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ble alike to the citizens of every race and color, regardless of any previous condition of servitude. The ordinary police regulation of employments and professions is most certainly within the powers of the State governments. Independently of the fourteenth amendment to the national constitution, it would not be within the power of Congress to enact a law, which provided for the compulsory formation of business relations, for such regulations fall within the ordinary police power of the State. The fourteenth amendment merely prohibits a State from passing or enforcing any law, which denied to any person equality before the law. If a State should not deem it proper to provide that the hotels of the State shall be open for the reception and entertainment of all persons who may apply, Congress cannot supply the deficiency by any enactment of its own, for in such a case there has been no violation of the fourteenth amendment. The amendment is violated only when the States attempt by legislation to establish an inequal. ity in respect to the enjoyment of any rights or privileges. It has, therefore, been held by the United States Supreme Court that the civil rights bill, the act of 1875 just mentioned, is unconstitutional because it invades the police jurisdiction of the States.?
§ 202. Regulations affecting interstate commerce. In article I., section 8, clause 3 of the United States constitution, it is provided that Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.” In conformity with this constitutional provision it has been held that whenever Congress exercises this form of regulation over foreign and interstate commerce, State regulations must invariably give way, and the regulations by Congress of commerce
" Laws of 1875, ch. 114.
· Civil Right's Cases, 109 U. S. 3. See Ex parte Yarborough, 110 U. S. 651.
may descend to the minutest details, providing regulations of the most local character in the exercise of this power. But in the absence of congressional regulations, the State may institute the ordinary reasonable police regulations in aid of commerce. Thus it is lawful for a State to provide for the inspection of tobacco, which is intended to be shipped to some point outside of the State, it being an ordinary police regulation, not designed to interfere with commerce but to facilitate the detection of fraud in the sale of this article. So, also, in the exercise of its police power, may the State exact a license fee from all non-resident salesmen or merchants, who are engaged in interstate commerce. But under the guise of a police regulation, the exports and imports cannot be subjected to a State tax.8 Any attempt, therefore, of a State to lay such a tax, will be void. If the business in question contains an element of danger to the public, it may be subjected to regulations designed to protect the public against injury; it may be made subject to inspection, and a license fee may be exacted in aid of its inspection laws. That is an ordinary police regulation. But where a license is exacted of importers or exporters as a source of revenue, the license is a tax, and consequently is laid in violation of the constitution of the United States. But exports and imports are free from taxation by the State only so long as they are found in that character. Before the article has become an export, or after the original package of the import has been broken and the article is offered for trade within the State, it may be subjected to taxation by the State, in common with other property from which it cannot then be distinguished. But the police regulation of foreign and interstate commerce by the State, in the absence of like regulations on the part of the general government, must be confined to those local regulations which, while they interfere with commerce more or less materially, may be enforced without giving to the State authorities an extra-territorial power of control over the commerce of the country. For this reason and perhaps for others, the State laws which undertake to regulate the rates of fare and freight of railroads, are held to be unconstitutional, so far as they are made to apply to the interstate traffic of the railroad. To regulate the rates of fare and freight of railroads, charged by a railroad for transportation from one State into another is an unconstitutional interference with the national power of control over commerce. So, also, is it impossible for a State, in regulating the time and manner of making transfers of subjects of commerce, transported by railway carriage from one point to another within the State to extend the application of the regulation to freight that is being transported to some point
1 Turner v.
Maryland, 107 U. S. 38. 9 Ward v. State, 31 Md. 279; 3.c. 12 Wall. 418; Speer v. Commonwealth, 23 Gratt. 935 (14 Am. Rep. 164); Ex parte Robinson, 12 Nev. 263 (28 Am. Rep. 794). But where there is a discrimination made by the license law between resident and non-resident salesmen or merchants, the require. ment of a license is unconstitutional. Walling o. Michigan, 116 U. S. 446; Van Buren v. Downing, 41 Wis. 122; Marshalltown v. Blum, 58 Iowa, 184 (43 Am. Rep. 116); State v. McGinniss, 37 Ark. 362; In re Watson, 15 Fed. Rep. 511.
3 The imposition of a State tax on exports and imports is prohibited by art. I., $ 10 of United States Constitution.
4 Nathan v. State, 8 How. 73; Commonwealth o. Erie Ry Co., 62 Pa. St. 286 (1 Am. Rep. 399), reversed in 15 Wall. 232. 3 State v. North, 27 Mo. 464; Brown v. Maryland, 12 Wheat. 419.
1 “No State can tax an export as such, except under the limitations of the constitution. But before the article becomes an export, or after it ceases to be an import, by being mingled with other property in the States it is a subject of taxation by the State. A cotton broker may be required to pay a tax on his business, or by way of license, although he may buy and sell cotton for foreign exportation.” Nathan v. State, 8 How. 73. See, also, Brown 0. Houston, 33 La. Ann. 843 (39 Am. Rep. 284; State v. North, 27 Mo. 464.
2 Kaiser v. II. Cent. R. R. Co., 18 Fed. Rep. 161; 8. c. 6 McCrary C.C. 496; Louisville, etc., R. R. Co. o. Tenn. R. R. Comrs. 19 Fed. Rep. 679; ml. Cent. R. R. Co. v. Stone, 20 Fed. Rep. 468; Pac. Coast S. S. Co. v. Cal. R. R. Conrs., 18 Fed. Rep. 10; Carton v. 11. Cent. R. R. Co., 59 Iowa, 148 (44 Am. Rep. 672); 8. c. 22 Am. Law Reg. (n. s.) 373, note.
beyond the State. On the other hand, it has been held in Illinois to be constitutional for the State to prohibit unjust discriinination in freight and passenger charges, and to extend the prohibition to interstate commerce.”
§ 203. Police control of navigable streams. — A navigable stream is one of which the public generally may make use in the interests of commerce and social intercourse. It is a highway, like the street or public road, to which every one has the right of access, and which every one may use in any manner consistent with the equal enjoyment of the stream by others. Any exclusive appropriation of the stream, or other interference with the ordinary use of the stream, is a nuisance, which any one may abate, by the removal of the obstructions to navigation, who may feel incommoded thereby.
The determination of what makes a stream navigable, and consequently public, is a question for the court. The legislature cannot, by legislation, declare a stream navigable, which in fact is not so, for that would in effect be a taking of private property for a public use, which is only possible in the exercise of the right of eminent domain, and upon payment of compensation. According to the English common law, all streams were navigable in which the tide ebbed and flowed. In England this is not the arbitrary rule, which it would be, if applied without qualification to the streams of this country. With the exception of the Thames, above tide-water, there are no streams in England which are practically and actually navigable, except those in which the tide ebbs and flows; and there are no tide-water streams of any importance, which are not actually navigable. But in the United States the situation is altogether different. Here, there are fresh-water streams which are navigable, and tidal streams which are not navigable. The application of the common-law rule, in its literal exactness, to the streams of this country would, therefore, result only in absurd conclusions. The courts of this country have been discussing the problem for many years, and have come to different conclusions on the various branches or sub-divisions of the question. So far as the question concerns the location of the title to the bed of the stream, it need not be considered in this connection.? Here, the question relates to the right of the public to make use of the stream, as a highway. In respect to this phase of the question, the courts very uniformly repudiate the commonlaw rule, in its literalness, and, seizing hold of the essence of the rule, declare that every stream, which is sufficiently deep and wide to float boats and rafts, used in the interests of commerce and agriculture, is navigable, and the public have a right to use it.'
1 Council Bluffs v. Kansas City, etc., R. R. Co., 45 Iowa, 338 (24 Am. Rep. 773).
2 People o. Wabash, St. L. & Pac. Ry, 104 II. 476; Wabash, St. L. & Pac. Ry. v. People, 105 III. 231.
& Commonwealth v. Charlestown, 1 Pick. 180; Kean v. Stetson, 5 Pick. 492; Arnold v. Mundy, 6 N. J. 1; Bird v. Smith, 8 Watts, 434.
4 Inhabitants of Arundel o. McCulloch, 10 Mass. 70; Selman v. Wolfe, 27 Tex. 78; State v. Moffett, 1 Greene (Iowa), 247. In Maine it has been held to be a public right, when the streams are frozen over, to pass over them on foot or in vehicles, which cannot be interfered with, by cutting and removing the ice, without special authority of the State. French v. Camp, 18 Me. 433.
5 Treat v. Lord, 42 Me. 552; Morgan v. King, 18 Barb. 284; 8. C. 35 N. Y. 454; Glover o. Powell, 10 N. J. Eq. 211; Baker o. Lewis, 33 Pa. St. 301 ; Weise v. Smith, 3 Ore. 445 (8 Am. Rep. 621); American River Water Co. 0. Amsden, 6 Cal. 443.
1 Commonwealth v. Chapin, 5 Pick. 199; People v. Tibbetts, 19 N. Y. 523; Lorman v. Benson, 8 Mich. 18.
* As to this branch of the question, see Tiedeman on Real Prop., 835.
8 The Daniel Ball, 10 Wall. 557; The Montello, 20 Wall. 439; Spring o. Russell, 7 Me. 273; Brown v. Chadbourne, 31 Me. 9; Ingraham e. Wilkinson, 4 Pick. 268; Commonwealth 0. Alger, 7 Cush. 53; Claremonto. Carl. ton, 2 N. H. 369; Canal Comrs. v. People, 5 Wend. 423; People o. Platt, 17 Johns. 195; Morgan v. King, 25 N. Y. 454; Palmer v. Mulligan, 3 Caines, 315; Shrunk v. Schuylkill Co., 14 Serg. & R. 71; Catez o. Wadling