ing from it, imposed, as it is, by authority of the state, and measured by the capacity of the vessel, it is doubtless embraced by the constitutional prohibition of such a duty. But a charge for services rendered or for conveniences provided is in no sense a tax or duty. . . . It is a tax or duty that is prohibited; something imposed by virtue of sovereignty, not claimed in right of proprietorship. Wharfage is of the latter character. . . . A passing vessel may use the wharf or not, at its election, and thus may incur liability for wharfage or not, at the choice of the master or owner. It has always been held that wharfage dues may be exacted. Cannon v. New Orleans, 20 Wall. 577." The argument that the charge is one of tonnage because proportioned to the tonnage of the vessels was declared unsound, and the case of State Tonnage Tax Cases, 12 Wall. 204, was explained. "What was intended by the provisions of the second clause of the tenth section of the first article was to protect the freedom of commerce, and nothing more." Cooley v. Port Wardens, 12 How. 299; Cannon v. New Orleans, 20 Wall. 577, were expressly approved.

In a still later case, Transportation Co. v. Parkersburg,1 the main question was whether the ordinance of March, 1865, of the city of Parkersburg was valid. The ordinance imposed a wharfage due upon all vessels discharging or receiving freight at the city's wharves on the Ohio River. The bill alleged that the charge was not one of wharfage but in reality of tonnage. Whether a charge is one of wharfage, or a duty of tonnage, must be determined by the terms of the ordinance or regulation which imposes it. They are not the same thing; a duty of tonnage is a charge for the privilege of entering, or trading, or lying in a port or harbor; wharfage is a charge for the use of a wharf. The remedy for exorbitant wharfage charges is different from that for exorbitant tonnage charges. Whether the charge is one or the other is not a question of intent but one of fact and law; of fact, as whether the charge is made for the use of a wharf, or for entering the port; of law, as whether, ac1 107 U. S. 691. ED.

cording as the fact is shown to exist, it is wharfage or a duty of tonnage. The intent is not material and is not traversable. This case was distinguished from Cannon v. New Orleans, 20 Wall. 577.

"We think it very clear that the ordinance in question cannot be regarded as imposing any other charge than that of wharfage. The fact that the rates charged are graduated by the size or tonnage of the vessel is of no consequence in this connection. This does not make it a duty of tonnage in the sense of the Constitution and the acts of Congress. So we have expressly decided in several recent cases." Wharfage is a charge against a vessel for using or lying at a wharf or landing." Tonnage is imposed by the government; wharfage by the owner of the wharf or landing. The one is a commercial regulation, dictated by the general policy of the country upon considerations having reference to its commerce or revenue; the other is a rent charged by the owner of the property for its temporary use.

Wharfage at all public wharves must be reasonable; and reasonable by the standard of the local municipal law, until some superior law has been prescribed by Congress.

§ 373 j. Foreign Cattle. In Railroad Co. v. Husen, 95 U. S. 465, it was held that the statute of Missouri which prohibits driving or conveying any Texas, Mexican, or Indian cattle into the state, between the first day of March. and the first day of November of each year, is in conflict with the Constitution as regulating commerce. And Mr. Justice Strong, in his opinion, declares that "whatever may be the power of a state over commerce that is completely internal, it can no more prohibit or regulate that which is interstate than it can that which is with foreign nations. . . . That the transportation of property from one state to another is a branch of interstate commerce is undeniable." State Freight Tax Cases, 15 Wall. 300, and other cases. Next, is the statute a lawful exercise of police power? "What that power is, it is difficult to define with sharp precision. It is generally said to extend to making regulations promotive of domestic order, morals, health, and safety."

"The police power of a state justifies the adoption of precautionary measures against social evils. Under it a state may legislate to prevent the spread of crime, or pauperism, or disturbance of the peace. It may exclude from its limits convicts, paupers, idiots, and lunatics, and persons likely to become a public charge, as well as persons afflicted by contagious or infectious diseases. The same principle would justify the exclusion of property dangerous to the property of citizens of the state; for example, animals having contagious or infectious diseases. All these exertions of power. . . are self-defensive." "While for the purpose of self-protection it [i. e. a state] may establish quarantine, and reasonable inspection laws, it may not interfere with transportation into or through the state beyond what is absolutely necessary for its self-protection. It may not, under the cover of exerting its police powers, substantially prohibit or burden either foreign or interstate commerce."

§ 373 k. Transportation of Passengers. — In Hall v. De Cuir, 95 U. S. 485,1 the facts were these: An act of Louisiana of Feb. 23, 1869, required those engaged in the transportation of passengers among the states to give all persons travelling within that state, upon vessels employed in such business, equal rights and privileges in all parts of the vessel, without distinction on account of race or color; and subjected to an action for damages the owner of such a vessel who excludes colored passengers, on account of their color, from the cabin set apart by him for the use of whites during the passage. The court, accepting as conclusive this construction of the act by the highest court of the state, held that the act, so far as it has such operation, is a regulation of interstate commerce, and therefore unconstitutional; and Waite, C. J., observed: Congress has power to regulate commerce. What is an encroachment upon this power? "State legislation which seeks to impose a direct burden upon interstate commerce, or to interfere directly with its freedom, does encroach upon the exclusive power of Con

1 And see Brown v. Memphis & Charleston R. R. Co. 11 Rep. 424. ED.

gress. The statute now under consideration, in our opinion, occupies that position." And Mr. Justice Clifford, in an exhaustive opinion, gives a review of the subject in which most of the federal decisions are cited, with numerous others. § 373 1. Telegraph Companies. — In Pensacola Tel. Co. v. Western Union Tel. Co. 96 U. S. 1, Waite, C. J., observed: "The powers to regulate commerce are not confined to the instrumentalities of commerce, or the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of time and circumstances. They were intended for the government of the business to which they relate, at all times and under all circumstances." "It cannot for a moment be doubted that this powerful agency of commerce and intercommunication [the electric telegraph] comes within the controlling power of Congress, certainly as against hostile state legislation. The state of Florida has attempted in the case at bar to give exclusive telegraphic rights in certain counties to one company. This she cannot do. Telegraph companies are instruments of commerce. And when they accept the provi

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sions of Rev. Sts. of the U. S. title 65, giving them certain privileges at the hands of the government, they become government agencies, and a state has no power to tax messages sent out of the state, or sent by public officers on the business of the United States, but may lawfully tax private messages sent to parties wholly within the state."1

§ 373 m. Police Regulation. The meaning of the phrase "police regulation" was much considered in the case of Patterson v. Kentucky, 97 U. S. 561.2 Patterson had been granted letters-patent upon "an improved burning oil," known as "Aurora Oil." He was convicted in Kentucky for selling it there because it was below the standard required by statute. It was held that the enforcement of the statute

1 See the interesting case of Telegraph Co. v. Texas, 105 U. S. 460. ED.

2 See also the late case of New Orleans Gas-Light Co. v. Louisiana Light Co. U. S. Sup. Ct. December 5, 1885. ED.

interfered with no right conferred by the letters-patent, and Harlan, J., says: "The existence of a police power in the state has been uniformly recognized. . . . By the settled doctrines of this court the police power extends, at least, to the protection of the lives, the health, and the property of the community against the injurious exercise by any citizen of his own rights. State legislation, strictly and legitimately for police purposes, does not, in the sense of the Constitution, necessarily intrench upon any authority which has been confided, expressly or by implication, to the national government. . . . We are of opinion that the right conferred upon the patentee and his assigns to use and vend the corporeal thing or article brought into existence, by the application of the patented discovery, must be exercised in subordination to the police regulations which the state established by the statute of 1874."

§ 373 n. Trade-Marks. In the Trade-Mark Cases,1 it was held that the act of Congress of July 8, 1870, Rev. Sts. ch. 2, § 4937 to 4947, in relation to trade-marks, was unconstitutional as being beyond the powers of Congress, on the ground, principally at least, that its provisions were not expressly or impliedly limited to commerce with foreign nations, nor among the several states, or the Indian tribes; but virtually applied to all commerce, and all trades, at every point. And Mr. Justice Miller, in pronouncing the opinion, says:

"Whether the trade-mark bears such a relation to commerce in general terms as to bring it within congressional control when used or applied to the classes of commerce which fall within that control, is a question which is expressly left undecided in the present case."

A regulation of commerce, to be a valid law, must be a regulation of commerce with foreign nations, or among the several states, or with the Indian tribes. There is no recognition of this principle in the chapter on trade-marks in the Rev. Sts. The broad purpose of the act was to establish a universal system of trade-mark registration, for

1 100 U. S. 82. ED.

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