223 U.S.

Argument for the United States.

respects whatsoever. Florida v. Black River Phosphate Co., 32 Florida, 83, 94.

Under Art I, Florida Const. the boundaries of the State are defined as being three leagues from shore, in the Gulf of Mexico. So the State has control over the sponge bars and beds in the Gulf of Mexico and Straits of Florida from the shore out to, and coextensive with, the state limits so defined. United States v. Bevans, 3 Wheat. 336.

As to the right of the several States to control the taking of fish and game within the limits of their territory, the following decisions among the state cases are to the same effect: Alabama v. Harred (Ala.), 15 L. R. A. 761; Waverly v. White (Va.), 45 L. R. A. 227; People v. Truckee Lumber Co. (Cal.), 39 L. R. A. 581 and note; Commonwealth v. Hilton (Mass.), 45 L. R. A. 475; State v. Lewis (Ind.), 20 L. R. A. 52; Geer v. Connecticut, 161 U. S. 519; New York v. Hesterberg, 211 U. S. 31.

On the question of the power to control the taking of sponges, fish, and oysters outside of the territorial limits of the State or United States there are no decisions, but see those in relation to the seal industry in Behring Sea, In re Cooper, 143 U. S. 474; Nor. Am. Commercial Co. v. United States, 171 U. S. 110; La Ninfa v. United States, 75 Fed. Rep. 513, under which it appears that Congress has neither the power to prohibit the landing or sale of an ordinary article of commerce within the limits of a State, nor has it the power to control the taking of sponges, either within the waters of a State or upon the high seas.

The Solicitor General, with whom Mr. Charles E. McNabb, Assistant Attorney, was on the brief, for the United States:

Whether the act of Congress in question is unconstitutional as an invasion of the reserved power of the State is a question not presented by this record, inasmuch

Argument for the United States.

223 U.S.

as it is not shown that any of the sponges landed from the Abby Dodge were taken within the boundaries of the State. Flint v. Stone Tracy Co., 220 U. S. 107-177.

The United States has undoubted right alike in virtue of its power to regulate foreign commerce and as an exercise of its inherent powers of national sovereignty to regulate the use of fisheries near its shores and outside the boundaries of the States, so far as concerns operations by its own people or to or from its own shores. Lord v. Steamship Co., 102 U. S. 541; Chinese Exclusion Case, 130 U. S. 581; Fong Yue Ting v. United States, 149 U. S. 698; Lem Moon Sing v. United States, 158 U. S. 538; Nor. Am. Commercial Co. v. United States, 171 U. S. 110; Buttfield v. Stranahan, 192 U. S. 470; Oceanic Steam Co. v. Stranahan, 214 U. S. 320.

Conservation of these fisheries concerns the users of sponges throughout the United States. Florida certainly cannot protect them, and unless the United States does so they may be utterly destroyed.

American fisheries have been regulated by law for more than a century. See act of February 18, 1793, 1 Stat. 305, 307, ch. 8. The laws in force in 1873, when the statutes were revised, appear under Titles 50 and 51; see §§ 4321, 4393, for regulations as to whale, mackerel, and cod. Those statutes have been construed by the courts without question as to the power of Congress to enact such laws. The Nymph, 1 Ware, 257; 18 Fed. Cas. 509; United States v. The Davis, 1 Cliff. 523; 27 Fed. Cas. 454; United States v. The Reindeer, 14 Law Rep. 235; 27 Fed. Cas. 758; and see act of February 28, 1887, 24 Stat. 434, ch. 288; April 6, 1894, 28 Stat. 52, ch. 57; June 5, 1894, 28 Stat. 85, ch. 91; December 29, 1897, 30 Stat. 226, ch. 3. See also Nor. Am. Commercial Co. v. United States, 171 U. S. 110, 134; Act of June 30, 1906, 34 Stat. 768, ch. 3915. If the foregoing laws are constitutional, the one in question is. The power to regulate commerce in sponges

223 U.S.

Argument for the United States.

gathered outside the territorial waters of States must be lodged somewhere. It cannot be nonexistent. Obviously, it is not in the States; therefore it must be in the Federal Government.

"Commerce," in the grant of power to Congress, comprehends external relations of every nature. 2 Madison Papers, 859; Cooley v. Board of Wardens, 12 How. 299, 319; Henderson v. Mayor, 92 U. S. 259, 272.

For other cases presenting, as in this case, conditions beyond state control or regulation and involving consideration and application of both constitutional and international law, see Chinese Exclusion Case, 130 U. S. 581, 603, 609; Fong Yue Ting v. United States, 149 U. S. 698, 711; Lem Moon Sing v. United States, 158 U. S. 538, 543; Turner v. Williams, 194 U. S. 279, 290; Buttfield v. Stranahan, 192 U. S. 470, 492, 493; Oceanic Steam Co. v. Stranahan, 214 U. S. 320, 334, 335; Lord v. Steamship Co., 102 U. S. 541.

The conventional limitation of national authority over the high seas to within three miles of the shore is applicable only as between nations. The people of the United States have an interest in sea fisheries, and an especial interest in those near their own shores. The United States is asserting nothing here against the sovereignty of any other nation. It simply closes the ports of the United States against everybody engaged in operations which it holds to be needlessly wasteful and destructive in their methods.

There is nothing new in this. It is not new in the legislation of the United States. It is not new in the legislation of other nations. Examples, indeed, are numerous. Russia, Great Britain, New Zealand, Sweden, Norway, Germany, and Holland have all adopted legislative regulations, applicable to their own subjects, for the protection of seals of various species. Other instances are the British "Sea Fisheries Act" of 1868 (31 and 32 Vict., ch. 45, § 47);

the Scotch "Herring Fishery Act" of 1889 (52 and 53 Vict., ch. 23); ordinances of Ceylon and statutes of Australasia regulating pearl fisheries; laws of Italy as to coral fishing, and those of Norway establishing a close season for whales. See the treaty recently concluded between Russia, Great Britain, Japan and the United States.

MR. CHIEF JUSTICE WHITE delivered the opinion of the

court.

By libel of the vessel Abby Dodge, either her forfeiture or the enforcement of a money penalty was sought because of an alleged violation of the act of June 20, 1906, 34 Stat. 313, ch. 3442, entitled, "An Act To regulate the landing, delivery, cure, and sale of sponges." The specific violation alleged was "That there was at the port of Tarpon Springs, within the Southern District of Florida, on the 28th day of September, A. D. 1908, landed from the said vessel, Abby Dodge, 1,229 bunches of sponges, taken by means of diving and apparatus from the waters of the Gulf of Mexico and the Straits of Florida; at a time other than between October 1st and May 1st of any year, and at a time subsequent to May 1st, A. D. 1907."

The owner of the vessel appeared and filed exceptions which, although urged in various forms, were all, as stated by counsel, "directed to and based upon the alleged unconstitutionality of the said act of June 20, 1906." The exceptions were overruled, and, the claimant declining further to plead, a decree was entered assessing a fine of $100 against the vessel. This appeal was then taken.

For the purposes of the questions upon which this case turns we need only consider the first section of the act of June 20, 1906, which is as follows:

"That from and after May first, anno Domini nineteen hundred and seven, it shall be unlawful to land, deliver, cure, or offer for sale at any port or place in the United States any sponges taken by means of diving or diving

apparatus from the waters of the Gulf of Mexico or Straits of Florida: Provided, That sponges taken or gathered by such process between October first and May first of each year in a greater depth of water than fifty feet shall not be subject to the provisions of this Act: And provided further, That no sponges taken from said waters shall be landed, delivered, cured, or offered for sale at any port or place in the United States of a smaller size than four inches in diameter."

Broadly the act, it is insisted, is repugnant to the Constitution because, in one aspect, it deals with a matter exclusively within the authority of the States, and in another because, irrespective of the question of state authority, the statute regulates a subject not within the national grasp and hence not embraced within the legislative power of Congress. The first proceeds upon the assumption that the act regulates the taking or gathering of sponges attached to the land under water within the territorial limits of the State of Florida and it may be of other States bordering on the Gulf of Mexico, prohibits internal commerce in sponges so taken or gathered, and is therefore plainly an unauthorized exercise of power by Congress. The second is based on the theory that even if the act be construed as concerned only with sponges taken or gathered from land under water outside of the jurisdiction of any State, then its provisions are in excess of the power of Congress, because, under such hypothesis, the act can only apply to sponges taken from the bed of the ocean, which the National Government has no power to deal with.

We briefly consider the two propositions. If the premise upon which the first rests be correct, that is to say, the assumption that the act when rightly construed applies to sponges taken or gathered from land under water within the territorial limits of the State of Florida or other States, the repugnancy of the act to the Constitution would plainly be established by the decisions of this court. In