[258 U.S. 101, 102] Mr. John Rustgard, of Juneau, Alaska, for appellants.
[258 U.S. 101, 104] Mr. Solicitor General Beck, of Washington, D. C., for appellee.
Mr. Justice McREYNOLDS delivered the opinion of the Court.
In the court below appellants' bill was dismissed upon demurrer. It attacks the validity of section 27, Merchant Marine Act of June 5, 1920, c. 250, 41 Stat. 988,1 upon the ground that the regulation of commerce prescribed therein gives a preference to ports of the Pacific Coast states over those of Alaska, contrary to section 9, art. 1, of the federal Constitution:
The act purports among other things 'to provide for the promotion and maintenance of the American merchant marine,' and section 27 forbids transportation of merchandise [258 U.S. 101, 110] over any portion of the route between points in the United States including Alaska 'in any other vessel than a vessel built in and documented under the laws of the United States and owned by persons who are citizens of the United States, or vessels to which the privilege of engaging in the coastwise trade is extended by sections 18 or 22 of this act,' provided that under certain conditions this limitation shall not apply to merchandise transported between points within the United States, excluding Alaska, over through routes by Canadian rail lines and connecting water facilities.
The bill assumes that the preference is obvious upon a consideration of the statute without more. And although by fostering lines of boats which afford frequent, regular and speedy service, and otherwise, the practical effect may be highly beneficial to Alaskan ports, nevertheless, in view of the record, we will assume that the act does give preference to ports of the states over those of the territory.
Alaska has been incorporated into and is part of the United States, and the Constitution, so far as applicable, is controlling upon Congress when legislating in respect thereto. Rasmussen v. United States, 197 U.S. 516, 525 , 528 S., 25 Sup. Ct. 514. It has been organized and is governed under appropriate congressional action. For present purposes, therefore, we need not inquire into the object and scope of the treaty of cession.
The questioned regulation relates directly to commerce and clearly is not within the usual meaning of the words of section 8, art. 1, of the Constitution:
That such regulations are not controlled by the uniformity clause was pointed out in Cooley v. Board of Wardens of Port of Philadelphia, 12 How. 299, 314 (13 L. Ed. 996):
The appellants insist that 'state' in the preference clause includes an incorporated and organized territory. This word appears very often in the Constitution and as generally used therein it clearly excludes a 'territory.' To justify the broad meaning now suggested would require considerations more cogent than any which have been suggested. Obviously, the best interests of a detached territory may often demand that its ports be treated very differently from those within the states. And we can find nothing in the Constitution itself or its history which compels the conclusion that it was intended to deprive Congress of power so to act. See Pennsylvania v. Wheeling & B. Bridge Co., 18 How. 421; Knowlton v. Moore, 178 U.S. 107 , 20 Sup. Ct. 747.
Great weight is attributed to certain statements concerning the preference clause found in the several opinions announced in Downes v. Bidwell, 182 U.S. 244, 249 , 288 S., 352, 354, 355, 21 Sup. Ct. 770. But none of these opinions was accepted by a majority of the court and statements therein are not binding upon us. That controversy grew out of a revenue measure and the point now presented was not directly involved. The writers used the language relied upon in arguments intended to support their particular views concerning the fundamental points. Without attempting to ascertain the exact purport of these expressions it suffices to say that they afford no adequate support for appellants' position. [258 U.S. 101, 112] A quotation from the opinion of the court in Rasmussen v. United States, 197 U.S. 516, 520 , 25 S. Sup. Ct. 514, 515 (49 L. Ed. 862), is apposite:
The judgment below is affirmed.
[ Footnote 1 ] Act of June 5, 1920-To provide for the promotion and maintenance of the American merchant marine, to repeal certain emergency legislation, and provide for the disposition, regulation, and use of property acquired thereunder and for other purposes.
Sec. 27. That no merchandise shall be transported by water, or by land and water, on penalty of forfeiture thereof, between points in the United States, including Districts, territories, and possessions thereof embraced within the coastwise laws, either directly or via a foreign port or for any part of the transportation, in any other vessel than a vessel built in and documented under the laws of the United States and owned by persons who are citizens of the United States, or vessels to which the privilege of engaging in the coastwise trade is extended by sections 18 or 22 of this act: Provided, That this section shall not apply to merchandise transported between points within the continental United States, excluding Alaska, over through routes heretofore or hereafter recognized by the Interstate Commerce Commission for which routes rate tariffs have been or shall hereafter be filed withj said commission when such routes are in part over Canadian rail lines and their own or other connecting water facilities: Provided further, that this section shall not becoem effective upon the Yukon rive until the Alaska railroad shall be completed and the sHipping Board shall find that proper facilities will be frunished for transportation by persons citizens of the United States for properly handling the traffic.