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decided: February 27, 1922.



Author: Mcreynolds

[ 258 U.S. Page 109]

 MR. JUSTICE McREYNOLDS delivered the opinion of the court.

In the court below appellants' bill was dismissed upon demurrer. It attacks the validity of § 27, Merchant Marine Act of June 5, 1920, c. 250, 41 Stat. 988,*fn1 upon the ground that the regulation of commerce prescribed therein gives a preference to ports of the Pacific Coast States over those of Alaska, contrary to § 9, Art. I, Federal Constitution -- "No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another."

The act purports among other things "to provide for the promotion and maintenance of the American merchant marine," and § 27 forbids transportation of merchandise

[ 258 U.S. Page 110]

     over any portion of the route between points in the United States including Alaska "in any other vessel than a vessel built in and documented under the laws of the United States and owned by persons who are citizens of the United States, or vessels to which the privilege of engaging in the coastwise trade is extended by sections 18 or 22 of this Act," provided that under certain conditions this limitation shall not apply to merchandise transported between points within the United States, excluding Alaska, over through routes by Canadian rail lines and connecting water facilities.

The bill assumes that the preference is obvious upon a consideration of the statute without more. And although by fostering lines of boats which afford frequent, regular and speedy service, and otherwise, the practical effect may be highly beneficial to Alaskan ports, nevertheless, in view of the record, we will assume that the act does give preference to ports of the States over those of the Territory.

Alaska has been incorporated into and is part of the United tates, and the Constitution, so far as applicable, is controlling upon Congress when legislating in respect thereto. Rassmussen v. United States, 197 U.S. 516, 525, 528. It has been organized and is governed under appropriate congressional action. For present purposes, therefore, we need not inquire into the object and scope of the treaty of cession.

The questioned regulation relates directly to commerce and clearly is not within the usual meaning of the words of § 8, Art. I, of the Constitution -- "All duties, imposts and excises shall be uniform throughout the United States." That such regulations are not controlled by the uniformity clause was pointed out in Cooley v. Board of Wardens of Port of Philadelphia, 12 How. 299, 314:

"But, having previously stated that, in this instance, the law complained of does not pass the appropriate line

[ 258 U.S. Page 111]

     which limits laws for the regulation of pilots and pilotage, the suggestion, that this law levies a duty on tonnage or on imports or exports, is not admissible; and, if so, it also follows, that this law is not repugnant to the first clause of the eighth section of the first article of the Constitution, which declares that all duties, imposts, and excises shall be uniform throughout the United States; for, if it is not to be deemed a law levying a duty, impost, or excise, the want of uniformity throughout the United States is not objectionable."

The appellants insist that "State" in the preference clause includes an incorporated and organized territory. This word appears very often in the Constitution and as generally used therein it clearly excludes a "Territory." To justify the broad meaning now suggested would require considerations more cogent than any which have been suggested. Obviously, the best interests of a detached territory may often demand that its ports be treated very differently from those within the States. And we can find nothing in the Constitution itself or its history which compels the conclusion that it was intended to deprive Congress of power so to act. See Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421; Knowlton v. Moore, 178 U.S. 41, 107.

Great weight is attributed to certain statements concerning the preference clause found in the several opinions announced in Downes v. Bidwell, 182 U.S. 244, 249, 288, 352, 534, 355. But none of these opinions was accepted by a majority of the court and statements therein are not binding upon us. That controversy grew out of a revenue measure and the point now presented was not directly involved. The writers used the language relied upon in arguments intended to support their particular views concerning the fundamental points. Without attempting to ascertain the exact purport of these expressions it suffices to say that they afford no adequate support for appellants' position.

[ 258 U.S. Page 112]

     A quotation from the opinion of the court in Rassmussen v. United States, 197 U.S. 516, 520, is apposite:

"In Dorr v. United States, 195 U.S. 138, the question was whether the Sixth Amendment was controlling upon Congress in legislating for the Philippine Islands.Applying the principles which caused a majority of the judges who concurred in Downes v. Bidwell, 182 U.S. 244, to think that the uniformity clause of the Constitution was inapplicable to Porto Rico, and following the ruling announced in Hawaii v. Mankichi, 190 U.S. 197, it was decided that, whilst by the treaty with Spain the Philippine Islands had come under the sovereignty of the United States and were subject to its control as a dependency or possession, those Islands had not been incorporated into the United States as a part thereof, and therefore Congress, in legislating concerning them, was subject only to the provisions of the Constitution applicable to territory occupying that relation."

The judgment below is


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