The Supreme Court of Louisiana having decided that an Act of the
General Assembly approved Feb. 23, 1869, entitled "An Act to
enforce the thirteenth article of the Constitution of this state,
and to regulate the licenses mentioned in said thirteenth article,"
requires those engaged in the transportation of passengers among
the states to give all persons traveling within that state, upon
vessels employed in such business, equal rights and privileges in
all parts of the vessel, without distinction on account of race or
color, and subjects to an action for damages the owner of such a
vessel who excludes colored passengers on account of their color
from the cabin set apart by him for the use of whites during the
passage; this Court, accepting as conclusive this construction of
the act by the highest court of the state, holds that the act, so
far as it has such operation, is a regulation of interstate
commerce, and therefore, to that extent, unconstitutional and
void.
By the thirteenth article of the Constitution of Louisiana it is
provided that "all persons shall enjoy equal rights and privileges
upon any conveyance of a public character." By an act of the
General Assembly entitled "An Act to enforce the thirteenth article
of the constitution of this state, and to regulate the licenses
mentioned in said thirteenth article," approved Feb. 23, 1869, it
was enacted as follows:
"SECTION 1. All persons engaged within this state in the
business of common carriers of passengers shall have the right to
refuse to admit any person to their railroad cars, street cars,
steamboats, or other watercrafts, stage coaches, omnibuses, or
other vehicles, or
Page 95 U. S. 486
to expel any person therefrom after admission when such person
shall, on demand, refuse or neglect to pay the customary fare or
when such person shall be of infamous character, or shall be
guilty, after admission to the conveyance of the carrier, of gross,
vulgar, or disorderly conduct, or who shall commit any act tending
to injure the business of the carrier, prescribed for the
management of his business, after such rules and regulations shall
have been made known,
provided said rules and regulations
make no discrimination on account of race or color, and shall have
the right to refuse any person admission to such conveyance where
there is not room or suitable accommodations; and except in cases
above enumerated, all persons engaged in the business of common
carriers of passengers are forbidden to refuse admission to their
conveyance or to expel therefrom any person whomsoever."
"SEC. 4. For a violation of any of the provisions of the first
and second sections of this act, the party injured shall have a
right of action to recover any damage, exemplary as well as actual,
which he may sustain before any court of competent
jurisdiction."
Acts of 1869, p. 37; Rev.Stat. 1870, p. 93.
Benson, the defendant below, was the master and owner of the
Governor Allen, a steamboat enrolled and licensed under
the laws of the United States for the coasting trade and plying as
a regular packet for the transportation of freight and passengers
between New Orleans, in the State of Louisiana, and Vicksburg, in
the State of Mississippi, touching at the intermediate landings
both within and without Louisiana as occasion required. The
defendant in error, plaintiff below, a person of color, took
passage upon the boat on her trip up the river from New Orleans for
Hermitage, a landing place within Louisiana, and being refused
accommodations on account of her color in the cabin specially set
apart for white persons, brought this action in the Eighth District
Court for the Parish of New Orleans under the provisions of the act
above recited, to recover damages for her mental and physical
suffering on that account. Benson, by way of defense, insisted
among other things that the statute was inoperative and void as to
him in respect to the matter complained of because, as to his
business, it was an attempt to "regulate commerce among the
states," and therefore in conflict with Art. I, Sec. 8, par. 3, of
the Constitution of the United States. The district court of the
parish
Page 95 U. S. 487
held that the statute made it imperative upon Benson to admit
Mrs. DeCuir to the privileges of the cabin for white persons, and
that it was not a regulation of commerce among the states, and
therefore not void. After trial, judgment was given against Benson
for $1,000, from which he appealed to the supreme court of the
state, where the rulings of the district court were sustained.
This decision of the supreme court is here for reexamination
under sec. 709 of the Revised Statutes.
Benson having died, Hall, his administratrix, was substituted in
this Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
For the purposes of this case, we must treat the Act of
Louisiana of Feb. 23, 1869, as requiring those engaged in
interstate commerce to give all persons traveling in that state
upon the public conveyances employed in such business equal rights
and privileges in all parts of the conveyance, without distinction
or discrimination on account of race or color. Such was the
construction given to that act in the courts below, and it is
conclusive upon us as the construction of a state law by the state
courts. It is with this provision of the statute alone that we have
to deal. We have nothing whatever to do with it as a regulation of
internal commerce or as affecting anything else than commerce among
the states.
There can be no doubt but that exclusive power has been
conferred upon Congress in respect to the regulation of commerce
among the several states. The difficulty has never been as to the
existence of this power, but as to what is to be deemed an
encroachment upon it, for, as has been often said,
"legislation may in a great variety of ways affect commerce and
persons engaged in it without constituting a regulation of it
within the meaning of the Constitution."
Sherlock v. Alling, 93 U. S. 103;
State Tax on Railway Gross
Receipts, 15 Wall. 284. Thus, in
Munn v.
Illinois, 94 U. S. 113, it
was decided that a state might regulate the charges of public
warehouses,
Page 95 U. S. 488
and in
Chicago, Burlington & Quincy Railroad Co. v.
Iowa, 94 U. S. 155, of
railroads situate entirely within the state, even though those
engaged in commerce among the states might sometimes use the
warehouses or the railroads in the prosecution of their business.
So too it has been held that states may authorize the construction
of dams and bridges across navigable streams situate entirely
within their respective jurisdictions.
Willson v.
Blackbird Creek Marsh Co., 2 Pet. 245;
Pound v.
Turck, supra, p.
95 U. S. 459;
Gilman v.
Philadelphia, 3 Wall. 713. The same is true of
turnpikes and ferries. By such statutes, the states regulate, as a
matter of domestic concern, the instruments of commerce situated
wholly within their own jurisdictions and over which they have
exclusive governmental control except when employed in foreign or
interstate commerce. As they can only be used in the state, their
regulation for all purposes may properly be assumed by the state
until Congress acts in reference to their foreign or interstate
relations. When Congress does act, the state laws are superseded
only to the extent that they affect commerce outside the state as
it comes within the state. It has also been held that health and
inspection laws may be passed by the states,
Gibbons v.
Ogden, 9 Wheat. 1, and that Congress may permit the
states to regulate pilots and pilotage until it shall itself
legislate upon the subject,
Cooley v. Board of
Wardens, 12 How. 299. The line which separates the
powers of the states from this exclusive power of Congress is not
always distinctly marked, and oftentimes it is not easy to
determine on which side a particular case belongs. Judges not
unfrequently differ in their reasons for a decision in which they
concur. Under such circumstances, it would be a useless task to
undertake to fix an arbitrary rule by which the line must in all
cases be located. It is far better to leave a matter of such
delicacy to be settled in each case upon a view of the particular
rights involved.
But we think it may safely be said that state legislation which
seeks to impose a direct burden upon interstate commerce or to
interfere directly with its freedom does encroach upon the
exclusive power of Congress. The statute now under consideration in
our opinion occupies that position. It does not act upon the
business through the local instruments to be employed
Page 95 U. S. 489
after coming within the state, but directly upon the business as
it comes into the state from without or goes out from within. While
it purports only to control the carrier when engaged within the
state, it must necessarily influence his conduct to some extent in
the management of his business throughout his entire voyage. His
disposition of passengers taken up and put down within the state,
or taken up within to be carried without, cannot but affect in a
greater or less degree those taken up without and brought within,
and sometimes those taken up and put down without. A passenger in
the cabin set apart for the use of whites without the state must,
when the boat comes within, share the accommodations of that cabin
with such colored persons as may come on board afterwards, if the
law is enforced.
It was to meet just such a case that the commercial clause in
the Constitution was adopted. The River Mississippi passes through
or along the borders of ten different states, and its tributaries
reach many more. The commerce upon these waters is immense, and its
regulation clearly a matter of national concern. If each state was
at liberty to regulate the conduct of carriers while within its
jurisdiction, the confusion likely to follow could not but be
productive of great inconvenience and unnecessary hardship. Each
state could provide for its own passengers and regulate the
transportation of its own freight, regardless of the interests of
others. Nay more, it could prescribe rules by which the carrier
must be governed within the state in respect to passengers and
property brought from without. On one side of the river or its
tributaries he might be required to observe one set of rules, and
on the other another. Commerce cannot flourish in the midst of such
embarrassments. No carrier of passengers can conduct his business
with satisfaction to himself or comfort to those employing him if
on one side of a state line his passengers, both white and colored,
must be permitted to occupy the same cabin, and on the other be
kept separate. Uniformity in the regulations by which he is to be
governed from one end to the other of his route is a necessity in
his business, and to secure it Congress, which is untrammeled by
state lines, has been invested with the exclusive legislative power
of determining what such regulations
Page 95 U. S. 490
shall be. If this statute can be enforced against those engaged
in interstate commerce, it may be as well against those engaged in
foreign, and the master of a ship clearing from New Orleans for
Liverpool, having passengers on board, would be compelled to carry
all, white and colored, in the same cabin during his passage down
the river or be subject to an action for damages, "exemplary as
well as actual," by anyone who felt himself aggrieved because he
had been excluded on account of his color.
This power of regulation may be exercised without legislation as
well as with it. By refraining from action, Congress in effect
adopts as its own regulations those which the common law or the
civil law, where that prevails, has provided for the government of
such business, and those which the states, in the regulation of
their domestic concerns, have established affecting commerce, but
not regulating it within the meaning of the Constitution. In fact,
congressional legislation is only necessary to cure defects in
existing laws as they are discovered and to adapt such laws to new
developments of trade. As was said by MR. JUSTICE FIELD, speaking
for the Court in
Welton v. State of Missouri, 91 U.
S. 282, "inaction [by Congress] . . . is equivalent to a
declaration that interstate commerce shall remain free and
untrammeled." Applying that principle to the circumstances of this
case, congressional inaction left Benson at liberty to adopt such
reasonable rules and regulations for the disposition of passengers
upon his boat, while pursuing her voyage within Louisiana or
without, as seemed to him most for the interest of all concerned.
The statute under which this suit is brought, as construed by the
state court, seeks to take away from him that power so long as he
is within Louisiana, and while recognizing to the fullest extent
the principle which sustains a statute unless its
unconstitutionality is clearly established, we think this statute,
to the extent that it requires those engaged in the transportation
of passengers among the states to carry colored passengers in
Louisiana in the same cabin with whites is unconstitutional and
void. If the public good requires such legislation, it must come
from Congress, and not from the states.
We confine our decision to the statute in its effect upon
Page 95 U. S. 491
foreign and interstate commerce, expressing no opinion as to its
validity in any other respect.
Judgment will be reversed and the cause remanded, with
instructions to reverse the judgment of the district court, and
direct such further proceedings in conformity with this opinion as
may appear to be necessary, and it is
So ordered.
MR. JUSTICE CLIFFORD concurred in the judgment and delivered the
following opinion:
Power to regulate commerce is, by the Constitution, vested in
Congress, and it is well settled law that the word "commerce" as
used in the Constitution comprehends navigation, which extends to
every species of commercial intercourse between the United States
and foreign nations and to all commerce in the several states
except such as is completely internal and which does not extend to
or affect the other states.
Tonnage Cases,
12 Wall. 204.
Beyond all doubt, the power as conferred includes navigation as
well as traffic, and it is equally well settled that it extends to
ships and vessels exclusively employed in conveying passengers as
well as to those engaged in transporting goods and merchandise.
Gibbons v.
Ogden, 9 Wheat. 1.
Equality of right and privilege is guaranteed by the thirteenth
article of the state constitution to every person in the state
transported in the vehicles or watercraft of a common carrier of
passengers in the words following, to-wit: "All persons shall enjoy
equal rights and privileges upon any conveyance of a public
character." Rules and regulations to enforce that provision have
been enacted by the state legislature, as fully set forth in the
transcript. Sess.Laws La. (1869) 37.
Common carriers of the kind, it is conceded, may adopt rules and
regulations for the management of their business not inconsistent
with the state constitution and the enactment of the state
legislature. By the terms of that enactment, they may refuse to
admit persons to such conveyance when the vehicle or watercraft
does not contain room or suitable accommodations for the purpose,
and they may refuse to admit an applicant, or expel him or her
after admission, if the applicant
Page 95 U. S. 492
refuses to pay fare, or is of infamous character, or is guilty,
in the conveyance, of gross, vulgar, or disorderly conduct, or
shall commit any act in violation of the known rules and
regulations of such carrier tending to injure his business,
provided such rules and regulations make no discrimination on
account of race or color. Such rules and regulations as are there
authorized must be duly made known to the public in order to be
operative, and they must not deny to the applicant any right or
privilege on account of race, color, or previous condition of
servitude.
Sufficient appears to show that the plaintiff is a person of
color and that the defendant is the master and owner of the
steamer, which is a packet vessel duly enrolled and licensed for
the coasting trade, and that the vessel was engaged in carrying
passengers and cargo between the port of New Orleans in the State
of Louisiana and the port of Vicksburg in the State of Mississippi;
that the steamer has two cabins for the accommodation of
passengers, conveniently arranged one above the other; that the
upper is assigned to white persons and that the lower is assigned
to persons of color, both being constructed with state rooms,
cabin, and a hall used as a dining room where meals are furnished;
that the plaintiff, being at the time in New Orleans and desiring
to visit her plantation in another parish of the same state, went
on board the steamer to secure her passage to the proper landing
near her plantation; that the clerk of the steamer, to whom she
applied for a passage in the upper cabin, having previously
informed her agent that he could not give her a passage in that
cabin, refused her request, telling her at the same time that he
would give her a passage in the lower cabin; that the plaintiff
declined to accept a berth in the lower cabin, and that she passed
the night during which she remained on board sitting in a chair in
what is known as the recess back of the upper cabin.
Both parties concede that the steamer was engaged in one of her
regular trips from New Orleans to Vicksburg, and it appears that
the plaintiff took passage for the landing called the Hermitage,
and that on arriving there she paid five dollars fare, which is the
regular fare to that landing for persons whose passage is in the
lower cabin, and that it was two
Page 95 U. S. 493
dollars less than the regular fare for persons whose passage is
in the upper cabin.
Proof of a decisive character is exhibited that the plaintiff
applied for a berth in the upper cabin, which was refused, and that
she declined to accept one in the lower cabin, which by the rules
and regulations of the steamer is assigned for persons of color.
Based upon these undisputed facts, the charge of the declaration is
that the plaintiff was denied the equal rights and privileges
guaranteed and secured to all persons by the state constitution and
the aforesaid act of the state legislature. Superadded to that is
also the charge that such equal rights and privileges were denied
to her on account of her race and color, for which she claims
actual and exemplary damages in the sum of $75,000.
Service was made, and the defendant appeared and set up, among
others, the defenses following:
1. That the steamer, being enrolled and licensed according to
the act of Congress to pursue the coasting trade, is governed by
the laws of the United States, and may make all reasonable rules
and regulations for the prosecution of her business.
2. That the state constitution and law set up are in violation
of the provision of the federal Constitution which authorizes
Congress to regulate commerce among the several states.
3. That the steamer at the time alleged was engaged in
prosecuting commerce between the port of New Orleans in the State
of Louisiana and the port of Vicksburg in the State of Mississippi,
and consequently was not subject to the state regulations set up in
the declaration.
Under the state practice, these defenses were pleaded as an
exception to the alleged cause of action. Hearing was had and the
exception was overruled, the court giving leave to the defendant to
plead the same in his answer.
Pursuant to that leave, the defendant set up the same defenses
in the answer, adding thereto the following:
1. That he as owner had by law the right to prescribe rules and
regulations for the accommodation of passengers in his steamer.
2. That all such steamers engaged in commerce and navigation in
those waters have a well known regulation that persons of color are
not placed in the same cabin with white persons.
3. That the
Page 95 U. S. 494
regulation is reasonable, usual, and customary, and was made for
the protection of their business, and had been well known to the
plaintiff for many years.
Evidence was subsequently taken, the cause submitted to the
court without a jury, the parties heard, and judgment entered for
the plaintiff in the sum of $1,000 with interest and cost, and the
defendant appealed to the supreme court of the state, where the
parties were again heard and the judgment of the district court was
affirmed.
Provision is made by the fourth section of the state statute in
question that the plaintiff in such a case may recover exemplary as
well as actual damages for a violation of the equal rights and
privileges guaranteed to all persons in the state by the state
constitution. Suppose this is so, still the defendant insists that
errors were committed by the court in the trial of the case for
which the judgment should be reversed, and the transcript shows
that he sued out a writ of error and removed the case into this
Court.
Three of the errors assigned are still the subject of
complaint:
1. That the court erred in holding that the state constitution
and statute in question are valid.
2. That the court erred in deciding that those two provisions
are not regulations of commerce.
3. That the court erred in deciding that those provisions are
not in conflict with the federal Constitution.
Congress, it is conceded, possesses the exclusive power to
regulate commerce, and it is everywhere admitted that both traffic
and navigation are included in its ordinary signification and that
it embraces ships and vessels as the instruments of intercourse and
trade as well as the officers and seamen employed in their
navigation.
People v. Brooks, 4 Den. (N.Y.) 469.
Steamboats as well as sailing ships and vessels are required to
be enrolled and licensed, and the record shows that the steamer in
question had conformed in all respects to the regulations of
Congress in that regard and that she was duly enrolled and licensed
for the coasting trade, and that she was then and there engaged in
the transportation of passengers and freight between the port of
New Orleans and the port of Vicksburg.
Page 95 U. S. 495
None, it is supposed, will deny the power of Congress to enroll
and license ships and vessels to sail from a port of one state to
the ports of another, and it is equally clear that such ships and
vessels are deemed ships and vessels of the United States, and that
they are entitled as such to all the privileges of ships and
vessels employed in the coasting trade. 1 Stat. 287, 305; 3 Kent
Com. (12th ed.) 145.
Ships and vessels enrolled and licensed as required by that act
are fully authorized to carry on that trade, the act of Congress in
direct terms providing that such ships and vessels and no others
shall be deemed ships and vessels of the United States, entitled to
the privileges of ships and vessels employed in the coasting trade
or fisheries.
Gibbons v. Ogden, supra; 1 Stat. 288;
White's Bank v.
Smith, 7 Wall. 646.
Language more explicit could not well be chosen to express the
intention of Congress, and in my judgment it fully warrants the
conclusion reached by Marshall, C.J., in that case that the section
contains a positive enactment that the ships and vessels it
describes shall be entitled to the privileges of ships and vessels
employed in the coasting trade.
Undisputed proof is exhibited in the record that the steamer was
duly enrolled and licensed and that she was engaged in one of her
regular trips between the port of New Orleans and the port of
Vicksburg, transporting passengers and freight. Grant that and it
follows that she must be deemed to have been a ship or vessel of
the United States entitled to all the privileges of ships and
vessels engaged in the coasting trade pursuant to the act of
Congress providing for the enrollment and license of such ships and
vessels and the regulation of such trade.
Attempt was made in the leading case to maintain that the
license gave no right to trade, that its sole purpose was to confer
the American character on the ship or vessel; but the Court
promptly rejected the proposition and held that where the
legislature attaches certain privileges and exemptions to the
exercise of a right over which its control is absolute, the law
must imply a power to exercise the right, and the Court remarked
that it would be contrary to all reason and to the course of human
affairs to say that a state is unable to strip a vessel of the
particular privileges attendant on the exercise of
Page 95 U. S. 496
a right, and yet may annul the right itself. Instead of that, it
is the enrollment that proves the national character of the ship or
vessel, and the Court decided in that case that the license could
only be granted to vessels of twenty or more tons burden which had
already been enrolled, and that the license to do a particular
thing is a permission or authority to do that thing, and if granted
by a person having authority to grant it, transfers to the grantee
whatever it purports to authorize.
Packets which ply along the coast, said the Court, as well as
those making foreign voyages, consider the transportation of
passengers as an important part of their business, and the Court
adjudged directly that a coasting vessel employed in that business
is as much a portion of the national marine as one employed in the
transportation of cargo, and that no reason exists for holding that
such a vessel is withdrawn from the regulating power of the
national government.
Without more, these references to the opinion in that great case
are sufficient to show that the Court there decided that the
enrollment act is of itself a sufficient regulation of the
navigation of all the public navigable rivers of the United States
to secure to ships and vessels of the United States sailing under a
coasting license the free navigation of all such public
highways.
Confirmation of that proposition, even more decisive than the
opinion of the Court, is found in the decree rendered in the case,
where the Court adjudged that the licenses set up by the appellant
gave full authority to those vessels to navigate the waters of the
United States for the purpose of carrying on the coasting trade,
any law of the state to the contrary notwithstanding, and that so
much of the law of the state as prohibited vessels so licensed from
navigating the waters of the state by means of fire or steam is
repugnant to the Constitution of the United States and void.
Cases have arisen in which it is held that the states may
rightfully adopt certain regulations touching the subject, which
are local in their operation, where none have been ordained by
Congress, but it will not be necessary to enter that field of
inquiry or to attempt to reconcile those decisions with the
conclusion in this case, as it is clear from the remarks
already
Page 95 U. S. 497
made that Congress has prescribed the conditions which entitle
ships and vessels belonging to the national marine to pursue the
coasting trade without being subjected to burdensome and
inconsistent state regulations.
Welton v. State of
Missouri, 91 U. S. 275.
Repeated decisions of this Court have determined that the power
to regulate commerce embraces all the instruments by which such
commerce may be conducted, and it is settled law that where the
subject to which the power applies is national in its character, or
of such a nature as to admit of uniformity of regulation, the power
is exclusive of all state authority. Whatever subjects of this
power, says Mr. Justice Curtis, are in their nature national, or
admit only of one uniform system or plan of regulation, may justly
be said to be of such a nature as to require exclusive legislation
by Congress.
Cooley v. Board of
Wardens, 12 How. 299.
Difficulty may attend the effort to prescribe any definition
which will guide to a correct result in every case, but it is clear
that a regulation which imposes burdensome or impossible conditions
on those engaged in commerce, whether with foreign nations or among
the several states, must of necessity be national in its character.
Henderson v. Mayor of New York, 92 U. S.
259.
Apply that rule to the case and it is clear, even if there be a
class of state regulations which may be valid until the same ground
is occupied by an act of Congress or by a treaty, that the state
regulation in question is not one of that class.
Such a subject is in its nature national, and admits of only one
uniform system or plan of regulation. Unless the system or plan of
regulation is uniform, it is impossible of fulfillment. Mississippi
may require the steamer carrying passengers to provide two cabins
and tables for passengers, and may make it a penal offence for
white and colored persons to be mixed in the same cabin or at the
same table. If Louisiana may pass a law forbidding such steamer
from having two cabins and two tables -- one for white and the
other for colored persons -- it must be admitted that Mississippi
may pass a law requiring all passenger steamers entering her ports
to have separate cabins
Page 95 U. S. 498
and tables, and make it penal for white and colored persons to
be accommodated in the same cabin or to be furnished with meals at
the same table. Should state legislation in that regard conflict,
then the steamer must cease to navigate between ports of the states
having such conflicting legislation, or must be exposed to
penalties at every trip.
Those who framed the Constitution never intended that
navigation, whether foreign or among the states, should be exposed
to such conflicting legislation, and it was to save those who
follow that pursuit from such exposure and embarrassment that the
power to regulate such commerce was vested exclusively in
Congress.
Few or none will deny that the power to regulate commerce among
the several states is vested exclusively in Congress, and it is
equally well settled that Congress has, in many instances and to a
wide extent, legislated upon the subject.
Sherlock v.
Alling, 93 U. S. 99;
Rev.Stat., sec. 4311.
Support to that proposition of the most persuasive and
convincing character is found in the act of Congress entitled "An
Act to provide for the better security of life on board of vessels
propelled in whole or in part by steam, and for other purposes,"
the forty-first section of which provides that all steamers
navigating the lakes, bays, inlets, sounds, rivers, harbors, or
other navigable waters of the United States, when such waters are
common highways of commerce or open to general or competitive
navigation, shall be subject to the provisions of that act. 16
Stat. 453; Rev.Stat., sec. 4400.
Vessels have always been employed to a greater or less extent in
the transportation of passengers, and have never been supposed to
be on that account withdrawn from the control or protection of
Congress.
Gibbons v. Ogden, supra.
Differences of opinion may exist as to the extent and operation
of the national law regulating commerce among the several states,
but none, it is presumed, will venture to deny that it is regulated
very largely by congressional legislation. Admit that and it
follows that the legislation of Congress, if constitutional, must
supersede all state legislation upon the same, and by necessary
implication prohibit it except in cases where the legislation of
Congress manifests an intention to leave
Page 95 U. S. 499
some particular matter to be regulated by the several states.
Cooley v. Board of Wardens, supra.
Decisive authority for that proposition is found in the
unquestioned decisions of this Court. Such were the views of Judge
Story more than thirty-five years ago, when he said, if Congress
have a constitutional power to regulate a particular subject, and
they do actually regulate it in a given manner and in a certain
form, it cannot be that the state legislatures have a right to
interfere, and, as it were, by way of complement to the legislation
of Congress, to prescribe additional regulations and what they may
deem auxiliary provisions for the same purpose.
The
Chusan, 2 Story, 466;
Sinnot v.
Davenport, 22 How. 227.
In such a case, the legislation of Congress in what it does
prescribe manifestly indicates that it does not intend that there
shall be any further legislation to act upon the subject matter.
Its silence as to what it does not do is as expressive of what its
intention is as the direct provisions made by it.
Prigg v.
Pennsylvania, 16 Pet. 539;
Gibbons v. Ogden,
supra; White's Bank v. Smith, supra.
Whenever the terms in which a power is granted to Congress, or
the nature of the power, requires that it should be exercised
exclusively by Congress, the subject is as completely taken from
the state legislatures as if they had been expressly forbidden to
exercise the power.
Sturges v.
Crowninshield, 4 Wheat. 122;
Brown v.
Maryland, 12 Wheat. 419.
Irrespective of the decisions of the state court, it might well
be doubted whether the state statute in question does prohibit a
steamer carrying passengers from having and maintaining separate
cabins and eating saloons for white and colored passengers, and
whether the denial to a colored female of a passage in the cabin
assigned to white female passengers is a denial of equal rights and
privileges within the meaning of the state constitution or the
first section of the state statute in question, provided the
applicant was offered a passage in the lower cabin, with equally
convenient accommodation. Much discussion of that topic, however,
is unnecessary, as two decisions of the state court conclusively
determine the point that the state statute does contain such a
prohibition and that the
Page 95 U. S. 500
facts of the case do bring the conduct of the defendant within
that prohibition.
DeCuir v. Benson, 27 La.Ann. 1;
Hart
v. Hoss & Elder, 22
id. 517;
Sauvinet v.
Walker, 27
id. 14.
Even suppose the meaning of the statute is doubtful, still the
rule of construction adopted by the highest court of a state, in
construing their own Constitution and one of their own statutes in
a case not involving any question reexaminable in this Court under
the twenty-fifth section of the Judiciary Act, must be regarded as
conclusive in this Court.
Provident Institution v.
Massachusetts, 6 Wall. 611;
Randall v.
Brigham, 7 Wall. 523;
Gut v.
State, 9 Wall. 35.
Where a state court gives such a construction to a state statute
as to make it conflict with the Constitution or laws of the United
States, and sustains its validity after giving it such
construction, and thereby deprives a party of his rights under the
said Constitution or law, it is settled law that a federal question
does arise in such a case and that this Court can review the
decision of the state court as to the validity of such a statute.
Insurance Company v.
Treasurer, 11 Wall. 204. Were it not so, it is
clear that the constitutional provision could always be evaded by
the state courts giving such a construction to the contract or the
statute as to render the appellate power of this Court of no avail
in such cases to uphold the contract against unfriendly state
legislation.
Delmas v. Insurance
Company, 14 Wall. 661.
State courts certainly have a right to expound the statutes of
the state, and, having done so, those statutes, with the
interpretation given to them by the highest court of the state,
become the rule of decision in the federal courts.
Richmond
v. Smith, 15 Wall. 429;
Jones & Co. v. City
of Richmond, 18 Gratt. (Va.) 517;
Leffingwell v.
Warren, 2 Black 599.
Argument to show that the question whether or not the state
court erred in the construction of their own constitution and
statute is not reexaminable in this Court under the twenty-fifth
section of the Judiciary Act is unnecessary, as the negative of the
proposition is self-evident.
Governed by the laws of Congress, it is clear that a steamer
carrying passengers may have separate cabins and dining saloons for
white persons and persons of color, for the plain
Page 95 U. S. 501
reason that the laws of Congress contain nothing to prohibit
such an arrangement. Steamers carrying passengers for hire are
bound, if they have suitable accommodation, to take all who apply
unless there is objection to the character or conduct of the
applicant. Applicants to whom there is no such valid objection have
a right to a passage, but it is not an unlimited right. On the
contrary, it is subject to such reasonable regulations as the
proprietors may prescribe for the due accommodation of passengers
and the due arrangement of the business of the carrier.
Such proprietors have not only that right, but the farther right
to consult and provide for their own interests in the management of
the vessel as a common incident to their right of property. They
are not bound to admit passengers on board who refuse to obey the
reasonable regulations of the vessel, or who are guilty of gross
and vulgar habits of conduct, or who make disturbances on board, or
whose characters are doubtful, dissolute, suspicious, or
unequivocally bad. Nor are they bound to admit passengers on board
whose object it is to interfere with the interests of the patronage
of the proprietors so as to make their business less lucrative or
their management less acceptable to the public.
Jencks v.
Coleman, 2 Sumn. 221.
Corresponding views are expressed by the Supreme Court of
Michigan in an analogous case in which the distinction between the
right of an applicant to be admitted on board, and his claim to
dictate what part of the vessel he shall occupy, is clearly pointed
out. Referring to that subject, the court said the right to be
carried is one thing, and the privilege of a passenger on board as
to what part of the vessel may be occupied by him is another and a
very different thing, and they add that it is the latter, and not
the former, which is subject to reasonable rules and regulations
and is, where such rules and regulations exist, to be determined by
the proprietors. Damages were claimed in that case for refusing the
plaintiff the privilege of the cabin, but the court held that the
refusal was nothing more or less than denying him certain
accommodations from which he was excluded by the rules and
regulations of the steamer.
Day v. Owen, 5 Mich. 520.
Page 95 U. S. 502
Proprietors of the kind may make rules and regulations, but they
must be reasonable, and the court held in that case that to be so
they should have for their object the accommodation of the
passengers, including everything to render the transportation most
comfortable and least annoying, not to one or two or any given
number carried at any particular time, but to the great majority
ordinarily transported, and they also held that such rules and
regulations should be of a permanent nature, and not be made for a
particular occasion or emergency.
Special and important duties indubitably are imposed upon
carriers of passengers for the benefit of the traveling public, but
it must not be forgotten that the vehicles and vessels which such
carriers use do not belong to the public. They are private
property, the use and enjoyment of which belong to the proprietors.
Angell, Carriers (5th ed.), sec. 525.
Concede what is undoubtedly true, that the use and employment of
such vehicles and vessels, during the time they are allowed the
privileges of common carriers, may be subjected to such conditions
and obligations as the nature of their employment requires for the
comfort, security, and safety of passengers, still the settled
rules of constitutional law forbid that a state legislature may
invade the dominion of private right by arbitrary restrictions
requirements, or limitations, by which the property of the owners
or possessors would be virtually stripped of all utility or value
if bound to comply with the regulations.
Jencks v. Coleman,
supra.
Both steamboats and railways are modern modes of conveyance, but
Shaw, C.J., decided that the rules of the common law were
applicable to them, as they take the place of other modes of
carrying passengers, and he held that they have authority to make
reasonable and suitable regulations as regards passengers intending
to pass and repass in their vehicles or vessels.
Commonwealth
v. Power, 7 Metc. (Mass.) 601;
Hibbard v. New York &
Erie Railroad Co., 15 N.Y. 455;
Illinois Central Railroad
Co. v. Whittemore, 43 Ill. 420. They are, said the Chief
Justice in that case, in a condition somewhat similar to that of an
innkeeper, whose premises are open to all guests. Yet he is not
only empowered to make such proper arrangements as will promote
Page 95 U. S. 503
his own interests, but he is bound to regulate his house so as
to preserve order, and, if practicable, prevent breaches of the
peace.
Vinton v. Middlesex Railroad Co., 11 Allen (Mass.)
304.
Cases of like import are quite numerous, and the Supreme Court
of Pennsylvania decided directly that a public carrier may separate
passengers in his conveyance, and they deduce his power to do so
from his right of private property in the means of conveyance and
the necessity which arises for such a regulation to promote the
public interest. Speaking to that point, they say that the private
means the carrier uses belong wholly to himself, and they held the
right of control in that regard as necessary to enable the carrier
to protect his own interests, and to perform his duty to the
traveling public. His authority in that regard, as that court
holds, arises from his ownership of the property and his public
duty to promote the comfort and enjoyment of those traveling in his
conveyance. Guided by those views, the court held that it is not an
unreasonable regulation to seat passengers so as to preserve order
and decorum and to prevent contacts and collisions arising from
natural or well known customary repugnancies which are likely to
breed disturbances where white and colored persons are huddled
together without their consent.
West Chester & Philadelphia
Railroad Co. v. Miles, 55 Pa.St. 209.
Where the passenger embarks without making any special contract
and without knowledge as to what accommodations will be afforded,
the law implies a contract which obliges the carrier to furnish
suitable accommodations according to the room at his disposal; but
the passenger in such a case is not entitled to any particular
apartments or special accommodations. Substantial equality of right
is the law of the state and of the United States; but equality does
not mean identity, as in the nature of things identity in the
accommodation afforded to passengers, whether colored or white, is
impossible unless our commercial marine shall undergo an entire
change. Adult male passengers are never allowed a passage in the
ladies' cabin, nor can all be accommodated, if the company is
large, in the staterooms. Passengers are entitled to proper diet
and lodging, but the laws of the United States do not require the
master of
Page 95 U. S. 504
a steamer to put persons in the same apartment who would be
repulsive or disagreeable to each other.
Steamers carrying passengers as a material part of their
employment are common carriers, and as such enjoy the rights and
are subject to the duties and obligations of such carriers; but
there was and is not any law of Congress which forbids such a
carrier from providing separate apartments for his passengers. What
the passenger has a right to require is such accommodation as he
has contracted for, or, in the absence of any special contract,
such suitable accommodations as the room and means at the disposal
of the carrier enable him to supply, and in locating his passengers
in apartments and at their meals, it is not only the right of the
master but his duty to exercise such reasonable discretion and
control as will promote as far as practicable the comfort and
convenience of his whole company.
Questions of a kindred character have arisen in several of the
states which support these views in a course of reasoning entirely
satisfactory and conclusive. Boards of education were created by a
law of the State of Ohio, and they were authorized to establish
within their respective jurisdictions one or more separate schools
for colored children when the whole number by enumeration exceeds
twenty, and when such schools will afford them, as far as
practicable, the advantages and privileges of a common school
education. Under that law, colored children were not admitted as a
matter of right into the schools for white children, which gave
rise to contest in which the attempt was made to set aside the law
as unconstitutional; but the supreme court of the state held that
it worked no substantial inequality of school privileges between
the children of the two classes in the locality of the parties;
that equality of rights does not involve the necessity of educating
white and colored persons in the same school any more than it does
that of educating children of both sexes in the same school, or
that different grades of scholars must be kept in the same school,
and that any classification which preserves substantially equal
school advantages is not prohibited by either the state or federal
Constitution, nor would it contravene the provisions of either.
State v. McCann, 21 Ohio St. 198.
Page 95 U. S. 505
Separate primary schools for colored and for white children were
maintained in the City of Boston. Children in the state who are
unlawfully excluded from public school instruction may recover
damages therefor against the city or town by which such public
instruction is supported. It appears that the plaintiff was denied
admission to the primary school for white children, and she by her
next friend claimed damages for the exclusion, but the supreme
court, Shaw, C.J., giving the opinion, held that the law vested the
power in the committee to regulate the system of distribution and
classification, and that when the power was reasonably exercised,
their decision must be deemed conclusive. Distinguished counsel
insisted that the separation tended to deepen and perpetuate the
odious distinction of caste, but the court responded that they were
not able to say that the decision was not founded on just grounds
of reason and experience, and in the results of a discriminating
and honest judgment.
Roberts v. City of Boston, 5 Cush.
(Mass.) 198.
Age and sex have always been marks of classification in public
schools throughout the history of our country, and the Supreme
Court of Nevada well held that the trustees of the public schools
in that state might send colored children to one school and white
children to another, or they might make any such classification as
they should deem best, whether based on age, sex, race, or any
other reasonable existent condition.
State v. Duffy, 7
Nev. 342.
Directors of schools in Iowa have no discretion under the
existing law of the state to deny a youth of proper age admission
to any particular school on account of nationality, color, or
religion. Former statutes of the state invested the directors with
such discretion, and it is impliedly conceded that it would be
competent for the legislature again to confer that authority.
Clark v. Board of Directors, 24 Ia. 266.
School privileges are usually conferred by statute, and as such
are subject to such regulations as the legislature may prescribe.
Such statutes generally provide for equal school advantages for all
children, classifying the scholars as the legislature in its wisdom
may direct or authorize, and the supreme court of New York decided
that the legislature of the state
Page 95 U. S. 506
may from time to time make such limitations and alterations in
that regard as they may see fit.
Dallas v. Fosdick, 40
How. (N.Y.) Pr. 249.
Public instruction of the kind is regulated in that state by
official boards created for the purpose, and it is settled law
there that the board may assign a particular school for colored
children, and exclude them from schools assigned for white
children, and that such a regulation is not in violation of the
Fourteenth Amendment.
People v. Gaston, 13 Abb. (N.Y.)
Pr.N.S. 160.
Ships and vessels duly enrolled and licensed for the coasting
trade may lawfully touch at intermediate ports to receive or
discharge passengers or cargo, but the fact that they do so does
not in the least change or alter the character of the trip or
diminish the right of the vessel to enjoy all the privileges of a
vessel engaged in commerce between ports in different states; nor
does the fact that the plaintiff expected to leave the steamer at a
landing in the same state enlarge her right of accommodation, or
augment in any respect the obligations of the steamer as a public
carrier, for the reason that the steamer sailed throughout the
whole trip under her coasting license, and her rights and
privileges, duties and obligations, must be ascertained and defined
by the regulations prescribed by the acts of Congress.
Commercial regulations of the kind cannot be effectual to
accomplish the object for which they were required and designed to
effect, unless it be held that they extend to the entire voyage, as
well that portion of it which is in the state where the voyage
began as that which extends into another state, as the whole is
performed under the coasting license founded in the acts of
Congress passed to regulate such commerce and navigation.
Throughout our history, the acts of Congress have regulated the
enrollment and license of vessels to be engaged in the coasting
trade, and this Court expressly determined that a state law which
imposed another and an additional condition to the privilege of
carrying on that trade within her waters is inoperative and void.
Sinnot v.
Davenport, 22 How. 227;
Foster v.
Davenport, 22 How. 244;
Wheeling Bridge Company v.
Pennsylvania, 18 How. 432.
Page 95 U. S. 507
Alabama passed an act to the effect that vessels engaged in
foreign commerce or in the coasting trade shall not navigate her
waters without complying with a condition not prescribed by the act
of Congress. By the state law, they are required, before leaving
the described port, to file in the office of the judge of probate a
statement in writing setting forth as follows:
1. The name of the vessel.
2. The name of the owner or owners.
3. His or their place or places of residence.
4. The interest each has in the vessel.
Speaking of that condition, the court said if the interpretation
of the court as to the force and effect of the privileges afforded
to the vessel by the enrollment and license act in the leading case
are to be maintained, it can require no argument to show a direct
conflict between this act and the act of Congress regulating the
coasting trade.
Sinnot v. Davenport, supra.
Nor does it require any argument to show that the state law
before the Court is exactly analogous in principle to the state law
declared void in that case. Like the former, the latter imposes an
additional condition to the privilege of carrying on the coasting
trade within the waters of the state not prescribed by any act of
Congress. Enrolled and licensed vessels have the constitutional
right to pursue the coasting trade on the terms and conditions
which Congress has seen fit to prescribe, and no state legislature
can interfere with that right, either to abridge or enlarge it or
to subject it to any terms and conditions whatsoever.
Commerce among the several states as well as commerce with
foreign nations requires uniformity of regulation, and that power
is by the Constitution vested exclusively in Congress, as appears
by the Constitution itself and by an unbroken course of the
decisions of this Court covering a period of more than half a
century.
Judicial authority to support the theory of the court below is
entirely wanting except what may be derived from the case of
Coger v. Packet Company, 37 Ia. 145, decided by the
supreme court of the state. Special damage was claimed by the
plaintiff in that case of the master of a steamer navigating the
Mississippi River for removing her, she being a colored
Page 95 U. S. 508
woman, from the dining room of the steamer without just cause.
Regulations had previously been adopted by the steamer excluding
colored persons from the staterooms and other first class
privileges and accommodations. Service was made, and the defendant
appeared and pleaded those regulations as a defense. Hearing was
had, and the court decided that persons of color were entitled to
the same rights and privileges, when traveling, as white persons,
and that they cannot be required by any rule or custom based on
distinction of color or race to accept other or different
accommodations than those furnished to white persons.
Abundant reasons exist to show that the decision in that case is
not an authority in the case before the Court, a few of which will
be stated:
1. Because the report of the case does not show that the steamer
was navigating under a coasting license.
2. Because the constitutional question involved in the case
before the Court was neither involved, presented, nor considered in
that case, either by the bar or the court.
3. Because the decision was rested entirely upon other and
different grounds.
4. Because the facts of the two cases are widely and
substantially different.
Colored persons, it is admitted, are citizens, and that
citizens, without distinction of race or color or previous
condition of servitude, have the same right to make and enforce
contracts, to sue, be parties and give evidence, to inherit,
purchase, lease, sell, hold, and convey real and personal property,
and to full and equal benefit of all laws and proceedings for the
security of personal property, as is enjoyed by white citizens. 14
Stat. 27. States are also forbidden to make or enforce any law
which shall abridge the privileges or immunities of citizens of the
United States; nor shall any state deprive any person of life,
liberty, or property without due process of law, nor deny to any
person within its jurisdiction the equal protection of the laws.
Enforcement Act, 16
id. 140; Fourteenth Amendment to the
Constitution.
Vague reference is made to the Civil Rights Act and to the
preceding amendment to the Constitution, as if that act or the said
amendment may supersede the operation and legal effect of the
coasting license as applied to the case before the
Page 95 U. S. 509
Court; but it is clear that neither of those provisions nor both
combined was intended to accomplish any such purpose. Enough
appears in the language employed in those provisions to show that
their principal object was to confer citizenship, and the rights
which belong to citizens as such, upon the colored people, and in
that manner to abrogate the rule previously adopted by this Court
in the
Dred Scott Case. By the Civil Rights Act, the rule
adopted in that case is entirely superseded, and all the
substantial rights of citizens are conferred upon the colored
people, as more fully appears by the enumeration contained in the
first section of the act. Under no view, therefore, that can
properly be taken of that act can it be held to supersede, repeal,
modify, or affect the act of Congress providing for the enrollment
and licensing of ships and vessels for the coasting trade.
Dallas v. Fosdick, supra.
Certain phases of the question were also presented to the
District Court of Philadelphia in the case of
Goines v.
M'Candless, 4 Phila.C.P. 255, in which the court admitted that
a corporation created for the carriage of passengers cannot
arbitrarily refuse to carry any man or class of men without laying
itself open to an action for damages; but the court held in the
same case that such a corporation may establish reasonable rules
for the comfort and convenience of those whom it is bound to carry,
even though the effect may be to exclude particular individuals
falling within those rules.
Evidence of a decisive character that Congress has regulated
interstate commerce is also found in the act supplemental to the
act providing for the enrollment and licensing of ships and vessels
for the coasting trade, the first section of which divides the sea
coasts and navigable rivers into three great districts, and
provides as follows:
1. That the first shall include all the collection districts on
the seacoast and navigable rivers between the limits of the United
States and the southern limits of Georgia.
2. That the second shall include all the collection districts
and navigable rivers between the River Perdido and the Rio
Grande.
3. That the third shall include all the collection districts on
the seacoast and navigable rivers between the southern limits of
Georgia and the River Perdido, Rev.Stat., sec. 4348; 3 Stat.
493.
Page 95 U. S. 510
Congress having legislated upon the subject, it cannot be that
the state legislatures have a right to interfere and prescribe
additional regulations, as the legislation of Congress clearly
indicates that the national law makers never intended to leave
anything open upon the subject to the discretion of the state
legislatures.
Two opposing theories sometimes advanced in such controversies
deserve some brief comments before concluding the examination of
the case. They are in substance and effect as follows:
1. That the effect of the coasting license issued under the
enrollment act is merely to evidence the national character of the
vessel; that the acts of Congress requiring the register and
enrollment of vessels was never intended as the exercise of the
power of Congress to regulate commerce among the states, and that
the states still possess the concurrent power to prescribe such
regulations until Congress shall ordain express provisions to
control and restrict the regulations enacted by the states.
2. That the Supreme Court, by a decision made subsequent to the
decree in the great leading case in which it is held that the power
to regulate commerce is vested exclusively in Congress, qualified,
if they did not positively overrule, that generally acknowledged
rule upon the subject.
1. Enough, it would seem, has already been remarked to refute
the first opposing theory, but if more be needed, it will be found
in the fact that it is the exact theory maintained by the courts of
the state where the controversy arose, and whose final decree was
removed into this Court for reexamination. None will attempt to
deny that proposition who ever read the opinions delivered in the
subordinate courts.
Ogden v. Gibbons, 4 Johns. (N.Y.) Ch.
150;
S.C. 17 Johns. 488; 1 Kent Com. (12th ed.) 435.
Explanations respecting that historical controversy of a more
satisfactory character are given by Chancellor Kent than by any
other legal writer who has undertaken to state the constitutional
questions which it involved, and which were finally determined by
the unanimous judgment of this Court. His statement of the case is
as follows:
That the respondent set up, by way of right and title to
navigate the waters of the state in opposition to the grant of the
complainant, that his
Page 95 U. S. 511
steamboats were duly enrolled and licensed under the enrollment
act, to be employed in carrying on the coasting trade; that the
question in the case was whether such a coasting license conferred
the power to interfere with the grant of the state under which the
complainant claimed the exclusive right to navigate the waters of
the state which made the grant.
Eminent counsel represented both sides of the question, and we
are informed by the learned commentator that the courts of the
state in the two cases referred to decided against the defense set
up in the answer of the respondent and held that the coasting
license merely gave to the steamboats of the respondent the
character of American vessels; that the license was not intended to
decide a question of property or to confer a right of property or a
right of navigation or commerce; that the courts of that state
during that period never regarded the act regulating the coasting
trade as intended to assert any supremacy over state regulations in
respect to internal waters or commerce, for the reason that those
courts did not consider that act as the exercise of the power
vested in Congress to regulate commerce among the states.
Competent evidence to show that the courts of that state in
those two cases took the exact same ground as that involved in the
theory in question is very abundant and conclusive, without looking
elsewhere than to the lecture of the chancellor under
consideration. Decisive support to that conclusion is also found in
what follows in the same connection in the same lecture, in which
he says that the courts of the state did not, either in the case of
Ogden v. Gibbons or in any of the cases which preceded it,
deny to Congress the power to regulate commerce among the states by
express and direct provision, so as to control and restrict the
exercise of the state grant; that they only insisted that without
some such explicit provision the state jurisdiction over the
subject was in full force, which is exactly what is claimed by
those who seek to undermine the doctrines of the great leading
case.
Beyond all question, the views of the chancellor as to what was
decided by the courts of the state in that great controversy are
correct, and it will be equally instructing to ascertain what his
views are as to what followed in this Court. Speaking
Page 95 U. S. 512
upon that subject, he says the cause was afterwards carried up
by appeal to the Supreme Court of the United States, where the
decree was reversed on the ground that the grant to the complainant
was repugnant to the rights and privileges conferred upon the
steamboats of the respondent navigating under a coasting license;
that in the construction of the power to regulate commerce, the
Supreme Court held that the term meant not only traffic, but
intercourse, and that it included navigation, and that the power to
regulate commerce was a power to regulate navigation; that commerce
among the several states meant commerce intermingled with the
states, and which might pass the external boundary line of each
state, and be introduced into the interior; that the power
conferred comprehended navigation within the limits of every state,
and that it may pass the jurisdictional line of a state and be
exercised within its territory, so far as the navigation is
connected with foreign commerce or with commerce among the several
states; and that the power, like all the other powers of Congress,
is plenary and absolute within its acknowledged limits.
Three limitations or restrictions, as the chancellor states,
were admitted by the Supreme Court in that case to exist to the
limits of that power as conferred:
1. That the power does not extend to that commerce which is
completely internal, and is carried on between different parts of
the same state, not extending to or affecting other states.
2. That the power is restricted to that commerce which concerns
more states than one, the completely internal commerce of a state
being reserved for the state itself.
3. That the power conferred does not prohibit the states from
passing inspection laws or quarantine or health laws and laws for
regulating highways and ferries, nor does it include the power to
regulate the purely internal commerce of a state, or to act
directly on its system of police. 1 Kent Com. (12th ed.) 437.
Many efforts have been made to analyze and expound the opinion
delivered by the great magistrate in that case, but none, it is
believed, were ever attended with such complete success as that of
the commentator to which reference is made. He was the chancellor
of the state court, and gave the original opinion, and when he
found that his decree was reversed by
Page 95 U. S. 513
the supreme court, he was influenced by the highest motive to
ascertain the true grounds assumed in the judgment of the appellate
court.
Judge Story says in his Commentaries on the Constitution that it
has been settled upon the most solemn deliberation that the power
to regulate commerce is exclusive in the government of the United
States, and he adds in another section of the Commentaries that the
reasoning by which the power given to Congress to regulate commerce
is maintained to be exclusive has not of late been seriously
controverted, and that it seems to have the cheerful acquiescence
of the learned tribunals of a particular state, one of whose acts
brought it first under judicial examination. 2 Story, Const. (3d
ed.), secs. 1067, 1071;
Steamboat Company v. Livingston, 3
Cow. (N.Y.) 13;
People v. Brooks, 4 Denio (N.Y.) 469;
Pomeroy, Const. (3d ed.), sec. 371; Sergeant, Const. (2d ed.) 308;
Rawle, Const. (2d ed.) 82;
Railroad Company v. Husen,
supra, p.
95 U. S. 465.
Repeated decisions of this Court, including the one at the
present term, have established that rule as the settled law of the
Court; nor is there any case in the reported decisions of the
Court, when properly understood, which gives any countenance or
support to the theory under examination, unless it be the case of
Gilman v.
Philadelphia, 3 Wall. 713, which it is not
admitted, when taken as a whole, falls within that category.
Certain admissions are contained in the opinion in that case
which are certainly in conflict with the theory which it is the
purpose of these observations to refute. MR. JUSTICE SWAYNE very
properly admits that the enrollment act authorizes vessels enrolled
and licensed according to its provisions to engage in the coasting
trade; that commerce includes navigation; and that the power to
regulate commerce comprehends the control, for that purpose and to
the extent necessary, of the navigable waters of the United States
which are accessible from a state other than those in which they
lie. For that purpose, says the same learned judge, they are the
public property of the nation, and subject to all the requisite
legislation by Congress.
Gibbons v. Ogden, supra; Corfield v.
Coryell, 4 Wash. 371.
These are the authorities cited to support the proposition, and
the learned Justice adds that this necessarily includes the
Page 95 U. S. 514
power to keep such waters open and free from any obstruction to
their navigation interposed by the states or otherwise, to remove
such obstructions when they exist, and to provide by such sanctions
as they, the Congress, may deem proper against the occurrence of
the evil and for the punishment of offenders. For these purposes,
Congress, says the judge, possesses all the powers which existed in
the states before the adoption of the national Constitution, and
which have always been vested in the Parliament of England, and he
further added, that commerce among the states does not stop at a
state line; that, coming from abroad, it penetrates wherever it can
find navigable waters reaching from without into the interior, and
may follow them up as far as navigation is practicable. Wherever
commerce among the states goes, the power of the nation goes with
it to protect and enforce its rights. Nothing more surely can be
needed to show that the theory under discussion is erroneous and
fallacious.
2. Whatever support exists to the second theory mentioned is
found in a single case, which has sometimes been strangely
misunderstood at the bar.
Willson v. Blackbird Creek
Marsh Co., 2 Pet. 245. Proper attention to the
facts of the case will show that the creek in question was one of
those many creeks passing through a deep level marsh adjoining the
River Delaware, up which the tide flows for some distance; that the
property on the bank of the creek was of little or no value unless
it was reclaimed by excluding the water from the marsh; and that
the health of the residents of the neighborhood required that such
improvement should be made. Measures calculated to effect those
objects had been adopted, and the Court held that the state
legislature might lawfully authorize the necessary erections to
accomplish those important objects.
Judgment was rendered by the same court which gave the judgment
in the case of
Gibbons v. Ogden, and no one has ever been
able to assign any reason to conclude that the constitutional views
of the court had at that time undergone any change. Instead of
overruling that great case, it will be seen that the Chief Justice
who gave the opinion did not even allude to it, though, as a sound
exposition of the federal Constitution, it is not second in point
of importance to any one
Page 95 U. S. 515
that great magistrate ever delivered. Evidently he had no
occasion to refer to it or to any of its doctrines, as he properly
described the creek over which the dam was erected as a low,
sluggish water, of little or no importance, and treated the
erection of the dam as one adapted to reclaim the adjacent marshes,
and as essential to the preservation of the public health, and
sustained the constitutionality of the law authorizing the
erection, upon the ground that it was within the reserved police
powers of the state.
Congressional regulations, as embodied in the enrollment act and
other acts of Congress, apply to all public navigable waters of the
United States; but every navigator employed in the coasting trade
knows that there are many small creeks, channels, and indentations
along our Atlantic coast, especially in the marshes, which are
never classed in the category of public navigable waters, though
they are capable of being navigated by small vessels when the tide
is full. Hundreds of such creeks, said Mr. Justice McLean, are
similarly situated. In such cases, involving doubt whether the
jurisdiction may not be exclusively exercised by the state, it is
politic and proper in the judicial tribunals of the nation to
follow the action of Congress.
Over the navigable waters of a state Congress can exercise no
commercial power except as regards the intercourse with other
states or foreign countries, and he adds that doubtless there are
many creeks made navigable by the flowing of the tide or by the
backwater from large rivers which the general phraseology of an act
to regulate commerce may not embrace; that in all such cases and
many others that may be found to exist, this Court could not safely
exercise a jurisdiction not expressly sanctioned by Congress.
When the language of the Court in that case is applied to the
facts of the case, said Justice McLean, no such principle as that
assumed in argument is sanctioned; that the construction of the dam
was not complained of as a regulation of commerce, but as an
obstruction to commerce; that the Court held that inasmuch as
Congress had not assumed to control state legislation over those
small navigable creeks into which the tide flows, the judicial
power could not do so; that the act of
Page 95 U. S. 516
the state was an internal and a police power to guard the health
of its citizens, and that nothing more was found in the case than a
forbearance to exercise power over a doubtful object, which should
ever characterize the judicial branch of the government.
Passenger
Cases, 7 How. 283.
Mr. Hamilton, in the thirty-first number of the Federalist, says
that there is an exclusive delegation or alienation of state
sovereignty in three cases: first where the exclusive power is in
terms given to Congress; second where an authority is granted to
the Union, and the states are prohibited from exercising a like
authority; third where an authority is granted to the Union, to
which a similar authority in the states would be absolutely and
wholly contradictory and repugnant.
Even suppose that the power to regulate commerce falls within
the third designation, still it is believed that sufficient has
already been remarked to show that the nature of the power is such
that it shows that the power should be exclusively exercised by
Congress.
Cooley v. Board of
Wardens, 12 How. 299;
State v.
Wheeling Bridge Company, 13 How. 518;
s.c., 59 U. S. 18 How.
421.
Both of the decisions in the
Wheeling Bridge case are
subsequent in point of time to the case of
Willson v. Blackbird
Creek Marsh Co., and so are the Commentaries of Judge Story
upon the Constitution, and yet not an intimation is found in either
that the doctrines of the great case referred to were ever modified
or questioned. That such an intimation is not to be found anywhere
is clearly demonstrated by a recent commentator, who has carefully
reviewed every opinion given by this Court upon that subject.
Pomeroy, Const. (3d ed.), pp. 207 248.
Waters lying wholly within a single state may be such as to be
regarded as public navigable waters of the United States, because
they are properly denominated as arms of the sea. Examples of the
kind are numerous, of which it will be sufficient to mention the
Hudson, from Albany to the sound; the Penobscot, from Bangor to the
bay; the Kennebec, from the capital of the state to its mouth; and
the Saco, from below the falls to the ocean; and many others,
equally well known even to the pupils in the common schools. All
such public
Page 95 U. S. 517
navigable waters, being arms of the sea, are within the acts of
Congress passed to regulate commerce.
The
Propeller Commerce, 1 Black 574;
The
Belfast, 7 Wall. 624;
Gilman
v. Philadelphia, 3 How. 713.