Fed. 98. That court held that the State of New York could not, under its power of eminent domain, authorize water to be taken from a non-navigable stream having its source in New York for the purpose of supplying a municipal corporation at a dis tance therefrom, if the effect would be ma terially to diminish the flow of the stream, to the injury of the rights of riparian own ers on that stream in Connecticut. It fur ther held that a Connecticut riparian owner might maintain a suit in equity to enjoin the diversion of the water from the stream in New York State to his injury, although the diversion was made under an attempted ex ercise of the right of eminent domain, and that he was not bound to seek as his remedy compensation in the eminent domain pro ceedings. This decision was rendered by two of the judges of the court, with one dis senting. The effect of the decision, how ever, is left in some doubt by reason of the fact that the case was taken to the United States Supreme Court, and the decision re versed on other grounds in 185 U. S. 93, 46 L. ed. 820. The Supreme Court withheld any opinion on the question of the right of the complainant in the case to damages for the reversion of the water, but held that the decree of the lower court was erroneous in the measure of relief given, even if it were assumed that the diversion of the water vio lated a legal right of the complainant. As the case stands, therefore, it is not of much weight as an authority, but it has certainly opened up a subject of far reaching impor tance.
their nature national, or admit only of one uniform system, or plan of regulation, are of such a nature as to require exclusive leg islation by Congress. Whatever subjects of the power are in their nature local and not national, and are such as may be best provided for by differ ent systems of regulation enacted by the State in conformity with circumstances ex isting within their limits, may, in the ab sence of legislation by Congress, be regu lated by the States. And the opinion is an authority for the proposition that, not the mere legislation by Congress upon a local subject, but the direct conflict between the law of the Con gress and the law of the State, renders the latter void. The writer then formulates the following rules in explanation of and supplemental to those of Cooley r. Board of Wardens, above given : Commerce with foreign nations and among the several States, being in its na ture national, its direct regulation is ex clusively in the power of Congress. The incidents of such commerce,—the commodity, instrument, agent.—being local in nature, their regulation is generally with in the power of the State, in the absence of conflicting legislation by Congress, except when the State regulation ( Г) imposes a tax upon an incident of that commerce in its quality as such, or (2) is discriminating, or (3) exceeds what is reasonably necessary to the protection of persons or property and to orderly government within the State.
IN an article on "The Exclusive Power of Congress to Regulate Interstate Com merce," David Walter Brown, in the No vember Columbia Lau' Review, quotes with approval the rules laid down by Mr. Justice Story in Cooley i1. Board of Wardens, 12 How. 299 (1851), namely: Whether the power of Congress to legis late upon a given subject under the com mercial clause of the Constitution is or is not exclusive, depends upon the nature of the subject. Whatever subjects of this power are in
THE November Yale Lau1 Journal contains a vigorous article on "Gambling and Cog nate Vices," by John R. Dos Passos, of the New York Bar. He says: Gambling, prostitution and offenses growing out of the use of intoxicating li quors, are not crimes against nature, but offenses against society. They are not mala in sc—wrong in themselves: but they have been declared crimes, like many other acts, because the predominating moral sense of the community, operating through the Leg islature, has condemned them as detrimental
