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other forms. It was therefore subject to the same extent as intoxicating liquors to the police power of the state, that is, the state could declare how far cigarettes should be sold or prohibit their sale entirely after they had been taken from the original packages or had left the hands of the importer, providing no discrimination was used as against those imported from other states,2 but could not prohibit their importation.
The lawful police power of the state also extends to the reasonable inspection of articles brought in from the other states, this right of inspection being expressly recognized by the consitution in the case of foreign importations. But this inspection must be reasonable, and is invalid if burdened with such conditions as would wholly prevent the introduction of the sound article from other states.*
§ 11 (10). Wild game and fish as subjects of commerce.— Lawful subjects of commerce must be capable of private ownership, and while this is not subject to the determination of a state in relation to recognized subjects of commerce, it is subject to the state control where the matter is not a subject of private ownership except as permitted by state law. Thus the wild game within a state at common law belongs to the sovereign, and in this country to the people in their collective capacity, and the state therefore has a right to say that it shall not become the subject of commerce. Upon this principle the supreme court sustained a Connecticut statute prohibiting the killing of certain game in the state, with the intent of transporting the same out of the state.
A state in the exercise of its police power may also prohibit the possession of game during prescribed seasons, except on giving bond against the sale, whether the game was taken within or without the state and although the game may have
1 Austin v. Tennessee, 179 U. S. 343 (1900), 45 L. Ed. 224.
2 As to size of the original package, see infra, § 17.
8 Art. 1, sec. 10, par. 2; Pat. apsco Guano Co. v. North Carolina Board of Agriculture, 171 U. S. 345 (1898), 43 L. Ed. 191. New Mexico ex rel. v. Denver & R. G. R. R.
Co., 203 U. S. 88, 51 L. Ed. 78 (1906), sustaining the hide inspection law of Territory of New Mexico.
4 See Minnesota v. Barber, 136 U. S. 313 (1890), 34 L. Ed. 455.
4 Geer v. Connecticut, 161 U. S. 519 (1896) 40 L. Ed. 793.
been taken in foreign countries during the open season for taking game in such countries.1
The act of congress prohibiting the shipment or transportation in interstate commerce of game killed in violation of the local laws, and requiring all packages containing game shipped in interstate commerce to be plainly marked, showing the name and address of the shipper and the character of the contents, and making the violation of these provisions a criminal offense, was sustained as within the lawful power of congress over interstate commerce.3
Under the same principle the state determines on what conditions the products of oyster beds and fisheries may become subjects of commerce, as each state, subject to the paramount control of navigation in the federal government, owns the beds of all tide waters and public waters in its jurisdiction.*
In the case cited from Massachusetts the courts held valid an act of that state prohibiting fisheries in the waters of Buzzard's Bay, except under the regulations prescribed by the act, and held that it applied to a vessel which had a license to fish under the laws of the United States. There has been no grant to congress of power over fisheries, and these remain under the exclusive control of the states. The extent of the territorial jurisdiction of the state of Massachusetts over the sea adjacent to its coast was held to be that of an independent nation, and except so far as the right of control over this territory had been granted to the United States, the control remained with the state, subject of course to the admiralty and maritime jurisdiction of the United States. Within what are generally recognized as the territorial limits of states by the law of nations, a
1 New York ex rel. Silz v. Hesterbey, 211 U. S. 31, 53 L. Ed. 75 (1908), affirming 184 N. Y. 126.
2 See Act of May 25, 1900, U. S. Compiled Statutes 1901, p. 3181, known as the Lacey Act.
Rupert v. United States, C. C. A. 8th Circuit, 181 Fed. 87 (1910).
4 McCready v. Virginia, 94 U. S. 391 (1876), 24 L. Ed. 248; Manchester v. Massachusetts, 139 U. S. 240 (1890), 35 L. Ed. 159. Com
merce between the states of New York and New Jersy was not interfered with by a New Jersey statute, whereunder a riparian owner was forbidden to direct the waters of Passaic river beyond the state under a contract to furnish water supply for city of New York. Hudson County Water Co. v. McCarter, 209 U. S. 349, 52 L. Ed. 828 (1909), aff'g 70 N. J. Eq. 695.
state can define its boundaries on the sea and the boundaries of its counties; and by this test Massachusetts can properly include Buzzard's Bay within the limits of its counties.
§ 12 (11). Natural oil and gas as subjects of commerce.-Natural oil and gas are not subject to absolute ownership while in the confines of the earth, and from their tendency to move from one place to another have been called in some of the decisions minerals feræ naturæ. They become however lawful subjects of commerce when brought to the surface and secured in pipes. A statute of Indiana prohibiting the piping of natural gas from the state was held by the supreme court of that state to be an attempted regulation of interstate commerce, and violative of the natural right of dealing with the property, and therefore void. The court said that the natural gas in the earth cannot be a commercial commodity, but when brought to the surface and placed in pipes for transportation, it assumed that character as completely as coal in cars or petroleum in tanks.1
While this position seems to be conceded in all the courts as to the commercial character of oil and gas when brought to the surface and secured in possession, it is also recognized that owing to the peculiar character of these substances the property right of the owner of the land in such mineral oil and gas while
1 State ex rel. v. Indiana & Ohio Gas and Mining Co., 120 Ind. 575. In West v. Kansas Natural Gas Co., 220 U. S. - 55 L. Ed. (1911), the Supreme Court affirmed the United States circuit court of the Eastern District of Oklahoma, 172 Fed. 545, in enjoining the enforcement of an Okla homa statute, which prohibited except for private use construction of pipe lines for the transportation of natural gas and held that the act providing that the gas should not be transported out of the state was void as to interference with Interstate Commerce. Natural gas was not a product which the state could conserve for its own people,
but it was property which by lawful right one could transport and sell as other personal property. In this case the state had granted the use of highways to domestic corporations engaged in intrastate transportation of natural gas, giving such corporations even the right to the longitudinal use of the state highways but denied to the appellees the right to pass under and over the highways. The court said that this discrimination was beyond the power of state to make. This case was therefore distinguished from the Indiana case, infra, and Justices Holmes, Lurton and Hughes dissenting.
confined in the earth is necessarily subject to qualifications. Thus an act of Indiana making it unlawful for the owner of a natural gas or oil well to allow or permit the flow of gas or oil from any such well to escape into the air, without being confined within the well or proper pipes, for a longer period than two days after the gas or oil shall have been struck in such well, was not a violation of the constitution of the United States nor taking of private property without compensation, nor a denial of due process of law, but was a lawful regulation by a state within its discretion of a subject which especially comes within its lawful authority.1
The supreme court said in this case that there is a distinction between animals feræ naturæ and gas and oil, in that in the case of the former there was no individual proprietorship until the actual reduction of the property to possession, the property right until then being in the public. In the case of natural gas and oil no such right exists in the public; and in the case of the former every one may be prohibited from seeking to reduce to possession. In the case of natural gas and oil however the surface proprietors within the gas field have the right to reduce to possession the gas and oil beneath, and they cannot be absolutely deprived of this right without the taking of private property. The legislative power however, from the peculiar nature of the right and the objects upon which it is to be exerted, can be manifested for the purpose of protecting all the. collective owners in the gas field and preventing waste.
It was urged in this case that it was necessary to waste the gas in order to force up the oil; but the court said this was a matter which addressed itself to the wisdom of the legislature and did not affect the power to make the regulation.
The right of a state to conserve its resources for its own people, as illustrated in the case of flowing rivers and game, does
1 Ohio Oil Co. v. Indiana, 177 U. S. 190, 44 L. Ed. 729. See also Brown v. Spillman, 155 U. S. 665, 39 L. Ed. 304; Westmoreland & Cambria Natural Gas Co. v. Der witt, 130 Pa. St. 235; Townsend v. State, 147 Ind. 624; Indiana Consumers & T. R. Co. v. Horlass, 131
Ind. 446; Hague v. Wheeler, 157
not extend, whatever the local needs of a state, to natural oil and gas, when reduced to private possession through ownership of the soil and thus become the subjects of private ownership. In such case the state can adopt such reasonable methods of regulation of the production of oil and gas as are required by the peculiar nature of the property, but it cannot deprive the owner of his right to withdraw and sell the oil or gas when reduced to possession in interstate commerce, and a state statute seeking to attain these unauthorized ends is void.1
§13 (12). The commerce clause and the admiralty jurisdiction. The federal power over interstate and foreign commerce is reinforced as to the commerce on water, as distinguished from land transportation, by section 2, article III, of the constitution, extending the judicial power of the courts of the United States to all cases of admiralty and maritime jurisdiction. It is not within the scope of this work to consider the federal legislation enacted in the regulation of this admiralty and maritime jurisdiction, further than to show the progressive development of this jurisdiction, which has more than kept pace with the judicial development of the commerce clause.
It was first ruled, following the English precedents, that the admiralty courts could not rightfully exercise jurisdiction except in cases where the service was substantially performed or to be performed upon the sea, or upon waters within the ebb and flow of the tides. The effect of this decision was to exclude from the admiralty and maritime jurisdiction the commerce upon the great lakes and navigable rivers of the United States. It was not until 1851 that the earlier decision was overruled, and it was definitely decided that the admiralty and maritime jurisdiction granted to the federal government by the constitution of the United States was not limited to tide waters, but extended to all public navigable lakes and rivers where commerce was carried on between different states or with foreign
1 West V. Kansas National Gas Co., supra. In this case the supreme court cited and quoted approvingly the opinion of the circuit court of appeals of the 8th circuit in Haskell v. Cowhan, 187 Fed. 402, decided shortly before
(April, 1911), wherein an interlocutory injunction against the enforcement of same Oklahoma statute was affirmed.
2 The Thomas Jefferson, 10 Wheat. 428 (1825), 6 L. Ed. 358.