require an interpretation of the constitution, by which federal control will be extended over every business which is, and in so far as it is, conducted with a view to interstate or foreign commerce, and such interpretation, it is submitted, is logically sound.

Of forms of business incidental and auxiliary to commerce between the states and with foreign nations, some have been held to be beyond the control of the states and others within it. So the soliciting of orders for goods to be brought from other states, and the soliciting and negotiating of business for interstate railroads are forms of business so closely connected with commerce that the necessary agents cannot be taxed; but the employment of workmen to work in another state has no direct relation to commerce. Dealing in foreign bills of exchange is not commerce,10 and the states have always had full control of the whole law relating to such bills; yet it can hardly be denied that this law is sufficiently closely connected with commerce that the United States could assume to regulate it. The law regulating the liability of common carriers engaged in interstate commerce for accidents happening within the state is within the control of the state,11 but not the law regulating their charges,12 though this matter is subject to the common law which is state law.13

§ 80. Local and national aspect of commerce.-A further distinction is based upon a difference between the local and the national aspect of commerce first stated by Justice Woodbury in the License Cases,14 and which was distinctly recognised in Cooley v. Board of Wardens.15 With respect to this Justice Field in his concurring opinion in Bowman v. C. & N. W. R. R. Co.16 says: "The doctrine now firmly established is that where the subject upon which Congress can act under its commercial power is local in its nature or sphere of operation, such as harbor pilotage, or improvement of harbors, the establishment of beacons and buoys to guide vessels in and out of port, the construction of bridges over navigable rivers, the erec

8 Robbins v. Shelby County Taxing District, 120 U. S. 489; McCall v. California, 136 U. S. 104.

9 Williams v. Fears, 179 U. S. 270. 10 Nathan v. Louisiana,

How. 73.

11 Chicago, M. & St. P. R. Co. v. Solan, 169 U. S. 133.

12 Wabash etc. R. Co. v. Illinois, 118 U. S. 557.

13 W. U. Tel. Co. v. Call Pub. Co., 181 U. S. 92.

14 5 How. 504.

15 12 How. 298.

16 125 U. S. 465.

tion of wharfs, piers and docks, and the like, which can be properly regulated only by special provisions adapted to their localities, the state can act until Congress interferes and supersedes its authority; but where the subject is national in its character, and admits and requires uniformity of regulation, affecting alike all the states, such as transportation between the states, including the importation of goods from one state to another, Congress can alone act upon it and provide the needed regulations. The absence of any law of Congress on the subject is equivalent to its declaration that commerce in that matter shall be free."

As a matter of fact the recognition of state control has been determined in many cases by the fact that in the absence of Congressional regulation some regulation by some authority was necessary. That the control of navigable waters should be national is clear where these waters belong to several states in common; and Congress has recognised this by placing navigable waters of the United States under federal jurisdiction and forbidding the erection of bridges without the consent of the Secretary of War.17 Congress has also legislated in a measure with regard to pilotage. Quarantine regulations in order to be effective should be national and not local; local regulations have been recognised because some regulation was absolutely required. So, in the absence of federal legislation, state laws are upheld requiring safety arrangements on trains. and prescribing rules of qualification for engineers, or forbidding the running of trains on Sundays. Yet nothing is clearer than that with reference to interstate trains the operation of such rules should be national and uniform. If it has been said on the other hand that the right to import goods and sell the imports is national, and that the non-action of Congress is equivalent to its declaration that such rights shall be free and unrestricted, the latter argument is not always in accordance with the facts, for when the doctrine was applied to intoxicating liquors Congress answered immediately by the passage of an act declaring that liquor should be subject to the state laws after it had been imported, and it was generally understood that this action did not mean a reversal of previous legislative policy, but rather a nullification of the decision of Leisy v. Hardin.

17 Act Sept. 19, 1890.

§ 81. Point at which commerce ceases to be interstate or foreign commerce; original package doctrine.-The decision in Brown v. Maryland's established with regard to taxation of foreign imports the doctrine that the federal freedom of commerce continues while an imported article remains in the original package in the hands of the importer, and until he has sold it in such package, and that therefore the state cannot restrain the right to make such sale.19 If the importer sells in the original package, the purchaser becomes subject to state law.20 The reason underlying this doctrine has perhaps been best explained by Chief Justice Taney, in the License Cases :21 "The immense amount of foreign products used and consumed in this country are imported, landed and offered for sale in a few commercial cities, and a very small portion of them are intended or expected to be used in the state in which they are imported. A great (perhaps the greater) part imported, in some of the cities, is not owned or brought in by citizens of the state, but by citizens of other states, or foreigners. And while they are in the hands of the importer for sale, in the form and shape in which they were introduced, and in which they are intended to be sold, they may be regarded as merely in transitu, and on their way to the distant cities, villages, and country for which they are destined, and where they are expected to be used and consumed, and for the supply of which they were in truth imported. And a tax upon them while in this condition, for state purposes, whether by direct assessment, or indirectly, by requiring a license to sell, would be hardly more justifiable in principle than a transit duty upon the merchandise when passing through the state. A tax in any shape upon imports is a tax upon the consumer by enhancing the price of the commodity, and if a state is permitted to levy it in any form, it will put it in the power of a maritime

18 12 Wh. 419, 1827.

19 The act of Maryland taxing importers (ch. 246 of 1821) was an amendment of an earlier act (ch. 184 of 1819) taxing retailers of goods except such as are sold by the importers thereof in the original cask, case, box or package wherein the same shall have been imported. The exemption of the original pack

age from state taxation thus appears to have been recognised by state legislation before it was insisted on by the Supreme Court. It would be interesting to ascertain in what statute the exemption of the original package first occurs.

20 Pervear V. Wall. 475.

21 5 How. 575.

Massachusetts, 5

importing state to raise a revenue for the support of its own government from citizens of other states, as certainly and effectually as if the tax was laid openly and without disguise as a duty upon imports. Such a power in a state would defeat one of the principal objects of framing and adopting the Constitution. It cannot be done directly in the shape of a duty on imports for that is expressly prohibited. And as it cannot be done directly, it could hardly be a just and sound construction of the Constitution which would enable a state to accomplish precisely the same thing under another name and in a different form." It was formerly strongly doubted whether the doctrine applied to imports from one state to another,22 but it was so applied in the case of Leisy v. Hardin,23 with reference to an exercise of the police power.

Since the decision in Leisy v. Hardin the doctrine has been modified in two directions: Congress by the so-called Wilson Act of 1890 provided that intoxicating liquors transported into a state should upon their arrival there become subject to the police power of such state, and not be exempt by reason of being introduced in original packages;24 and the Supreme Court by two decisions25 restricted the protection accorded to original packages to such as were suitable for wholesale importations, leaving the state laws free to deal with small packages intended for retail sales, especially where these small packages are brought in in larger enclosures or receptacles.

SO

Under the Wilson act the federal immunity of commerce ceases only when the liquor has reached the consignee,2 26 that the consumer is still free to import. But under the decision of Austin v. Tennessee it is doubtful whether a person may freely import retail packages for his own use. The opinion speaks of "minute packages, that may at once go into the hands of retail dealers and consumers, and thus bid defiance to the laws of the state against their importation and sale." The court thus seems to be of opinion that the importing of retail packages may be forbidden as well as the sale of retail imports; but as the case involved only the right to sell, and 22 Woodruff v. Parham, 8 Wall. oleomargarine act of May 9, 1902. 123; Brown v. Houston, 114 U. S. 25 May v. New Orleans, 178 U. S. 622. 496, and Austin v. Tennessee, 179 U. S. 343.

23 135 U. S. 100.

24 A similar concession has been made to state police power by the

26 Rhodes v. Iowa, 170 U. S. 412, 1898.

the decision was by a bare majority, the question as to the right to import cannot perhaps be regarded as settled.

§ 82. The principle of non-discrimination.—It was said by Justice Field in his concurring opinion in Bowman v. C. & N. W. R. Co.:27 "It is evident that the value of the importation will be materially affected if the article imported ceases to be under the protection of the commercial power upon its sale by the importer. There will be little inducement for one to purchase from the importer, if immediately afterwards he can be restrained from selling the article imported; and yet the power of the state must attach when the imported article has become mingled with the general property within its limits, or its entire independence in the regulation of its internal affairs must be abandoned. The difficulty and embarrassment which may follow must be met as each case arises." It is however clear that in one respect the freedom of commerce must accompany imported goods through all stages subsequent to the breaking of the original package, namely to protect them from discrimination by reason of their foreign origin. A state may under no circumstances treat imported goods less favorably than domestic goods. This has been recognised repeatedly by the Supreme Court,28 and while it was said in one case29 that it would be an error to lay any stress upon the fact of discrimination, yet this element has been absolutely controlling in a number of important decisions.30

The principle of non-discrimination suffers an apparent exception in the case of quarantine laws. Measures of quarantine may affect commerce from other states or countries, or from particular foreign localities, while leaving domestic commerce free. Since the source of disease is local, the preventive measure has likewise a particular local bearing, and there is in reality no discrimination, as the term is commonly understood. Such cases as Louisiana v. Texas,31 and Compagnie

27 125 U. S. 465.

28 Welton v. Missouri, 91 U. S. 275; Tiernan v. Rinker, 102 U. S. 123.

The license exacted of importers by the law of Maryland which was declared unconstitutional in Brown v. Maryland was $50 a year, while other

29 Bowman v. C. & N. W. R. Co., retailers of dry goods paid only $8;

125 U. S. 465.

30 Walling v. Michigan, 116 U. S. 446; Voight v. Wright, 141 U. S. 62; Scott v. Donald, 165 U. S. 58.

compare chap. 184 laws of 1819 with chap. 246 laws of 1821.

31 176 U. S. 1.