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fusing to pay for 295 steerage passengers on board the British ship • Henry Bliss,' of which he was master, demurred to the declaration on the ground that the Act was contrary to the Constitution of the United States, and void. Froin a judgment against him, atlirmed in the Court of Errors of the State of New York, he sued out a writ of error, on which the question was brought to this court.
“It was liere held, at the January Term, 1819, that the statute was • repugnant to the Constitution and laws of the United States, and therefore void.' 7 How. 572.
"Immediately after this decision, the State of New York modified her statute on that subject, with a view, no doubt, to avoid the constitutional objection; and amendments and alterations have continued to be made up to the present time.
" As the law now stands, the master or owner of every vessel landing passengers from a foreign port is bound to make a report similar to the one recited in the statute held to be valid in the case of New Yo:k V. Miln; and on this report the inayor is to indorse a demand upon the master or owner that he give a bond for every passenger landed inthe city, in the penal sum of $300, conditionell to indemnify the commissioners of emigration, and every county, city, and town in the State, against any expense for the relief or support of the person named in the bond for four years thereafter; but the owner or consignee may commute for such hond, and be released from giving it, by paying, within twenty-four hours after the landing of the passengers, the sum of one dollar and fifty cents for each one of them. If neither the bond be given nor the sum paid within the twenty-four hours, a penalty of $500 for each pauper is incurred, which is made a lien on the vessel, collectible by attachment at the suit of the Commissioner of Emigration.
"Conceding the authority of the Passenger Cases, which will be more fully considered hereafter, it is argued that the change in the statute now relied upon requiring primarily a bond for each passenger landed, as an indemnity against his becoming a future charge to the State or county, leaving it optional with the ship-owner to avoid this by paying a fixed sum for each passenger, takes it out of the principle of the case of Smith v. Turner, the Passenger Case from New York. It is said that the statute in that case was a direct tax on the passenger, since the Act authorized the shipmaster to collect it of him, and that on that ground alone was it held void; while in the present case the requirement of the bond is but a suitable regulation under the power of the State to protect its cities and towns from the expense of supporting persons who are paupers or diseased, or helpless women and children, coming from foreign countries.
" In whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effect; and if it is apparent that the object of this statute, as judged by that criterion, is to compel the owners of vessels to pay a sum of money for every passenger brought by them from a foreign shore, and landed at the port of
New York, it is as much a tax on passengers if collected from thero, or a tax on the vessel or owners for the exercise of the right of landing their passengers in that city, as was the statute held void in the Pas
" To require a heavy and almost impossible condition to the exercise of this right, with the alternative of payment of a small sum of money, is, in effect, to demand payment of that sum. To suppose that a vessel, which once a month lands from three hundred to one thousand passengers, or from three thousand to twelve thousand per annum, will give that many bonds of $300 with good sureties, with a covenant for four years, against accident, disease, or poverty of the passenger named in such bond, is absurd, when this can be avoided by the payment of one dollar and fifty cents collected of the passenger before he embarks on the vessel.
6. Such bonds would amount in many instances, for every voyage, to more than the value of the vessel. The liability on the bond would be, through a long lapse of time, contingent on circumstances which the bondsman could neither foresee nor control. The cost of preparing the bond and approving sureties, with the trouble incident to it in each case, is greater than the sum required to be paid as commutation. It is inevitable, under such a law, that the money would be paid for each passenger, or the statute resisted or evaded. It is a law in its purpose and effect imposing a tax on the owner of the vessel for the privilege of landing in New York passengers transported from foreign countries.
“ It is said that the purpose of the Act is to protect the State against the consequences of the flood of pauperism imninigrating from Europe, and first landing in that city.
“ But it is a strange mode of doing this to tax every passenger alike who comes frori abroad.
6. The man who brings with him important additions to the wealth of the country, and the man who is perfectly free from disease, and brings to aid the industry of the country a stout heart and a strong arm, are as much the subject of the tax as the diseased pauper who may become the object of the charity of the city the day after he lands from the vessel.
“ No just rule can make the citizen of France landing from an English vessel on our shore liable for the support of an English or Irish pauper who lands at the same time from the same vessel. ...
" The accuracy of these definitions is scarcely denied by the advocates of the State statutes. But assuming that, in the formation of our government, certain powers necessary to the administration of their internal affairs are reserved to the States, and that among these powers are those for the preservation of good order, of the health and comfort of the citizens, and their protection against pauperism and against contagious and infectious diseases, and other matters of legislation of like character, they insist that the power here exercised falls within this class, and belongs rightfully to the States.
“ This power, frequently referred to in the decisions of this court, has been, in general terms, somewhat loosely called the police power. It is not necessary for the course of this discussion to attempt to define it more accurately than it has been defined already.
It is not necessary, because whatever may be the nature and extent of that power, where not otherwise restricted, no definition of it, and no urgency for its use, can authorize a State to exercise it in regard to a subject-matter which has been confided exclusively to the discretion of Congress by the Constitution.
“ Nothing is gained in the argument by calling it the police power. Very many statutes, when the authority on which their enactinents rest is examined, may be referred to different sources of power, and supported equally well under any of them. A statute may at the same time be an exercise of the taxing power and of the power of eminent domain. A statute punishing counterfeiting may be for the protection of the private citizen against fraud, and a measure for the protection of the currency and for the safety of the government which issues it. It must occur very often that the shading which marks the line between one class of legislation and another is very nice, and not easily distinguishable.
“But, however difficult this may be, it is clear, from the nature of our complex form of government, that, whenever the statute of a State invades the domain of legislation which belongs exclusively to the Congress of the United States, it is void, no matter under what class of powers it may fall, or how closely allied to powers conceded to belong to the States.” 1
1 Compare Chy Lung v. Freeman et al., 92 U.S. 275.
The vagne and ill-considered notions that are widely entertained as to what is meant by the “ police power,” may be observed in eertain misleading observations that have a considerable currency; e.g., that the Federal government has no police power in the States; that the Fourteenth Amendment has no relation to the police power of the States; that the States have never parted with the police power. But in truth, the partition of the total powers of government which took place when our Federal Constitution was adopted, did not, either in name or in fact, proceed upon such lines as are here indicated. How thoroughly the powers of the Federal government are interlaced with those of the States as regards matters of local police, may be seen, for example, in the discussions relating to the regulation of foreign and interstate commerce, and commerce with the Indian tribes. As regards the Fourteenth Amendment, it had for its main purpose that of cutting down the local legislative power of the States, their "police power,” and conferring on the general government the right to restrain them in exercising it. Under this amendment, indeed, its action is but negative. · As regards the affirmative power of the general government, when it is remembered that certain entire topics are committed to it, for example, those of foreign relations, the taxing of imports, the post-office, the currency, bankruptcy, the regulation of external and interstate commerce, it is easy to see that much of what is understood by the “police power,” is wrapped up in these things ; in determining, for example, on the admission or exclusion of foreigners, in settling what may pass through the mails, or what goods shall come in free aud what shall pay duty. – En.
MUNN v. ILLINOIS.
SUPREME COURT OF THE UNITED STATES. 1876.
[94 U. S. 113.) Error to the Supreme Court of the State of Illinois. . . . [The Constitution of Illinois of 1870, art. xiii. s. I, declared all elevators, where grain or other property is stored for a compensation, to be public warehouses ; s. 2, required in places of not less than one hundred thousand inhabitants, the making under oathi and public posting and filing of certain statements as to the amount and kind of grain or other property stored, and warehouse receipts issued and outstanding, and the daily noting of changes in the quantity and grade of grain ; and forbade the mixing of different grades without the owners' consent; s. 3, secured the owner of stored property liberty to examine it, and the warehouse books and records relating to it; s. 4, bound common carriers to weigh or measure grain where shipped, and to receipt for it; and made them responsible for delivering it all; s. 5, required railroad companies to deliver grain directly to the coasignee, if he could be reached by any track which they could use, and required them to allow connections with their tracks, for such purposes; ss. 6 and 7 made it the duty of the legislature to pass all necessary laws to prevent the issue of fraudulent warehouse receipts, and to give effect to this article of the Constitution, and for the inspection of grain and the protection of the producers, shippers, and receivers of grain and produce. A statute of Illinois, approved April 25, 1871, divided warehouses into classes A, B, and C; and required the keepers of warehouses of class A, to qualify by taking out a license, which should be revocable by the court granting it upon a summary proceeding, on complaint and satisfactory proof.. The licensee was required to file a bond for the performance of his duty, with a surety in the sum of $10,000. A penalty of $100 a day was imposed for carrying on the business without a license. Warehousemen of class A were required yearly, during the first week in January, to publish the rates for the storage of grain for the coming year, and these were not to be increased during the year, with certain exceptions. A maximum charge was fixed for storing and handling grain of 2 cents a bushel, for the first thirty days; and for each fifteen days or less afterwards, one half of one per cent a bushel ; with certain variations. ]
On the twenty-ninth day of June, 1872, an information was filed in the Criminal Court of Cook County, III., against Munn & Scott, alleging that they were, on the twenty-eighth day of June, 1872, in the city of Chicago, in said county, the managers and lessees of a public warehouse, known as the “ North-western Elevator," in which they then and there stored grain in bulk, and mixed the grain of different owners together
in said warehouse ; that the warehouse was located in the city of Chicago, which contained more than one hundred thousand inbabitants; that they unlawfully transacted the business of public warehousemen, as aforesaid, without procuring a license from the Circuit Court of said county, permitting them to transact business as public warehousemen, under the laws of the State.
To this information & plea of not guilty was interposed.
From an agreed statement of facts, made a part of the record, it appears that Munn & Scott leased of the owner, in 1862, the ground occupied by the “North-western Elevator," and erected thereon the grain warehouse or elevator in that year, with their own capital and means; that they ever since carried on, in said elevator, the business of storing and handling grain for hire, for which they charged and received, as a compensation, the rates of storage which bad been, from year to year, agreed upon and established by the different elevators and warehouses in the city of Chicago, and published in one or more newspapers printed in said city, in the month of January in each year, as the established rates for the year then next ensuing such publication. On the twenty-eighth day of June, 1872, Munn & Scott were the managers and proprietors of the grain warehouse known as “ The Northwestern Elevator," in Chicago, Ill., wherein grain of different owners was stored in bulk and mixed together; and they then and there carried on the business of receiving, storing, and delivering grain for hire, without having taken a license from the Circuit Court of Cook County, permitting them, as managers, to transact business as public warehousemen, and without having filed with the clerk of the Circuit Court a bond to the people of the State of Illinois, as required by sects. 3 and 4 of the Act of April 25, 1871. The city of Chicago, then, and for more than two years before, had more than one hundred thousand inhabitants. Munn & Scott had stored and mixed grain of different owners together, only by and with the express consent and permission of such owners, or of the consignee of such grain, they having agreed that the compensation should be the published rates of storage.
Munn & Scott had complied in all respects with said Act, except in two particulars : first, they had not taken out a license, nor given a bond, as required by sects. 3 and 4; and, second, they had charged for storage and handling grain the rates established and published in January, 1872, which were higher than those fixed by sect. 15.
The defendants were found guilty, and fined $100.
The judgment of the Criminal Court of Cook County having been affirmed by the Supreme Court of the State, Munn & Scott sued out this writ, and assign for error:
1. Sects. 3, 4, 5, and 15 of the statute are unconstitutional and void.
2. Said sections are repugnant to the third clause of sect. 8 of art. 1, and the sixth clause of sect. 9, art. 1, of the Constitution of the United States, and to the Fifth and Fourteenth Amendments.