472 HASTINGS—POLICE POWER OF THE STATE. [June 19, 
particulars, and that any one so refused, expelled or discriminated 
against might recover exemplary damages of the offending party. 
Benson, the owner of a steamboat plying between New Orleans 
and Vicksburg, took on board at the former city Mrs. DeCuir to 
convey her to Hermitage, Louisiana, and because he refused her 
the privilege of the cabin reserved for white ladies she sued and re- 
covered a thousand dollars. Benson insisted that he was engaged 
in interstate commerce and that the act of the Louisiana legislature 
could not affect him. After his death his administrator appealed 
the case to the Supreme Court of Louisiana, and when the judg- 
ment was there affirmed took it to Washington. 
Chief Justice Waite gave the opinion : 
‘There can be no doubt but that the exclusive power has been conferred 
upon Congress in respect to the regulation of commerce among the 
several states. The difficulty has never been as to the existence of the 
power, but as to what is to be deemed an encroachment upon it, for, as 
has been often said, legislation may, in a great variety of ways, affect 
commerce without being a regulation of it within the meaning of the con- 
stitution. It would be useless to undertake to fix an arbitrary rule by 
which a line must in all cases be located. It is far better to leave a 
matter of such delicacy to be settled in each case upon a view of the par- 
ticular rights involved.” 
This seems very like saying that the power of Congress is exclu- 
sive, but nobody has ever been able to find out just what it ex- 
cludes. The chief justice adds : 
“‘ But we think it may be safely said that state legislation which seeks to 
impose a direct burden upon interstate commerce, or to interfere directly 
with its freedom, does encroach upon the exclusive power of Congress. 
The statute now under consideration in our opinion occupies that posi- 
tion. It does not act upon business through the local instruments to be 
employed after coming within the state, but directly upon the business as 
it comes into or goes out from within.” 
Attention is called to the fact that the Mississippi river borders 
upon ten states and is a highway for them all, and the conclusion 
is reached that its commerce must be kept free of such local legisla- 
tion. Judge Clifford, in a concurrent opinion holding that the 
power of Congress is exclusive and the states have no authority un- 
less the nature of the subject or the terms of congressional legislation 
leave something to them, once more contributes to the endless 
discussion of the relations between the cases of Gibbons vs. Ogden 
