Page:Harvard Law Review Volume 4.djvu/243

POLICE POWER AND INTER-STATE COMMERCE. 227 If, then, the police power extends to inter-state commerce, if the State, for the purpose of protecting the health and safety of its citizens, may regulate inter-state commerce to some extent, why may not its regulations extend to the prohibition of traffic in any articles, if such traffic is honestly believed to be dangerous to the community ? The State prohibits merely because it deems that to be the most effective way of removing the evil in that community. A prohibition of traffic in any article is, indeed, in effect a decla- ration that such article shall not be an article of commerce. It is also true that the power of Congress to regulate commerce be- tween the States must include the right to determine what shall be the subjects of such commerce. Otherwise, "the power to regulate commerce would become subordinate to the State police power."^ Therefore, if Congress had prescribed that a cer- tain article should be an article of inter-state commerce, or for- bidden restrictions on its importation, a State could not prohibit its introduction within its limits and its sale in the original pack- age. But until Congress has acted we have the same question as before : Is the regulation one that it is proper should be alike for all the States } And we are met with the same answer : Police regulations must be adapted to the communities where they have effect, and a country so large as this, and whose inhabitants differ so in characteristics in different sections, should not have one set of police regulations for the whole country. This is especially so, since any regulations made by Congress could have no application to the internal commerce of a State. The conclusion reached by the court in the two cases under consideration does not appear to be tenable. The opinion in Bowman v. Chicago & N. W. Railway Co. appears to rest largely on a misconception of the police power. ** Can it be supposed," says Mr. Justice Matthews, " that by omitting any express declara- tions on the subject, Congress has intended to submit to the sev- eral States the decision of the question in each locality of what shall and what shall not be articles of traffic in the inter-state com- merce of the country t If so, it has left to each State, according to its caprice and arbitrary will, to discriminate for or against every article grown, produced, manufactured, or sold in any State and sought to be introduced as an article of commerce into any other. If the State of Iowa may prohibit the importation of in- 1 License Cases, 5 How. 504, 600, per Catron, J.