Page:The Green Bag (1889–1914), Volume 17.pdf/63

THE GREEN BAG tion of the whole against any of its number, the times as these manifest themselves in the and its exercise is of necessity confided to the universal expression of the popular will and government — the State into which the people the national needs. have organized themselves. The same reason "i. All that was within local circumscrip ing would seem to indicate that when various tion was in the power of the State. Its in peoples have formed themselves into States ternal regulations or police power was reserved possessing the powers indicated, and then for intact. the general purposes of a common intercourse "2. This power was left intact only as ap and union, have organized these States into a plied to matters concerning solely the deni federal union on the basis of a constitution zens of a State and was extinct as to the which enumerates the powers to be exercised exercise of any legislative function that could by the federal government, this inherent and reach intercourse with other States or with plenary power to control the lives, liberty, foreign ports. and property of the citizens within the vari "3. All police powers, even over means of ous States does not pass to such general gov inter-communication with other States or with ernment unless specifically enumerated. Es foreign ports remained within the province of pecially must this be so when we find as the the State, until Congress saw fit to exercise basis of such a union the constitutional over the same domain the powers vested in it provision." by the Constitution. "4. The police powers of the State might be "Manifestly no such power as is defined and sustained in these cases, is in terms exercised upon subjects kindred to interstate vested in the federal government by the Con or foreign commerce, so long as they were stitution. If such power can be lawfully ex not a direct interference with such com ercised by the Congress of the United States. merce; incidental interference with some of it must be under the doctrine of implied pow the agencies of commerce, was not an as ers, to be inferred from the necessity which sumption of powers reserved to Congress. "5. Even when Congress has not made any arises for its use, in order effectually to carry out other express powers, such as the power regulations with reference to the subjects con over the mails, post offices and post roads, fided to it, the States may not exercise any or the power to regulate commerce among the dominion over such subjects, even in the use of police powers for its internal government, States or with foreign countries." A comprehensive discussion of the cases is as the silence of Congress must be taken as an indication that no regulations are to be made finally summed up as follows: — with reference to the subject. "There seems, on the whole, to have been "6. The police powers of the State are some difficulty in the establishment of a rule as to the exercise of Federal Police Power, therefore extinct so far as their exercise bears and as to the measure in which such exercise upon any of the subjects entrusted to Con supersedes the police power of the State; the gress by the Constitution, notably upon any pendulum has oscillated between two extremes inter-communication between the States or and like a self-registering instrument, has left with foreign parts. "7. In the execution of the powers over various indications of the prevailing senti commerce and over the mails, Congress may ments of the moment; perhaps in this gentle swaying of the instrument lies our security enact laws which regulate internal affairs of against too rigid a construction of the re States that are in any way dependent upon or spective rights and obligations of citizen and connected with communication with the ex State, and central authority; however that terior; such as the introduction into the State may be, my function in this paper will end of any articles of food, drugs, etc., the control by an indication of some of the variations of navigable waters, the protection of health which the instrument has registered, leaving by quarantine laws, etc." the reader to determine whether its action A NEW corporation law which is said to be shows any marked trend in one direction, or the happy faculty of meeting the exigencies of proving attractive to promoters is discussed