Page:Immigration and the Commissioners of Emigration of the state of New York.djvu/196

168 Baldwin, of the supposed majority, and Story, J., of the minority, in New York vs. Milne (1837), died before Smith vs. Turner, McLean and Wayne of the majority, and Taney, of the minority, survived. Judge Catron, of the majority in Smith vs. Turner, incidentally declares the power exclusive (7 Howard, 448), but does not dwell on the point. Taney, C.J., of the minority in Smith vs. Turner, evades the direct question of exclusiveness, but says that the passage objected to in Thompson, J.'s opinion in New York vs. Milne, was that in which he said that a State might regulate commerce, while the power so to do in Congress, respecting a particular matter, was dormant, and that the reason of the objection was that the majority desired to leave that question open.

Nelson, J., in Smith vs. Turner, concurs in all points with Taney. Woodbury, J., of the minority in Smith vs. Turner, holds that the power is not exclusive (7 How., 554), because there is no express prohibition on the States, and because the power is not in its nature necessarily exclusive (Federalist, 82; 14 Peters, 575), and cites many other authorities (p. 555). Where the doctrine is apparently contravened, he says it is in the application, not in principle. The regulation of commerce has been expressly held not exclusively vested in Congress, so as to prevent the States from regulating bridges and ferries (cites authorities, p. 556), fisheries (ib.), pilots (p. 557). He says it has been nowhere decided that the power to regulate commerce is exclusive (p. 559), that the contrary has been held in the License Case (5 Howard, 504). He contends that much of the regulation of trade is necessarily local, and the nature of the power does not require it to be exclusive.

That the regulation of commerce is not exclusively vested in Congress is also laid down in Cooley on Constitutional Limitations, p. 486, citing Cooley vs. Board of Wardens (12 Howard, 299; Sin Ling vs. Washburn, 20 Cal, 534; Crandall vs. Nevada, 6 Wall; State vs. Delaware, etc., 1 Vroom, 413).

The latter case decides that a State may tax the business of a railroad, incorporated by a sister State, transporting across the taxing State, graduating the tax by the number of passengers and weight of goods carried. The contrary appears, however, to