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legislature could interpose and declare such tolls illegal); a charge for a license for all engineers to pay the expenses of examination as to their competency to undertake employment on inter-state railroads (Nashville Railroad Co. v. Alabama, 128 U.S. 96) ; a charge on all vessels touching at quarantine stations, such charge to be applied to pay the expenses of inspection (Morgan's S.S. Co. v. Louisiana Board of Health, 118 U.S. 455) ; a charge based on the tonnage of a vessel for the use of a wharf owned by a State, provided such charge is not of a discriminating character (Packet Co. v. Keokuk, 95 U.S. 80; Transportation Co. v. Parkersburg, 107 U.S. 691); a charge for the use of the improved internal waterways of a State, provided that such charge is not of a discriminating character. (Huse v. Glover, 119 U.S. 543; Sands v. Manistee R. Improvement Co., 123 U.S. 288.)

STATE POLICE LAWS ALLOWABLE.—In the License Tax Cases, 5 Wall. 462, Chief Justice Taney said that the police powers of a State were nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions. And whether a State passes a quarantine law, or a law to punish offences, or to establish courts of justice, or requiring certain instruments to be recorded, or to regulate commerce within its own limits, in every case it exercises the same power ; that is to say, the power of sovereignty, the power to govern men and things within the limits of its dominions. Chancellor Kent has given, as examples of the legitimate subjects of State legislation, the following: unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit of powder, the application of steam-power to propel cars, the building with combustible materials, and the burial of the dead. (Comm. ii. 310.) In Patterson v. Kentucky, 97 U.S. 501, Mr. Justice Harlan stated that by the settled doctrines of the court the police powers extend, at least, to the protection of the laws, the health, and the property of the community, against the injurious exercise by a citizen of his own rights. It was said by Chief Justice Fuller, in Leisy v. Hardin, 135 U.S. 108, that the power to pass laws in respect to internal commerce, inspection, quarantine laws, health laws, and laws in relation to bridges, ferries, and highways, belongs to the class of powers pertaining to locality, essential to local inter-communication, to the progress and development of local prosperity, and to the protection, safety, and welfare of society-powers originally necessarily belonging to, and upon the adoption of the Constitution reserved by, the States, except so far as they fell within the scope of a power confided to the General Government.

The primary objects of the police power of a State are the protection of health, the prevention of fraud, and the preservation of morals. This rule is clear, but great difficulty is sometimes experienced in its application.

The legislature of Louisiana incorporated the Slaughter-House Company, which was empowered to construct and maintain stock-landings and yards and a grand abattoir or slaughter-house at a specified place near New Orleans, and all live stock brought to that city for food were required to be landed and kept at these yards, and slaughtered at this abattoir, the company being authorized to demand compensation, the maximum rates of which were fixed by the statute. Landing or slaughtering such animals elsewhere was prohibited by heavy penalties. The exclusive privilege thus conferred was to continue for twenty-five years. Certain persons, engaged in the trade of butchering, residents of New Orleans and citizens of the United States, brought appropriate actions in the State courts to test the validity of the statute. These suits were finally carried to the Supreme Court of the United States. (Pomeroy's Const Law, p. 174.) By a bare majority the Supreme Court affirmed the validity of the Statute, as clearly within the competence of the State legislature in the exercise of its police power. (Slaughter-House Cases, 16 Wall. 36.)

In Powell v. Pennsylvania, 127 U.S. 678, a State law prohibited the manufacture and sale of oleomargarine. Powell was indicted for selling the prohibited article. It was strongly suspected that the law was passed in the interests of the dairymen of the State, as it was understood that oleomargarine, properly manufactured, was not injurious

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to health. Yet the court sustained the law as a proper exercise of the police power. In Plumley v. Massachusetts, 155 U.S. 461, a State law prohibited the sale of oleomargarine artificially coloured to resenible butter. The law was sustained in its application to an article imported from another State, on the ground that the resemblance of oleomargarine so coloured to butter, led to deception and was in the nature of a fraud. The importation of an article coloured to resemble butter could, in the opinion of the court, be prohibited so long as the introduction of uncoloured oleomargarine was not interfered with. This doctrine was carried a step further in the Armour Packing Co. v. Snyder, 81 Fed. Rep. 136. In that case a law of Minnesota forbade the sale of oleomargarine unless coloured bright pink. An attempt was made to apply this law to goods which had been shipped from Kansas into Minnesota, and which were marked as required by federal law, and sold only in original packages. It was contended that the State law prevented deception in the retail sale, and on this ground the requirement as to colour was sustaineil. This reasoning was, however, disapproved of in the case of Collins v. New Hampshire, 171 U.S. 30, in which it was held that a State could not prohibit the sale of an article of inter-state commerce, nor attach to it a condition which would render it unsaleable. In Brimmer v. Rebman, 138 U.S. 78, the court clearly expressed the opinion that a State could not pass regulations excluding articles of commerce which are actually fit for and belong to the domain of commerce. In the late case of Schollenberger v. Pennsylvania, 171 U.S. 1, decided by the Federal Supreme Court in 1898, a statute of Pennsylvania was challenged which forbade the introduction, in its pure and unadulterated condition, of oleomargarine from another State, and its sale in original packages. It was held that the statute was invalid so far as it applied to inter-state commerce. The difference in principle between Plumley v. Massachusetts and Schollenberger v. Pennsylvania is obvious; in the former case the article prohibited was coloured in imitation of butter, and consequently was liable to deceive the public; in the latter case it was a pure and harmless article of commerce which could not be either honestly or legally excluded by the State. In The People v. Hawkins, 31 N.Y. Suppl. 115, it was held that a State law requiring goods made by convict labour in other States to be so labelled when exposed for sale was unconstitutional.

Police PowerS AFFECTING COMMERCE.-— The following laws passed by States have been held to be a proper exercise of their police powers, viz., a law excluding passengers, animals, and goods infected with disease, passengers known to be convicted criminals, paupers, idiots, lunatics, and persons likely to become burdens on the State, held constitutional (Bowman 1. Chicago R. Co., 125 U.S. 465); a law forbidding the entrance into a State of cattle likely to communicate fever, unless carried in cars subject to certain precautions, held constitutional (Grimes x. Eddy, 126 Missouri, 108); a law for the protection of persons and property, regulating the introduction and transportation of nitro-glycerine and other dangerous explosives, held constitutional (Patterson v. Kentucky, 97 U.S. 501); a law imposing a license tax for the purpose of excluding an obscene paper, held constitutional (Preston v. Finley, 72 Fed. Rep. 850); a law forbidding the transportation or exportation of diseased sheep, cattle, and meats ; a law forbidding the importation of goods tending to spread disease, held constitutional (Leisy v. Hardin, 135 U.S. 100). The reasons and principles of these decisions are,

that such persons, animals, and commodities are not legitimate subjects of commerce.

“The several States have power to pass laws regulating the internal police of their own territories, which territories include navigable rivers and harbours, as well as unnavigable streams, and the land itself. These police measures are not, in any true sense of the term, regulations of commerce, although they may sometimes have direct reference to shipping. to the condition of harbours, and other instruments by which commerce is carried on, or to the commodities themselves which are the objects of interchange and traffic. They are simply a part of the general system by which each State endeavours to protect the good morals, lives, health, persons, and property of its inhabitants. Thus, if a State legislature, deeming it dangerous to permit poisons to be sold without restriction, should pass a statute requiring a license from the drugyisi, or placing him under any other species of restraint, such law would be unobjectionable,

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although certain poisonous substances, as opium, are chiefly or wholly the products of foreign countries, and therefore the objects of commerce. Again, most of the States have enacted statutes prohibiting the sale of spirituous liquors in certain quantities and at certain times and places, except by those persons who have complied with the provisions of the statute, and have received licenses for that purpose. Such laws are within the power of the States to pass. This entire class of statutes establishing police regulations is within the purview of State legislation, whether Congress has legislated for the same or similar purposes or not. Among them may be mentioned laws establishing quarantine, licensing and controlling pilots, declaring the order in which ships shall come to wharves and docks, regulating the use of wharves and docks, managing the internal order of harbours, licensing the sale of spirituous liquors, poisons, and the like," (Pomeroy's Const. Law, 10th ed. p. 275.)

OTHER EXAMPLES OF POLICE Power.-Munn 1. Illinois, 94 U.S. 113, decided in 1876, is a leading case illustrative of the police supervisory power of the States in matters which may indirectly affect commerce, but which do not amount to an interference or obstruction. The General Assembly of Illinois passed a law fixing the maximum charges for the storage of grain in warehouses at Chicago, and other places in the State, in which grain was stored in bulk and in which the grain of different owners was mixed together, or stored in such a manner that the identity of different lots or parcels could not be accurately preserved. The warehouses of the plaintiff were used as instruments of commerce by those engaged in trade solely within the State, as well as by those engaged in inter-state trade. It was held that this was a regulation of domestic concerns, quite legal until displaced by Federal legislation.

In the case of Escanaba Co. v. Chicago, 107U.S. 678 (1882), the facts were as follows : The municipal authorities of Chicago had passed regulations declaring it to be unlawful to open any bridge within the city of Chicago during an appointed hour of the morning and evening, sundays excepted, or to keep any such bridye open during the daytime for more than ten minutes at a time. The plaintiff's steam vessels were enrolled and licensed to carry goods from the port of Escanaba, Michigan, to docks on a branch of the Chicago River in the city of Chicago. In their course up the river to the docks, they had to pass through draws of several bridges constructed over the stream by the city of Chicago. They complained of the regulations as being an obstruction to navigation. The Supreme Court held that the power to control the bridges within the city had been properly and fairly exercised ; that if the power had been used unnecessarily to obstruct navigation the Federal legislature could have interfered and removed the obstruction ; that if the power of the State and the power of the Federal legislature came into conflict in such a

the latter must control and the former yield. (Per Field, J., 107 U.S. 679.)

The control of bridges, dams, and ferries within a State and between two States is generally left to the supervision of the local authorities, so long as they do not use those works and agencies to obstruct the free flow of inter-state commerce.

Bridges and ferries may be improved and utilized as aids to commerce. The States may establish ferries across navigable rivers, within or adjacent to their jurisdiction, and they may require the owners of boats to take out licenses and pay fees. (Wiggins Ferry Co. v. East St. Louis, 107 U.S. 365.) But this is justifiable only as a compensation for the right of wharfage on the State territory. A ferry between tes is a means of commerce and cannot be taxed. (Gloucester Ferry Co. v. l'ennsylvania, 114 U.S. 196.) As to dams and bridges, see Willson v. Blackbird Creek Marsh Co., 2 Pet. 245 ; Wheeling Bridge Case, 18 How. 421, and Gilman v. Philadelphia, 3 Wall. 713.)

The States may improve navigable streams within their limits, and impose tolls on those using them in order to defray expenses. (Mobile v. Kimball, 102 U.S. 691.) But a license fee exacted for the use of the stream and not as a toll or compensation for specified improvements and services is invalid. (Harman v. Chicago, 147 U.S. 396.) The Federal legislature can interpose and supersede the authority of the State in all these cases, whenever it deems it necessary to do so, in order to remove obstructions, abate nuisances, stop ex ions, carry out improvements or establish uniform regulations. (Monongahela Nav. Co. 1. United States, 148 U.S. 312; Wisconsin v. Duluth, 96 U.S. 379.)

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The municipal authorities of a State can regulate laundries, and prohibit washing and ironing within defined districts during certain hours of the night. (Barbier v. Connolly, 113 U.S. 27 ; Soon Hing v. Crowley, 113 U.S. 703.) Such authorities can also abolish bone factories in specified districts (Fertilizing Co. v. Hyde Park, 97 U.S. 659) ; and breweries (Bartemeyer v. Iowa, 14 Wall. 26 ; Foster v. Kansas, 112 U.S. 201). See, however, Leisy v. Hardin, 135 U.S. 100; Wilson Act (America), and sec. 113 of this Constitution.

A State can pass a law providing that any person introducing cattle which have not wintered north of a certain line shall be liable to an action for damage done by the introduced cattle, in spreading and communicating disease to other cattle. (Kimmish r. Ball, 129 U.S. 217.)

Dr. Von Holst, referring to the commerce clause of the American Constitution, says: “In inter-state or international commerce, neither the goods nor the transportation of property or persons can be taxed by the States. But the business as such and the capital used in it are subject to the State's right of taxation. The correctness of this principle certainly cannot be attacked, but just as little can it be disputed that it gives the States the power of encroaching very seriously upon the congressional domain, if they are only careful about the way in which they do so. The Courts, indeed, are in no wise bound to permit the simple question of the sufficiency of the form, in which a State carries out its right of taxation, to determine their decisions; and they do not do so. As soon as they enter upon the question, whether the tax-laws of a State materially encroach upon the ght of regulating international and inter-state commerce, subj views are given more or less away.” (Const. Law of the U.S., p. 143.) In support of his suggestion as to the power of the States to encroach on the Federal domain the learned author cites the decision in the case of Liverpool Insurance Co. v. Massachusetts, 10 Wall. 566, according to which a State can tax foreign corporations at a higher rate than similar corporations created by its own laws. That was the case of an insurance company, and it has been held that insurance is not commerce, and is consequently not within the protection of the conimerce clause. No such discrimination would be permissible in the case of a commercial corporation, either in America or in the Australian Commonwealth.

LIMITS OF THE POLICE POWERS. --The right of exclusion is founded on the vital necessity of self-defence and self-protection. A State could not exclude persons, animals, or merchandise unobjectionable in character, health, and quality, and fit subjects of commerce. (Brimmer v. Rebman, 138 U.S. 78.) In Henderson v. Mayor of New York, 92 U.S. 259, the extent to which a State could exclude paupers and criminals was not clearly decided. A State law which forbids the entrance into the State of persons who are not paupers, vagabonds, and criminals, and who are not unsound in body or mind, is not a right exercise of the police power. (State v. Steamship“ Constitution,” 42 Calif. 579.)

Ports, HARBOURS, AND PILOTAGE.—Until the Federal Parliament assumes the control and management of ports, harbours, wharves, beacons, buoys, lights, and pilotage, the State authorities, boards, and trusts, at present charged with the administration of these works, will continue to exercise their functions and powers within the limits assigned to them by State laws. Harbour and port dues, wharfage rates, light dues, will be collected by the local authorities according to local laws ; they are not taxes on commerce or in any way affecting the freedom of commerce, but merely compensations for services rendered. (Re Rabrer, 140 U.S. 545 ; Steamship Co. v. Jollife, 2 Wall. 450 ; Cooley v. Port Wardens, 12 How. 299.) States may regulate wharves at which vessels receive passengers and cargo, and disembark and discharge same, and may impose dues and rates sufficient to pay the expenses of executing the wharfage regulations. (Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196-214 ; Transportation Co. v. Parkersburg, 107 U.S. 691.) But the wharfage charges must be imposed and collected without discrimination, and according to the value of the services rendered, or they will

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come within the constitutional prohibition. (Inman v. Tinker, 95 U.S. 238.) It has been held that a tax on every boat is a tax on boats, not on commerce (St. Louis r. Wiggins Ferry Co., 11 Wall. 423); but a tax on a vessel every time she enters a certain harbour is not a tax on the vessel, but a tax on the business conducted by the vessel on entering the harbour. (Steamship Co. v. Port Wardens, 6 Wall. 31.) The reasonableness of the rates charged for wharfage may be enquired into by the Federal Courts, to ascertain whether in effect they amount to a duty on tonnage. (St. Louis v. Telegraph Co., 139 U.S. 463.)

QUARANTINE. -Until the control over the various departments of quarantine is assumed by the Federal Government, the States will continue to manage the quarantine stations and to enforce the quarantine laws. Such laws may require persons engaged in commerce to submit to medical examinations, and, if necessary, to remain isolated for statutory periods. They may impose a charge on each vessel to defray the expenses of inspection. In Train 1. Boston Disinfectant Co., 144 Mass. 523, it was decided that a State may, by its officers, disinfect all rags arriving at a port, and compel the owner to pay the cost of disinfection. An ordinance of St. Louis provides that steamboats coming froin below Memphis, having had on board more than a specified number of passengers during the voyage, should remain in quarantine for not less than 48 hours and not more than 20 days. It was held that this was a valid sanitary and quarantine law. (St. Louis v. McCoy, 18 Missouri, 238.)

The question whether wharfage, quarantine, and other such dues, fees and charges, demanded by a State, are bona fide compensations for services rendered, or are mere obstructions to commerce, must be determined according to the facts and circumstances in each case. Such exactions must be fair, reasonable and uniform, and must not exceed the requirements of the occasion. Charges which in the opinion of the Federal Courts are excessive or discriminating could be declared unconstitutional, as involving violations of the rule of inter-state commercial freedom.

FISHERIES AND GAME LAWS.-Control over game and fisheries within the limits of a State is reserved to the State. In the enforcement of its game laws, a State could prohibit all trafñc in the meat of game within its limits, without reference to the place where the animal was captured. (Magner v. People, 97 III. 33.) As to whether a State could prohibit the exportation of animals protected by its game laws, there is a conflict of authority. (Geer v. Connecticut, 161 U.S. 519.) A State law prohibiting the sale of fish and game, at a time when they could not, under the law, be caught within the limits of the State, has been held to be operative upon the sale of goods shipped from another State, the reason given being that the statute could not be enforced with reference alone to fish or game caught in the State. (Prentice and Egan, Commerce Clause, p. 152.)

EXCISE DUTIES. - It has been already stated that, in the Constitution of the Commonwealth, freedom of inter-state trade and commerce is secured by two constitutional provisions : (1) by the express declaration of sec. 92, that trade and commerce between the States shall be absolutely free ; and (") by the withdrawal from the States of the power to impose duties of customs and excise (sec. 92). In discussing the foregoing cases we have been considering merely the probable effect of the constitutional affirmation of absolute commercial freedom between the States, It remains to consider how far the immunity of inter-state traile and commerce from State taxation is secured through the exclusive control of excise being vested in the Federal Parliament. This depends upon the meaning to be assigned to “excise." In our notes to sec. 90, the various meanings of “excise” have been referred to; the first and original one being that in which it is restricted to duties on the manufacture and production of commodities in a State ; whilst in another sense it has been extended to cover a host of additional imposts—such as licenses to auctioneers, pawnbrokers, peddlers, dealers, and persons permitted to carry guns and run carriages. The bulk of authority is in favour of the limited connotation of the term ; and if that view be correct the States of the Commonwealth will retain almost the same powers of taxation as those of the American

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