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Page:Harvard Law Review Volume 1.djvu/174

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The next case that we need consider is the case of City of New York v. Miln, 11 Pet. 102. That was the first case in which the judges of the Federal Supreme Court differed as to the validity of a State law, under the commercial clause of the Federal Constitution. In that case was involved the validity of a law of the State of New York, requiring the masters of all vessels arriving in the city of New York from the ports of other countries or States to make to the city authorities, within twenty-four hours of arriving, a written report containing the names, ages, and last places of settlement of all passengers landed in the city from their respective vessels. It was held that this law was not unconstitutional under the commercial clause of the Constitution, because it was not a regulation of foreign or interstate commerce, but a “police measure.” Judge Barbour, who delivered the opinion of the Court, called attention to the reasoning in Gibbons v. Ogden, as justifying “measures on the part of the States, not only approaching the line which separates regulations of commerce from those of police, but even those which are almost identical with the former class, if adopted in the exercise of one of their acknowledged powers;” and quotes largely from Chief-Justice Marshall’s opinion. Justice Story dissented, being of opinion that the State law was a regulation of foreign and interstate commerce, since it operated upon such commerce, and that the power to regulate foreign and interstate commerce was exclusive in Congress. He reasons that the law in question was a regulation of interstate and foreign commerce, because it was such a law as Congress might have passed by virtue of its commercial powers; and failed to grasp the principle laid down in Gibbons v. Ogden, and relied on in the majority opinion, that the same enactment may be ascribed to entirely distinct sovereign powers, according to the intention of the Legislature in passing it.

We now come to two cases — the License Cases, 5 How. 504, and the Passenger Cases, 7 How. 283 — which more than any others are responsible for the confusion and uncertainty in which the law relative to the distinction between the commercial power of Congress and the police power of the States is involved. Up to the time when the case of New York v. Miln was decided, the question of the concurrency or exclusiveness of the commercial power of Congress had given the Supreme Court no great difficulty. The Court, it is true, had declined to pass upon the question in advance of a case which, in their opinion, raised it; but it can hardly be doubtful