Passenger Cases.—Mr. Justice Woodbury's Opinion.

the same opinion which was cited by the original defendants, says the purpose is the test; and if that be different, and does not clash, the law is not unconstitutional.

So Chief Justice Marshall, in 9 Wheat., 204, says, that Congress for one purpose and a State for another may use like means and both be vindicated. And though Congress obtains its power from a special grant, like that of the power "to reg ulate commerce," the State may obtain it from a reserved power over internal commerce or over its police. Hence, while Congress regulates the number of passengers to the size of the vessel, as a matter of foreign commerce, and may exempt their baggage and tools from duties as a matter of imposts on imports, yet this is not inconsistent with the power of a State, after passengers arrive within her limits, to impose terms on their landing, with a view to benefit her pauper police, or her fiscal resources, or her municipal safety and welfare. And the two powers, thus exercised separately by the two governments, may, as Mr. Justice Johnson says, "be perfectly distinct." So, in the language of Chief Justice Marshall, "if executed by the same means," "this does not prove that the powers themselves are identical."

The measures of the general government amount to a regulation of the traffic, or trade, or business, of carrying

*553] *passengers, and of the imposts on imports; but those

of the States amount to neither, and merely affect the passengers or master of the vessel after their arrival within the limits of a State, and for State purposes, State security, and State policy.

As we have before explained, then, if granting that the bringing of passengers is a great branch of the business of navigation, and that to regulate commerce is to regulate navigation, yet this statute of Massachusetts neither regulates that navigation employed in carrying passengers, nor the passengers themselves, either while abroad in foreign ports, or while on the Atlantic Ocean, but merely taxes them, or imposes conditions on them, after within the State. These things are done, as Mr. Justice Johnson said in another case, "with a distinct view." And it is no objection that they "act on the same subject" (9 Wheat., 235); or, in the words of Chief Justice Marshall, although the means used in their execution may sometimes approach each other so nearly as to be confounded" (p. 204). But where any doubt arises, it should operate against the uncertain and loose, or what the late chief justice called "questionable power to regulate commerce," (9 Wheat., 202,) rather than the more fixed and distinct police or taxing power.

66

Passenger Cases.-Mr. Justice Woodbury's Opinion.

In cases like this, if, amidst the great complexity of human affairs, and in the shadowy line between the two governments over the same people, it is impossible for their mutual rights and powers not to infringe occasionally upon each other, or cross a little the dividing line, it constitutes no cause for denouncing the acts on either side as being exercised under the same power or for the same purpose, and therefore unconstitutional and void. When, as is seldom likely, their laws come in direct and material collision, both being in the exercise of distinct powers, which belong to them, it is wisely provided, by the Constitution itself, and consequently by the States and the people themselves, as they framed it, that the States, being the granting power, must recede. (9 Wheat., 203; License Cases, 5 How., 504; United States v. New Bedford Bridge, 1 Woodb. & M., 423.) Here we see no such collision.

There are other cases of seeming opposition which are reconcilable, and not conflicting, as to the powers exercised both by the States and the general government, but for different purposes. Thus hides may be imported under the acts of Congress taxing imports and regulating commerce; but this does not deprive a State of the right, in guarding the public health, to have them destroyed if putrefied, whether before they reach the land or after. So as to the import of gunpowder by the authority of one government, and the prohibition *by the other, for the public safety, to keep [*554 it in large quantities. (4 Metcalf, 294.) Neither of these acts by the State attempts to interfere with the commerce abroad, but after its arrival here, and for other purposes, local and sanatory, or municipal.

In short, it has been deliberately held by this court, that the laying a duty on imports, if this was of that character, is an exercise of the taxing power, and not of that to regulate commerce. (Gibbons v. Ogden, 9 Wheat., 201, by Chief Justice Marshall.) And if, in Brown v. Maryland, 12 Wheat., 447, the tax or duty imposed there can be considered as held to violate both, it was because it was not only a tax on imports, but provided for the treatment of goods themselves, or regulated them as imported in foreign commerce, and while in bulk.

But if the power exercised in this law by Massachusetts could, by a forced construction, be tortured into a regulation of foreign commerce, the next requisite to make the law void is not believed to exist in the fact that the States do not retain some concurrent or subordinate powers, such as were here exercised, though connected in certain respects with

Passenger Cases.-Mr. Justice Woodbury's Opinion.

foreign commerce. Beside the reasons already assigned for this opinion, it is not opposed to either the language or the spirit of the Constitution in connection with this particular grant. Accompanying it are no exclusive words, nor is the further action of the States, or any thing concerning commerce, expressly forbidden in any other way in the Constitution. But both of these are done in several other cases, such as 66 no State shall coin money," or no State "engage in war," and these are ordinary modes adopted in the Constitution to indicate that a power granted is exclusive, when it was meant to be so.

If this reasoning be not correct, why was express prohibition to the States used on any subject where authority was granted to Congress? The only other mode to ascertain whether a power thus granted is exclusive "is to look at the nature of each grant, and if that does not clearly show the power to be exclusive, not to hold it to be so.' We have seen that was the rule laid down by one of the makers and great expounders of the instrument. (Federalist, No. 82. See also 14 Pet., 575.)

It held out this as an inducement to the States to adopt the Constitution, and was urged by all the logic and eloquence of Hamilton. It was, that a grant of power to Congress, so far from being ipso facto exclusive, never ousted the power of the States previously existing, unless "where an exclusive authority is in express terms granted to the Union, or where a particular authority is granted to the Union and the exercise of a like authority is prohibited to the States; or *555] where an authority is granted to the Union, with

which a similar authority in the States would be utterly incompatible."

This rule has been recognized in various decisions on constitutional questions by many of the judges of this court. 2 Cranch, 397; 3 Wheat., 386; 5 Wheat., 49; Wilson v. Blackbird Creek Marsh Company, 2 Pet., 245; Prigg v. Pennsylvania, 16 Pet., 627, 655, 664; New York v. Miln, 11 Pet., 103, 132; Groves v. Slaughter, 15 Pet., 509; Holmes v. Jennison, 14 Pet., 579. So by this court itself, in Sturges v. Crowninshield, 4 Wheat., 193. And also by other authorities entitled to much respect. 4 Elliot's Deb., 567; 3 Jefferson's Life, 425-429; 3 Serg. & R., 79; Peck's Trial, 86, 87, 291– 293, 329, 404, 434, 435; Calder v. Bull, 3 Dall., 386; 1 Kent, Com., 364; 9 Johns. (N. Y.), 568.

In other cases it is apparently contravened. 9 Wheat., 209; 15 Pet., 504, by Mr. Justice McLean, and 511, by Mr. Justice Baldwin; Prigg v. Pennsylvania, 16 Pet., 543; New

Passenger Cases.—Mr. Justice Woodbury's Opinion.

York v. Miln, 11 Pet., 158, by Mr. Justice Story; The Chusan, 2 Story, 465; Golden v. Prince, 3 Wash. C. C., 325.

But this is often in appearance only, and not in reality. It is not a difference as to what should be the true rule, but in deciding what cases fall within it, and especially the branch of it as to what is exclusive by implication and reasoning from the nature of the particular grant or case; or in the words of Hamilton, "where an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible."

Thus, in the celebrated case of Sturges v. Crowninshield, the rule itself is laid down in the same way substantially as in the Federalist; namely, that the power is to be taken from the State only when expressly forbidden, or where "the terms in which a power is granted to Congress, or the nature of the power, require that it should be exercised exclusively by Congress.' (4 Wheat., 122, 193, by Chief Justice Marshall; Prigg v. Commonwealth of Pennsylvania, 16 Pet., 626, by Chief Justice Taney, and 650, by Mr. Justice Daniel.)

And Chief Justice Marshall on another occasion considered this to be the true rule. That was in the case of Wilson v. Blackbird Creek Marsh Company, 2 Pet., 245, though a commercial question. And Judge Story did the same in Houston v. Moore, 5 Wheat., 49,—a militia question. So, many of the other grants in this same section of the Constitution, under like forms of expression, have been virtually held not to be exclusive; such as that over weights and measures; that over bankruptcy (Sturges v. Crowninshield, 4 Wheat., 122); *that over taxation (see cases [*556 already cited); that to regulate the value of foreign coins; that to discipline the militia (Houston v. Moore, 5 Wheat., 1; 3 Story, Com. on Constitution, § 1202; 15 Pet., 499; Rawle on the Constitution, ch. 9, p. 111); that "to provide for the punishment of counterfeiting coin" (Fox v. State of Ohio, 5 How., 410); and robbing the mail when punished as highway robbery (5 Wheat., 34). Why, then, hold this to be otherwise than concurrent?

There are still other grants, in language like this, which never have been considered exclusive. Even the power to pass uniform naturalization laws was once considered by this court as not exclusive (Collett v. Collett, 2 Dall., 296); and though doubt has been flung on this since by the United States v. Villato, 2 Dall., 372, Chirac v. Chirac, 2 Wheat., 269, and by some of the court in 5 How., 585, and Golden v. Prince, 3 Wash. C. C., 314; and though these doubts may

Passenger Cases.-Mr. Justice Woodbury's Opinion.

be well founded unless the State naturalization be for local purposes only in the State, as intimated in Collett v. Collett, and more favorable than the law of the United States, and not to give rights of citizenship out of the State, (1 Bl. Com., by Tucker, App., 3, 4, 255, 296,) which were the chief objections in 3 Wash. C. C., 314; yet this change of opinion does not impugn in principle the ground for considering the local measure in their case as not conflicting with foreign commerce. The reasoning for a change there does not apply here.

So, it is well settled that no grant of power to Congress is exclusive, unless expressly so, merely because it may be broad enough in terms to cover a power which clearly belongs to the State; e. g. police, quarantine, and license laws. They may relate to a like place and subject, and by means somewhat alike, yet, if the purposes of the State and of Congress are different and legitimate for each, they are both permissible and neither exclusive. (See cases before cited, 4 Wheat., 196; 3 Ell. Deb., 259; Baldwin's Views, 193, 194.)

This very grant of the power "to regulate commerce" has also been held by this court not to prevent bridges or ferries by the States where waters are navigable. (Wilson v. Blackbird Creek Marsh Co., 2 Pet., 245.) So elsewhere. (Corfield v. Coryell, 4 Wash. C. C., 371; 1 Woodb. & M., 417, 424, 425; 9 Wheat., 203. See also Warren Bridge Case, 11 Pet., 420; 17 Conn., 64; 8 Cow. (N. Y.), 146; 1 Pick. (Mass.), 180; 7 N. H., 35.) And it has been considered elsewhere not to confer, though in navigable waters, any right or control over the fisheries therein, within the limits of a State. (4 Wash. C. C., 383. See also Martin v. Waddell, 16 Pet., 367, 3 Wheat., 383; Angell on Tide Waters, 105.) So the *States have been accustomed to legislate as to pilots,

*557] and Congress has concurred in it. But if the acts of the States alone as to pilots are not valid, on the ground of a concurrent power in them, it is difficult to see how Congress can transfer or cede to the States an authority on this which the Constitution has not given to them. (Chief Justice Taney, in 5 How., 580.) The real truth is, that, each possessing the power in some views and places, though not exclusively, Congress may declare it will not exercise the power on its part, either by an express law or by actual omission, and thus leave the field open to the States, on their reserved or concurrent rights, and not on any rights ceded to them by Congress. This reconciles the whole matter, and