CHAPTER VIII

FEDERAL AND STATE POWERS

FROM the control that the Federal Government may constitutionally exercise over the form of the governments of the several States, we now turn to a consideration of the general principles in accordance with which the powers of government are divided between the federal and state governments.

In the American State the totality of governmental powers is divided into the following classes:

1. The powers, the exclusive exercise of which is delegated to the General Government.

2. The powers-commonly called "concurrent❞— that may be exercised by the General Government, but which, when not so exercised, may be exercised by the individual States.

3. The powers, the exercise of which is prohibited to the General Government.

4. The powers, the exclusive exercise of which is reserved to the several States.

5. The powers, the exercise of which is prohibited to the States.

From the above it will be seen that the powers of the Federal Government are embraced within the first

two classes-the distinction between the two classes being merely that the exercise of the powers of the first class is exclusively vested in the General Government, while those of the second may, in default of federal exercise, be made use of by the States.

Some of the powers granted by the Constitution to the general government are expressly denied to the States. As to the exclusive character of the federal jurisdiction over them there cannot be, of course, any question. It has, however, been often a matter difficult of determination whether or not various of the powers given to the United States, but not expressly made exclusive or denied to the States, are so exclusively subject to federal control that no exercise of them by the States is under any circumstances permissible. Shortly stated, the Supreme Court has guided itself in these cases by the following principle. As regards generally the powers granted to the National Government it has held that there is a difference between those which are of such a character that the exercise of them by the States would be, under any circumstances, inconsistent with the general theory or national polity of the Constitution, and those not of such a character. As regards this latter class, the Supreme Court has held that as long as Congress does not see fit to exercise them, the States may do so. Any laws thus passed by the States are, however, of course subject to abrogation at any time by the enactment by Congress of laws governing the same subjects.1

1 By the enactment of a federal law a state law governing the same subject is not nullified but merely suspended during the

In the early case of Sturges v. Crowninshield (4) Wh., 122) Chief Justice Marshall, in reference to the matter of bankruptcy, laid down this distinction of which we have been speaking, between the exclusive and concurrent powers of the Federal Government. But it is especially in connection with the subject of Interstate Commerce that the principles governing this distinction have been most carefully worked out. In Houston v. Moore (5 Wh., 1) Justice Johnson said: "The Constitution containing a grant of powers in many instances similar to those already existing in the state governments, and some of those being of vital importance also to state authority and state legislation, it is not to be admitted that the mere grant of such powers in affirmative terms to Congress, does, per se, transfer an exclusive sovereignty on such subjects to the latter. On the contrary, a reasonable interpretation of that instrument necessarily leads to the conclusion that the powers so granted are never exclusive of similar powers existing in the States, unless where the Constitution has expressly, in terms, given an exclusive power to Congress, or the exercise of a like power is prohibited to the States, or there is a direct repugnancy or incompatibility in the exercise of it by the States. The example of the first class is to be found in the exclusive legislation delegated to Congress over places purchased by the consent of the legislature of the State in which the same shall be, for forts, arsenals, dock-yards, etc.; of the second existence of the federal statute. Upon the repeal of the federal statute, the state law again operates without any reënactment by the State.

class, the prohibition of a State to coin money or emit bills of credit; of the third class, as this court have already held, the power to establish a uniform rule of Naturalization (Chirac v. Chirac, 2 Wh., 259), and the delegation of admiralty and maritime jurisdiction (Martin v. Hunter, 1 Wh., 304). In all other cases not falling within the classes already mentioned, it seems unquestionable that the States retain concurrent authority with Congress, not only upon the letter and spirit of the eleventh (tenth?) amendment of the Constitution, but upon the soundest principles of general reasoning."

So, later, in Cooley v. Board of Wardens (12 How., 300), the court declared: "The grant of commercial power to Congress does not contain any terms which expressly exclude the States from exercising an authority over its subject matter. If they are excluded it must be because the nature of the power thus granted to Congress requires that a similar authority should not exist in the States."

Still later, in Cardwell v. American River Bridge Co. (113 U. S., 205), the court, after quoting a number of cases, says: "These cases 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 affecting alike 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 intervenes and

supersedes their action." Applying this principle, the Supreme Court has held that the States may legislate regarding such matters as pilotage, wharves, harbors, etc.; but may not, even though Congress has not acted, take any steps that in effect will operate to hinder or regulate the carrying on of interstate commerce itself. "The power of Congress," has said the Court in Brown v. Houston (114 U. S., 622), “is certainly so far exclusive that no State has power to make any law or regulation which will affect the free and unrestrained intercourse and trade between the States, as Congress has left it, or which will impose any discriminating burden or tax upon the citizens or products of other States coming or brought within its jurisdiction. All laws and regulations are restrictive of natural freedom to some extent, and where no regulation is imposed by the government which has the exclusive power to regulate, it is an indication of its will that the matter shall be left free. So long as Congress does not pass any law to regulate commerce among the several States, it thereby indicates its will that the commerce shall be free and untrammeled, and any regulation of the subject by the States is repugnant to such freedom.”

It will have been noticed that in speaking of the powers possessed by the General Government, the term "delegated" has been used, whereas, in speaking of the powers possessed by the States, the word "reserved" has been employed. This has been done advisedly, the fundamental principle governing the division of powers between the General Government and the States being that the former possesses only