The state regulations in these cases were sustained upon the theory that they are not in themselves regulations of interstate commerce, though they control in some degree the conduct and liability of those engaged in the commerce, and as long as congress had not legislated upon the particular subject, they are to be regarded as legislation in aid of such commerce, and as a rightful exercise of the police power of the state to regulate the relative rights and duties of persons and corporations within its limits.1

This lawful exercise of the police power of the state over persons and things within its jurisdiction is illustrated by the rulings of the supreme court sustaining the power of the state to regulate the sale of patent rights, or articles covered by letters-patent of the United States. The court said that congress never intended that the patent laws should displace the police powers of the state, that is, those powers by which the health, good order, peace and general welfare of the community are promoted, provided such laws do not discriminate against non-residents.2

§ 34 (32). The concurrent jurisdiction in live stock inspection laws.-The concurent jurisdiction of the state and federal governments in interstate commerce is well illustrated in the matter of state laws regulating the exclusion of diseased cattle. The danger of the communication of disease in driving or otherwise transporting cattle from state to state has been recognized both in the legislation of the western states as well as in that of the federal government. The right of the state to protect its people and property against such dangers by reasonable enactments, not going beyond the necessities of the case, has been affirmed in several cases, but this right of protection against diseased cattle did not justify the absolute prohibition against certain cattle within certain seasons.52 The

698 (1910), reversing 85 Ark. 311. See also McNeil v. Southern Ry. Co., 202 U. S. 543, 50 L. Ed. 1142 (1906); Mississippi R. R. Com. v. Ill. Central R. R. Co., 203 U. S. 335, 51 L. Ed. 209 (1906), and affirming 128 Fed. 327.

1 Chicago, M. & St. P. R. Co. v.

3

Solan, 169 U. S. 133 (1898), 42 L.
Ed. 688.

2 Webber v. Virginia, 103 U. S. 344 (1881), 26 L. Ed. 565.

8 Kimmish v. Ball, 129 U. S. 217 (1889), 32 L. Ed. 695.

4 Hannibal & St. Joe Railroad Co. v. Husen, 95 U. S. 465 (1879), 24 L. Ed. 527.

right of inspection of animals or of anything intended for human food brought into the state from another state is conceded, but such inspection must be reasonable, and a state law is invalid which is burdened with such conditions, as would prevent the introduction into the state of sound meats, the product of animals slaughtered in other states. In this case the act required inspection twenty-four hours before slaughtering, and this necessarily included all meats from animals slaughtered in other states.

§ 35 (33). Effect of congressional legislation upon concurrent state power.-In the second class of cases, supra, section 24, where it is not the existence, but the exercise, of the power of congress which is incompatible with the exercise of the same power by the states, and wherein, by inaction, congress in effect adopts the local law, the question necessarily arises whether an act of congress in this field of concurrent legislation has the effect of nullifying the state statutes on the same subject. This question must be determined by the scope and terms of the act of congress, that is, whether or not it covers the whole subject, thus excluding the exercise of the state power.

Thus congress has legislated on the subject of the transportation of live stock,2 and has authorized the investigation and

1 Minnesota v. Barber, 136 U. S. 313, 34 L. Ed. 455 (1890); Brimmer v. Redman, 138 U. S. 78 (1890), 34 L. Ed. 862.

2 Act of May 29, 1884, c. 60, and Act of Aug. 30, 1890, c. 839, chap. 3 Comp. Stats. pp. 3182 to 3193.

A statute of Kansas, making it a misdemeanor to transport into the state cattle from any point south of the south line of the state, except for immediate slaughter, without having first caused them to be inspected and passed as healthy by the proper state officials or by the bureau of animal industry of the interior department of the United States, was

sustained as consistent with the federal legislation on the same subject and with the powers to control the interstate movement of cattle liable to be afflicted with a communicable disease, which had been conferred upon the secretaries of agriculture by the Act of February 2nd, 1903. Asbell V. Kansas, 209 U. S. 251, 52 L. Ed. 778 (1908).

This Act of August 30, 1890, in so far as it provided for the inspection of the slaughtering and packing with a state of cattle intended for exportation, was denied; and the party indicted for bribing an inspector was dis

inspection of cattle intended for interstate commerce, and has made unlawful the transportation of cattle known to be diseased. Though it was argued that this exercise of the federal power of regulation had the effect of nullifying or suspending the state statutes on the subject, the supreme court held,1 that the act of congress did not cover the whole subject of the transportation of live stock from one state to another, and that the statutes of Kansas and Colorado related to matters not covered by such act.

The statute of Kansas imposed a civil liability upon the railroad company bringing diseased cattle into the state, and that of Colorado made it a misdemeanor to bring into the state cattle which had been herded within ninety days prior to their importation with cattle having a contagious disease." The court said that the state, not having assumed charge of the matter as involved in interstate commerce, could protect its people and their property against such dangers. When the entire subject of the transportation of live stock from one state to another is taken under direct national jurisdiction, and a system devised by which diseased stock may be excluded from interstate commerce, all local or state regulations in respect of such matters and covering the same ground would cease to have any force, whether formally abrogated or not, and such rules and regulations as congress may lawfully prescribe or authorize would alone control. The power, said the court, may thus be suspended until national control is abandoned and the subject thereby left under the police power of the state.3

This class of cases, where the exercise of the power of congress nullifies the statutes of the state enacted in the exercise of this concurrent jurisdiction, is illustrated in the effect of the enactments of congress regulating the hours of labor and other conditions of employment of the employes of railroads engaged in interstate commerce. Thus, the act of con

charged on the ground that congress had no power to provide for the inspection of a manufacturing business within the limits of the state. U. S. v. Boyer, 85 Fed. 425 (W. Dist. of Mo.) (1898).

1 Missouri, Kansas & Texas R.

Co. v. Haber, 169 U. S. 613 (1898), 42 L. Ed. 878; Reid v. Colorado, 187 U. S. 137 (1902), 47 L. Ed. 108. 2 Rasmussen v. Idaho, 181 U. S. 198 (1901), 45 L. Ed. 820.

8 R. R. Com. of Ohio v. Worthington, 187 Fed. 965 (1911).

gress of 1907, known as the Nine Hour Law,1 prohibiting the employment of certain employes in interstate commerce for a longer period than nine hours, was adjudged by the supreme courts of both Missouri and Wisconsin to make inoperative the laws of their respective states fixing a maximum of eight hours. In these cases it is held, while the state acts were valid in the absence of congressional legislation and applied to all employes whether engaged in interstate commerce or not, the act of congress was a clear declaration that the employers engaged in interstate commerce should be under federal, and not state regulation. The effect of the enactment was therefore to make inoperative the state laws.

It was said by the supreme court, in sustaining a state statute as to the qualifications of certain railway employes in the absence of congressional legislation, that it was conceded that the power of congress to regulate interstate commerce is plenary; that, as incident to it congress may legislate as to the qualifications, duties, and liabilities of employes and others on railway trains engaged in that commerce; and that such legislation will supersede any state action on the subject.

4

§ 36 (34). State quarantine laws.-The quarantine law established by the state of Louisiana was also sustained, the court saying that those state quarantine laws were a rightful exercise of the police power of the state for the protection of health, and although some of the rules of this system amounted to regulation of commerce with foreign nations, they belonged to the class which the state could establish, until congress acted in the matter by covering the same ground or by forbidding state laws, and congress had in effect adopted the laws of the state and forbidden interference with their enforcement."

1 See infra, § 540.

2 State v. Missouri Pacific R. R. Co., 212 Mo. 658 (1908), and State of Wisconsin v. C., M. & St. P. Ry. Co., 136 Wis. 407. The same ruling was made as to the Employer's Liability Act of 1908 as superseding the Arkansas statute in Fulg-, ham v. Railway Co., 167 Fed. 660, W. D. of Ark. (1909), and as

superseding the Georgia statute in Dewberry v. Southern Railway Co., 175 Fed. 307, N. D. of Ga. (1910).

3 Nashville, etc., R. R. Co. v. Alabama, supra.

4 Morgan's, etc., Co. v. Louisiana, 118 U. S. 455 (1886), 30 L. Ed. 237.

5 In I. C. R. R. v. McKendree,

§ 37 (35). Freedom of interstate commerce.-The right of interstate commerce, that is, the right of conducting traffic and commercial intercourse between the states, is independent of state control, and where freedom of commerce between the states is directly involved, the non-action of congress indicates its will that the commerce should be free and untrammeled, and the states cannot interfere therewith either through their police power or their taxing power.

3

This freedom of interstate commerce from state control was definitely established as to the taxing power of the state in the case of the State Freight Tax,1 in 1873, and later, in 1887, in the case of Robbins v. Shelby County Taxing District. The freedom of interstate commerce with respect to the police power of the state was also declared in the cases relating to the liquor traffic. Finally, in 1886, in the Wabash Railway case, the supreme court held that a statute of a state, intended to regulate or to tax or to impose any other restrictions upon the transmission of persons and property or telegraph messages from one state to another, was not within that class of legislation which the states could enact in the absence of legislation by congress, and that such statutes are void even as to that part of such transmission which may be within the state. The statute of Illinois therefore regulating railroad charges was held to have no application to an interstate shipment even as to that part of the distance which lay within the state of Illinois, and the regulation of interstate commerce from the beginning to the end of the shipment was confided to congress exclusively under the power to regulate commerce among the states.

In 1894 this principle was extended to an interstate bridge, and it was held that the bridge was an instrument of interstate commerce whereon congress alone possessed the power

203 U. S. 514, 51 L. Ed. 298 (1906), the court held that the quarantine regulations promulgated by the secretary of agriculture, under Act of Feb. 2, 1903, were void as in excess of the powers conferred by that act where on their face they

apply as well to intrastate as to interstate commerce.

1 See 15 Wall. 232, 21 L. Ed. 146.

2 See supra, § 20.

See supra, § 10.

4 Wabash R. Co. v. Illinois, 118 U. S. 557 (1886), 30 L. Ed. 244.