Of this class of cases, it was said by Mr. Justice Curtis in Cooley v. Board of Ward ens, 12 How. (U. S.) 299, 318, [13 L. Ed. 996] : "If it were admitted that the existence of this power in congress, like the power of taxation, is compatible with the existence of a similar power in the states, then it would be in conformity with the contempo rary exposition of the constitution (Federal ist No. 32), and with the judicial construc tion given from time to time by this court, after the most deliberate consideration, to hold that the mere grant of such power to congress did not imply a prohibition on the states to exercise the same power ; that it is not the mere existence of such a power, but its exercise by congress, which may be incompatible with the exercise of the same power by the states, and that the states may legislate in the absence of congressional reg ulations." See, also, Sturges v. Crownin shield, 4 Wheat. (U. S.) 122, 193, 4 L. Ed. 529. But even in the matter of building a bridge, if congress chooses to act, its ac tion necessarily supersedes the action of the state ; Pennsylvania v. Bridge Co., 18 How. (U. S.) 421, 15 L. Ed. 435. As a matter of fact, the building of bridges over waters dividing two states is now usually done by congressional sanction. See NAVIGABLE WA TERS.
Under this power the state may also tax the instruments of interstate commerce as it taxes other similar property, provided such tax is not laid upon the commerce it self. Brown, J., in Covington & C. Bridge Co. v. Kentucky, 154 U. S. 204, 14 Sup. Ct. 1087, 38 L. Ed. 962.
But wherever such laws, instead of being of local nature and only affecting interstate commerce incidentally, are national in their character, the non-action of congress indi cates its will that such commerce shall be free and untrammelled, and the case falls within the class wherein the jurisdiction of congress is exclusive; Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. 1091, 29 L. Ed. 257:. Bowman v. Ry. Co., 125 U. S. 465, 8 Sup. Ct. 689, 1062, 31 L Ed. 700; Covington & C. Bridge Co. v. Kentucky, 154 U. S. 204, 14 Sup. Ct. 1087. 38 L. Ed. 962, and supra.
This contingent right of action by the states may sometimes be exercised by the courts as well as by legislatures, as where there has been no action by congress or the interstate commerce commission, a state court may by mandamus compel a railroad company doing interstate business to afford equal switching service to its shippers not withstanding the cars in regard to which the service is claimed would eventually engaged in interstate commerce; Missouri Pac. Ry. Co. v. Flour Mills Co., 211 U. S. 612, 29 Sup. Ct. 214, 53 L. Ed. 352.
The Wilson Act (see LTQuoa) provides that intoxicating liquors transported into any state or territory shall be subject to the laws thereof enacted under the police power "up on arrival in such state." In construing this act it has been held that the interstate commerce is not ended until the goods are moved from the station platform to the freight warehouse, if sent by express; Rhodes v. Iowa, 170 U. S. 412, 18 Sup. Ct. 664, 42 L. Ed. 1088 ; State v. Intoxicating Liquors, 102 Me. 206, 66 Atl. 393, 11 L. R. A. (N. S.) 550; that they are not subject to seizure while in the hands of the express company; Adams Exp. Co. v. Iowa, 196 U. S. 147, 25 Sup. Ct. 185, 49 L. Ed. 424; that delivery to the consignee is necessary to constitute ar rival in the state ; Heymann v. Ry. Co., 203 U. S. 270, 27 Sup. Ct. 104, 51 L. Ed. 178, 7 Ann. Cas. 1130 ; and that this phrase means actual, not implied, delivery; U. S. v. Build ing Co., 206 U. S. 120, 27 Sup. Ct. 676, 51 L. Ed. 983; Adams Exp. Co. v. Kentucky, 206 U. S. 138, 27 Sup. Ct. 608, 51 L. Ed. 992;
that an agreement of the local express agent to hold for a few days a C. 0. D. shipment to suit the convenience of the consignee in paying did not affect the transaction as in terstate commerce; American Exp. Co. v. Kentucky, 206 U. S. 139, 27 Sup. Ct. 609, 51 L. Ed. 993; State v. Intoxicating Liquors, 101 Me. 430, 64 Atl. 812. In State v. Holley man, 55 S. C. 207, 31 S. E. 362, 33 S. E. 366, 45 L. R. A. 567, before the United States Supreme Court decisions, it was held that liquor received in another state and taken to its destination in a buggy did not "arrive" until both buggy and liquor arrived with the purchaser at his home in the state. Cases which held otherwise, decided prior to the United States Supreme Court deci sions and of course overruled by them, are In re Langford, 57 Fed. 570; Southern Exp. Co. v. State, 114 Ga. 226, 39 S. E. 899 ; State v. Intoxicating Liquors, 95 Me. 140, 49 Atl. 670 ; State v. Intoxicating Liquors, 96 Me. 415, 52 Atl. 911. An article in 22 Green Bag 10, on "Liquor in Interstate Relations" suggests that, to give effect to state laws, congress may either repeal all legislation recognizing liquors as the subject of inter state commerce, or explicitly recognize that, for the purpose of giving effect to state pro hibitory legislation, they are not to be re garded as such.
State Action Held Invalid. Any "state leg islation which seeks to impose a direct bur den upon interstate commerce, or to inter fere directly with its freedom does encroach upon the exclusive power of congress"; Rae v. Loan & Guaranty Co., 176 U. S. 126, 20 Sup. Ct. 341, 44 L. Ed. 398; Lindsay & P. Co. v. Mullen, 176 U. S. 147, 20 Sup. Ct. 325, 44 L. Ed. 400 ; quoting Wabash, St. L. & P. R. Co. v. Illinois, 118 U. S. 557, 7 Sup. Ct. 4, 30 L. Ed. 244, where it was held that a long and short haul clause in a state stat ute was invalid as applied to interstate com merce. The following are invalid: A state statute requiring carriers by water to give all persons, without distinction of race or color, equal rights and privileges in all parts of the vessel, it being in effect a reg ulation of conduct through the entire voy age while assuming to regulate it while passing through the state ; Hall v. De Cuff, 95 U. S. 485, 24 L. Ed. 547 (but not one which only applies to passengers carried within the state; Louisville R. Co. v. Mississippi, 133 U. S. 587, 10 Sup. Ct. 348, 33 L. Ed. 784) ; or any penal statute which interferes with commerce; Minnesota v. Barber, 136 U. S. 313, 10 Sup. Ct. 862, 34 L. Ed. 455; as an act requiring the license of a pedlar of tea, the growth of a foreign country. A statute is invalid which under pretense of protecting the public health imposes a direct burden on interstate commerce; Corn. v. Moore, 214 Mass. 19, 100 N. E. 1071; and so is a stat ute, ostensibly a license tax, but in fact a regulation of commerce; Voight v. Wright, 141 U. S. 62, 11 Sup. Ct. 855, 35 L. Ed. 638 (where the provision that flour brought into a state and offered for sale should be re viewed and have the Virginia inspection mark on it, was held discriminating and un constitutional, such inspection not being re quired for flour manufactured In the state); Brimmer v. Rebman, 138 U. S. 78, 11 Sup. Ct. 213, 34 L. Ed. 862 (where there was a license tax on the sale of western meat, accompanied by burdensome regulations not imposed on the sale of meat produced in the state); and a license tax on photogra phers, etc., does not affect the shipment from a corporation in another state of pictures and frames to be put together and delivered by its agent, who is free from license tax; Caldwell v. North Carolina, 187 U. S. 622, 23 Sup. Ct. 229, 47 L. Ed. 336.