§ 88] Federal and Concurrent. 153 lations do not interfere with the general law on the subject they are regarded as proper. The fact that state regulations adopted in the exercise of the general police power may incidentally affect foreign commerce does not render such state regulations necessarily invalid. If they are not unreasonable, nor calculated to effect a discrimination, and do not in substance amount to general regulations of such commerce as is placed within the control of Congress, they will be upheld. For instance, a state may require locomotive engineers to procure a license, although they are to act for railroads engaged in interstate as well as internal commerce. In the absence of any legislation by Congress, this principle would also apply to engineers on vessels navigating the public waters within the state, and also to the inspection of such vessels, but if there is congressional legislation on this subject, any state legislation is thereby superseded. The states can also, without doubt, prohibit the sale of goods dangerous to the public health or morals, even though brought from another state or from a foreign country. As the general police power is left to the states and is not vested in Congress, it is evidently necessary that the states shall exercise it, not only with reference to goods produced in the state, but also as to goods brought into the state from without. 88. What is a Regulation of Commerce. Evidently a careful distinction must be made between state provisions which incidentally affect commerce and those which amount to a regulation of commerce, and this distinction depends on the legal definition of commerce. As applied in determining whether a particular act or transaction involves foreign or interstate commerce which is within the control of Congress, or internal commerce which remains within the control of the states, the term has been held to cover the transportation of goods, including the bringing of goods into the state for sale, the transportation of persons into or from the state, the conveyance of messages by telegraph between persons in the state and those in another state or in a foreign country, and, in general, all forms of personal and business intercourse over or across state lines. But the making of contracts is not commerce in this sense. Foreign and interstate commerce is not limited to the mere transportation of goods, persons, or intelligence across the state lines. The whole transaction from the beginning to the end is one continuous act of commerce. If goods are shipped from a point in one state to a point in another state or in a foreign country; or conversely, if goods are shipped from a point in another state or in a foreign country to a point within the state, the entire transaction is interstate or foreign commerce, and state regulations are no more applicable to the portion of the transaction which takes place within the state than to that which is outside of the state, or which involves the mere passing of the state line. Thus if a navigable river or lake is entirely within the state limits, nevertheless navigation on such river or lake, so far as it involves the transportation of goods along such channel of communication, is interstate or foreign commerce so far as the goods are brought from without the state to a point of destination in the state, or taken from a point within the state to a point without the state. The same principle is applied to transportation over railroad lines, even though they are operated exclusively within the state, if they constitute a portion of a line of transportation for goods brought into or taken out of the state. The same principles apply to transportation of goods through the state between points in other states. Illustrations of the application of these principles will be found in subsequent sections of this chapter. 89. Freedom of Commercial Intercourse Protected. As has already been said, the power of Congress to regulate foreign and interstate commerce is not in terms exclusive, nor is it construed as excluding state regulation which incidentally affects such commerce, or even directly affects it for local purposes, so far as no congressional legislation exists. But the very purpose of the commercial clause in the federal constitution was to exclude discriminating restrictions and unneces § 89] Intercourse Protected. 155 sary interference on the part of the states, and it is to be presumed, therefore, that so far as these kinds of commerce are to be subjected to general regulations affecting them, not locally but throughout their entire extent, such regulations must come from Congress and not from the states. It must be assumed that, so far as general regulations are concerned, it is the intention of Congress that commerce shall be unrestricted save as congressional relations may have been adopted. Thus it has been held in Welton v. Missouri that a state cannot require a license for the selling within the state of goods brought from without, even though the license is imposed likewise on persons selling domestic goods. A so-called license tax on drummers or commercial agents is therefore invalid as applied to such agents soliciting orders of goods from without the state (see Robbins v. Shelby County Taxing District); for freedom of intercourse involves the right of persons living in other states or in foreign countries to come into the state for the purpose of selling their goods save so far as restrictions may have been interposed by Congress, as, for instance, by the requirement for payment of import duties. On the other hand, the control of persons carrying on business within the state, not necessarily involving the bringing of goods into the state for sale, is a matter for state regulation, and any business carried on within the state which is a proper subject for state taxation or police regulation is under state control. The state may impose a license tax upon transient merchants, or authorize cities to do so, without interfering with freedom of commerce, even though such a transient merchant may be selling goods brought from another state; and it has been held in Emert v. Missouri that the business of peddling, being one which is subject to regulation in the exercise of the police power, may be restricted by state statute, although the peddler is actually engaged in the sale of goods brought from without the state. In this connection, it is necessary, however, to bear in mind the provision of the federal constitution that "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states (Art. IV, § 2, ¶ 1), and therefore any state law or municipal regulation based on a discrimination between citizens of the state and citizens of other states, which excludes citizens of other states from all the privileges in this respect accorded to citizens of the state, and which bears harder on citizens of another state than the state's own citizens, are invalid. (See below, § 190.) Consequently any state legislation which only incidentally affects foreign or interstate commerce is invalid if it imposes a burden on such commerce as compared with commerce which is wholly within the state. 90. State Restrictions Invalid; Further Illustrations. The principles stated in the preceding sections of this chapter can be rendered more intelligible by a brief statement of some of the important questions which have been decided under them. Soon after the application of steam power to the purpose of propelling vessels, the state of New York granted an exclusive franchise to certain persons to operate steam vessels upon waters within the limits of the state; but the Supreme Court of the United States in Gibbons v. Ogden held this exclusive privilege to be invalid so far as it operated to exclude from the Hudson River steam vessels coming from another state; for although the Hudson River is exclusively within the limits of New York, the state statute amounted to a regulation of navigation on that river, and as navigation is included within. the meaning of the term commerce, and as, therefore, vessels coming into the waters of New York from another state were engaged in interstate commerce, the restriction which the state of New York had attempted to make was a restriction of freedom of commercial intercourse among the states. Likewise a statute of New York, in effect requiring the payment by steamship companies of a per capita tax upon all passengers brought into the state, was held invalid in Henderson v. Mayor of New York, because transportation of persons as well as of goods is within the meaning of the term commerce, and the state passenger tax amounted to a restriction on foreign commerce. No doubt the state could take proper measures § 90] State Restrictions Invalid. 157 for excluding persons affected with contagious diseases, or who would be likely to become objects of charity, but as Congress has enacted immigration laws covering the whole subject, any state regulation of that character would no doubt now be invalid, as interfering with specific regulations by Congress. In the proper exercise of its police power, the state may exclude animals having diseases likely to be communicated to other animals, or meat which is unwholesome, but such police regulations must be directly calculated to subserve purposes with reference to which the state can legislate, and not be used as a cloak for regulation of foreign and interstate commerce. Therefore it was held in Railroad Company v. Husen that a statute excluding from a state all cattle brought from another state which may have been subjected to the so-called Texas fever was unconstitutional, because it operated to exclude all the cattle from a certain region without regard to whether they had actually been contaminated with that disease. So in Brimmer v. Rebman it was held that meat inspection statutes, which required that all animals slaughtered for food be inspected while alive within one hundred miles of the place of sale and within a limited time before the meat was offered for sale, were unconstitutional as, in practical effect, preventing the sale within the state of fresh meat from animals slaughtered in another state, regardless of whether such meat was actually unwholesome by reason of diseased condition of the animals slaughtered or the keeping of the meat for an improper length of time after slaughtering. In the exercise of its police power, the state may unquestionably regulate or prohibit the sale of intoxicating liquors or cigarettes, but as liquors and tobacco are recognized subjects of commerce, it has been held in Bowman v. Railroad Company that state statutes prohibiting the bringing into the state of such articles of commerce are invalid. The regulation of the sale of such goods after they have been brought into the state is another matter, and will be referred to in the next section of this chapter. The state may regulate rates of transportation by common carriers, but state statutes regulating such |