1900.] HASYVINGS—POLICE POWER OF THE STATE. SW: 
ately abandons this position. The constitution, he says, by grant- 
ing control of interstate commerce, made it free except as Con- 
gress shall impose restraint upon it, and the failure of Congress to 
regulate is an expression of will that commerce shall be free and 
authorizes no restraint by the states: 
“If a law, passed by a state in the exercise of its acknowledged powers, 
comes into conflict with that will, Congress and the state cannot occupy 
the position of equal opposing sovereignties, because the constitution 
declares its supremacy.” 
He asserts a distinction in kind between ‘‘ commercial power ”’ 
and ‘* police power,’’ which, though 
“‘ quite distinguishable when they do not approach each other, may yet, 
like the intervening colors between black and white, approach so nearly 
as to perplex the understanding as colors perplex the vision in marking 
the distinction between them.” 
He quotes at length from Judge Catron in the License cases, 
but apparently without perceiving that Judge Catron, while hold- 
ing to a concurrent authority of the states with Congress, thought 
that such authority could not be a portion of the police power, 
because, as he saw, the police power could not be at once sover- 
eign and concurrent ; and if he was going to make it a sovereign 
and ‘‘ exclusive’’ power, as Chief Justice Fuller here defines it, he 
must keep it entirely out of that region where laws of Congress are 
supreme. 
It would seem that Chief Justice Fuller and Justices McLean, 
Catron and Story were making a distinction where none exists. 
Force is force, and when applied at the same time to the same 
object for the same ends it does not avail much to call it police 
power when employed by state authorities and commercial power 
when applied by federal officers. Either one.is sufficiently like 
the other that, in order to be effective, the other must be over- 
come or excluded. 
Chief Justice Taney’s perception, in spite of his prejudices and 
surroundings, of the identity and concurrent nature of these 
powers and of the necessity of federal supremacy is a grand tri- 
umph of logic and analysis. Chief Justice Fuller, in making them 
distinct in nature, has, while exalting the power of the state in 
words, made it subject wholly to that of the federal government. 
He finally makes of his ‘‘exclusive’’ state power one that goes or 
