Craig v. Kline

• Decision Date: 07 July 1870
• Citation: 65 Pa. 399
• Parties: Craig & Blanchard <I>versus</I> Kline <I>et al.</I> Kline <I>et al. versus</I> Craig & Blanchard.
• Court: Pennsylvania Supreme Court

65 Pa. 399

Craig & Blanchard versus Kline et al.

Kline et al. versus Craig & Blanchard.

Supreme Court of Pennsylvania.

March 10, 1870.

July 7, 1870.

March 10th 1870.

Before THOMPSON, C. J., READ, AGNEW and SHARSWOOD, JJ.

Writs of error to the Court of Common Pleas of Perry county: No. 59, 61 and 62, of May Term 1870.

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A. C. Simpson and S. Linn (with whom were C. J. T. McIntire, Black and Meredith), for plaintiffs in error.

S. G. Thompson and B. F. Junkin, for defendants in error.

The opinion of the court was delivered, July 7th 1870, by AGNEW, J.

It is a difficult problem now to define the boundaries of state and Federal powers. The doctrine of the rights of states pushed to excess culminated in civil war. The rebound caused by the success of the Federal arms threatens a consolidation equally serious. In this condition the landmarks of the Constitution, as planted by Chief Justice Marshall and his associates on the solid ground of reason, and a due regard to the rights of the states and of the Union, constitute the only safe guides of decision. The power of Pennsylvania to legislate upon the navigation of the river Susquehanna, which is the question in this case, involves a Federal power exceedingly intimate in its relations to the subjects of state sovereignty. The power to "regulate commerce with foreign nations and among the several states, and with the Indian tribes," "cannot stop (says Marshall, C. J.) at the external boundary line of each state, but may be introduced into the interior." It comprehends "navigation within the limits of every state of the Union, so far as that navigation may be in any manner connected with commerce," either foreign or interstate, and "may therefore pass the jurisdictional lines of the states, and act upon the very waters" to which state legislation applies: Gibbons v. Ogden, 9 Wheat. 1. But while thus asserting the great extent of the Federal power, the opinion concedes to the state an "immense mass of legislation which embraces everything within the territory of a state not surrendered to the General Government, all which can be most advantageously exercised by the states themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws regulating the internal commerce of a state, and those which respect turnpike roads, ferries, &c., are component parts of this mass." These and others not enumerated constitute police powers — such as are exercised in the passage of laws to promote the peace, safety, good order, health and interests of the state, and are protected by the 9th and 10th articles of the amendments to the Constitution of the United States. The powers reserved to the states (says the 45th number of The Federalist) will extend to all the objects which in the ordinary course of affairs concern the lives, liberties and property of the people, and the internal order, improvement and prosperity of the state. Or, as said by McLean, J., "all powers which properly appertain to sovereignty, which have not been delegated to the Federal Government, belong to the states and the people:" New Orleans v. United States, 10 Peters 737; and see Willson v. Blackbird Creek Marsh Co., 2 Peters 245; License Cases, 5 How. 582-3, 592.

But though this large field of state power is conceded, a difficulty arises sometimes in relation to its subjects when they become the objects of the exercise of the Federal power also. Thus says Mr. Story, in his work on the Constitution: "A state may use the same means to effectuate an acknowledged power in itself which Congress may apply for another purpose. Congress may make that a regulation of commerce which a state may employ as a guard for its internal policy, or to preserve the public health or peace, or to promote its peculiar interests." An illustration will be found in the case of Willson v. Blackbird Creek Marsh Co., 2 Pet. 245, in which the authority of a law of Delaware was questioned. The plea stated the creek to be a navigable highway, in which tide ebbed and flowed, and the argument insisted that the law of the state conflicted with the power to regulate commerce. But its validity was sustained on the ground that the erection of the dam was necessary for the benefit of the citizens of Delaware, and not opposed to any law of Congress, none having been passed to regulate such streams; and in the expressive language of Chief Justice Marshall, it was not repugnant to the power to regulate commerce in its dormant state. This distinction, in regard to the exercise of the power by Congress, is important as coming from the distinguished author of the opinion in Gibbons v. Ogden, sometimes quoted to carry the power of Congress further than it was intended by him to advance it — to the extent indeed of holding that a state cannot exercise its power over a subject within the power to regulate commerce, whether Congress has legislated on the same subject or not. This opinion is not sustained by the case cited from 2 Peters, or later authorities, and is strongly combated by Chief Justice Taney in the License Cases, 5 How. 578 et seq., who refers to that case and others to show that it was not the opinion of Chief Justice Marshall that the mere grant of a power to the General Government is to be construed as an absolute prohibition to the exercise of any state power over the subject of it. The question may be considered as now settled in conformity to the opinion of Chief Justice Taney, by the case of Cooley v. The Board of Wardens of Philadelphia, 12 How. 318, which holds the grant of the power to regulate commerce is not exclusive, but that the question in each case depends on the character of the subject, some requiring it to be treated as exclusive and others not so: Opinion of Curtis, J.

But without standing on what some may regard as debateable ground, it seems to be clear that when a state exercises her own sovereign power in a matter involving the interests of her citizens, though it may touch upon a subject within the field of the power to regulate commerce, it is not for that reason invalid if it conflicts with no law Congress has passed upon the same subject. Thus pilot laws, though regarded as directly affecting a subject of commerce, have been held to be valid: Cooley v. Board of Wardens, 12 How. 299; Pacific Steamship Co. v. Joliffe, 2 Wall. U. S. 450. So a law of Maryland forfeiting vessels engaged in catching oysters in an unlawful manner in the Chesapeake Bay is not invalid, though the vessel was duly enrolled and licensed under the Acts of Congress, and employed in the coasting trade. A law of New York, requiring the masters of vessels coming into port from abroad to make report within twenty-four hours of the names, places of birth, of last legal settlement, age and occupation of the passengers, was decided to be good as an exercise of the police power: City of New York v. Miln, 11 Pet. 102. In the License Cases, 5 How. 504, the laws of Massachusetts, Rhode Island and New Hampshire were held not to be repugnant to the Constitution of the United States. A tax in Louisiana on brokers of foreign bills was held not to be repugnant: Nathan v. Louisiana, 8 How. 73. See also Weaver v. Fegely, 5 Casey 27 — weights and measures; White v. Commonwealth, 4 Binn. 418; Fox v. Ohio, 5 How. 410 — counterfeiting United States coin. Analogies also will be found in reference to the power over the militia: Houston v. Moore, 5 Wheat. 1. The power to establish uniform bankrupt laws: Sturgis v. Crowningshield, 4 Wheat. 196. To enact naturalization laws: Chirac v. Chirac, 2 Id. 269.

We come now to the particular question involved in this case, to wit: the power of our legislature to prohibit the floating of loose saw-logs in the Susquehanna river, between the town of Northumberland and the Maryland state line, "without the same being rafted and joined together or enclosed in boats, and under the control, supervision and pilotage of men especially placed in charge of the same, and actually thereon." Act December 11th 1866, § 2, Pamph. L. 1867, App. 1366. This act evidently concerns not only the police power, but the right of eminent domain of the state. It was said by Taney, C. J., in Martin v. Waddell, 16 Peters 410, that — "when the Revolution took place the people of each state became themselves sovereign, and in that character hold the absolute right to all their navigable waters and the soils under them for their common use, subject only to the rights since surrendered by the Constitution to the General Government." This language was repeated by McKinley, J., in Pollard v. Hagan, 3 Howard 229. The Constitution of the United States confers no power of eminent domain or of legislation over state territory, except that contained in the 16th clause, 8th sect., 1st art., relating to the seat of government and places purchased with the consent of the state for forts, magazines, &c. Hence it was said by the court in the case last cited, that, even if Georgia had in her compact of cession to the United States of the territory of Alabama granted the municipal right of sovereignty and eminent domain, "such stipulation would have been void and inoperative, because the United States have no constitutional capacity to exercise municipal jurisdiction, sovereignty, or eminent domain within the limits of a state or elsewhere, except in the cases in which it is expressly granted." Hence it was held in that case that the shores of navigable waters and the soils under them were not granted by the Constitution of the United States, but were reserved to the states respectively, and that Alabama, though a new state, had after admission the same rights, sovereignty, and jurisdiction over the subject as the original states. This was reaffirmed in Gilman v. Philadelphia, 3...