Page:Immigration and the Commissioners of Emigration of the state of New York.djvu/198

170 That commerce means commercial intercourse is also held in People vs. Brooks, 4 Denis, 469.

The word "commerce," says Wayne, J., was used with reference to the fact that taxes are not usually imposed on persons until they have resided some time in the State (Martens, 69; 7 How., 417). The decision in Milne is not to the contrary (428). So much of the opinion of J. Barbour as seems to be, is not assented to by the majority, especially that part which declares that persons are not the subjects of commerce. Judge Baldwin's decision sustains this assertion. In New York vs. Milne, Wayne, McLean, Thompson, and Baldwin all objected to the doctrine that persons are not the subjects of commerce. In Groves vs. Slaughter, Baldwin says commerce means intercourse.

The minority in Smith vs. Turner (Daniels, Taney, Woodbury, Nelson) contest this with bitterness (p. 493, p. 541).

Are laws imposing taxes on foreign passengers, to be applied to the support of foreign paupers, regulations of commerce? The majority in Smith vs. Turner affirm the proposition. Daniels, J., of the minority, says Gibbons vs. Ogden proves that regulations of commerce do not embrace any taxes. The opinion given as the opinion of the Court by Barbour, J., in New York vs. Milne, agrees in this respect with the minority in Smith vs. Turner. Taney, C.J., refers to this subject (p. 470). He thinks this imposes no burden on commerce, but only exacts security against pauperism. Woodbury (p. 578) says the measure is not intended to regulate trade, and does not, for emigrants are not deterred. Free passengers are not included in commerce as regulated, though slaves might be (p. 541). This regulation was made diverso intuitu (546).

Does the fact that a State law, made for a legitimate State purpose, exercises a collateral influence on commerce, make it unconstitutional?

It does, says the majority in Smith vs. Turner. Grier, J., says a State cannot do indirectly what it cannot do directly. The police power of the State, says McLean, cannot draw within its jurisdiction objects which lie beyond it. The object, says Catron, J., does not sanctify the means. In New York vs. Milne, Story, J., dissenting, said, though the States can make police regulations,