[United States v. Leffler.]

cause of action in the language of the law, transit in rem judicatam, and the judgment thereupon remains in full force unreversed, the original cause of action is merged and gone forever.

We have anticipated the last objection in our previous reasoning, by showing that the fact fails, because the witness is severed from the record, and is not a party.

On the whole view of the case, we think that the witness was competent; that therefore the judgment of the circuit court was correct, and must be affirmed.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the eastern district of Virginia, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this Court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed.

THE MAYOR, ALDERMEN, AND COMMONALTY OF THE CITY OF NEW YORK, PLAINTIFFS V. GEORGE MILN.

In February, 1824, the legislature of New York passed an act concerning passengers in vessels arriving in the port of New York." By one of the provisions of the law, the master of every vessel arriving in New York from any foreign port, or from a port of any of the states of the United States, other than New York, is required, under certain penalties prescribed in the law, within twenty-four hours after his arrival, to make a report in writing, containing the names, ages, and last legal settlement of every person who shall have been on board the vessel commanded by him during the voyage; and if any of the passengers shall have gone on board any other vessel, or shall, during the voyage, have been landed at any place with a view to proceed to New York, the same shall be stated in the report. The corporation of the city of New York instituted an action of debt under this law against the master of the ship Emily, for the recovery of certain penalties imposed by this act; and the declaration alleged, that the Emily, of which William Thompson was the master, arrived in New York, in August, 1829, from a country out of the United States, and that one hundred passengers were brought in the ship, in the voyage, and that the master did not make the report required by the statute referred to. The defendant demurred to the declaration, and the judges of the circuit court being divided in opinion on the following point, t was certified to the Supreme Court. "That the act of the legislature of New York, mentioned in the plaintiff's declaration, assumes to regulate trade and commerce between the port of New York and foreign ports, and is unconstitutional and void." The Supreme Court directed it to be certified to the circuit court of New York, that so much of the section of the act of the legislature of New York as applies to the breaches assigned in the dearation, does not assume to regulate commerce between the port of New York and foreign ports; and that so much of the said act is constitutional.

The act of the legislature of New York is not a regulation of commerce, but of police; and, being so, it was passed in the exercise of a power which rightfully belonged to the state. The state of New York possessed the power to pass this law, before the adoption of the constitution of the United States. The law was intended to prevent the state being burthened with an influx of foreigners, and to prevent their becoming paupers, and who would be chargeable as such. The end and means here used, are within the competency of the states, since a portion of their powers were surrendered to the federal government.

The case of Gibbons v. Ogden, 9 Wheaton, 203, and Brown v. The State of Maryland, 12 Wheaton, 419, cited. The section of the act of the legislature of New York on which this action is brought, falls within the limits of the powers of state laws drawn by the Court in the case of Gibbons v. Ogden; and there is no aspect in which the powers exercised by it transcends these limits. There is not the least likeness between the case of Brown v. The State of Maryland, and the case before the Court.

In the case of Brown v. The State of Maryland, this Court did indeed extend the power to regulate commerce, so as to protect the goods imported from a state tax,

[City of New York v. Miln.]

after they were landed, and were yet in bulk, because they were the subjects of commerce; and because, as the power to regulate commerce, under which the importation was made, implied a right to sell whilst the bales or packages were in their original form. This does not apply to persons. They are not the subjects of

commerce.

There is a portion of the reasoning of the Court, in the cases of Ogden v. Saunders, and Brown v. The State of Maryland, which would justify measures on the part of the state, not only approaching the line which separates regulations of commerce, from those of police, but even those which are almost identical with the former class, if adopted in the exercise of their acknowledged powers. 9 Wheat. 204, 209.

From the language of the Court in these cases it appears, that whilst a state is acting within the scope of its legitimate power, as to the end to be attained, it may use whatever means, being appropriate to the end, it may ink fit; although they may be the same or so nearly the same, as scarcely to be distinguished from those adopted by congress acting under a different power: subject, only, the Court say, to this limitation, that in the event of collision, the law of the state must yield to the law of congress. The Court must be understood, of course, as meaning that the law of congress is passed upon a subject within the sphere of its power. Even then, if the section of the act of New York under consideration in this case, would be considered as partaking of the nature of a commercial regulation, the principle laid down in Gibbons v. Ogden would save it from condemnation, if no such col. lision existed. There is no collision between the provisions of the section of the law of New York, on which this suit has been brought, and the provisions of the laws of the United States of 1799, or 119, relating to passengers.

It is obvious that the passengers laws of the United States, only affect, through the power over navigation, the passengers whilst on their voyage, and until they shall have landed after that, and when they shall have ceased to have any connexion with the ship, and when, therefore, they have ceased to be passengers, the acts of congress applying to them as such, and only professing to legislate in relation to them as such, have then performed their office; and can, with no propriety of language, be said to come into conflict with the law of a state, whose operation only begins where that of the laws of congress end; whose operation is not even on the same subject: because, although the person on whom it operates is the same, yet, having ceased to be a passenger, he no longer stands in the only relation in which the laws of congress either professed or intended to act upon him.

A state has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits, as any foreign nation; when that jurisdiction is not surrendered or restrained by the constitution of the United States.

It is not only the right, but the bounden and solemn duty of a state, to advance the safety, happiness, and prosperity of its people, and to provide for its general welfare, by any and every act of legislation which it may deem to be conducive to these ends; where the power over the particular subject, or the manner of its exercise, are not surrendered or restrained by the constitution of the United States. All those powers which relate to merely municipal legislation, or which may more properly be called internal police, are not surrendered or restrained; and, consequently, in relation to these, the authority of a state is complete, unqualified, and exclusive.

It is, at all times, difficult to define any subject with precision and accuracy. If this be so in general, it is emphatically so in relation to a subject so diversified and va

[City of New York v. Miln.]

rious as that under the consideration of the Court in this case. If the Court were to attempt it, they would say, that every law came within the description of a regulation of police, which concerned the welfare of the whole people of a state, or any individual within it; whether it related to their rights or their duties; whether it respected them as men, or as citizens of the state in their public or private relations; whether it related to the rights of persons, or of property, of the whole people of a state or of any individual within it; and whose operation was within the territorial limits of the state, and upon the persons and things within its jurisdiction. An example of the application of these principles, is the right of a state to punish persons who commit offences against its criminal laws, within its territory.

Persons are not the subjects of commerce; and not being imported goods, they do not fall within the reasoning founded upon the construction of a power given to congress to regulate commerce, and the prohibition of the states from imposing a duty on imported goods.

ON a certificate of division in opinion of the judges of the circuit court of the United States for the southern district of New York.

In the superior court of the city of New York, the plaintiffs instituted an action of debt for the recovery of 15,000 dollars, the amount of certain penalties alleged to have been incurred by the defendant, under the provisions of an act of the legislature of the state of New York, passed February 11th, 1824, entitled "an act concerning passengers in vessels coming to the port of New York." The defendant, being an alien, removed the cause into the circuit court of the United States, and the pleadings in the case were carried on to issue in that court.

The act of the legislature of New York provides, in the first section, that the master of any ship or vessel arriving in the port of New York from any country out of the United States, or from any other state of the United States, shall, within twenty-four hours after his arrival, make a report, in writing, to the mayor of the city of New York, or, in his absence, to the recorder, on oath or affirmation, of the name, place of birth, and last legal settlement, age and occupation, of every person brought as a passenger in the ship or vessel, or on board of her, on her last voyage, from any country out of the United States, or from any of the United States, into the port of New York, or into any of the United States, and of all persons landed from the ship, during the voyage at any place, or put on board, or suffered to go on board any other vessel, with intention of proceeding to the city of New York; under a penalty, on the master and commander, the owner, consignee or consignees, of seventy-five dollars, for each passenger not

[City of New York v. Miln.]

reported, and for every person whose name, place of birth, last legal settlement, age, and occupation, shall be falsely reported.

The second section authorizes the mayor, &c., to require from every master of such vessel that he be bound with sureties in such sum as the mayor, &c., shall think proper, in a sum not to exceed 300 dollars, for every passenger, to indemnify and save harmless the mayor, &c., of the city of New York, and the overseers of the poor of the city from all expenses of the maintenance of such person, or of the child or children of such person, born after such importation; in case such person, child or children, shall become chargeable to the city within two years: and if for three days after arrival, the master of the vessel shall neglect to give such security, the master of the vessel, and the owners, shall severally and respectively, be liable to a penalty of 500 dollars, for each and every person not a citizen of the United States, for whom the mayor or recorder shall determine that bonds should have been given.

The third section enacts, that whenever any person brought in such vessel, not being a citizen of the United States, shall, by the mayor, &c., be deemed liable to become chargeable on the city, the master of the vessel shall, on an order of the mayor, &c., remove such person, without delay, to the place of his last settlement; and in default, shall incur all the expenses attending the removal of such person and of his maintenance.

The fourth section provides that every person, not being a citizen of the United States, entering the city of New York with an intention of residing therein, shall, within twenty-four hours, make a report of himself to the mayor, stating his age, occupation, and the name of the ship or vessel in which he arrived, the place where he landed, and the name of the commander of the vessel.

The sixth section subjects the ship or vessel in which such passengers shall have arrived, to the penalties imposed by the former sections, for any neglect of the provisions of the law by the master or owner; and authorizes proceedings by attachment against the ship or vessel for the same, in the courts of New York.

The declaration set forth the several provisions of the act, and alleged breaches of the same; claiming that the amount of the penalties stated had become due in consequence of such breaches.

To this declaration the defendant entered a demurrer, and the plaintiffs joined in the same.

The following point was presented to the court on the part of the VOL. XI.-O