onment of free negroes brought into the state on board of any foreign vessel is unconstitutional. The transfer of passengers from state to state is commerce, and a state legisla ture has no power to impose a tax upon a sleeping-car company engaged in such business. An express company which carries goods from one state to another is engaged in interstate commerce, and such traffic cannot be taxed by any state.3

A state law requiring owners and consignees of vessels bringing passengers from abroad to pay seventy-five cents for inspecting each passenger to ascertain whether he is afflicted with leprosy, is unconstitutional as interfering with the regulation of commerce.1

§ 373 u. Taxing Exports. One of the most interesting and delicate cases involving the power of a state to tax goods intended for export was the recent one of Brown v. Houston. In this case coal mined in Pennsylvania was shipped to New Orleans to be sold in open market for the Pennsylvania owners. The city of New Orleans taxed it there, and after a very elaborate argument it was held that upon its arrival in New Orleans, the coal became intermingled with the general property there, and properly taxable, though it was never landed from the vessel on which it came, and was sold while on such vessel, to be taken out of the country on a foreign bound vessel.

A statute of California making it an offence to disinter the remains of a deceased person without a permit, for which a fee of ten dollars must be paid, is not in violation.

1 Elkison v. Deliesseline, 1 Brunner's Coll. Cases U. S. Circ. Ct. 431 ; 2 Wheel. C. C. 56. ED.

2 Pullman. Southern Car Co. v. Nolan (U. S. C. C. M. D. Tenn., Oct. 1884,), 22 Federal Reporter, 276, in which an interesting opinion is given by Mr. Justice Miller; State of Indiana v. Pullman Palace Car Co. 11 Biss. 561. A tax on commercial travellers or "drummers" coming from other states is unconstitutional. U. S. Sup. Ct. Jan. 18, 1886. ED.

Wells, Fargo & Co. v. Northern Pacific R'y Co. (Oregon, Nov. 1884) 23 Fed. Rep. 469; Indiana v. American Express Co. 7 Biss. 227. ED. • People v. Pacific Mail Steamship Co. 8 Sawyer, 640 (1883). ED. 5 114 U. S. 622. ED.

of the Constitution, nor in violation of the fourteenth amendment, nor in violation of the Burlingame treaty; the act is a sanitary measure within the police power of the state. A corpse is not property nor a subject of "export" within the meaning of the Constitution, which forbids a state to levy duties on exports.1

§ 373 v. An ordinance of the city of San Francisco regulating by a system of licenses the business of laundries within specified limits, under penalties for misdemeanor, was recently held to be void; and it was declared that where licenses are merely a means of prohibiting any of the ordinary vocations of life (not injurious to public morals, health, etc.), they cannot be upheld."

A statute requiring the filing of letters-patent, and an affidavit that the letters are genuine, and have not been revoked, and the person who proposes to sell the patented article has authority to sell it, is not unconstitutional or in restriction of commerce. The statute is maintainable under the police power of the state.3

A Sunday law, so far as it attempts to prevent express companies from transacting their interstate or foreign business on Sunday, has been thought void as interfering with commerce.4

§ 374. I have thus abstracted all the decisions and judg ments of the national tribunal of last resort which involve the questions under discussion. It will be seen, I think, that they fully support the propositions stated in §§ 330-332 and § 338. No apology is needed for this long analysis. The constitutional construction which we have examined embraces subjects of the utmost importance and magnitude; it has engaged the attention of the ablest men who have adorned the bar or the

1 In re Wong Yung Quy, 6 Sawyer, 442. Ep.

2 In re Quong Woo, 14 Reporter, 417 (U. S. Circ. C. D. Cal., July, 1882). ED.

* Brechbill v. Randall, 20 Rep. 299 (Supreme Ct. Indiana, May 26, 1885). ED.

4 Dinsmore v. New York Police Board, 12 Abb. (N. Y.) N. C. 436 ; Adams Express Co. v. New York Police Board, 65 How. (N. Y.) Pr. 72. ED.

bench; it has called forth the most animated discussions of counsel, and the most profound judgments of the court; it involves the capacities and functions of the national and state governments; its determination and settlement have led to the establishment on a sure and firm basis of the legislative power of the United States.

Second. The Extent of the Power.

§ 375. I am now brought to the consideration of the second division into which the whole subject was separated: The extent of the power to regulate commerce; or, what particular acts may Congress pass by virtue thereof?

The dicta, opinions, and judgments already cited partially answer this question; but we have been virtually considering what the states may do; we now ask what may Congress do? Very few cases have arisen in which this question has been directly presented to the Supreme Court, and the validity of the national legislation been passed upon. Whatever has been said by the judges, has generally been by way of argument or illustration. It is true, in Brown v. Maryland, the course of his reasoning led C. J. Marshall to examine the power of Congress to regulate the importation of goods; the Passenger cases established its power over the introduction of persons ;1the Wheeling Bridge case determined that it might maintain a bridge over a navigable stream flowing through or between two or more states.

2

§ 376. As an introduction to the subject under discussion, I will quote some remarks of C. J. Marshall on the extent of the power of Congress to regulate commerce, which he made in the great case of Gibbons v. Ogden. He says: "The subject to be regulated is commerce; and our Constitution being, as was aptly said at the bar, one of enumeration and not of definition, to ascertain the extent of the power it becomes necessary to settle the meaning of the word. The

1 And the validity of acts of Congress imposing a duty or tax upon every passenger imported from a foreign port is now too well settled to be doubted. Sec Edye v. Robertson, 112 U. S. 580, and cases cited. ED. 29 Wheat. 189.

counsel for the appellee would limit it to traffic, to buying or selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term applicable to many objects, to one of its significations. Commerce undoubtedly is traffic; but it is something more; it is intercourse. It describes the commercial intercourse between nations and parts of nations in all its branches, and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations, which shall exclude all laws concerning navigation, which shall be silent on the admission of vessels of one nation into the ports of the other, and be confined to the prescribing rules for the conduct of individuals in the actual employment of buying and selling or barter."

§ 377. Again: 1 To what does this power extend? The Constitution informs us, to commerce with foreign nations, and among the several states, and with the Indian tribes. It has, we believe, been universally admitted, that these words comprehend every species of intercourse between the United States and foreign nations. No sort of trade can be carried on between this country and any other to which this power does not extend. It has been truly said, that commerce, as the word is used in the Constitution, is a unit, every part of which is indicated by the term. If this be the admitted meaning of the word in its application to foreign nations, it must carry the same.meaning throughout the sentence, and remain a unit, unless there be some plain, intelligible cause which alters it.

The subject to which the power is next applied is, to commerce among the several states. The word "6 "amon' means intermingled with. A thing which is among others is intermingled with them. Commerce among the states cannot stop at the external boundary line of each state, but may be introduced into the interior. It is not intended to say that these words comprehend that commerce which is completely internal, which is carried on between man and man in a state, or between different parts of the same state, or which does not

19 Wheat. 193.

extend to or affect other states. Comprehensive as the word among is, it may very properly be restricted to that commerce. which concerns more states than one." 1

§ 378. These propositions, so clearly conceived, and so forcibly stated by the great Chief Justice, have remained unanswered, a constant guide to the courts in interpreting the Constitution, and to Congress in legislating under it. What laws, then, may Congress pass under this general grant of power?

The two controlling words are "commerce" and " regulate." We are to fix the meaning of these terms, and then apply the general principle, that the grant of power includes all the means which are appropriate for making it effective.

Commerce is a word of very wide signification. It includes the fact of intercourse and of traffic, and the subject-matter of intercourse and traffic. The fact of intercourse and traffic, again, embraces all the means, instruments, and places, by and in which intercourse and traffic are carried on; and, further still, comprehends the act of carrying them on at these places, and by and with these means. The subject-matter of intercourse or traffic may be either things-goods, chattels, merchandise or persons. All these therefore be may lated.2

regu

1 But in a recent case, Lord v. Steamship Co. 102 U. S. 541, — it was held that Congress had power to regulate commerce on the high seas, though only between ports of the same state. It was said by Waite, C. J.: "The single question presented is, whether Congress has power to regulate the liability of the owners of vessels navigating the high seas, but engaged only in the transportation of goods and passengers between ports and places in the same state. It is conceded that while the Ventura carried goods from place to place in California, her voyages were always ocean voyages. The contracts sued on in the present case, to carry goods from San Francisco to San Diego, Cal., could not be performed except by going not only out of California, but out of the United States as well. Commerce includes intercourse, navigation, and not traffic alone. Navigation on the high seas is necessarily national in its character. It must, therefore, be subject to the national gov

ernment." ED.

...

2 See County of Mobile v. Kimball, 102 U. S. 691; Lord v. Steamship Co. 102 U. S. 541. ED.