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Page:Harvard Law Review Volume 1.djvu/184

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dling within the State the products or manufactures of other States or countries, was held unconstitutional as a regulation of commerce; yet the operation of the law was clearly local.

We have now completed our examination of the six earliest cases decided by the Federal Supreme Court in which the distinction between laws which affect foreign commerce, and laws which are regulations of foreign or interstate commerce, is discussed, and we have seen that these cases lay down the principle that the object or aim of the Legislature in passing the law is the true ground of distinction, in so far as they lay down any well-defined principle at all.

Let us now consider how far, if at all, that principle has been modified by subsequent cases. The principle that the intention or purpose of the Legislature in passing it is the true criterion of whether a law is a regulation of foreign or interstate commerce or not, has been clearly established by the more recent cases to this extent, that a law operating upon foreign or interstate commerce, which is ostensibly passed in exercise of some reserved power of the State, but really for the sake of its effect upon foreign or interstate commerce, is deemed a regulation of foreign or interstate commerce. Thus, in Welton v. Missouri, 91 U. S. 275, a State law purporting to be a law for the licensing of peddlers, but which contained provisions discriminating against the products and manufactures of other States or countries, when sold by peddlers within the State, was held unconstitutional as a regulation of foreign and interstate commerce. So in the recent case of Walling v. Michigan, 116 U. S. 465, a law purporting to impose a license tax upon persons engaged in selling liquor within the State, but so drawn as to discriminate in favor of liquor manufactured in the State, was held a regulation of interstate and foreign commerce, and unconstitutional. A still more striking case is the recent case of Robbins v. Shelby Taxing District, 120 U. S. 489, in which a license tax imposed by Shelby Taxing District (the City of Memphis) on all persons selling goods in the district by sample, and not having regularly licensed houses of business there, was held unconstitutional, as being passed with the intention of discriminating against commercial houses of other States doing business in Memphis.

But while it is clear that the modern authorities fully support the doctrine that the real purpose or object of a law is the criterion of