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as an exercise

now obnoxious to the railroad in question, and in some localities the lower courts have refused to enforce the law.

The question now to be inquired into is what is the nature of this law? Is it an act to regulate commerce with foreign

nations, or among the states, or with the Indian The statute tribes? And does it thus invade the granted pow

ers of the congress, under the constitution of the of the state police power. United States, and conflict with them? If so, it

cannot be upheld. It certainly was not so intended. Nothing is said about commerce nor about transportation between the states. It is absolutely limited in its operation to the state of Virginia. It is to be found in the chapter of our Code entitled “ Of offenses against morality or decency ; protection of religious meetings.” The section which precedes it is entitled “ Profane swearing and drunkenness, how punished.” The section which succeeds it is entitled “ Sale of intoxicating liquors on Sunday, how punished.” The next is, “ Disturbance of religious worship, how punished." It is intended as an exercise of the police power of the state, in the interest of morality and decency, and that is what I think it is. It is no part of the province of congress, under its granted powers, to enact police laws for the regulation of such affairs within a state; and if this state may not enact, for the protection of its citizens, police laws for the observance of the Sabbath day, we must ever remain practically without such. I think I am sustained in this view by the decision of the courts of this country, both state and federal; and I will briefly proceed to consider this. Commerce consists of the

various agreements which have for their object Regulations facilitating the exchange of the products of the of commerce

earth, or the industry of man, with the intent to and police regulations

realize a profit. Commerce with foreign countries

and among the states, strictly considered, consists guished. in intercourse and traffic, including in these terms

navigation, and the transportation of persons and property, as well as the purchase, sale, and exchange of commodities. The power conferred upon the congress by the above clause is exclusive, so far as it relates to matters within its purview which are material in their character, and admit of a requisite uniformity of regulation affecting all the states. That clause was adopted in order to secure uniformity against discriminating state legislation. State legislation is not forbidden in matters either local in their operation, or intended to be mere aids to commerce, for which special regulations can more effectually provide, such as harbors, pilotage, beacons, buoys, and other improvements of harbors, bays, and rivers within a state, if their free navigation be not thereby

distin

impaired. Congress, by its inaction in such matters, virtually declares that until it deems best to act they may be controlled by the state. County of Mobile v. Kimball, 102 U. S. 691 (opinion of Mr. Justice FIELD.) In the case of Sherlock v. Alling, 93 U. S. 99, the same learned justice said: “In supposed support of this position, numerous decisions of this court are cited by counsel to the effect that the states cannot by legislation place burdens upon commerce with foreign nations or among the several states." Upon an examination of these cases, it will be found that the legislation adjudged invalid imposed a tax upon some instrument or subject of commerce, or exacted a license fee from parties engaged in commercial pursuits, or created an impediment to the free navigation of some public waters, or prescribed conditions in accordance with which commerce in particular articles or between places was required to be conducted. In all the cases the legislation condemned operated directly upon commerce, either by way of tax upon its business, license upon its pursuits in particular channels, or conditions for carrying it on. Thus, in the Passenger Cases, reported in 7 How. (U. S.), 445, the laws of New York and Massachusetts exacted a tax from the captains of vessels bringing passengers from foreign ports for every passenger landed. In Pennsylvania v. Wheel. ing & B. Bridge Co., reported in 13 How. (U. S.), 518, the statute of Virginia authorized the erection of a bridge which was held to obstruct the free navigation of the river Ohio. And in all the other cases, when legislation of a state has been held to be null for interfering with the commercial power of congress—as in Brown v. Maryland, 12 Wheat. (U. S.), 425; Tax Cases, 12 Wall. (U. S.), 204; and in Welton v. Missouri, 91 U. S. 275-the legislation created in the way of tax, license, or condition a direct burden upon commerce, or in some way directly interfered with its freedom; and it may be said generally that the legislation of a state not directed against commerce or any of its regulations, but relating to the rights, duties, and liabilities of citizens, and only indirectly and remotely affecting the operations of commerce, is of obligatory force upon citizens within its territorial jurisdiction, whether on land, or engaged in commerce, foreign or interstate, or in any other pursuit. Judge Cooley says, in his work on Constitutional Limitations (page 722:) "The line of distinction between that which constitutes an interference with commerce and that which is a mere police regulation is sometimes dim and shadowy, and it is not to be wondered at that learned jurists differ when endeavoring to classify the cases which arise. It is not doubted that congress has the power to go beyond the general regulations of commerce which it is accustomed to establish, and to descend to the most minute di. rections, if it shall be deemed advisable: and that to whatever extent ground shall be covered by these directions the exercise of state power is excluded.

Congress may establish police regulations as well as the states, confining their operations to the subjects over which it is given control by the constitution. But as the general police power can better be exercised under the supervision of ihe local authorities, and mischiefs are not likely to spring therefrom so long as the power to arrest collision resides in the national courts, the regulations that are made by congress do not often exclude the establishment of others by the state covering very many particulars. Moreover, the regulations ol commerce are usually, and in some cases must be, general and uniform for the whole country ; while in some localities state and local policy will demand peculiar regulations with reference to special and peculiar circumstances.

In the late case of Cardwell z. American River Bridge Co., 113 U. S. 203, after citing the earlier cases, the court said that they illustrate the general doctrine, now fully recognized, that the commercial power of congress is exclusive of state authority only when the subjects upon which it is exerted are national in their character, and admit and require uniformity of regulations assecting all the states; and that when the subjects within that power are local in their nature or operation, or constitute mere aids to commerce, the states may provide for their regulation and management until congress interferes and supersedes their action. I will cite as an illustration of my view of this subject yet another decision of the supreme court of the United States upon this subject, which applies to a through line of railway, and is much in point. In the case of Stone 2. Farmers' L. & T. Co., 116 U. S. 307, 23 Am. & Eng. R. Cas. 577, (one of the Railroad Commission Cases), that court said : * There can be no doubt that each of the states through which the Mobile & Ohio R. R. passes incorporated the company for the purpose of securing the construction of a continuous line of interstate communication between the Gulf of Mexico, in the south, and the Great Lakes, in the north. It is equally certain that congress aided in the construction of parts of this line of road, so as to establish such a route of travel and transportation; but it is none the less true that the corporation created by each state is, for the purposes of local government, a domestic corporation, and that its railroad within the state is a matter of domestic concern. Mississippi may govern this corporation as it does all domestic corporations, in respect to every act, and everything within the state which is the law. ful subject of state government. It may, beyond all question

by the settled rule of decision of this court, regulate freights and fares for business done exclusively within the state; and it would seem to be a matter of domestic concern to prevent the company from discriminating against persons and places in Mississippi. So it may make all needíul regulations of a police character for the government of the company while operating its road in that jurisdiction. In this way it may certainly require the company to fence, etc., as much of its road as lies within the state, to stop its trains at railroad crossings, to slacken speed while running in a crowded thoroughfare, to put its tariffs and time-tables at proper places, etc. This company is not entirely relieved from state control in Mississippi, simply because it has been incorporated by, and is carrying on business in, the other states through which its road runs. While in Mississippi it can be governed by Mississippi in respect to all things which have not been placed by the constitution of the United States within the exclusive jurisdiction of congress. It is not enough to prevent the state from acting that the road in Mississippi is used in aid of interstate commerce. Legislation of this kind, to be unconstitutional, must be such as will necessarily amount to or operate as a regulation of business without the state as well as within." See, also, Smith v. Alabama, 124 U. S. 465, 33 Am. & Eng. R. Cas. 425: Nashville C. & St. L. R. Co. i. Alabama, 128 Ü. S. 96, 38 Am. & Eng. R. Cas. I; Chicago & A. R. Co. v. People, 105 III. 637, 12 Am. & Eng. R. Cas. 156; Raer. Grand Trunk R. Co., 14 Fed. Rep. 401, 9 Am. & Eng. R. Cas. 470; Iowa i'. Chicago, M. & St. P. R. Co., 33 Fed. Rep. 391 ; Chicago, M. & St. P. R. Co. v. Becker, 32 Fed. Rep. 849. And as to the right of the state to regulate the charge for taking on through cars_"switching" as it is called-by a state commission, it was held to have no reference to interstate commerce, in the case of Railroad Co. i'. Becker, supra. And again it was held in the state of Iowa v. Chicago, N. & St. P. Ř. Co., 33 Fed. Rep. 391, that, even if such switching be an act of interstate commerce, such regulation is valid, as it does not refer to the carriage of freight outside the state. And, again, it was said by the supreme court of the United States in Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 131m. & Eng. Corp. Cas. 365, that the power to prescribe regulations to protect the health of the community, and to prevent the spread of discase, is incident to all local municipal authority, however much such regulation may interfere with interstate commerce. The interstate commerce act itsell, passed February 4, 1887, and amended March 2, 1889, when congress subjected to its contri l all common carriers engaged in continuous interstate or international transportation of passengers or property, was held not to include the carriage or handling of passengers, by rail or otherwise, when such carriage or handling is performed wholly within a state. Ex parte Koehler, 30 Fed. Rep. 867, 30 Am. & Eng. R. Cas. 71. This is the result of all the decisions of the federal courts. If the act in question only applies to and operates upon transportation within the state, it is immaterial that the company operated on is part of an interstate line. It must not only affect commerce, but it must affect commerce with foreign nations, or among the states, or with the Indian tribes. But, if the act is one done in the exercise of a police power, it is within the legitimate and unchallenged domain of the state ; such as to regulate concern. ing the public health, public peace, and morality and decency,

Now, what is this police power, and where does it reside? It is defined to be the authority to establish, for the inter.

course of the several members of the body politic Nature of po- with each other, those rules of good conduct and Jice power.

good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a corresponding enjoyment by others, and is usu ally spoken of as the authority or power of police. This is a most comprehensive branch of sovereignty, extending, as it does, to every person, every public and private right, everything in the nature of property, every relation in the state, in society, and in private life. The power vested in the legis. lature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same. The exercise of this power, at least, has been left with the individual states, and cannot be taken from them, and exercised wholly or in part under legislation of congress. Cooley, Const. Lim. 715; U. S. v. Dewitt, 9 Wall. (U. S.) 41. Quarantine and health laws of every description, proper regulations for the use of highways, and the general right to control and regulate the public use of navigable waters are unquestionably with the state under the police power. Indeed, the police power of a state, in a comprehensive sense, embraces its whole system of in. ternal regulations by which the state seeks, not only to preserve the public order, and to prevent offenses against the state, but also to establish for the intercourse of citizen with citizen those rules of good manners which are calculated to prevent a conflict of rights. Judge Cooley says, in the American constitutional system the power to establish the ordinary regulations of police has been left with the states individually, and it cannot be taken from them, either wholly

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