Obrázky stránek

be permitted to exercise jurisdiction even over such territorial waters when they are the thoroughfares for interstate com.

valid exercise of the power of that


In the opinion of the court it was said: "The act of 1789 contains a clear and authoritative declaration by the first congress, that the nature of this subject is such that, until congress should find it necessary to exert its power, it should be left to the legislation of the states; that it is local, and not national; that it is likely to be the best provided for, not by one system or plan of regulation, but by as many as the legislative discretion of the several states should deem applicable to the local peculiarities of the ports within their limits."

In consequence of the enactment by New Jersey of pilotage statutes, asserting for that state coördinate pilotage rights with New York, congress, on March 2, 1837, passed the following statute:

"That it shall be lawful for the master or commander of any vessel coming into or going out of any port situated upon waters which are the boundary between two states, to employ any pilot duly licensed or authorized by the laws of either of the states bounded on the said waters, to pilot said vessel to or from said port; any law, usage, or custom to the contrary notwithstanding."

[blocks in formation]

cree was affirmed by Judge McKennan, on the ground that Delaware was under the act of March 2, 1837 (12 Fed. Rep. 346). In Hagar, ex parte (104 U.S. 520), an application to prohibit the Delaware District Court from enforcing a penalty of this class was refused on technical grounds. In The Alzena (13 Weekly Notes, 63, above cited), the right of a Delaware pilot to collect his fees in case of refusal to employ him was sustained by Judge Butler and Judge McKennan, although under the Pennsylvania statute pilotage fees in cases of that class (the vessel being at anchor in Delaware Bay before she was spoken by a pilot), were not to be exacted; aff. in the Charles A. Sparks, ut sup. See an interesting review of the cases in 17 Am. Law Reg., pp. 372 et seq.

"The jurisdiction of the local sovereign over a vessel, and over those belonging to her, in the home port, and abroad on the sea, is, according to the law of nations, the same." Hence, it was held that a pilot on a New York pilot-boat, though fifty miles at sea, was under New York jurisdiction. Wilson v. McNamee, 102 U. S. 572.

[ocr errors]

Conceding that the pilot laws of the several states are regulations of commerce, Mr. Justice Story said: 'They have been adopted by congress, and without question are controllable by it.' . . . The long-continued silence of congress, with its plenary power, in the presence of such legislation by the states concerned, is itself an implied ratification and adoption; and is equivalent in its consequences to an express declaration to that effect." Swayne, J., Wilson v. McNamee, 102 U. S. 572.

"The rules to govern harbor pilotage must depend in a great degree upon


Does not states from


merce. Pilotage is distinctively a matter of port concern, and local laws, as to pilotage, should be limited to vessels entering the ports of the state imposing such laws. Hence, in any view, state statutes authorizing port wardens to demand fees from vessels arriving in port are constitutional.-Though the states, as will be hereafter seen, are precluded from laying duties on tonnage, this only prohibits them from taxing vessels "as vehicles of commerce, according to capacity," it being conceded that they may be taxed pari passu with other property.2 425. The clause before us does not preclude the states from exercising police jurisdiction on their shores. and over navigable waters within their territorial bounds. Perhaps under this head may fall the ruling above noticed to the effect sustaining the bridging and damming the river Schuylkill so as to make it best adapted to promote the comfort of the city of Philadelphia; but be this as it may, there is no question that in this way may be justified the ruling of the supreme court, n 1837, affirming the constitutionality of a statute providing that every master of a vessel arriving at New York shall, within twenty-four hours, make a report in writing containing the names, ages, and last place of settlement of each passenger. With this may be coupled the rulings (1847) in the License Cases, in which it was held that it is within the police power of the states to prohibit the sale of spirituous liquors within their borders, and that so far as concerns goods received in bulk for inland use, such goods may, in any view, be subject to police restriction, provided there be no statute of

[blocks in formation]

police ex


3 See U. S. v. De Witt, 9 Wall. 41; Sherlock v. Alling, 93 U. S. 99; Slaughter-house Cases, 16 Wall. 36.

As to taking property for police purposes, see infra, § 565. 4 Supra, § 420.

5 New York v. Miln, 11 Pet. 102; see Henderson v. N. Y., 92 U. S. 259.

6 Thurlow v. Massachusetts, 5 How. 504; Fletcher v. Rhode Island, ib.;

2 Infra, § 430; Cooley, Const. Lim. Peirce v. New Hampshire, ib.; Metro


politan Board v. Barrie, 34 N. Y. 666.


congress regulating such reception. But under the head of police regulation cannot be classed a state statute excluding from the state all emigrants likely to be a public charge, or who should not give bonds on landing.3

Nor does

tion touch

purely interstate transactions.

§ 426. It need scarcely be added that the power to regulate commerce does not authorize the United States to the restric- interfere with trade within the borders of a state except for the purpose of imposing a tax. And the only commerce that can be regulated under the clause is that with foreign nations or with a sister state. The fact that articles on which domestic labor is bestowed may be exported does not put their regulation in the hands of congress. "A pretension as far reaching as this would extend to contracts between citizen and citizen of the same state, would control the pursuits of the planter, the grazier, the manufacturer, the mechanic, the immense operations of the collieries, the mines, and furnaces of the country; for there is not one of these avocations the results of which may not become the subjects of foreign commerce, and be borne, either by turnpikes, canals, or railroads, from point to point within the several states, toward an ultimate destination." "The inaction of congress to prescribe any specific rules to govern interstate commerce, when considered with reference to its legislation, with respect to foreign commerce, is equiva

1 In this point Taney, C. J., and Catron, Daniel, Nelson, and Woodbury, JJ., concurred.

[blocks in formation]

As to laws prohibiting oyster dredg

2 Chy Lung v. Freeman, 92 U. S. ing, see supra, § 423. 275.

3 Ah Fong, in re, 3 Saw. 144. As to head money and tax on emigrants, see supra, § 421.

That a state law prohibiting the sale of intoxicating liquors, with the exception of "cider and wine manufactured from fruits grown in this state," is not unconstitutional, see State v. Stucker, Sup. Ct. Iowa, 1882.

But a statute prohibiting the reception of spirituous liquors at a port is

That a law restricting the sale of opium is not unconstitutional, see State v. On Gee, 15 Nev. 184; State v. Ah Sam, 15 Nev. 27; State v. Ah Chew, 16 Nev. 50; citing License Cases, 5 How. 504; Metropolitan Board v. Barrie, 34 N. Y. 666.

4 Veazie v. Moor, 14 How. 568. In Trade-mark Cases, 100 U. S. 82, it was held that a Federal statute making it penal to forge trade-marks was unconstitutional, this being a matter of state


lent to a declaration that interstate commerce shall be free and untramelled."

§ 427. The clause, also, does not prohibit the states from establishing and regulating ferries on navigable Establishwaters. Nor is a state precluded from improving navigable rivers within its boundaries, and imposing tolls for the use of such rivers.3

ing state river im

ferries and

not forbid-



laws limitof ship

ing liability


§ 428. The power of regulating commerce includes the power of moulding the liability of ship-owners and ship-officers on the high seas or on navigable waters. In 1851, in exercise of this power, congress passed a statute providing that no owners of vessels shall be liable for any damage to goods and merchandise on board the vessel in which the commodities are laden unless the loss occurred through the design or neglect of the owner himself. This act has been sustained by the supreme.court."

Power ex

tends to

rivers trib

§ 429. The power, also, extends to rivers which are tributary to inland lakes on which there is interstate. commerce, and congress may take under its cognizance vessels and other vehicles of commerce used on such rivers for the purpose of delivering merchandise to vessels navigating the lakes."

utary to


430. A state is also prohibited from laying, without consent of congress, any duty of tonnage. Hence, Tonnage

statutes have been held unconstitutional which duties proimpose duties on vessels as vehicles of commerce,7


or upon vessels in respect to their capacity. But the prohibition does not extend to wharfage dues, nor to taxation

1 Field, J., Tiernan v. Rinker, 102 U. S. 123; see supra, § 422.

2 Conway v. Taylor, 1 Black, 603; U. S. v. The James Morrison, Newb. Ad. 241.

* Palmer v. Commissioners, 3 McLean, 226; Kellogg v. Union Co., 12 Conn. 7; Huse v. Glover, 16 Cent. L. J. 449; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365; 48 Mo., 00; supra, §§ 410, 420. 102121560

Moore v. Trans. Co., 24 How. 1.

5 The Daniel Ball, 11 Wall. 557; The Montello, 20 Wall. 430.

6 Const., art. I. § 10, cl. 3.

7 Peete v. Morgan, 19 Wall. 581; Transportation Co. v. Wheeling, 99 U. S. 273.

s Cannon v. New Orleans, 20 Wall. 577; Inman St. Co. v. Tinker, 94 U. S. 238.

9 Packet Co. v. Keokuk, 95 U. S. 80.

of interest in ships in the same way as of other interests, in conformity with the law of the place where owned.' It is otherwise as to a statute requiring all vessels of a certain class entering a port to pay a certain rate per ton.2

Congress has power




§ 431. The next power given to congress, in the article before us, is "to establish a uniform rule of naturalization." In its strict sense, naturalization is the to establish adoption by a state as a citizen of a person born naturaliza- abroad. By this process an alien is relieved from the disabilities of alienship, with the exception that he cannot be elected president of the United States.' It should be remembered that expatriation is now internationally conceded; and that a temporary return, by a naturalized citizen, to his native land, does not revive his native alleg iance.5 The power to confer naturalization in the United States, it should be added, is exclusively in congress."

Persons born in a state subject to its jurisdiction.

§ 432. By the fourteenth amendment to the constitution it is provided that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the states in which they reside." Whether a child born. in the United States of alien parents is a citizen of the United States depends upon whether such child is "subject to the jurisdiction of the United States." The prevalent

1 St. Louis v. Ferry Co., 11 Wall. 423. That wharfage may be constitutionally imposed, see supra § 424.

That wharfage is not tonnage, so far as it is a charge levied on vessels for the temporary use of wharves or landings, see Cannon v. New Orleans, 20 Wall. 577; Packet Co. v. Keokuk, 95 U. S. 80; Packet Co. v. Catlettsburg, 105 U. S. 559; Oachita Packet Co. v. Aiken, 16 Fed. Rep. 890; Transportation Co. v. Parkersburg, 107 U. S. 691.

2 Inman Steamship Co. v. Tinker, 94 U. S. 228. A municipal corporation,

also, may constitutionally impose taxes for wharfage. Marshall v. Vicksburg, 15 Wall. 146; Packet Co. v. St. Louis, 95 U. S. 80; Packet Co. v. St. Louis, 100 U. S. 423.

3 Const., art. I., § 8, cl. 4.

4 Supra, §§ 177, 262; Whart. Conf. of Laws, § 5.

5 Ib. § 6.

6 Chirac v.Chirac, 2 Wheat. 259. That naturalization creates political status, see supra, § 262. Of the relations of naturalization and domicil, see supra, § 255. 1 Infra, § 585; see supra, § 255.

« PředchozíPokračovat »