Page:Harvard Law Review Volume 10.djvu/405

379 RECENT CASES. 379 received with favor. The operation of the law rather than the object of the legislature is the important consideration. The other test, which has been acted upon by the courts, and which may be regarded as well established, is this. Is the subject matter of the law of such a nature as to admit only of one uniform system throughout the country? If so, the power of Congress to enact laws is absolutely exclusive. But if the subject is one which does not require national uniformity, one upon which different regulations would be suitable, varying according to the diverse interests and conditions of particular places, the State may legis- late. Cooky V. Board of Wardens^ 12 How. 299, 319. As an applica- tion of this principle, State legislation on the subject of quarantine, inspection regulations, and the construction of bridges over navigable streams, is held constitutional, though such legislation directly affects interstate commerce. Now, accepting this last test as the correct one, who is to decide whether the subject covered by a State statute needs national or local treatment? The determination of this question should rest with tlie Federal Legislature. For the answer turns on many considerations of practical expediency, which are pre-eminently matters for legislative in- vestigation. Since Congress by the express terms of the Constitution is given the power to regulate commerce among the States, it seems that Congress, and not the courts, should have the supervisory action over such State legislation as has to do with interstate commerce. It may then be doubted whether the judiciary should interpose in any given case to pro- nounce a State regulation of commerce unconstitutional, unless it appears beyond a doubt that the subject of legislation is one requiring national uniformity, leaving to Congress its undoubted right to annul the effect of the law by its own subsequent enactments. 2 Thayer's Cases on Con- stitutional Law, 2190, 2 19 1. It is true that the court has not always taken this position, as is shown by the great case of Leisj v. Hardin^ supra. But the more re- cent decisions of Plumley v. Commonwealth of Massachusetts., supra, and Hennington v. State of Georgia, seem to indicate that perhaps that case is in danger. The personnel of the United States Supreme Court has changed much in the six years since Leisy v. Hardiji was decided. Four of the six judges then in the majority are no longer on the bench. Is it not possible that the court is gradually getting away from that de- cision, — that the judges who were then in the minority, and who would seem to have been right on principle, are now gaining the upper hand? RECENT CASES. Carriers — Liability of Owners of Steamboats as Innkeepers. — The plaintiff, a passenger on the defendant's steamboat, had upon his person $i6oin money for the expenses of the journey. On retiring he left this money in his clothing in the stateroom, and during the night it was stolen, without any negligence on his part. Held, that the defendant was liable for the loss, without any proof of negligence on its part. Adams v. New fersey Steamboat Co., 45 N. E. Rep. 369 (N. Y.). ^ The decision is rested on the ground that a steamboat is, in effect, a floating inn, and that therefore the common law rule making innkeepers insurers of the money and