892 HASTINGS—POLICE POWER OF THE STATE. [June 19, 
subject to the will of Congress..... State powers are at all times 
and under all circumstances exercised independently of the general 
government and are never declared void or inoperative except when 
they transcend state jurisdiction, and, on the same principle, the federal 
authority is void when exercised beyond its constitutional limits.”’ 
Of course, by dwelling upon this he only adds force to Taney’s 
remark in the License cases that it is inconsistent to make the 
fields of state and federal legislation mutually exclusive and still 
make the validity of state legislation depend in any degree upon 
its conformity to that of Congress; and this inconsistency must be 
attributed to 'Chief Justice Marshall if it is claimed that he held 
the power of Congress to be exclusive. He had in Gibbons gs. 
Ogden and Wilson vs. Blackbird Creek Marsh Co. held the state 
legislation considered in those two cases bad and good respectively, 
according as it agreed or not with that of Congress. If the posi- 
tion of Story, and after him McLean, is sound, it is not a 
question of consistency with Congressional enactments or other- 
wise, but is simply one of power or absence of it on the part of 
the state. 
The argument of Justice McLean, otherwise, goes over the 
familiar ground and cases, but he spends more effort in trying to 
show the essential repugnancy of two concurrent powers over the 
same subject in the same state, and hence he thinks that commerce 
and police powers must be held to be two different and distinct 
things. He says: 
‘“No one has yet drawn the line clearly because, perhaps, no one can 
draw it between the commercial power of the Union and the municipal 
power of a state. Numerous cases have arisen involving these powers 
which have been decided, but a rule has necessarily been observed as 
applicable to each case and so must every case be adjudged.” 
He finds that the laws in question impose a tax on commerce 
which Congress by non-action had decided should be free. Out of a 
*remark in the opinion in City of New York vs. Miln, that persons 
were not subjects of commerce and so putting restrictions on bring- 
ing them in was not taxing imports, it had been sought to develop 
a doctrine that the transportation of passengers was not commerce, 
and so Congress had no authority over it. Over this question the 
judicial debate went on at a length there is no occasion now to 
1 See page 364. PL Pel he Os 
