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Show -37- It has been freely exercised. Of course, from time to time a succession of particulars has developed into tentative generalizations. Always the generalization involved judgment about practical affairs, and* as such, sub- ject to the impact of new facts soliciting judgment.133 And so, for a hundred years* we. find exertions by State authority with- in the field of interstate commerce successively passing the scrutiny of the Supreme Court. Where a State law conflicts with an act of Congress regulating interstate commerce the State law must, of course* yields there is then no difficulty except an occasional difference of opinion as to the existence of a conflict.134 But, when Congress has not passed an act in execution of its power to regulate commerce, much more complicated consid- erations come into play. The decisions turn, as Marshall made clear from the beginning on "all the circumstances of the case."135 The "circumstances" at bottom are the practical adjustments of State and national needs, inter- ests and capacities.- The "circumstances" which, in the silence of Congress, allow State action have been summarized, in one large series of cases, as matters that warrant a treatment non-uniform throughout the country.136 But 133 Thayer* Cases on Constitutional Law (1895) pp. v-vi "Even under the most favorable circumstances, in dealing with such a subject as this, results must often be tentative and temporary* Views that seem adequate at the time, are announced* applied* and developed; and yet, by and by* almost unperceived, they melt away in the light of later experience, and other doctrines take their place." See e. g. the trend.of decision from Woodruff v. Parham (1869, U. S») 8 Wall. 123, to Sonneborn Bros. v« Cureton (1923) 262 U* S. 506, 43 Sup, Ct.. 643 and the qualifications in the latter case of the tendencies developed in the earlier cases of Standard Oil Co v. Graves (1919) 2l+9 U. S. 389, 39 Sup. Ct. 320 Askren v. Continental Oil Co. (1920) 252 U. S, 444 40 Sup. Ct. 355; Bowman v» Continental Oil Co. (1921) 256 U# S* 642, 41 Sup. Ct. 606; Texas Co. v. Brown (1922) 258 U. S<> 1*66, 42 SUP Ct. 375. CF. Brandeis, J., Dissenting in New York Central R* R. Co. v. Win_- field, supra, note 124 Clarke, J», dissenting in Penna. R. R« Co. v. Pub. Service Commission (1919) 250 U. S* 566, l|0 Sup« Ct. 36; Brandeis, Holmes, Clarke, JJ. a dissenting in Lemke v. Farmers1 Grain Co., supra, note 12l+. 135Marshall, C» J., in Wilson v. Blackbird Creek Marsh Co. (1829, U. S.) 2 Pet. 2ii5, 252- 13osee e» g« State regulations for the improvement of navigation* Wilson v. Blackbird Creek Marsh Co. supra, note 135; Manigault v. Springs (1905) 199 U. S. 1+73, 26 Sup. Ct. 127; County of Mobile v. Kimball (1880) 102 U. S« 69I3 Huse v. Glover (1886) 119 U, S« 5i;3, 7 Sup. Ct. 313? Sands v. Manistee River Imp* Co. (1887) 123 u« S. 288, 8 Sup. Ct. 213; State regulations concerning traffic over bridges crossing navigable waters$ Escanaba Co* v. Chicago (1882) 107 U. S. 678, 2 Sup. Ct. 185j State au- thorizations for the building of bridges across navigable waters; Gilman v. Philadelphia (I865, u» S.) 3 Wall. 713; Cardwell v, Ajn.'Bridge Co. (188 5) 113 U. S. 205, 5 Sup.'Ct. i+23; Hamilton v. Vicksburg, S. & P» R. R* Co. (1886) 119 U, S» 280, 7 Sup. Ct. 206; The Passaic Bridges (I865, CvC.D.N. J.) 3 Wall. 782, Appx.; State police regulations over harborsi Owners of Brig James Gray v. Owners' of Ship John Fraser (I858, U.S.) 21 How. 18i+; State |
