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the legislature was unconstitutional, and void, as contravening the third subdivision of the eighth section of article 1 of the constitution of the United States which provides that Congress shall have power “ to regulate commerce with foreign nations, and among the several states, and with the Indian tribes."
Sections 1 and 2 of the act of the legislature under consideration read as follows: “SECTION 1. That the title to and property in all oysters in the waters of this state, whether upon public reefs or in so-called private beds, or whether the same be transplanted by riparian proprietors 181 under authority of law or otherwise, or whether the same be a growth from natural deposit, is, and shall remain in the state, until such title shall be divested in manner and form as herein authorized or provided." "Sec. 2. That a license is hereby given to resident citizens of the state of Alabama, to catch and take oysters, the property of the state, from the public reefs, or from private beds planted and owned by them, or in which they have secured an interest, or permission from the proprietor thereof to take such oysters, upon the terms and conditions, and subject to the restrictions and regulations hereinafter set forth and enacted; but no person or persons not a resident of the state of Alabama is or shall be authorized to take or transport any such oysters from, in, or through any of the waters of the state of Alabama; and it is unlawful for any person, whether a citizen of the state of Alabama, or of any other state or country, to ship beyond the limits of this state any oysters taken from the waters of this state, while the same are in the shells; provided, that between the middle of December and the middle of January, oysters in the shells may be shipped in barrels by railroad to other states; and provided further, that such oysters in the shell may be shipped bona fide from any point in the state of Alabama to any other point in said state, by the lines of transportation which lie partly within and partly without the state of Alubama; and provided further, that any resident citizen of the state of Alabama, who shall lawfully take any oysters from the tide-waters of this state, as in this act authorized, shall have a qualified interest or property in the oysters so law. fully taken while in the shell, which he may sell and transfer to any other person within the limits of the state of Alabama; and after said oysters have been shelled within the state of Alabama, such lawful taker or his assigns, as the case may
, shall be tested with all of the state's property and title in and to said oysters, and shall have the right to sell such oysters and shells, or to ship the same beyond the limits of this state, without restriction or reservation; provided further, that in case of any infringement of the foregoing qualifed interest in said taker of oysters, said taker may, in his own name, maintain an action against the wrongdoer, either in case or trover, as may be proper; and in case of larceny, or other public offense concerning such oysters, while in the bands of a lawful taker, the ownership thereof shall be sverred in such taker or possessor, when by law it shall be necessary to aver ownership." We deem it unnecessary to set out the whole act.
182 The principles of law applicable to the facts of the cases before us do not call for a discussion or adjudication of that clause of section 2 which relates to the shipment of oysters in the barrel by railroad, from the middle of December to the middle of January, or that clause which permits transportation by lines which lie partly without the state: Jones v. Black, 48 Ala. 540. The agreed facts are, that the oysters were taken and shipped in the shell, beyond the limits of the state, by the defendants, in the month of September, in sailing-vessels; that Harrub was a citizen of Alabama, and Melvin & citizen of the state of Mississippi; and that both were guilty of a violation of the statute. The question involved is as to the constitutionality of the act.
The first question we will consider is as to the extent of the ownership and control of the state of Alabama in and over the oyster-beds and oysters within her territorial limits.
In the case of Martin v. Waddell, 16 Pet. 411, Chief Justice Taney declares, as a general principle, "When the revolution took place, the people of each state became themselves sovereign; and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution to the general government."
In the case of Smith v. Maryland, 18 How. 71, the question was as the constitutionality of an act of the state of Maryland, which was entitled "An act to prevent the destruction of oysters in the waters of this state." The court laid down this principle: “But this soil is held by the stato not only subject to, but in some sense in trust for, the enjoyment of certain public rights, among which is the common liberty of
taking fish, as well shellfish as floating fish. The state holds the propriety of this soil for the conservation of the public rights of fishery thereon, and may regulate the modes of that enjoyment, so as to prevent the destruction of the fishery. In other words, it may forbid all such acts as would render the public right less valuable, or destroy it altogether. This power results from the ownership of the soil, from the legis. lative jurisdiction of the state over it, and from its duty to preserve unimpaired those public uses for which the soil is held.”
In the case of McCready v. Virginia, 94 U. S. 391, the foregoing principles were reaffirmed, and the court went further and declared: “The title thus held is subject to the paramount right of navigation, the regulation of wbich, in respect to foreign and interstate commerce, has been 183 granted to the United States. There has been, however, no such grant of power over the fisheries. These remain under the exclusive control of the state, which consequently has the right, in its discretion, to appropriate its tide-waters and their beds to be used by its people as a common for taking and cultivating fish, so far as may be done without obstructing navigation. Such an appropriation is, in effect, nothing more than a regulation of the use by the people of their common property. .. It is in fact a property right, and not a mere privilege or immunity of citizenship. . . . . It does not belong of right to the citizens of all free governments, but only to the citizens of Virginia. They, and they alone, owned the property to be used, and they alone had the power to dispose of it as they saw fit. . . . . The state may by appropriate legislation confine the use of the whole to its own people alone.”
In the case of Haney v. Compton, 36 N. J. L. 522, it was said: “But it cannot with any propriety be said, that a statute which simply prohibits nonresidents on board a vessel from subverting the soil of the state, and carrying away her property, or that of her grantees, leaving such vessel to pass and repass, and go whithersoever those in charge of her may desire, is a regulation of commerce with foreign nations or among the states. It is a law for the protection of property -at most, an internal police regulation, entirely within the competency of the state to adopt; and it is not perceived that it can by possibility interfere with commerce in the sense in which that word is used in the federal constitution.”
In Manchester v. Massachusetts, 139 U. S. 259, the court re
affirmed the principle declared in the case of McCready v. Virginia, 94 U. 8. 391; and the same principle is announced in Dunham v. Lamphere, 3 Gray, 268.
We think it clearly established, that the people of Alabama own absolutely the oyster-beds and oysters in question, and that it is a property right as complete and perfect as that held to any other property. As was said by Chief Justice Waite in McCready v. Virginia, 94 U. S. 391, " the principle is not different from the planting of corn upon dry land." We think it further settled, that the people of Alabama, through its legislature, alone have the power to dispose of their property rights in their oyster-beds and oysters; and if they see proper may dispose of them to their own people only. It is further settled, that the legislature has ample authority to adopt all precautions and regulations deemed desirable or 184 necessary for the preservation and increased production of its fisheries.
That the power of Congress to regulate commerce with for eign nations, among the several states, and with the Indian tribes, is unlimited and exclusive of the power of the state, is settled law. Any statute of a state not authorized by Congress, which in any way obstructs or interrupts free navigation, or restricts or burdens any commodity which is an article of interstate commerce, must be declared null and void: Tier. man v. Rinker, 102 U. S. 125; Telegraph Co. v. Teras, 105 U.S. 460; Brinmer v. Rebman, 138 U. S. 78; Leisy v. Hardin, 135 V. S. 109.
To constitute commerce, there must be traffic and intercourse, and to constitute interstate commerce, there must be traffic and interstate intercourse--an "intermingling" between different states. As Mr. Chief Justice Marshall says in the case of Gibbons v. Ogden, 9 Wheat. 1, " Comprehensive as the word 'among'is, it may very properly be restricted to that commerce which concerns more states than one. ...
The completely internal commerce of a state may be considered as reserved to the state itself.” We understand this great case to distinctly recognize the absolute power and control of the state upon subjects within its territorial jurisdiction which are not articles of foreign or interstate commerce.
The case of Coe v. Errol, 116 U. 8. 517, decides an important principle as to the right of the state to tax its products, although the owner may intend them for exportation, and although they may be in process of preparation for exporta
tion at the time of the assessment of the tax; but the case is important in the present connection in determining that "there must be a time when they (the products] ceased to be governed exclusively by the domestic law, and began to be governed and protected by the national law of commercial legislation;" quoting from the case of The Daniel Ball, 10 Wall. 565, as follows: "Whenever a commodity has begun to move as an article of trade from one state to another, commerce in that commodity between the states has commenced.” But that movement, says the court,“ does not begin until the article has been shipped or started for transportation from one state to another.” Carrying it from the farm or forest to the depot is only an interior movement of the property, and although it may be for the purpose of exportation, this is no part of the exportion itself.
If the statute of Alabama under consideration militates 185 against any of these well-established principles, in regard to interstate commerce, it must yield to the dominant supremacy of the federal constitution. We do not understand the power vested in Congress to regulate interstate commerce gives it power over domestic commerce, or authorizes it to regulate the commerce between the citizens of the same state, or different parts of the same state. This power belongs to the several states, and is exclusive of the power of Congress. If the state of Alabama should attempt by legislation to tax or burden or restrict the shipment of oysters from the state of Mississippi or other states, such legislation would be unconstitutional; or, if the state of Alabama should attempt to im. pose similar or other conditions upon the shipment of any articles of interstate commerce from this state to another state, that would be an interference with the law of interstate commerce, which power alone is vested in Congress. To constitute interstate commerce, however, as we have said, there must be an article or commodity the subject of commerce and destined to pass from one state to another.
These authorities do not militate against, but recognize the power of, the state to confine the use of the oyster to its own citizens, and to regulate its shipment and disposition within its borders for their use. This would be domestio commerce, as distinguished from interstate commerce. Neither do we understand the power of Congress to regulate interstate commerce in any way interferes with or restricts the right of the state to prohibit its own property, to which it has an exclu