and consequently the member is not exempt from the service of such process during the session of his house.15

POWERS OF CONGRESS DELEGATED.

112. The government of the United States being one of delegated powers, the field of its legislative authority is not unbounded. The power of Congress to pass any given law is derived from and limited by the federal Constitution.

The power of Congress to pass any given law must, on the one hand, be found in some express grant of authority given to Congress by the Constitution, or necessarily implied in its terms, or be found necessary to carry into effect such powers as are there granted. And on the other hand, the act in question must not be in violation of any of the prohibitions laid upon Congress by the same instrument.16 As to the ultimate determination of the limits of federal power, it is now settled, both by authority and precedent, that the government of the Union is to judge, in the first instance at least, of the extent of the powers granted to it, as well as of the means of their proper exercise. In practice, the constitutionality of any act of Congress is finally determined by the federal judiciary. And if the general sentiment of the people is not in accord with its findings, redress must be sought at the polls.17 But the powers of Congress in respect to investigation and legislation are not absolutely identical; but the power of investigation is the wider and extends to matters on which it could not constitutionally legislate directly, if they are reasonably calculated to afford information useful and material in the framing of constitutional legislation.18

15 Rhodes v. Walsh, 55 Minn. 542, 57 N. W. 212, 23 L. R. A. 632; Merrick v. Giddings, MacArthur & M. (D. C.) 55. But compare Miner v. Markham (C. C.) 28 F. 387.

16 Martin v. Hunter, 1 Wheat. 304, 326, 4 L. Ed. 97; Calder v. Bull, 3 Dall. 386, 1 L. Ed. 648; Briscoe v. Bank of Kentucky, 11 Pet. 257, 9 L. Ed 709; Gilman v. Philadelphia, 3 Wall. 713, 18 L. Ed. 96; Kilbourn v. Thompson, 103 U. S. 168, 26 L. Ed. 377; Lambert v. Yellowley (C. C. A. N. Y) 4 F (2d) 915. "Federal power is delegated, and its prescribed limits must not be transcended even though the end seems desirable." Linder v. United States, 268 U. S. 5, 45 S. Ct. 446, 69 L. Ed. 819, 39 A. L. R. 229.

17 See McCULLOCH v. MARYLAND, 4 Wheat. 316, 4 L. Ed. 579, Black Cas. Constitutional Law, 96, 357; Ferris v. Coover, 11 Cal. 175.

18 Interstate Commerce Commission v. Harriman (C. C.) 157 F. 432.

EXCLUSIVE AND CONCURRENT POWERS

113. Some of the powers granted to Congress by the Constitution are vested exclusively in that body; some others may be exercised concurrently by the states in the absence of action by the national government thereon. A power vested in Congress is exclusive of all state action on the same subject when

(a) It is made so by the express language of the Constitution. (b) Where in one part of the Constitution an authority is granted to Congress and in another part the states are prohibited from exercising a like authority.

(c) Where a similar power in the states would be inconsistent with and repugnant to the authority granted to Congress, that is, where the subject matter of the power is national and can be governed only by a uniform system.

In cases not falling under any of the foregoing heads, the states may lawfully pass laws relating to the subject of the power, unless and until Congress shall take action for exercising the power with which it is invested. But in such cases of concurrent authority, when Congress exercises its power it thereby supersedes and suspends all existing state legislation on the same subject, and prohibits similar state legislation until it shall again leave the field unoccupied.

As an illustration of the first species of exclusive powers mentioned above, it is provided by the Constitution that Congress shall "exercise exclusive legislation in all cases whatsoever" over the district to be appropriated as the seat of government. Here the effect is to shut out not only state legislation conflicting with the regulations of Congress but all state legislation whatever. As an illustration of the second class of exclusive powers, it will be noticed that one of the enumerated powers of Congress (but not in terms exclusive) is the power to "coin money." In another part of the Constitution it is provided that “no state shall * * coin money." This necessarily invests Congress with the sole right to establish a mint. In the third place, if the subject matter of the power is of such a nature as to relate to the concerns and the prosperity of the nation as a whole, and can be properly regulated only by a uniform national law, and if any action by the several states upon it would be inconsistent with that plenary control of Congress which

can alone effectuate these objects, then the authority of Congress is exclusive, though not made so in express words. 19

There is another sense in which the powers of Congress may be said. to be exclusive. The states cannot, by indirect attacks, prevent their being carried into effect or unduly hamper their exercise. Where any right or privilege is subject to the regulation of Congress, it is not competent for state laws to impose conditions which shall interfere with the right or diminish its value.20 And on the same principle, it is not within the constitutional power of a state to lay any tax upon the instruments, means, or agencies provided or selected by the general government to enable it to carry into execution its legitimate powers and functions.21

But in all cases where the powers vested in Congress are not, for any of the foregoing reasons, exclusive, the states may legislate on the same subject matter. But in all such cases of concurrent authority, the enactments of the individual states can be no more than provisional; that is to say, their continuance in force depends upon the determination of Congress not to exercise its own power over the subject by a general law. If Congress shall choose to enter upon the domain confided to its jurisdiction, and to regulate the same by a statute, the result is that all existing state laws on the same subject are superseded and suspended, at least so far as they are inconsistent with the act of Congress. The federal law does not make them invalid, if they were not so before. Neither does it repeal them. It merely assumes to itself entire control of the whole subject and leaves nothing for the state laws to operate upon.22

19 Leisy v. Hardin, 135 U. S. 100, 10 S. Ct. 681, 34 L. Ed. 128. 20 Cranson v. Smith, 37 Mich. 309, 26 Am. Rep. 514.

21 MCCULLOCH v. MARYLAND, 4 Wheat. 429, 4 L. Ed. 579, Black Cas. Constitutional Law, 96, 357; OSBORN v. BANK OF UNITED STATES, 9 Wheat. 738, 6 L. Ed. 204, Black Cas. Constitutional Law, 69; Ward v. Maryland, 12 Wall. 418, 20 L. Ed. 449.

22 GIBBONS v. OGDEN, 9 Wheat. 1, 6 L. Ed. 23, Black Cas. Constitutional Law, 95, 132; McCULLOCH v. MARYLAND, 4 Wheat. 316, 4 L. Ed. 579, Black Cas. Constitutional Law, 96, 357; Houston v. Moore, 5 Wheat. 1, 5 L. Ed. 19; Brown v. Maryland, 12 Wheat. 419, 6 L. Ed. 678; Weaver v Fegely, 29 Pa. 27, 70 Am. Dec. 151; Potts v. Smith Mfg. Co., 25 Pa. Super. Ct. 206.

ENUMERATED POWERS OF CONGRESS

114. The first article of the Constitution confers on Congress the power to make laws on certain defined and specific subjects, and in addition the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States or in any department or officer thereof." Every act of Congress, to be valid, must therefore consist in an exercise of one of the enumerated powers or must be necessary and proper for carrying such powers into execution.

It is sometimes asserted that the preamble to the federal Constitution, and particularly the words "promote the general welfare and secure the blessings of liberty," confer on Congress a general and unlimited power of legislation. But this is wholly erroneous. "Although that preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the government of the United States or on any of its departments. Such powers embrace only those expressly granted in the body of the Constitution and such. as may be implied from those so granted. Although, therefore, one of the declared objects of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States unless, apart from the preamble, it is found in some express delegation of power or in some power to be properly implied therefrom."23 Again, the words "provide for the common defense and general welfare of the United States," in the first sentence of section 8 of Article 1, do not confer on Congress any distinct and substantive power to enact any legislation, but they refer only to the purposes of taxation.24 An apparent exception to this rule, however, is found in the principle that although a given subject-matter may be beyond the legislative competence of Congress, as not relating to the power to regulate commerce or any other of the enumerated powers, yet if that subject is dealt with in a treaty. made with a foreign power, Congress can then validly enact statutes

23 JACOBSON v. MASSACHUSETTS, 197 U. S. 11, 25 S. Ct. 358, 49 L Ed. 643, 3 Ann. Cas. 765, Black Cas. Constitutional Law, 249.

24 United States v. Boyer (D. C.) 85 F. 425.

for carrying the treaty into effect.25 But this is justified as an exercise of the ancillary or auxiliary powers.

It is nevertheless true that acts of Congress are from time to time passed which have no relation to any of the enumerated powers, and which can be ascribed to the "implied" powers only by a strained construction of that term. Although such extensions of federal power were clearly not within the contemplation of the framers of the Constitution, they can be justified only as manifestations of the national sovereignty. For example, the laws restricting immigration into the United States, wholly excluding certain classes and races, and providing for the deportation of undesirable aliens, are an assertion of national authority. It is true that the transportation of passengers by land or sea may be considered as "commerce,"26 but the determination of the number and kind of immigrants who shall be admitted to the United States is not even remotely a regulation of commerce. Again, the Constitution nowhere confers on Congress the power to grant charters of incorporation. If a corporation of any given kind is a means or agency needed by Congress in the exercise of its admitted powers, or conducive to their due execution, and plainly adapted to the accomplishment of that end (as in the case of the old Bank of the United States or the present Federal Reserve banks) Congress has the "implied" power to incorporate it. But this does not apply to wholly unofficial organizations such as the American Red Cross and the American Legion, both of which have been incorporated by act of Congress. Other examples of what we have described as exertions of the national sovereignty may be seen. in laws appropriating money for the relief of famine in foreign countries, laws authorizing the appointment of commissioners and the appropriation of money for the representation of the United States in in

25 Missouri v. Holland, 252 U. S. 416, 40 S. Ct. 382, 64 L. Ed. 641, 11 A. L. R. 984.

26 Passenger Cases, 7 How, 283, 12 L. Ed. 702. In Turner v. Williams, 194 U. S. 279, 24 S. Ct. 719, 48 L. Ed. 979, it was said that the power to exclude and to deport undesirable aliens is well established, whether it be based on the inherent power of national sovereignty or on the power to regulate foreign commerce.

27 McCULLOCH v. MARYLAND, 4 Wheat. 316, 4 L. Ed. 579, Black Cas. Constitutional Law, 96, 357; OSBORN v. BANK OF UNITED STATES, 9 Wheat. 738, 6 L. Ed. 204, Black Cas. Constitutional Law, 69; Farmers' & Mechanics' Nat. Bank v. Dearing, 91 U. S. 29, 23 L. Ed. 196; 2 Story, Const. $8 1259-1271.

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