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lina have acted, and in complete coordination, to sustain the tax. It is therefore reinforced by the exercise of all the power of government residing in our scheme. Clear and gross must be the evil which would nullify such an exertion, one which could arise only by exceeding beyond cavil some explicit and compelling limitation imposed by a constitutional provision or provisions designed and intended to outlaw the action taken entirely from our constitutional framework,
In this light the argument that the degree of discrimination which South Carolina's tax has involved, if any, puts it beyond the power of government to continue must fall of its own weight. No conceivable violation of the commerce clause, in letter or spirit, is presented. Nor is contravention of any other limitation. (pp. 429-436).
* * * As for the due-process contention, it was settled by a long line of authorities prior to the South-Eastern decision, that the similar provision of the 14th amendment, as well as that requiring equal protection of the laws, does not forbid the States to lay and collect such a tax as South Carolina's. Certainly the 5th amendment does not more narrowly confine the power of Congress; nor do it and the 14th taken together accomplish such a restriction upon the coordinated exercise of power by the Congress and the States.
The argument grounded upon the first clause of article I, section 8, requiring that excises shall be uniform throughout the United States, identifies the State exaction with the laying of an excise by Congress, to which alone the limitation applies. This is done on the theory that no more has occurred than that Congress has "adopted” the tax as its own, a conception which obviously ignores the State's exertion of its own power and, furthermore, seeks to restrict the coordinated exercise of Federal and State authority by a limitation applicable only to the Federal taxing power when it is exerted without reference to any State action. The same observation applies also to the contention based on article I, section 1.
The final contention that to sustain the act, and thus the tax, would be an invasion of the State's own power of taxation is so clearly lacking in merit as to call for no comment other than to point out that, by juxtaposition with the contentions discussed in the preceding paragraph, the effect would be at one stroke to bring the act into collision with limitations operative only upon the Federal power and at the same time to nullify State authority.
No such anomalous consequence follows from the division of legislative power into the respective spheres of Federal and State authority. There are limitations applicable to each of these separately and some to their coordinated exercise. But neither the former nor the latter are to be found merely in the fact that the authority is thus divided. Such a conception would reduce the joint exercise of power by Congress and the States to achieve common ends in the regulation of our society below the effective range of either power separately exerted, without basis in specific constitutional limitation or otherwise than in the division itself. We know of no grounding, in either constitutional experience or spirit, for such a restriction. For great reasons of policy and history not now necessary to restate, these great powers were separated. They were not forbidden to cooperate or by doing so to achieve legislative consequences, particularly in the great fields of regulating commerce and taxation, which, to some extent at least, neither could accomplish in isolated exertion.
We have considered appellant's other contentions, including the suggestion that the McCarran Act, construed as we have interpreted it and thus given effect, would involve an unconstitutional delegation by Congress of its power to the States. For reasons already set forth and others, including the fact that no instance of delegation is involved on the facts, we find them without merit (pp. 437–440).
The judgment accordingly is affirmed (p. 440).
1. Cooley v. Board of Wardens of the Port of Philadelphia (12 How. 299 (1851)) was a case of pilotage in navigable waters. "In 1789 Congress passed a law (1 Stat. 54) declaring that all pilots of ships should continue to be regulated in conformity with the laws respectively of the States wherein their ships might be. That law, still on the books (R. S. 4235; 46 U. S. C. 211), reads:
§ 211. State regulation of pilots.
Until further provision is made by Congress, all pilots in the bays, inlets, rivers, harbors, and ports of the United States shall continue to be regulated in conformity with the existing laws of the States respectively wherein such pilots may be, or with such laws as the States may respectively enact for the purpose (R. S., § 4235.) Indeed, a later section states: § 212. Pilots on boundaries between States.
The master of any vessel coming into or going out of any port situate upon waters which are the boundary between two States may employ any pilot duly licensed or authorized by the laws of either of the States bounded on such waters, to pilot the vessel to or from such port (R. S., § 4236).
The law was challenged in the courts in conjunction with the application of a law of the State of Pennsylvania on the ground that, while this early Congress could adopt existing laws of the States, it could not provide for the application of State laws adopted in the future.
Pennsylvania had passed the challenged State law in 1803 and the United States Supreme Court held it was clearly a regulation of commerce. But, it also held that this power validly continued in the States under the original 1789 act of Congress, in the absence of further direct regulation by Congress. Accordingly the State regulations, including the contested pilotage fee and its designation for the use of the society for the relief of distressed and disabled pilots, their widows and children (p. 313), were sustained. Said the Court:
If the law of Pennsylvania, now in question, had been in existence at the date of this act of Congress, we might hold it to have been adopted by Congress, and thus made a law of the United States, and so valid. Because this act does, in effect, give the force of an act of Congress to the then-existing State laws on this subject, so long as they should continue unrepealed by the State which enacted them.
But the law on which these actions are founded was not enacted till 1803. What effect then can be attributed to so much of the act of 1789 as declares that pilots shall continue to be regulated in conformity "with such laws as the States may respectively hereafter enact for the purpose, until further legislative provision shall be made by Congress''?
If the States were divested of the power to legislate on this subject by the grant of the commercial power to Congress, it is plain this act could not confer upon them power thus to legislate. If the Constitution exlcuded the States from making any law regulating commerce, certainly Congress cannot regrant, or in any manner reconvey to the States that power. And yet this act of 1789 gives its sanction only to laws enacted by the States. This necessarily implies a constitutional power to legislate; for only a rule created by the sovereign power of a State acting in its legislative capacity, can be deemed a law, enacted by a State; and if the State has so limited its sovereign power that it no longer extends to a particular subject, manifestly it cannot, in any proper sense, be said to enact laws thereon. Entertaining these views we are brought directly and unavoidably to the consideration of the question, whether the grant of the commercial power to Congress, did per se deprive the States of all power to regulate pilots. This question has never been decided by this court, nor, in our judgment, has any case depending upon all the considerations which must govern this one, come before this court. The grant of commercial power to Congress does not contain any terms which expressly exclude the States from exercising an authority over its subject matter. If they are excluded it must be because the nature of the power, thus granted to Congress, requires that a similar authority should not exist in the States. If it were conceded on the one side, that the nature of this power, like that to legislate for the District of Columbia, is absolutely and totally repugnant to the existence of similar power in the States, probably no one would deny that the grant of the power to Congress, as effectually and perfectly excludes the States from all future legislation on the subject, as if express words had been used to exclude them. And on the other hand, if it were admitted that the existence of this power in Congress, like the power of taxation, is compatible with the existence
of a similar power in the States, then it would be in conformity with the contemporary exposition of the Constitution (Federalist, No. 32), and with the judicial construction, given from time to time by this court, after the most deliberate consideration, to hold that the mere grant of such a power to Congress, did not imply a prohibition on the States to exercise the same power; that it is not the mere existence of such a power, but its exercise by Congress, which may be incompatible with the exercise of the same power by the States, and that the States may legislate in the absence of congressional regulations (Sturges v. Crowninshield, 4 Wheat. 193; Moore v. Houston, 5 Wheat. 1; Wilson y. Blackbird Creek Co. 2 Peters 251).
The diversities of opinion, therefore, which have existed on this subject, have arisen from the different views taken of the nature of this power. But when the nature of a power like this is spoken of, when it is said that the nature of the power requires that it should be exercised exclusively by Congress, it must be intended to refer to the subjects of that power, and to say they are of such a nature as to require exclusive legislation by Congress. Now, the power to regulate commerce embraces a vast field containing not only many but exceedingly various subjects quite unlike in their nature; some imperatively demanding a single uniform rule, operating equally on the commerce of the United States in every port; and some; like the subject now in question, as imperatively demanding that diversity which alone can meet the local necessities of navigation.
Either absolutely to affirm, or deny that the nature of this power requires exclusive legislation by Congress, is to lose sight of the nature of the subjects of this power, and to assert concerning all of them, what is really applicable but to a part. 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 authortiative 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.
Viewed in this light, so much of this act of 1789 as declares that pilots shall continue to be regulated “by such laws as the States may respectively hereafter enact for that purpose,” instead of being held to be inoperative, as an attempt to confer on the States a power to legislate, of which the Constitution had deprived them, is allowed an appropriate and important signification. It manifests the understanding of Congress, at the outset of the Government, that the nature of this subject is not such as to require its exclusive legislation. The practice of the States, and of the National Government, has been in conformity with this declaration, from the origin of the National Government to this time; and the nature of the subject when examined, is such as to leave no doubt of the superior fitness and propriety, not to say the absolute necessity, of different systems of regulation, drawn from local knowledge and experience, and conformed to local wants. How then can we say, that by the mere grant of power to regulate commerce, the States are deprived of all the power to legislate on this subject, because from the nature of the power the legislation of Congress must be exclusive. This would be to affirm that the nature of the power is in any case, something different from the nature of the subject to which, in such case, the power extends, and that the nature of the power necessarily demands, in all cases, exclusive legislation by Congress, while the nature of one of the subjects of that power, not only does not require such exclusive legislation, but may be best provided for by many different systems enacted by the States, in conformity with the circumstances of the ports within their limits. In construing an instrument designed for the formation of a government, and in determining the extent of one of its important grants of power to legislate, we can make no such distinction between the nature of the power and the nature of the subject on which that power was intended practically to operate, nor consider the grant more extensive by affirming of the power, what is not true of its subject now in question.
It is the opinion of a majority of the Court that the mere grant to Congress of the power to regulate commerce, did not deprive the States of power to regulate pilots, and that although Congress has legislated on this subject, its legisiation manifests an intention, with a single exception, not to regulate this subject, but to leave its regulation to the several States. To these precise questions, which are
all we are called on to decide, this opinion must be understood to be confined. It does not extend to the question what other subjects, under the commercial power, are within the exclusive control of Congress, or may be regulated by the States in the absence of all congressional legislation; nor to the general question how far any regulation of a subject by Congress, may be deemed to operate as an exclusion of all legislation by the States upon the same subject. We decide the precise questions before us, upon what we deem sound principles, applicable to this particular subject in the State in which the legislation of Congress has left it. We go no further.
2. First Iowa Hydro-Electric Cooperative v. F. P. C. (328 U.S. 152 (1946)). In this case the cooperative filed an application on April 2, 1941 for a license to build an 8,300 foot earthen dam, on the Cedar River in Iowa, for diverting water through an 8-mile diversion canal to a powerplant built on the Mississippi River. The State of Iowa intervened claiming that the cooperative should also present satisfactory evidence of its compliance with Iowa law, and a permit from the State Executive Council of Iowa for the same project. Iowa statutory policy, as interpreted by the State, opposed diversion from one river to another. Believing that the courts should settle the issue, the FPC ordered a dismissal of the application for the permit pending a determination of the validity of the requirement of the State Jaw. The dismissal was affirmed by the United States Court of Appeals for the District of Columbia (151 F. 2d 20) but was reversed by the Supreme Court. The focal point was section 9 (b) (16 U. S. C. 802 (b)) which reads:
Sec. 9. That each applicant for a license hereunder shall submit to the Commission * * *
(b) Satisfactory evidence that the applicant has complied with the requirements of the laws of the State or States within which the proposed project is to be located with respect to bed and banks and to the appropriation, diversion, and use of water for power purposes and with respect to the right to engage in the business of developing, transmitting, and distributing power, and in any other business necessary to effect the purposes of a license under this Act.
Holding that the State of Iowa could not block construction of the project by refusing a State permit, the Supreme Court said that to require the cooperative to secure the actual grant to it of such a permit under State law, as a condition precedent to securing a Federal license for the same project under the Federal Power Act, would vest in the Executive Council of Iowa a veto power over a Federal project.
If a State permit is not required, there is no justification for requiring the petitioner, as a condition of securing its Federal permit, to present evidence of the petitioner's compliance with the requirements of the State code for a State permit. Compliance with State requirements that are in conflict with Federal requirements may well block the Federal license. For example, compliance with the State requirement, discussed above, that the water of the Cedar River all be returned to it at the nearest practicable place would reduce the project to the small one which is classified by the Federal Power Commission as "neither desirable nor adequate.” Similarly, compliance with the engineering requirements of the State executive council, if additional to or different from the Federal requirements, may well result in duplications of expenditures that would handicap the financial success of the project. Compliance with requirements for a permit that is not to be issued is a procedure so futile that it cannot be imputed to Congress in the absence of an express provision for it. On the other hand, there is ample opportunity for the Federal Power Commission, under the authority expressly given to it by Congress, to require by regulation the presentation of evidence satisfactory to it of the petitioner's compliance with any of the requirements for a State permit on the State waters of Iowa that the Commission considers appropriate to effect the purposes of a Federal license on the navigable waters of the United States. This evidence can be required of the petitioner upon the remanding of this application to the Commission (pp. 166-167).
The Court determined that the detailed provisions of the Federal Power Act, providing for the Federal plan of regulation, leave no room or need for conflicting State controls. It is the Federal Power Commission, said the Court, rather than the Iowa Executive Council, that under our constitutional Government must pass upon these issues on behalf of the people of Iowa as well as on behalf of all others (pp. 181-182).
Considered in the light of the history of the original Federal Water Power Act, some of the rationale of the majority is difficult to follow. Said Mr. Justice Burton for the majority:
This case illustrates the integration of Federal and State jurisdictions in licensing waterpower projects under the Federal Power Act * * * (p. 156).
In the Federal Power Act there is a separation of those subjects which remain under the jurisdiction of the States from those subjects which the Constitution delegates to the United States and over which Congress vests the Federal Power Commission with authority to act. To the extent of this separation, the Act establishes a dual system of control. The duality of control consists merely of the division of the common enterprise between two cooperating agencies of Government, each with final authority in its own jurisdiction. The duality does not require two agencies to share in the final decision of the same issue * (pp. 167–168).
Said Mr. Justice Frankfurter in dissenting: *** But the national policy of waterpower development formulated by the Federal Power Act explicitly recognizes regard for certain interests of the States as part of that national policy. This does not imply that general, uncritical notions about so-called States rights are to be read into what Congress has written. It does mean that we must adhere to the express congressional mandate that the public interest which underlies the Federal Power Act involves the protection of particular matters of intimate concern to the people of the States in which proposed projects requiring the sanction of the Federal Power Commission are located * * * (pp. 183-184).
3. F. P. C. v. Oregon (349 U. S. 435 (1955)), the Pelton Dam case, involves a “reservation.”
In December 1951 the Federal Power Commission decided, in line with the recommendations of its examiner, to grant the application of the Portland General Electric Co. for a license to construct and operate the Pelton project, designated as project No. 2030, on the Deschutes River in Jefferson County, Oreg. See * * * Portland General Electric Co. *** (10 F. P. C. 445 (1951)). The Commission noted that the high dam would occupy lands and a reservation of the United States; that the project probably was the most readily available source of new power in that area; that a severe shortage of power in that region was a matter of national concern (p. 448). It said the record supported the finding of the examiner that a reregulating dam downstream would protect downstream interests; that fishery interests would be protected adequately because upstream irrigation diversions already had depleted flow in the upper reaches and thereby limited the natural food present for fingerlings in that area. The opinion thus bases the license primarily on the public land and reservation aspect of the Commission's licensing power.
It appears that the primary objection of Oregon was based on the fishery problem. See Oregon v. F. P. C. (211 F.2d 347, 349 (1954)). The State objected that the company had failed to obtain a permit from the Hydro-Electric Commission of Oregon; that, within certain limitations, the sovereignty of Oregon extends to the control of waters located therein; that Congress had separated the title to the land from