The State's right of taxation was also involved, as in Brown v. Maryland, but was denied on the different ground, that the law was not a quarantine regulation, because operating upon all passengers; otherwise, the law could not operate as the voyage had not yet been terminated: per MCLEAN, J., page 400, sqq; WAYNE, J., page 411; CATRON, J., page 447.

The fact of the tax falling eventually on the passenger himself, no matter by whom paid in the first instance, was admitted in all these cases: WAITE, C. J., in W. U. Tel. Co. v. Texas (1882), 15 Otto (105 U. S.) 460, 465; MILLER, J., Henderson v. The Mayor (1876), 2 Otto (92 U. S.) 259, 268; Cook v. Pa. (1878), 7 Otto (97 U. S.) 566, 572, and Morgan v. La. (1886), 118 U. S. 455, 462; MATTHEWS, J., Bowman v. R. R. Co. (1888), 125 Id. 465, 492.

The supremacy of treaties was also considered, but not necessarily; see above, page 416.

The power of a State to exclude immigrants, was denied with full cognizance of the decision in Groves v. Slaughter (1841), 15 Peters (40 U. S.) 449, which was distinguished as relating to Slaves, over whom the commerce power did not extend. Justice MCKINLEY would have decided these Passenger Cases upon this point (page 453); Chief-Justice TANEY held the same view, though with the opposite opinion of the law (page 465). And yet Groves v. Slaughter actually decided nothing more than that the Constitution of Mississippi did not apply to the promissory notes in suit: if it had applied, then the right of a State to exclude persons, even if slaves, would have been decided, and the dicta of the different Justices worthy of consideration in this article.

The principle of this New York law was repeated by an act of Nevada, passed March 9, 1865, requiring passenger transporters for hire to pay a tax of one dollar upon every person leaving the State. The State Supreme Court (Ex parte Crandall, 1865, I Nev. 294,) sustained the law chiefly by the principles of the dissenting opinion of Chief Justice TANEY in the Passenger Cases. This State Court was unanimous in holding that the mere grant of power to Congress, could not imply a prohibition upon the State, but was a mere concurrent power, as laid down by KENT, supra, page 430: and concluded that—

The better rule, and that sustained by the preponderance of authority, seems to be that subject and subordinate to the power of Congress, a State may regulate commerce within its own jurisdiction, and its laws enacted for that purpose are unconstitutional only when they conflict with, or are repugnant to some act or regulation of the General Government. This rule removes all possible difficulties * ** In other words, the States are enabled to protect themselves, not from the laws or constitutional authority of Congress, but from its inaction: LEWIS, C. J., 1 Nev. 313.

Crandall did not appear in the Supreme Court of the United States, but counsel for the State did, and curiously presented a brief containing not a word on the Passenger Cases, though the opinion of the Nevada Court, printed in the record, did admit the opinions and reasonings of Justices MCLEAN, WAYNE and GRIER, to be unmistakably in conflict with their position. They pointed out that Justice CATRON had agreed to the judgment only on account of certain laws of Congress, and therefore concluded that the Passenger Cases were not authority for the exclusive power of Congress.

The Supreme Court declared the Nevada law to be unconstitutional: Crandall v. Nevada (1868), 6 Wall. (73 U. S.) 35, by a Court divided upon the particular Constitutional power, which has been transgressed in taxing passengers. Chief Justice CHASE and Justice CLIFFORD holding it to be a regulation of commerce, and Justice MILLER; in the opinion of the Court, with assent of Justices SWAYNE, DAVID DAVIS, NELSON, GRIER, MILLER and FIELD, thought otherwise and declared the invalidity of the law on the other ground of a conflict with these implied powers which prevent a State from affecting the functions of the government. This seems an extension of the principles of McCulloch v. Maryland (1819), 4 Wheat. (17 U. S.) 316, to hold that the travelling of citizens and aliens on private business was a function of the government; and subsequently Justice MILLER cited this Crandall case as avoiding a tax on commerce, in Woodruff v. Parham (1869), 8 Wall. (75 U. S.) 123, 138, and in Fargo v. Stevens (1887), 121 U. S. 230, 241; though still recognizing his original ground in Hinson v. Lott (1869), Id. 148, 152, in the Slaughter House Cases (1873), 16 Wall. (83 U. S.) 36, 79, and, justly, when dissenting, in B. & O. RR. Co. v. Md. (1875), 21 Wall. (88 U. S.) 456, 475; as was pointed out by STRONG, J., in State Freight

Tax Case (1873) 15 Wall. (82 U. S.) 232, 280; and by MarTHEWS, J., with approval, in Moran v. N. O. (1884), 112 U. S. 69, 73.

This case was recognized as annulling a tax upon commerce, between the States, by BRADLEY, J., in B. & O. RR. Co. v. Md., supra; in Transportation Co. v. Parkersburg (1883), 17 Otto (107 U. S.) 691, 702, and in Phila. & S. M. S. Co. v. Pa. (1887), 122 U. S. 326, 339; by BLATCHFORD, J., in Pickard v. Pullman S. C. Co. (1886), 117 U. S. 34, 48.

As in the Miln case, a portion of the State Statute not considered by the Court for technical reasons, required a bond from the master for every passenger, conditioned for the maintenance of the passenger and his children, if they became paupers within two years; so in these Passenger Cases, substantially that provision came to be considered and found void. Immediately, the State modified the statute so as to require a report similar to that in the Miln case (ante, page 449), and to further require the Mayor of the City to endorse on this report a demand for a bond for four years indemnity, or the sum of one dollar and fifty cents, per passenger, under a penalty of five hundred dollars for each passenger: per MILLER, J., Henderson v. The Mayor (1876), 2 Otto (92 U. S.) 259, 266. This attempt of the State was also a failure, as was also the next one, attempted by Act of May 31, 1881, to require one dollar for each alien passenger, for the execution of the State inspection laws: N. Y. v. Compagnie (1882), U. S. Cir. Ct., S. Dist., N. Y. 10 Fed. 357, 360, 365; affirmed, 107 U. S. 59; and a similar law in Louisiana was also declared unconstitutional, for the same reason of interfering with commerce: Commissioners of Immigration v. North German Lloyd (1876), 2 Otto (92 U. S.) 259. So, also, "a most extraordinary statute" of California, requiring similar bonds from the vessel master, owner or consignee, whenever the State Commissioner of Immigration has satisfied himself of the arrival (in this case) of lewd and debauched women; with a commutation fee to be fixed by the Commissioner himself, whose perquisite was twenty per centum of the commutation moneys: Shy Lung v. Freeman (1876), 2 Otto (92 U. S.) 275, 277. 278.

As the States could not exact a tax upon commerce, some of VOL XXXVIII.—30.

the consignees of foreign vessels also thought that there was no power to tax in the government of the United States, and brought suit to recover the sums required to be paid for each immigrant by Act of Congress of August 3, 1882 (23 Stat. at Large 214). The suit failed, as both the Circuit Court (in an opinion by Justice BLATCHFORD, Edye v. Robertson, 1883, U. S. Circ. Ct. E. Dist. N. Y. 18 Fed. Repr. 135), and the Supreme Court in an opinion by Justice MILLER, Head Money Cases, 1884, 112 U. S. 580, 596), held this Act to be a valid exercise of the commerce power.

X.

Whatever subjects of the Constitutional power to regulate commerce, are, in their nature, national, or admit only of one uniform system or plan of regulation, they are exclusively in the power of Congress to regulate or not.

A State law regulating pilots is valid until it comes into colli sion with an Act of Congress.

Cooley v. The Board of Wardens of the Port of Philadelphia (1851), 12 How. (53 U. S.) 299, originated (April 3, 1847) in a proceeding before Alderman Thomas D. Smith of the City of Philadelphia, for the recovery of eight dollars and forty-four 'cents, claimed of A. B. Cooley, consignee of the schooner Emily, as half pilotage incurred under the Twenty-ninth section of the act of March 29, 1803, P. L. 542, 560, in consequence of the refusal of the master to take a pilot on an outward voyage to a port not within the River Delaware. The Section of the statute proceeded under, provided:

SEC. 29. And be it further enacted by the authority aforesaid, That every ship or vessel arriving from, or bound to any foreign port or place, and every ship or vessel of the burden of seventy-five tons or more, sailing from or bound to any port not within the river Delaware, shall be obliged to receive a pilot; and it shall be the duty of the master of every such ship or vessel during thirty-six hours next after the arrival of such ship or vessel at the city of Philadelphia, to make report to the master warden of the name of such ship or vessel, her draught of water, and the name of the pilot who shall have conducted her to the port, and where any such vessel shall be outward bound, the master of such vessel shall make known to the wardens the name of such vessel, and of the pilot who is to conduct her to the capes, and her draught of water at that time;

and it shall be the duty of the wardens to enter every such vessel in a book, to be kept by them for that purpose, without fee or reward; and if the master of any ship or vessel shall neglect to make such report, he shall forfeit and pay the sum of sixty dollars, and if the master of any such ship or vessel shall refuse or neglect to take a pilot, the master, owner or consignee of such vessel, shall forfeit and pay to the wardens aforesaid, a sum equal to the half pilotage of such ship or vessel, to the use of the society for the relief of distressed and decayed pilots, their widows and children, to be recovered as pilotage in the manner hereinafter directed: (P. L. 1802-3, pp. 560-1.)

Judgment was duly rendered against Cooley who appealed ⚫ to the Court of Common Pleas, where the judgment was affirmed, November 22, 1847; as also happened on appeal in the State Supreme Court, January 31, 1850, and, on final appeal in the Supreme Court of the United States, December Term, 1851. The law of Pennsylvania and similar statutes were thus declared to be valid, and not in contravention of those clauses of the Constitution, which require uniformity in duties, imposts and excises, and which grant Congress the power to regulate commerce: (supra, pages 420, 424, 425; and also Packet Co. v. Keokuk, 1877, 5 Otto, 95 U. S. 80, 88; Wilson v. McNamee 1881, 12 Otto, 102 U. S. 572, 575; Justice BLATCHFORD in Turner v. Maryland 1883, 17 Otto, 107 U. S. 38, 56; and Justice BRADLEY, in Transportation Co. v. Parkersburg 1883, Id. 691, 702, 703; and Ouachita Packet Co. v. Aiken 1887, 121 U. S. 444, 447); nor of a coasting license, as in Gibbons v. Ogden; nor of the United States Statutes, except where they collide (similarly, Steamship Co. Joliffe, 1864, 2 Wall. 69 U. S. 450, per FIELD, NELSON, GRIER, and SWAYNE, JJ., against MILLER, WAYNE and CLIFFORD, JJ., dissenting).

This precise question was again before the Court in 1872 (Ex parte McNiel, 13 Wall. 80 U. S. 236, 242), and the Court unanimously reaffirmed the decision in Cooley v. Port Wardens, Justice SWAYNE saying that they were entirely satisfied with that adjudication. The other concurring members of the Court were Chief Justice CHASE, and Justices David Davis, STRONG, CLIFFORD, MILLER, FIELD, and BRADLEY; Justice NELSON not sitting through illness.

The opinion of the Court in Cooley v. Port Wardens, was written by Justice CURTIS, who had been appointed September