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Page:Harvard Law Review Volume 1.djvu/173

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Company to place a dam across the creek can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject.”

What is the true explanation of this case? Some judges have declared that it can be explained only upon the theory that the power to regulate foreign and interstate commerce is “concurrent,”—to some extent, at least. This explanation of the case is a very improbable one. The Court, in Gibbons v. Ogden, although it did not decide that the commercial powers of Congress were exclusive, certainly showed a leaning in favor of that view; and Johnson, J., in his separate opinion, held squarely that that power was “exclusive.” It is unreasonable to suppose that Chief-Justice Marshall would have decided in favor of the concurrency of the commercial power of Congress, without one word of comment upon the case of Gibbons v. Ogden, or that Johnson, J., would have joined in the opinion, had he supposed it so to decide. There is certainly no language in the opinion which expressly lays down the doctrine that the congressional commercial power is concurrent, wholly or in part. A much more satisfactory explanation of the case is that the Court intended to decide that the law was not a regulation of foreign or interstate commerce, because, although it no doubt operated to exclude foreign or interstate navigation from Black Bird Creek, it was passed with quite another purpose; namely, to enhance the value of property adjoining the creek, and to improve its drainage and sanitary conditions: that the State law, not being a regulation of foreign or interstate commerce, was also not in conflict with any Federal law passed by Congress, by virtue of its commercial power; and that, therefore, the law was perfectly valid under the commercial clause of the Constitution. This explanation makes the case consistent with everything the Court said in Gibbons v. Ogden. It is, moreover, entirely in harmony with the language of the opinion. In the opinion the Court point out the objects of the State law, and hold that “measures calculated to produce these objects” are within the powers of the State, unless conflicting with powers of the general government, and that the law in question did not, under all the circumstances of the case, come in conflict with “the power to regulate commerce in its dormant state,” or with any law passed by Congress by virtue of that power.