Page:Harvard Law Review Volume 4.djvu/239

223 POLICE POWER AND INTER-STATE COMMERCE. 223 of congressional legislation, the State has power to act unless Congress has been given exclusive power over the subject. The commercial powers of Congress are not in terms exclusive ; but it is now settled that they are exclusive where the subject- matter is national in character, and admits of and requires a uni- form rule. Accordingly, it is held, for example, that a State cannot regulate the rates of transportation on goods destined to another State,^ impose a tax on goods which are being transported into or through the State,^ or prescribe the accommodations to be furnished passengers coming into or going out of the State.^ Two tests, then, are to be applied to determine the validity of State legislation : (i) Does Congress have exclusive power over the subject-matter.!* (2) Does the law conflict with any act of Con- gress } In Leisy v. Hardin and Bowman v. Chicago & N. W. Railway Co. it was not claimed that there was any conflicting act of Con- gress. It was the first test named above which the majority of the court thought the legislation before them failed to meet. In Leisy v. Hardin the court do say, " Whatever our individual views may be as to the deleterious or dangerous qualities of particular articles, we cannot hold that any articles which Congress recog- nizes as subjects of inter-state commerce are not such."* This statement, however, was not made to show a conflict between the State law and any congressional legislation. At the time of this decision the only legislation by Congress upon the subject of in- toxicating liquors was to be found in the internal revenue laws. These laws were not passed to regulate commerce, but merely to tax certain articles when and where they were manufactured and dealt in, which is very far from a declaration that they should be dealt in and be subjects of commerce between the States. Atten- tion was called to these acts of Congress in order to emphasize the undoubted fact that intoxicating liquors are articles of com- merce. The decision proceeds upon the ground, and the whole opinion is devoted to showing, that the police power of the State does not extend to inter-state commerce, at least to the extent of prohibition. 1 Wabash, etc., Railway Co. v. Illinois, 118 U. S. 557. ' State Freight Tax, 15 Wall. 232. 3 Hall V. De Cuir, 95 U. S. 485.
 * 135 U. S. 100, 125.