Ex parte Young, 59 P. 707

Ex parte Young

59 P. 707 | Or. | 1900

Mr.- Justice Moore,

after stating the facts, delivered the opinion of the court.

The question presented by this appeal is whether the statute under which Young was indicted is violative of *248the Constitution of the United States, Article I, § 8, subd. 3, as being an attempt on the part of the legislative assembly to regulate commerce with foreign nations. The act under consideration reads as follows : “If any person or persons shall entice, persuade, or by any means attempt to persuade, any seaman to desert from, or without permission of the officer then in command thereof to leave or depart therefrom, either temporarily or' otherwise, any ship or steamer or other vessel while such ship, steamer, or other vessel is within the waters under the jurisdiction of this state or within the waters of the concurrent jurisdiction of this state and the Territory of Washington, such person or persons shall, upon conviction thereof before any justice of the peace, or before'a circuit court of this state, be punished, ’ ’ etc.: Hill’s Ann. Laws, § 1952. Notwithstanding congress possesses power to regulate commerce with foreign nations and among the several states, each state has retained a sufficient measure of power to enable it to enforce its internal police regulations, in the exercise of which it can establish and regulate ferries across its navigable rivérs, control the moving of vessels in harbors within its borders, and enact health and inspection laws, which, by quarantine or otherwise, may operate on persons brought within its jurisdiction in the course of commercial operation: 22 Am. & Eng. Enc. Law (1 ed.), 712; King v. American Trans. Co. 1 Flip. 1 (Fed. Cas. No. 7,787). Thus, a vessel owned by a citizen of Pennsylvania, and licensed under the laws of the United. States to be employed in the coasting and fishing trade, was seized and condemned under a statute of Maryland making it unlawful to take oysters within the waters of the latter state with a scoop or drag, and prescribing as a penalty for a violation thereof the forfeiture of the vessel so offending; and it was held that the act in question was a proper exercise of the *249internal police power of a state, which, was not repugnant to the commerce clause of the Constitution of the United States : Smith v. Maryland, 59 U. S. (18 How.) 71. It is only when a statute of a state conflicts with an act of congress regulating foreign or interstate commerce, or contravenes the general policy of the government, that it must yield. As was said by Mr. Chief Justice Marshall, in Gibbons v. Ogden, 22 U. S. (9 Wheat.) 1: “The nullity of any act inconsistent with the constitution is produced by the declaration that the constitution is the supreme law. The appropriate application of that part of the clause which confers the same supremacy .on laws and treaties is to such acts of the state legislatures as do not transcend their powers, but, though enacted in the execution of acknowledged state powers, interfere with or are contrary to the laws of congress made in pursuance of the constitution, or some treaty made under the authority of the United States. In every such case the act of congress or the treaty is supreme, and the law of the state, though enacted in the exercise of powers not controverted, must yield to it.”

Congress has prescribed a punishment for any person who shall harbor or secrete a seaman belonging to any vessel, knowing him to belong thereto : Rev. Stat. U. S. § 4601. In construing this section it has been repeatedly held, however, that the penalty therein prescribed does not apply to the harboring or secreting of any person employed as a seaman on a vessel which does not belong to a citizen of the United States : Ex parte D’Olivera, 1 Gall. 473 (Fed. Cas. No. 3,967); United States v. Minges, (C. C.) 16 Fed. 657; Grant v. United States, 7 C. C. A. 436, 58 Fed. 694. But, if it were held that this section applied with equal force to seamen employed on a foreign vessel, Section 1952, Hill’s Ann. Laws, not being repugnant thereto or inconsistent therewith, is enforceable *250in the courts of this state ; the rule being that the statute of a state and an act of congress may each prohibit the commission of the same offense, and prescribe the same or a different punishment therefor, under -which the party found guilty thereof may suffer the penalties provided by the laws of the United States and of the state : Territory v. Coleman, 1 Or. 192; State v. Brown, 2 Or. 221; Fox v. Ohio, 46 U. S. (5 How.) 410; United States v. Marigold, 50 U. S. (9 How.) *560; Moore v. Illinois, 55 U. S. (14 How.) 13 ; Ex parte Siebold, 100 U. S. 371; Cross v. North Carolina, 132 U. S. 131 (10 Sup. Ct. 47). If the statute under consideration be deemed a regulation of commerce, it is local in its application and limited in its operation ; and, congress not having assumed control of the subject thereof, it is within the power of the state to prescribe the necessary regulations : Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196 (5 Sup. Ct. 826); Brown v. Houston, 114 U. S. 622 (5 Sup. Ct. 1091). The act in question is a rightful exercise of the police power of the state, in the regulation of the matters to which it applies ; and, instead of being in conflict with any regulation of congress upon the subject, or in contravention of the general policy of the government, it is in fact in aid of commerce rather than in restriction of it: Smith v. Alabama, 124 U. S. 465 (8 Sup. Ct. 564); Western Union Tel. Co. v. James, 162 U. S. 650 (16 Sup. Ct. 934); Hennington v. Georgia, 163 U. S. 299 (16 Sup. Ct. 1086); New York, N. H. & H. R. Co. v. New York, 165 U. S. 628 (17 Sup. Ct. 418); Gladson v. Minnesota, 166 U. S. 427 (17 Sup. Ct. 627); Chicago, M. & St. P. R. R. Co. v. Solan, 169 U. S. 133 (18 Sup. Ct. 289). The court having erred in discharging the plaintiff, it follows that the judgment is reversed and the cause remanded, with instructions to the court below to have him apprehended, and to require him to plead to the indictment. Reversed.