Daniel sustained the laws on the ground that they were police measures and not within the prohibition of prior decisions. Justice Woodbury, adopting the same view, went further, however, and declared with Chief Justice Taney that the power to regulate interstate commerce was concurrent. This theory, although not applicable to the facts in these cases, was to a large extent that suggested by Daniel Webster's argument in Gibbons v. Ogden, and which, as has been pointed out, is believed to have been intended by Chief Justice Marshall as the proper one. Certainly it approximates the one that has since been adopted by the court, namely, that the federal power over commerce is exclusive in so far as from the nature of the case a uniform regulation is demanded or is appropriate, but that in matters of purely local and particular interest the states may, in the absence of opposing federal statutes, legislate. "I admit," said Mr. Justice Woodbury, "that so far as regards the uniformity of a regulation reaching to all the states, it must in these cases, of course, be exclusive. . . . But there is much in connection with foreign commerce which is local within each state, convenient for its regulation, and useful to the public, to be acted on by each until the power is abused or some course is taken by Congress conflicting with it." 27 But Justice Woodbury failed to make the proper classification of subjects. It is strange, in a sense, that any of the Justices could have wandered so far from the irrefutable logic of Brown v. Maryland. On the other hand, it must be remembered that they were dominated by a grave political situation, with one party seeking to establish complete national powers for a government which the other party regarded as a mere league of states. The controversy was only ended by civil war. Suffice it to say, however, for the purposes of our present discussion, that the License Cases were squarely overruled by the case of Leisy v. Hardin 28 in 1890.

In the Passenger Cases there was involved the validity of laws of Massachusetts and New York imposing a tax upon every nonresident passenger landed within the state from every vessel arriving from a port of some other state or country. These laws were very properly held invalid, the court, however, being divided five

27 How. (U. S.) 624.

28 135 U. S. 100. See Bowman v. Chicago & N. W. Railway Co., 125 U. S. 465 (1888).

to four. All of the Justices who delivered separate opinions in the License Cases delivered separate opinions in the Passenger Cases, as did also Justices Wayne and McKinley. The opinions of the respective Justices in both cases are substantially the same in so far as they bear upon the question of the so-called concurrency or exclusiveness of congressional power.

Here again a great political controversy was carried to the Supreme Court. The problem presented was more troublesome than that in the License Cases. On the one hand, the Constitution gave the citizens of each state the privileges and immunities of citizens of the several states. On the other hand, the Constitution left each state to determine for itself what immigration should be permitted. So far as land communication between the states was concerned, it was generally conceded that the states had never surrendered that power, and it was now urged that passengers by sea had no greater rights within a state than if they had come by land from an adjoining state. Absorbing as is the study of this controversy as exposed in the decisions of the Supreme Court, space does not permit that we pursue it further here.29 Summarizing the notable features of these famous cases, together with the notable features of the License Cases, and viewing them primarily as abstract propositions of constitutional law relating to the commerce clause, as we here must, they are believed to be three in number. First, failure on the part of the members of the court to agree on any definition of the commerce power. Second, refusal to agree that the power of Congress was ever exclusive. Third, departure, except on the part of Mr. Justice Woodbury, from the doctrine which must reasonably be inferred from the cases of Gibbons v. Ogden and Black Bird Creek Marsh Company, and which was soon to be announced as the true rule of construction, namely, that in matters national the power of Congress is exclusive by the very grant, while in matters of local interest the power of the states is concurrent or servient to the dominant power of Congress when that power is exercised.30

29 See Crandall v. Nevada, 6 Wall. (U. S.) 35. In this case, decided after the Civil War (1867), the Supreme Court affirmed the right of free passage from state to state, not, however, as a result of the construction of any provision of the Constitution, but because this right was considered essential to the existence and administration of the nation.

30 See an article by Louis M. Greeley, "What is the Test of a Regulation of Foreign

Finally in 1851, in the case of Cooley v. Board of Wardens,31 the Supreme Court, in an opinion delivered by Mr. Justice Curtis, established once and for all the rule which had been so often threatened with adoption since 1829, but in which a majority of the Justices had never been able entirely to concur. The facts of this case, briefly stated, are that by act of the legislature of Pennsylvania certain requirements were imposed upon the master of every vessel entering the port of Philadelphia to make certain reports to the harbor officials, and upon the failure to comply with these requirements so-called half pilotage fees were exacted. The plaintiff brought an action to recover these fees, claiming that the Pennsylvania law was in conflict with various provisions of the Federal Constitution, among them the commerce clause, with which alone we are here concerned. The court said:

"Whatever subjects of this power are in their nature national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress. That this cannot be affirmed of laws for the regulation of pilots and pilotage, is plain. The act of 1789 contains a clear and authoritative declaration by the first Congress, that the nature of this subject is such, that until Congress should find it necessary to exert its power, it should be left to the legislation of the states; that it is local and not national; that it is likely to be the best provided for, not by one system, or plan of regulations, but by as many as the legislative discretion of the several states should deem applicable to the local peculiarities of the ports within their limits." 32

Mr. Justice Daniel in a short opinion agreed with the judgment of the court, but not with its reasoning, for he doubted whether this concurrent power in the state "which is deemed indispensable to the safety and existence of every community . . . could, under any circumstances, be surrendered." 33

Mr. Justice McLean filed a very strong dissenting opinion

34

or Interstate Commerce?" I HARV. L. REV. 159, in which the author states that the only true test taken from Justice Woodbury's opinions is to be found in the intention or purpose of the state legislature in passing each given law. This, of course, is not entirely accurate. But see Thayer's "Cases on Constitutional Law," pp. 2190-91, where this question as to the need for local or national regulation is said to be inherently a legislative and not a judicial one.

31 12 How. (U. S.) 299.

"Ibid., p. 326.

32 Ibid., p. 319.

34 Ibid., pp. 321-25.

based upon what he understood to be the dictum of Chief Justice Marshall in regard to pilotage laws as stated in Gibbons v. Ogden. Chief Justice Marshall did say in that case that Congress by the act of 1789 had adopted the pilotage laws of the states in order to give them full force and effect, and therefore that Congress had intended to pre-empt the field in so far as the whole question of pilotage was concerned, and that the states were thereafter precluded from passing any law whatsoever on the subject. It must be admitted that Mr. Justice McLean's reasoning is entirely logical and supported by the remarks of Chief Justice Marshall. However, admitting Mr. Justice McLean's dissent to have been justified by the particular facts of this case, there is nothing in his language or in that of Chief Justice Marshall which in any way weakens the correctness of the principle announced by the majority of the court through Mr. Justice Curtis. In short, that principle, while perhaps not applicable to the exact facts in Cooley v. Board of Wardens, is nevertheless the true guide. Often there has been great difficulty in obtaining any definite criteria by which to distinguish between the two classes of subjects, but the principle has remained the same to the present day.35

35 The leading cases classified are as follows: pilotage-Pacific Mail S. S. Co. v. Joliffe, 2 Wall. (U. S.) 450 (1864); Anderson v. Pac. Coast S. S. Co., 225 U. S. 187 (1912). Protection and improvement of navigable waters-Gilman v. Phila., 3 Wall. (U. S.) 713 (1865); Pound v. Turck, 95 U. S. 459 (1877); County of Mobile v. Kimball, 102 U. S. 691 (1880); Gloucester Ferry Co. v. Pa., 114 U. S. 196 (1885); Escanaba v. Chicago, 107 U. S. 678 (1882); Cardwell v. American Bridge Co., 113 U. S. 205 (1885); Huse v. Glover, 119 U. S. 543 (1886); Willamette Bridge Co. v. Hatch, 125 U. S. 1 (1888); Lake Shore & M. S. Ry. Co. v. Ohio, 165 U. S. 365 (1897); Cummings v. Chic., 188 U. S. 410 (1903); Manigault v. Springs, 199 U. S. 473 (1905). Regulation of wharfage charges or tolls-Packet Co. v. Keokuk, 95 U. S. 80 (1877); Cinn., etc. Packet Co. v. Catlettsburg, 105 U. S. 559 (1881); Parkersburg & Ohio River Transportation Co. v. Parkersburg, 107 U. S. 691 (1882); Ouachita Packet Co. v. Aiken, 121 U. S. 444 (1887); Sands v. Manistee River Imp. Co., 123 U. S. 288 (1887). Quarantine regulations - Hannibal & St. J. R. R. Co. v. Husen, 95 U. S. 465 (1877); Morgan, etc. S. S. Co. v. Louisiana, 118 U. S. 455 (1886); Missouri, Kansas & Texas Ry. v. Haber, 169 U. S. 613 (1898); Louisiana v. Texas, 176 U. S. 1 (1900); Rasmussen v. Idaho, 181 U. S. 198 (1901); Compagnie Francaise, etc. v. Board of Health, 186 U. S. 380 (1902); Reid v. Colorado, 187 U. S. 137 (1902); Asbell v. Kansas, 209 U. S. 251 (1908). Inspection laws-Turner v. Md., 107 U. S. 38 (1882); Plumley v. Mass., 155 U. S. 461 (1894); Patapsco Guano Co. v. North Carolina, 171 U. S. 345 (1898); Silz v. Hesterburg, 211 U. S. 31 (1908); Savage v. Jones, 225 U. S. 501 (1912). Laws governing nonfeasance or misfeasance of interstate carriers - Sherlock v. Alling, 93 U. S. 99 (1876); Johnson v. Chic., etc. Elevator Co., 119 U. S. 388 (1886); Smith v. Ala

At this point it is proper to pause and consider for a moment what is the direct bearing that the principles, the development of which we have just traced, have upon the ultimate regulation by Congress of intrastate rates. All of these principles, it may be objected, were evolved from cases relating to water transportation. True, but at the very beginning Chief Justice Marshall defined the commerce clause as comprehending "every species of commercial intercourse." 36 The fact that railroads had not become important in our commercial life at the time these decisions were rendered should not be used as an argument that they are not fully applicable to railroads. And so the Supreme Court held, as soon as it was required to do so. The first real occasion arose in 1872 (although the court had dodged the question five years earlier),37 in the case of the State Freight Tax,38 where it was held, Mr. Justice Strong writing the opinion of the court, that a state tax upon interstate freight was in violation of the commerce clause.39 "Beyond all question the transportation of freight," he said, "or of the subjects of commerce, for the purpose of exchange or sale, is a constituent of commerce itself. . . . Nor does it make any difference whether this interchange of commodities is by land or by water. In either case the bringing of the goods from the seller to the buyer is commerce. Among the states it must have been principally by land when the Constitution was adopted." 40

In view of the broad, sensible definition that had been given to

bama, 124 U. S. 465 (1888); Pearsall v. Great Northern Ry. Co., 161 U. S. 646 (1896); Louisville & Nashville R. R. Co. v. Ky., 161 U. S. 677 (1896); Hennington v. Georgia, 163 U. S. 299 (1896); N. Y., N. H. & H. R. R. Co. v. New York, 165 U. S. 628 (1897); Chic., Milwaukee, etc. Ry. Co. v. Solan, 169 U. S. 133 (1898); Lake Shore & Mich. Southern Ry. Co. v. Ohio, 173 U. S. 285 (1899); Pennsylvania R. R. Co. v. Hughes, 191 U. S. 477 (1903); Northern Securities Co. v. United States, 193 U. S. 197 (1904); Martin. Pittsburg & Lake Erie R. R. Co., 203 U. S. 284 (1906); The Winnebago, 205 U. S. 354 (1907); Missouri Pac. Ry. Co. v. Larabee Mills, 211 U. S. 612 (1909); Missouri Pac. Ry. Co. v. Kansas, 216 U. S. 262 (1909); Davis v. C., C. C. & St. L. Ry. Co., 217 U. S. 157 (1910); Martin v. West, 222 U. S. 191 (1911); Mondou v. N. Y., N. H. & H. R. R. Co., 223 U. S. 1 (1912); Adams Express Co. v. Croninger, 226 U. S. 491 (1913); Michigan Central R. R. Co. v. Vreeland, 227 U. S. 59 (1913); Southern Pac. Co. v. Schuyler, 227 U. S. 601 (1913).

36 9 Wheat. (U. S.) 193.

37 Crandall v. Nevada, 6 Wall. (U. S.) 35.

39 See in this connection, State Tax on Railway Gross Receipts, decided at the same term, 15 Wall. (U. S.) 284.