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Page:Harvard Law Review Volume 1.djvu/185

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the sovereign power to which it is to be ascribed, to this extent, that a State law passed with the real intention of regulating foreign or interstate commerce will be deemed a regulation of such commerce, whatever the ostensible purpose as stated in the title may be, it is by no means clear that the converse of this proposition—that a State law, not passed with the intention of negotiating foreign or interstate commerce, cannot be deemed a regulation of such commerce, whatever the nature of its provisions may be—can be regarded as law in the light of the modern decisions. Indeed, there are a good many dicta, and even some decisions, which seem to indicate that it is not law. These dicta and decisions seem to support the view that a State law operating upon foreign or interstate commerce, but passed to accomplish some object or aim within the well-recognized power of the State, and without any intention of regulating foreign or interstate commerce, will, nevertheless, be held to be a regulation of such commerce, if, in the opinion of the Court, the law affects foreign or interstate commerce to a greater degree than is necessary for the accomplishment of the object aimed at. It cannot be said that the above view is anywhere distinctly stated. The modern cases upon the commerce clause of the Constitution do not contain statements of general propositions of law. Still, it must be admitted that there are dicta, and perhaps some decisions even, which seem to favor that view. Thus, Strong, J., in delivering the opinion of the court in Railroad Co. v. Huesen, 95 U. S. 465, says, in speaking of the powers of a State: “While for the purpose of self-protection it may establish quarantine and reasonable inspection laws, it may not interfere with transportation into or through the State beyond what is absolutely necessary for its self-protection.” So Miller, J., in Chy Lung v. Freeman, 92 U. S. 275, a case involving the validity of a “passenger law,” says: “We are not called upon by this statute to decide for or against the right of a State, in the absence of legislation by Congress to protect herself by necessary and proper laws against paupers and convicted criminals from abroad; nor to lay down the definite limit of such right, if it exist. Such a right can only arise from a vital necessity for its exercise, and cannot be carried beyond the scope of that necessity. When a statute, limited to provisions necessary and appropriate to that object alone, shall, in a proper controversy, come before us, it will be time enough to decide that question. The statute of California goes so far beyond