouri, 156 U.S. 296, it was held that a State can levy a tax or demand a license fee for the right to sell goods in the possession of the seller, and by him offered for sale, even if they are the products of another State. In the case of Pittsburg Coal Co. v. Bates, 156 U.S. 577, coal sent by river from Pennsylvania to Louisiana, while kept on the boats by which it had been transported, was offered for sale and part was sold; held that it was liable to State taxation.

In Myers v. Commissioners of Baltimore county, 35 Atl. Rep. 144, a tax was imposed by a State upon an average number of cattle, owned by a dealer within a State, which had been received by him during the year from the Western States, held usually for one day, and afterwards sold for export. It was held that, like other property situated within the State, they were liable to State taxation.




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These cases, however, will require very careful consideration before any opinion can be expressed as to how far they would be applicable in the interpretation of the Constitution of the Commonwealth.

A State has a right to tax all the domestic trades and occupations of its citizens. In Ficklen v. Shelby Taxing District, 145 U.S. 1, where a resident citizen, engaged in a general business, was subject to a particular tax, it was held that the fact that, for the time being, the business happened to consist in whole or in part of negotiating sales between residents and non-residents of goods made in another State, did not make such a tax an imposition on inter-state commerce.

A State may tax personal property employed in inter-state commerce, like other personal property within its jurisdiction. (Marye v. Baltimore and Ohio R. Co., 127 U.S. 117; Western Union Tel. Co. v. Massachusetts, 125 U.S. 530; Western Union Tel. Co. v. Taggart, 163 U.S. 1. Cooley's Const. Law, p. 80.)

In the case of Pullman's Palace Car Co. v. Pennsylvania, 141 U.S. 18, a statute of Pennsylvania imposed a tax on the capital stock of every railroad and car company, in the proportion which the number of miles operated by it within the State bore to the whole number everywhere. It was upheld as to the non-resident Pullman Car Company, because it had within the State constantly engaged in its business, though mainly operated in inter-state journeys, a certain number of cars which thus acquired a situs there for taxation, the tax being in reality upon the cars as property. The majority of the judges distinguished the tax on capital stock in this case from an occupation tax, a license tax, or a tax on transit, and they applied the doctrine of Western Union Tel. Co. v. Massachusetts, 125 U.S. 530, in which a tax on specified property was upheld. (Cooley Const. Law, 80–1.) In the State Tax on Gross Receipts Case (15 Wall. 284), the Courts upheld a State tax on the gross receipts of a carrying company, including receipts from inter-state business. This doctrine has since been questioned in Philadelphia Steamship Co. v. Pennsylvania, 122 U.S. 326. In that case the question was as to the validity of a tax levied by Pennsylvania upon the gross receipts of a company, derived from the carriage of persons and property by sea between different States, and it was held that the tax was unconstitutional.

In Maine v. Grand Trunk R. Co., 142 U.S. 217, a State statute provided that every person working a railroad, within the State, should pay to the State treasurer an annual excise tax, to be determined by reference to the gross receipts of the company, in proportion to its mileage within and without the State. The statute was sustained on the ground that it was a tax on a foreign corporation for the privilege of exercising its franchises within the State. The decision in this case seems to be in conflict with that in the Philadelphia Steamship Co. v. Pennsylvania, 122 U.S. 326.

OTHER STATE FEES AND CHARGES ALLOWABLE.—In the following cases it has been decided that the fees, charges, and licenses required by State laws do not violate the rule of commercial freedom, viz., a stamp fee on snuff intended for domestic use, such stamp being required simply to distinguish it from snuff designed for export, held constitutional (Pace v. Burgess, 92 U.S. 372); a stamp fee on tobacco before its removal from the manufactory, held constitutional (Turpin v. Burgess, 117 U.S. 504); a charge for storage and outage collected on tobacco shipped out of a State and inspected at the State warehouse, held constitutional (Turner v. Maryland, 107 U.S. 38); a tax on peddlers of sewing machines, applied alike to those manufactured in and out of a State, held constitutional (Machine Co. v. Gage, 100 U.S. 675, but this case was afterwards overruled); a license fee collected from a foreign corporation, provided such corporation is not engaged in carrying on foreign or inter-state commerce within the State (Pembina Mining Co. v. Pennsylvania, 125 U.S. 181); a license fee exacted from the agent of a corporation organized under a law of another State for the right to solicit insurance business on buildings within the State, held constitutional (Paul v. Virginia, 8 Wall. 168); tolls for the use of improvements in connection with navigable streams and highways (Mobile v. Kimball, 102 U.S. 691; Harman v. Chicago, 147 U.S. 396, but the Federal


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legislature could interpose and declare such tolls illegal); a charge for a license for all engineers to pay the expenses of examination as to their competency to undertake employment on inter-state railroads (Nashville Railroad Co. v. Alabama, 128 U.S. 96); a charge on all vessels touching at quarantine stations, such charge to be applied to pay the expenses of inspection (Morgan's S.S. Co. v. Louisiana Board of Health, 118 U.S. 455); a charge based on the tonnage of a vessel for the use of a wharf owned by a State, provided such charge is not of a discriminating character (Packet Co. v. Keokuk, 95 U.S. 80; Transportation Co. v. Parkersburg, 107 U.S. 691); a charge for the use of the improved internal waterways of a State, provided that such charge is not of a discriminating character. (Huse v. Glover, 119 U.S. 543; Sands v. Manistee R. Improvement Co., 123 U.S. 288.)

STATE POLICE LAWS ALLOWABLE.—In the License Tax Cases, 5 Wall. 462, Chief Justice Taney said that the police powers of a State were nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions. And whether a State passes a quarantine law, or a law to punish offences, or to establish courts of justice, or requiring certain instruments to be recorded, or to regulate commerce within its own limits, in every case it exercises the same power; that is to say, the power of sovereignty, the power to govern men and things within the limits of its dominions. Chancellor Kent has given, as examples of the legitimate subjects of State legislation, the following: unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit of powder, the application of steam-power to propel cars, the building with combustible materials, and the burial of the dead. (Comm. ii. 340.) In Patterson v. Kentucky, 97 U.S. 501, Mr. Justice Harlan stated that by the settled doctrines of the court the police powers extend, at least, to the protection of the laws, the health, and the property of the community, against the injurious exercise by a citizen of his own rights. It was said by Chief Justice Fuller, in Leisy v. Hardin, 135 U.S. 108, that the power to pass laws in respect to internal commerce, inspection, quarantine laws, health laws, and laws in relation to bridges, ferries, and highways, belongs to the class of powers pertaining to locality, essential to local inter-communication, to the progress and development of local prosperity, and to the protection, safety, and welfare of society—powers originally necessarily belonging to, and upon the adoption of the Constitution reserved by, the States, except so far as they fell within the scope of a power confided to the General Government.

The primary objects of the police power of a State are the protection of health, the prevention of fraud, and the preservation of morals. This rule is clear, but great difficulty is sometimes experienced in its application.

The legislature of Louisiana incorporated the Slaughter-House Company, which was empowered to construct and maintain stock-landings and yards and a grand abattoir or slaughter-house at a specified place near New Orleans, and all live stock brought to that city for food were required to be landed and kept at these yards, and slaughtered at this abattoir, the company being authorized to demand compensation, the maximum rates of which were fixed by the statute. Landing or slaughtering such animals elsewhere was prohibited by heavy penalties. The exclusive privilege thus conferred was to continue for twenty-five years. Certain persons, engaged in the trade of butchering, residents of New Orleans and citizens of the United States, brought appropriate actions in the State courts to test the validity of the statute. These suits were finally carried to the Supreme Court of the United States. (Pomeroy's Const Law, p. 174.) By a bare majority the Supreme Court affirmed the validity of the Statute, as clearly within the competence of the State legislature in the exercise of its police power. (Slaughter-House Cases, 16 Wall. 36.)

In Powell v. Pennsylvania, 127 U.S. 678, a State law prohibited the manufacture and sale of oleomargarine. Powell was indicted for selling the prohibited article. It was strongly suspected that the law was passed in the interests of the dairymen of the State, as it was understood that oleomargarine, properly manufactured, was not injurious


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to health. Yet the court sustained the law as a proper exercise of the police power. In Plumley v. Massachusetts, 155 U.S. 461, a State law prohibited the sale of oleomargarine artificially coloured to resemble butter. The law was sustained in its application to an article imported from another State, on the ground that the resemblance of oleomargarine so coloured to butter, led to deception and was in the nature of a fraud. The importation of an article coloured to resemble butter could, in the opinion of the court, be prohibited so long as the introduction of uncoloured oleomargarine was not interfered with. This doctrine was carried a step further in the Armour Packing Co. v. Snyder, 84 Fed. Rep. 136. In that case a law of Minnesota forbade the sale of oleomargarine unless coloured bright pink. An attempt was made to apply this law to goods which had been shipped from Kansas into Minnesota, and which were marked as required by federal law, and sold only in original packages. It was contended that the State law prevented deception in the retail sale, and on this ground the requirement as to colour was sustained. This reasoning was, however, disapproved of in the case of Collins v. New Hampshire, 171 U.S. 30, in which it was held that a State could not prohibit the sale of an article of inter-state commerce, nor attach to it a condition which would render it unsaleable. In Brimmer v. Rebman, 138 U.S. 78, the court clearly expressed the opinion that a State could not pass regulations excluding articles of commerce which are actually fit for and belong to the domain of commerce. In the late case of Schollenberger v. Pennsylvania, 171 U.S. 1, decided by the Federal Supreme Court in 1898, a statute of Pennsylvania was challenged which forbade the introduction, in its pure and unadulterated condition, of oleomargarine from another State, and its sale in original packages. It was held that the statute was invalid so far as it applied to inter-state commerce. The difference in principle between Plumley v. Massachusetts and Schollenberger v. Pennsylvania is obvious; in the former case the article prohibited was coloured in imitation of butter, and consequently was liable to deceive the public; in the latter case it was a pure and harmless article of commerce which could not be either honestly or legally excluded by the State. In The People v. Hawkins, 31 N.Y. Suppl. 115, it was held that a State law requiring goods made by convict labour in other States to be so labelled when exposed for sale was unconstitutional.

POLICE POWERS AFFECTING COMMERCE.—The following laws passed by States have been held to be a proper exercise of their police powers, viz., a law excluding passengers, animals, and goods infected with disease, passengers known to be convicted criminals, paupers, idiots, lunatics, and persons likely to become burdens on the State, held constitutional (Bowman v. Chicago R. Co., 125 U.S. 465); a law forbidding the entrance into a State of cattle likely to communicate fever, unless carried in cars subject to certain precautions, held constitutional (Grimes v. Eddy, 126 Missouri, 168); a law for the protection of persons and property, regulating the introduction and transportation of nitro-glycerine and other dangerous explosives, held constitutional (Patterson v. Kentucky, 97 U.S. 501); a law imposing a license tax for the purpose of excluding an obscene paper, held constitutional (Preston v. Finley, 72 Fed. Rep. 850); a law forbidding the transportation or exportation of diseased sheep, cattle, and meats; a law forbidding the importation of goods tending to spread disease, held constitutional (Leisy v. Hardin, 135 U.S. 100). The reasons and principles of these decisions are, that such persons, animals, and commodities are not legitimate subjects of commerce.

“The several States have power to pass laws regulating the internal police of their own territories, which territories include navigable rivers and harbours, as well as unnavigable streams, and the land itself. These police measures are not, in any true sense of the term, regulations of commerce, although they may sometimes have direct reference to shipping, to the condition of harbours, and other instruments by which commerce is carried on, or to the commodities themselves which are the objects of inter-change and traffic. They are simply a part of the general system by which each State endeavours to protect the good morals, lives, health, persons, and property of its inhabitants. Thus, if a State legislature, deeming it dangerous to permit poisons to be sold without restriction, should pass a statute requiring a license from the druggist, or placing him under any other species of restraint, such law would be unobjectionable,


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although certain poisonous substances, as opium, are chiefly or wholly the products of foreign countries, and therefore the objects of commerce. Again, most of the States have enacted statutes prohibiting the sale of spirituous liquors in certain quantities and at certain times and places, except by those persons who have complied with the provisions of the statute, and have received licenses for that purpose. Such laws are within the power of the States to pass. This entire class of statutes establishing police regulations is within the purview of State legislation, whether Congress has legislated for the same or similar purposes or not. Among them may be mentioned laws establishing quarantine, licensing and controlling pilots, declaring the order in which ships shall come to wharves and docks, regulating the use of wharves and docks, managing the internal order of harbours, licensing the sale of spirituous liquors, poisons, and the like.” (Pomeroy's Const. Law, 10th ed. p. 275.)

OTHER EXAMPLES OF POLICE POWER.—Munn v. Illinois, 94 U.S. 113, decided in 1876, is a leading case illustrative of the police supervisory power of the States in matters which may indirectly affect commerce, but which do not amount to an interference or obstruction. The General Assembly of Illinois passed a law fixing the maximum charges for the storage of grain in warehouses at Chicago, and other places in the State, in which grain was stored in bulk and in which the grain of different owners was mixed together, or stored in such a manner that the identity of different lots or parcels could not be accurately preserved. The warehouses of the plaintiff were used as instruments of commerce by those engaged in trade solely within the State, as well as by those engaged in inter-state trade. It was held that this was a regulation of domestic concerns, quite legal until displaced by Federal legislation.

In the case of Escanaba Co. v. Chicago, 107 U.S. 678 (1882), the facts were as follows: The municipal authorities of Chicago had passed regulations declaring it to be unlawful to open any bridge within the city of Chicago during an appointed hour of the morning and evening, Sundays excepted, or to keep any such bridge open during the daytime for more than ten minutes at a time. The plaintiff's steam vessels were enrolled and licensed to carry goods from the port of Escanaba, Michigan, to docks on a branch of the Chicago River in the city of Chicago. In their course up the river to the docks, they had to pass through draws of several bridges constructed over the stream by the city of Chicago. They complained of the regulations as being an obstruction to navigation. The Supreme Court held that the power to control the bridges within the city had been properly and fairly exercised; that if the power had been used unnecessarily to obstruct navigation the Federal legislature could have interfered and removed the obstruction; that if the power of the State and the power of the Federal legislature came into conflict in such a case, the latter must control and the former yield. (Per Field, J., 107 U.S. 679.)

The control of bridges, dams, and ferries within a State and between two States is generally left to the supervision of the local authorities, so long as they do not use those works and agencies to obstruct the free flow of inter-state commerce. Bridges and ferries may be improved and utilized as aids to commerce. The States may establish ferries across navigable rivers, within or adjacent to their jurisdiction, and they may require the owners of boats to take out licenses and pay fees. (Wiggins Ferry Co. v. East St. Louis, 107 U.S. 365.) But this is justifiable only as a compensation for the right of wharfage on the State territory. A ferry between States is a means of commerce and cannot be taxed. (Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196.) As to dams and bridges, see Willson v. Blackbird Creek Marsh Co., 2 Pet. 245; Wheeling Bridge Case, 18 How. 421, and Gilman v. Philadelphia, 3 Wall. 713.)

The States may improve navigable streams within their limits, and impose tolls on those using them in order to defray expenses. (Mobile v. Kimball, 102 U.S. 691.) But a license fee exacted for the use of the stream and not as a toll or compensation for specified improvements and services is invalid. (Harman v. Chicago, 147 U.S. 396.) The Federal legislature can interpose and supersede the authority of the State in all these cases, whenever it deems it necessary to do so, in order to remove obstructions, abate nuisances, stop exactions, carry out improvements or establish uniform regulations. (Monongahela Nav. Co. v. United States, 148 U.S. 312; Wisconsin v. Duluth, 96 U.S. 379.)




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The municipal authorities of a State can regulate laundries, and prohibit washing and ironing within defined districts during certain hours of the night. (Barbier v. Connolly, 113 U.S. 27; Soon Hing v. Crowley, 113 U.S. 703.) Such authorities can also abolish bone factories in specified districts (Fertilizing Co. v. Hyde Park, 97 U.S. 659); and breweries (Bartemeyer v. Iowa, 14 Wall. 26; Foster v. Kansas, 112 U.S. 201). See, however, Leisy v. Hardin, 135 U.S. 100; Wilson Act (America), and sec. 113 of this Constitution.

A State can pass a law providing that any person introducing cattle which have not wintered north of a certain line shall be liable to an action for damage done by the introduced cattle, in spreading and communicating disease to other cattle. (Kimmish v. Ball, 129 U.S. 217.)

Dr. Von Holst, referring to the commerce clause of the American Constitution, says: “In inter-state or international commerce, neither the goods nor the transportation of property or persons can be taxed by the States. 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 given more or less away.” (Const. Law of the U.S., p. 143.) In support of his suggestion as to the power of the States to encroach on the Federal domain the learned author cites the decision in the case of Liverpool Insurance Co. v. Massachusetts, 10 Wall. 566, according to which a State can tax foreign corporations at a higher rate than similar corporations created by its own laws. That was the case of an insurance company, and it has been held that insurance is not commerce, and is consequently not within the protection of the commerce clause. No such discrimination would be permissible in the case of a commercial corporation, either in America or in the Australian Commonwealth.

LIMITS OF THE POLICE POWERS.—The right of exclusion is founded on the vital necessity of self-defence and self-protection. A State could not exclude persons, animals, or merchandise unobjectionable in character, health, and quality, and fit subjects of commerce. (Brimmer v. Rebman, 138 U.S. 78.) In Henderson v. Mayor of New York, 92 U.S. 259, the extent to which a State could exclude paupers and criminals was not clearly decided. A State law which forbids the entrance into the State of persons who are not paupers, vagabonds, and criminals, and who are not unsound in body or mind, is not a right exercise of the police power. (State v. Steamship “Constitution,” 42 Calif. 579.)

PORTS, HARBOURS, AND PILOTAGE.—Until the Federal Parliament assumes the control and management of ports, harbours, wharves, beacons, buoys, lights, and pilotage, the State authorities, boards, and trusts, at present charged with the administration of these works, will continue to exercise their functions and powers within the limits assigned to them by State laws. Harbour and port dues, wharfage rates, light dues, will be collected by the local authorities according to local laws; they are not taxes on commerce or in any way affecting the freedom of commerce, but merely compensations for services rendered. (Re Rahrer, 140 U.S. 545; Steamship Co. v. Jollife, 2 Wall. 450; Cooley v. Port Wardens, 12 How. 299.) States may regulate wharves at which vessels receive passengers and cargo, and disembark and discharge same, and may impose dues and rates sufficient to pay the expenses of executing the wharfage regulations. (Gloucester Ferry Co. v. Pennsylvania. 114 U.S. 196–214; Transportation Co. v. Parkersburg, 107 U.S. 691.) But the wharfage charges must be imposed and collected without discrimination, and according to the value of the services rendered, or they will


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come within the constitutional prohibition. (Inman v. Tinker, 95 U.S. 238.) It has been held that a tax on every boat is a tax on boats, not on commerce (St. Louis v. Wiggins Ferry Co., 11 Wall. 423); but a tax on a vessel every time she enters a certain harbour is not a tax on the vessel, but a tax on the business conducted by the vessel on entering the harbour. (Steamship Co. v. Port Wardens, 6 Wall. 31.) The reasonableness of the rates charged for wharfage may be enquired into by the Federal Courts, to ascertain whether in effect they amount to a duty on tonnage. (St. Louis v. Telegraph Co., 139 U.S. 463.)

QUARANTINE.—Until the control over the various departments of quarantine is assumed by the Federal Government, the States will continue to manage the quarantine stations and to enforce the quarantine laws. Such laws may require persons engaged in commerce to submit to medical examinations, and, if necessary, to remain isolated for statutory periods. They may impose a charge on each vessel to defray the expenses of inspection. In Train v. Boston Disinfectant Co., 144 Mass. 523, it was decided that a State may, by its officers, disinfect all rags arriving at a port, and compel the owner to pay the cost of disinfection. An ordinance of St. Louis provides that steamboats coming from below Memphis, having had on board more than a specified number of passengers during the voyage, should remain in quarantine for not less than 48 hours and not more than 20 days. It was held that this was a valid sanitary and quarantine law. (St. Louis v. McCoy, 18 Missouri, 238.)

The question whether wharfage, quarantine, and other such dues, fees and charges, demanded by a State, are bona fide compensations for services rendered, or are mere obstructions to commerce, must be determined according to the facts and circumstances in each case. Such exactions must be fair, reasonable and uniform, and must not exceed the requirements of the occasion. Charges which in the opinion of the Federal Courts are excessive or discriminating could be declared unconstitutional, as involving violations of the rule of inter-state commercial freedom.

FISHERIES AND GAME LAWS.—Control over game and fisheries within the limits of a State is reserved to the State. In the enforcement of its game laws, a State could prohibit all traffic in the meat of game within its limits, without reference to the place where the animal was captured. (Magner v. People, 97 Ill. 33.) As to whether a State could prohibit the exportation of animals protected by its game laws, there is a conflict of authority. (Geer v. Connecticut, 161 U.S. 519.) A State law prohibiting the sale of fish and game, at a time when they could not, under the law, be caught within the limits of the State, has been held to be operative upon the sale of goods shipped from another State, the reason given being that the statute could not be enforced with reference alone to fish or game caught in the State. (Prentice and Egan, Commerce Clause, p. 152.)

EXCISE DUTIES.—It has been already stated that, in the Constitution of the Commonwealth, freedom of inter-state trade and commerce is secured by two constitutional provisions: (1) by the express declaration of sec. 92, that trade and commerce between the States shall be absolutely free; and (2) by the withdrawal from the States of the power to impose duties of customs and excise (sec. 92). In discussing the foregoing cases we have been considering merely the probable effect of the constitutional affirmation of absolute commercial freedom between the States. It remains to consider how far the immunity of inter-state trade and commerce from State taxation is secured through the exclusive control of excise being vested in the Federal Parliament. This depends upon the meaning to be assigned to “excise.” In our notes to sec. 90, the various meanings of “excise” have been referred to; the first and original one being that in which it is restricted to duties on the manufacture and production of commodities in a State; whilst in another sense it has been extended to cover a host of additional imposts—such as licenses to auctioneers, pawnbrokers, peddlers, dealers, and persons permitted to carry guns and run carriages. The bulk of authority is in favour of the limited connotation of the term; and if that view be correct the States of the Commonwealth will retain almost the same powers of taxation as those of the American


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Union, and the doctrine established by the leading cases, such as Brown v. Houston, 114 U.S. 622, will be of some assistance in determining the extent to which State taxation of mixed inter-state and domestic commerce could go. On the other hand, if “excise” were held to be capable of the wider signification alluded to, including all kinds of inland licenses, then the States of the Commonwealth would be deprived of vast powers and sources of local revenue, not contemplated by the framers of the Constitution. If such an extended meaning were annexed to the term “excise” none of the American cases would, in the interpretation of sec. 92, apply, except those supporting the principle of State taxation of incomes derived from domestic and inter-state business combined, and the taxation of incomes derived from properties employed in both domestic and inter-state business.

INSPECTION LAWS.—Charges covering the cost of inspecting goods, on their entrance into a State, may be imposed and collected under the authority of State laws. (See sec. 112.)

STATE BUSINESS, INTERNAL AND LOCAL.—The Federal Legislature has nothing to do with the purely internal commerce of a State, carried on between different parts of the same State, and confined exclusively to the jurisdiction and territory of the State without affecting other nations or States. (Lord v. Steamship Co., 102 U.S. 541; Telegraph Co. v. Texas, 105 U.S. 460. Baker, Annot. Const. p. 33.)

Commerce upon lakes lying within a State is not within federal regulation. The internal commerce and navigation of a State is exclusively subject to State regulation. (Moore v. American Transp. Co., 24 How. 1. Id. p. 38.)

A law of Iowa authorizes the manufacture of alcohol within the State for the purposes of sale for mechanical, medicinal, culinary, and sacramental purposes; and prohibits its manufacture within the State for the purpose of exportation to, and sale within, other States and foreign countries. Held, that the statute is not repugnant to the commerce clause. (Kidd v. Pearson, 128 U.S. 1, 19. Id. p. 40. See Note, “State Tax on a State Business or Profession,” infra.)

LANDING PASSENGERS AND FREIGHT.—Foreign or inter-state commerce cannot be carried on with a State without a wharf or other place within its limits on which passengers and freights can be landed. The use of such a landing place in a State does not confer upon the State a right to tax the capital of corporations engaged in such commerce, unless the same are domiciled within the jurisdiction of the State. The only permissible interference by a State with such commerce is confined to port regulations, and such measures as will ensure safety and prevent confusion in landing and receiving freight and passengers. (Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196. Id. p. 37.)

STATE TAX ON PASSENGERS.—A State cannot impose a tax on passengers arriving in its ports from a foreign country; such tax is a regulation of commerce and void. (Passenger Cases. 7 How. 283; Baker, Annot. Const. p. 26.)

Where the object of a State law is to force the owners of vessels carrying passengers from foreign countries to the ports of the State to pay a tax on such passengers, its effect is to tax commerce, and so it is void. (Henderson v. Mayor of New York, 92 U.S. 259; Chy Lung v. Freeman, 92 U.S. 275. Id. p. 27.)

The constitutional disability is not removed by calling the law an inspection law to prevent the admission of criminals, paupers, lunatics, &c. (People v. Compagnie Gen. Transatlantique, 107 U.S. 59. Id. p. 28.)

Transportation means the taking up of persons or property at one point and putting them down at another. A tax upon such transportation between two States is a tax upon inter-state commerce. The character of this commerce between two States is not changed by the character of the means of transportation. The power to regulate inter-state and foreign commerce includes the power to determine when it shall be free and when subject to duties or exactions. (Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196. Id. p. 28.)

STATE TAX ON FREIGHT.—A tax on freight transported from one State to another State is a regulation of inter-state commerce; when levied by a State, it is void so far as it applies to articles carried through the State, or to articles carried into the State, or to articles taken up within the State and carried to points without. (State Freight Tax Cases, 15 Wall. 232; Baker, Annot. Const. p. 26.) But a tax levied on the gross receipts of a railroad company is not a tax on inter-state transportation, and is not in conflict with the commerce clause. (State Tax on Railway Gross Receipts Case, 15 Wall. 282, 284. Id. p. 26.)




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A tax imposed by a State upon a carrying company incorporated under its laws, and levied directly upon the fares and freights received by the company for the carriage of persons and goods between different States, and between the States and foreign countries, is a tax upon inter-state and foreign commerce, and is unconstitutional. (Philadelphia Steamship Co. v. Pennsylvania, 122 U.S. 326; Baker, Annot. Const. p. 29.)

STATE TAX ON A STATE BUSINESS OR PROFESSION.—A State has a right to tax its own citizens for permission to prosecute any particular business or profession within the State. (Nathan v. Louisiana, 8 How. 73. Id. p. 26.)

A license tax imposed by a city for the privilege of selling beer in casks manufactured in the same State is not obnoxious to the Constitution. (Downham v. Alexandria Council, 10 Wall. 173. Id. p. 26.)

A by-law of a city requiring every railroad company or express company transacting business in such city, and having a business extending beyond the limits of the State, to pay an annual license fee, and imposing penalties for violation, is not repugnant to the commerce clause. (Osborne v. Mobile, 16 Wall. 479. Id. p. 26.)

A law of Texas levied a tax on persons selling wine and beer manufactured out of the State, but exacted no such tax from those engaged in the sale of similar liquors manufactured within the State: Held unconstitutional. (Tiernan v. Rinker, 102 U.S. 123. Id. p. 27.)

When a State grants to a city the right to license, tax and regulate ferries, the city may impose a license tax on the keeping of ferries, although their boats ply between landings lying in two different States. This is one of the undelegated powers reserved to the States. (Wiggins Ferry Co. v. East St. Louis, 107 U.S. 365. Id. p. 29.)

The taxation of goods coming into a State from other States is inconsistent with freedom of trade. But if after their arrival in the State, either for use or for trade, they are subject to any general tax laid alike on all property, such taxation is not unconstitutional. (Brown v. Houston, 114 U.S. 622. Id. p. 28.)

A State tax on persons engaged in selling liquors not manufactured in the State, when no such tax is imposed on persons selling such liquors manufactured in the State. is a discriminating tax, contrary to freedom of commerce among the States, and therefore void. (Affirming Welton v. Missouri, 91 U.S. 275; Walling v. Michigan, 116 U.S. 446. Id. p. 29.)

A law of Tennessee imposed a tax of $50 upon each sleeping-car used by any railroad company within the State and not owned by the company; it was made unlawful for railroad companies to use such cars unless such tax was paid. Held, that the Act was a regulation of inter-state commerce, in so far as it applied to sleeping-cars used upon trains which ran between points within the State and points without the State, or which ran through the State. (Pickard v. Pullman Car Co., 117 U.S. 34. Tennessee v. Pullman Southern Car Co., 117 U.S. 51. Id, p. 29.)

The commerce clause is not violated by a law of a State which exacts a license fee from a corporation organized under the laws of another State, to enable such corporation to have an office within the limits of the State enacting such law, provided such corporation is neither engaged in carrying on foreign or inter-state commerce, nor employed by the Government of the United States. (Pembina Mining Company v. Pennsylvania, 125 U.S. 181. Id. p. 30.)

A State cannot, for the purpose of protecting its people against intemperance, enact laws which regulate commerce between its people and those of other States of the Union, unless the consent of Congress, express or implied, is first obtained. (Bowman v. Chicago and N. W. R. Co., 125 U.S. 465. Id. p. 36.)

RAILWAYS, STATE CONTROL OF.—A State law requiring railway companies operating within its territory to fix their rates, annually, and to keep printed copies thereof posted at all stations, is not unconstitutional; it is a valid exercise of the police powers of the State. (Railroad Co. v. Fuller, 17 Wall. 560. Baker, Annot. Const. p. 38.)

The power to regulate commerce among the several States was vested in the Federal legislature in order to secure equality, and freedom in commercial intercourse against discriminating State legislation; it was never intended to interfere with private contracts not designed at the time they were made to impede such intercourse. (Railroad Co. v. Richmond, 19 Wall. 584. Id. p. 38.)

A law which fixes the minimum rates on a railroad extending from one State to another is not repugnant to the commerce clause, although incidentally it may reach beyond the limits of the State. (Peik v. Chicago and N. W. R. Co., 94 U.S. 164. Overruled in part by Wabash Railway Co. v. Illinois, 118 U.S. 557. Id. p. 39.)




  ― 857 ―

A railroad company whose charter of incorporation does not exempt it from State control may be required by State legislation to convey when called upon, and to charge no more than a reasonable compensation, which may be limited by statute. (Winona, &c., R. Co. v. Blake, 94 U.S. 180. Id. p. 39.)

A statute of Illinois, enacting that any railroad company within that State which charges for transporting passengers or freight of the same class, the same or a greater sum for any distance than for a longer distance, shall be liable to a penalty for unjust discrimination, is, when applied to contracts for shipment beyond the State limits, a regulation of commerce among the States, and is so far void. (Munn v. Illinois, 94 U.S. 113; Chicago Burlington, &c., R. Co. v. Iowa, id. 155; Peik v. Chicago and N. W. R. Co., id. 164, examined and explained and partly over-ruled; Wabash, &c., R. Co. v. Illinois, 118 U.S. 587. Baker Annot. Const. p. 39.)

CANVASSING AGENCIES.—An agency for a line of railroad between Chicago and New York, established in San Francisco for the purpose of inducing passengers going from San Francisco to New York to take that line from Chicago, but not engaged in selling tickets for the route, or receiving or paying out money on account of it, is an agency engaged in inter-state commerce; and a municipal license tax sought to be imposed upon such agency is unconstitutional. (McCall v. California, 136 U.S. 104; Norfolk and W.R. v. Pennsylvania, 136 U.S. 114. Baker, Annot. Const. p. 42.)

LOCOMOTIVE ENGINEERS.—A State statute which requires locomotive engineers, engaged in running locomotive engines on railroads which are operated in and through different States, to be examined as to their power of distinguishing the colours of signals, and which requires the corporation whose trains are so operated to pay a fee for such examination, is not repugnant to the commerce clause until Congress legislates upon the subject. (Nashville, &c., R. Co. v. Alabama, 128 U.S. 96. Baker, Annot. Const. p. 36.)

QUARANTINE REGULATIONS.—A statute of Missouri which prohibited Mexican, Texas, or Indian cattle from being driven or conveyed through the State between March and December of each year is in conflict with the commerce clause. It is more than a quarantine law, which a State in the exercise of its police powers may enact. (Railroad Co. v. Husen, 95 U.S. 465. Baker, Annot. Const, p. 29.)

A law of Iowa, which provides that a person having in his possession within the State “Texas cattle” which have not been wintered north of the northern boundary of Missouri and Kansas shall be liable for any damage which may accrue from spreading the disease known as “Texas cattle fever,” is not in conflict with the commerce clause. (Kimmish v. Ball, 129 U.S. 217. Baker, Annot. Const. p. 40.)

The laws of the States on the subject of quarantine, while they may in some of their rules amount to a regulation of commerce, though not so designed, belong to that class of laws which a State may enact until Congress interposes by legislation over the subject, or forbids State laws in relation thereto. Congress has not done this, but has adopted the State laws upon that subject. (Morgan's Steamship Co. v. Louisiana Board of Health, 118 U.S. 455. Baker, Annot. Const. p. 40.)

The statute of Minnesota providing for inspection within the State of animals designed for meat, by its necessary operation practically excludes from the markets of that State all fresh meat slaughtered in other States, and directly tends to restrict the slaughtering of animals whose meat is to be sold in Minnesota to persons engaged in such business in that State. This discrimination is an incumbrance on commerce among the States, and is unconstitutional. It is not a rightful exercise of the police power of the State. (Minnesota v. Barber, 136 U.S. 313. Baker, Annot. Const. p. 41.)

STATE TAX ON COMMERCIAL AGENTS.—A State law imposing a license-tax upon peddlers selling goods not grown or manufactured in the State is in conflict with the commerce clause. (Following and re-affirming Welton v. Missouri. Morrill v. Wisconsin, Book 23, p. 1009, L.C.P. Co. Ed. U.S. Sup. Ct. Rep. Baker, Annot. Const. p. 28.)

No State may impose upon the products of other States brought therein for sale or use, or upon citizens engaged in the sale therein or the transportation thereto of the products of other States, more onerous public burdens or taxes than are imposed upon like products of its own territory. (Guy v. Baltimore, 100 U.S. 434. Id. p. 28.)

A law of a State requiring a person engaged in peddling goods, wares, and merchandise, not produced in the State, to take out a license and pay a tax thereon, where no such license or tax is required of persons selling similar articles which are the growth, produce or manufacture of the State, is in conflict with the commerce clause. (Welton v. Missouri, 91 U.S. 275. Id. p. 27.)

A tax on the amount of sales made by an auctioneer is a tax on the goods sold. And if the tax is upon sales of imported goods sold in the original packages, and for the importer, it is a regulation of commerce; and such tax, if laid by a State or under its authority, is invalid. (Cook v. Pennsylvania, 97 U.S. 566. Id. p. 27.)




  ― 858 ―

A State law which exacts a license from persons to enable them to take orders for the sale of goods for persons residing in another State is repugnant to the commerce clause. (Asher v. Texas, 128 U.S. 129. Id. p. 30.)

STATE TAX ON VESSELS.—A vessel is subject to taxation only in its port of register. That is its situs. A law of another State, therefore, which assumes to levy a tax on such vessel, is void as a regulation of commerce. (Hays v. Pacific Mail Steamship Co., 17 How. 596. Baker, Annot. Const. p. 26.)

A State tax on a vessel by a State other than that in which it has its home port and situs, when the vessel is lawfully engaged in inter-state transportation over the navigable waters of the nation, is an interference with commerce. (Morgan v. Parham, 16 Wall. 471. Id. p. 26.)

DAMS AND BRIDGES ACROSS NAVIGABLE STREAMS.—In the absence of Federal legislation upon the subject a State may authorize the construction of a dam across a navigable stream within the State. (Pound v. Turck, 95 U.S. 459. Baker, Annot. Const. p. 35.)

A State Legislature may, in the absence of a federal law, authorize the construction of a bridge across a navigable river wholly within the State; such law being local in its nature and a mere aid to commerce. But when the Federal Legislature intervenes, its authority is supreme and its regulations are exclusive. (Cardwell v. Bridge Co., 113 U.S. 205. Id. p. 35.)

A State Legislature may determine the form, character, and height of railroad bridges crossing its navigable waters. Until the Federal Legislature intervenes, the State's powers in such cases is plenary. (Hamilton v. Vicksburg, &c., R. Co., 119 U.S. 280. Id. p. 38.)

The power to authorize the building of bridges is not to be found in the Federal Constitution; it has not been taken from the States. (Gilman v. Philadelphia, 3 Wall. 713. Id. p. 38.)

Pending a suit to have a bridge across the Mississippi River declared a nuisance, it was competent for the Federal Legislature, under the power conferred by the commerce clause, to interfere and legalize the bridge. (The Clinton Bridge, 10 Wall. 454. Id. p. 38.)

OTHER STATE TAXES.—A State cannot, for the purpose of defraying the expenses of quarantine regulations, levy a tax on a vessel entering her harbours in pursuit of commerce, and owned in foreign ports. (Peete v. Morgan, 19 Wall. 581. Id. p. 106.)

State tonnage duties upon all ships plying in the navigable waters of the State are a breach of the commerce clause. The prohibition applies to all ships engaged in the coasting trade, whether trading between ports in different States, or between ports in the same State. Tonnage duties are taxes, and are within the prohibition against State duties on imports and exports. (State Tonnage Tax Cases, 12 Wall. 204. Id.)

State taxes imposed on ships, owned by its citizens, as property, and upon a property valuation, are not in conflict with the commerce clause. The enrolment of a ship does not exempt the owner from taxation of his interest as property. (Transportation Co. v. Wheeling, 99 U.S. 273. Id.)

A duty, or tax, or burden imposed upon vessels under the authority of the State, and measured by the capacity of the vessel, and which is in its essence a contribution claimed for the privilege of arriving and departing from a port of the United States, is within the prohibition against State duties on imports and exports. (Cannon v. New Orleans, 20 Wall. 577. Id.)

A law of Pennsylvania providing that vessels neglecting or refusing to take a pilot shall forfeit a certain sum for the use of the society for relief of distressed and decayed pilots, &c., is not within that prohibition. (Cooley v. Port Wardens, 12 How. 299. Id.)

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