The legislative powers possessed by the Federal Government may be divided into two classes; the one embracing those powers the exercise of which is exclusively vested in the General Government; the other those which, in default of federal exercise, may be employed by the States.

Some of the powers granted by the Constitution to the General Government are expressly denied to the States. As to the exclusive character of the federal jurisdiction over these there cannot be, of course, any question. It has, however, been often a matter difficult of determination whether or not various of the powers given to the United States, but not expressly made exclusive, or denied to the States, are so exclusively subject to federal control that the exercise of them by the States is under no circumstances permissible. Shortly stated, the principle that the Supreme Court has laid down for determining this question in each particular case as it has arisen has been the following: As regards generally the powers granted to the National Government there is a difference between those which are of such a character that the exercise of them by the States would be, under any circumstances, inconsistent with the general theory or national polity of the Constitution, and those not of such a character. As regards this latter class, the Supreme Court has held that as long as Congress does not see fit to exercise them, the States may do so. Laws thus passed by the States are, however, of course subject to suspension at any time by the enactment by Congress of laws governing the same subjects.30

29 181 U. S. 2S3; 21 Sup. Ct. Rep. 648; 45 L. ed. 862.

In the early case of Sturges v. Crowninshield 31 Chief Justice Marshall, in reference to the matter of bankruptcy, laid down the distinction between the exclusive and concurrent powers of the Federal Government, in the following language: "When the American people created a national legislature, with certain enumerated powers, it was neither necessary nor proper to define the powers retained by the States. These powers proceed, not from the people of America, but from the people of the several States; and remain, after the adoption of the Constitution, what they were before, except so far as they may be abridged by that instrument. In some instances, as in making treaties, we find an express prohibition; and this shows the sense of the convention to have been that the mere grant of a power to Congress did not imply a prohibition on the States to exercise the same power. But it has never been supposed that this concurrent power of legislation extended to every possible case in which its exercise by the States has not been expressly prohibited. The confusion resulting from such a practice would be endless. The principle laid down by the counsel for the plaintiff, in this respect, is undoubtedly correct. Whenever the terms in which a power is granted by Congress, or the nature of the power required that it should be exercised exclusively by Congress, the subject is as completely taken from the state legislatures as if they had been expressly forbidden to act on it."

30 By the enactment of a federal law a state law governing the same subject is not nullified but merely suspended during the existence of the federal statute. Upon the repeal of the federal statute, the state law again operates without any re-enactment by the State.

31 4 Wh. 122; 4 L. ed. 529.

The principle thus stated by Marshall is a simple and rational one, and has never been departed from by the Supreme Court, though that court has at times varied in its judgment whether the nature of a given power is such as to preclude state action in the absence of congressional regulation.

In Houston v. Moore32 Justice Johnson says: "The Constitution containing a grant of powers in many instances similar to those already existing in the state governments, and some of those being of vital importance also to state authority and state legislation, it is not to be admitted that the mere grant of such powers in affirmative terms to Congress, does, per se, transfer an exclusive sovereignty on such subjects to the latter. On the contrary, a reasonable interpretation of that instrument necessarily leads to the conclusion that the powers so granted are never exclusive of similar powers existing in the States, unless where the Constitution has expressly, in terms, given an exclusive power to Congress, or the exercise of a like power is prohibited to the States, or there is a direct repugnancy or incompatibility in the exercise of it by the States. The example of the first class is to be found in the exclusive legislation delegated to Congress over places purchased by the consent of the legislature of the State in which the same shall be, for forts, arsenals, dockyards, etc.; of the second class, the prohibition of a state to coin money or emit bills of credit; of the third class, as this court have already held, the power to establish a uniform rule of naturalization (Chirac v. Chirac, 2 Wh. 259; 4 L. ed. 234) and the delegation of admiralty and maritime jurisdiction (Martin v. Hunter, 1 Wh. 304; 4 L. ed. 97). In all other cases not falling within the classes already mentioned, it seems unquestionable that the States retain concurrent authority with Congress, not only upon the letter and spirit of the Eleventh [Tenth 3] Amendment of the Constitution, but upon the soundest principles of general reasoning."

32 B Wh. 1; 5 L. ed. 19.

So, later, in Cooley v. Board of Wardens33 the court declare: "The grant of commercial power to Congress does not contain any terms which expressly exclude the States from exercising an authority over its subject-matter. If they are excluded it must be because the nature of the power thus granted to Congress requires that a similar authority should not exist in the States."

Still later, in Cardwell v. American River Bridge Co.,34 the court, after quoting a number of cases, say: "These cases illustrate the general doctrine now fully recognized, that the commercial power of Congress is exclusive of state authority only when the subjects upon which it is exerted are national in their character and admit and require uniformity of regulations affecting alike all the States, and that when the subjects within that power are local in their nature or operation, or constitute mere aids to commerce, the States may provide for their regulation and management until Congress intervenes and supersedes their action."

Applying this principle the Supreme Court has held that the States may legislate regarding such matters as pilotage, wharves, harbors, etc.; but may not, even though Congress has not acted, take any steps that in effect will operate to hinder or regulate the carrying on of interstate commerce itself. "The power of Congress," the court has said in Brown v. Houston,35 " is certainly so far exclusive that no State has power to make any law or regulation which will affect the full and unrestrained intercourse and trade between the States, as Congress has left it, or which will impose any discriminating "burden or tax upon the citizens or products of other States coming or brought within its jurisdiction. All laws and regulations are restricted by natural freedom to some extent, and where no regulation is imposed by the government which has the exclusive power to regulate, it is an indication of its will that the matter shall be left free. So long as Congress does not pass any law to regulate commerce among the several States, it thereby indicates its will that the commerce shall be free and untrammeled, and any regulation of the subject by the State is repugnant to such freedom." 36

33 12 How. 299: 13 L. ed. 996.

34 113 U. S. 205; 5 Sup. Ct. Rep. 423: 28 L. ed. 959.

35 114 U. S. 622; 5 Sup. Ct. Rep. 1091; 29 L. ed. 257.

Division of Powers between V. S. and Member States. 77

36 For a full discussion of the concurrent legislative powers of the States with reference to interstate and foreign commerce, see chapter XLII (Interstate And Foreign Commerce. 287. The Commerce Clause: Its Importance). For a further discussion of concurrent powers with reference to the federal control of elections, see chapter XXXVIII (Election Of Members Of Congress. 234. Their Apportionment Among The States).