The Act of April 26th, 1862, entitled “An Act to Protect Free White Labor against Competition with Chinese Coolie Labor, and Discourage the Immigration of the Chinese into the State of California,” is in violation of the provision of the Constitution of the United States which gives Congress the power to regulate commerce with foreign nations.

Per Cope, J.—The Federal Constitution has vested in the General Government the power to regulate commerce in all its branches; and this power extends to every species of commercial intercourse, and may be exercised upon persons as well as.property.

Commerce cannot be carried on without the agency of persons; and a tax, the effect of which is to diminish personal intercourse, is a tax on commerce. If the power to impose such tax is acknowledged—it being a sovereign power— no limitation can be affixed to its exercise, and it may be so used as not only to diminish but to destroy commerce.

Immigration, either temporary or permanent, is an ingredient of intercourse and traffic; and the power to regulate commerce implies the power to regulate both as to persons and as to goods.

That branch of this power which relates to persons having been exercised by Congress in.the passage of the various acts designed for the encouragement of immigration, without regard to.nationality, is exclusively a prerogative of the Federal Governmant, and no State can exercise any part of it, except, perhaps, as the Government may assent to its exercise in particular cases.

The power asserted in the passage of the act in question is the right of the State to prescribe the terms upon which the Chinese shall be permitted to reside in it; and this right, if carried to the extent to which it may be carried, if the power exists, may be so used as to cut off all intercourse between them and the people of the State, and defeat the commercial policy of the nation.

The act cannot be maintained as a police regulation. This branch of the police power has been surrendered to the Federal Government as a part of the power to regulate commerce; and its exercise by a State is incompatible with the authority of the Government.

The question of the power of the States to exclude obnoxious persons, such as paupers and fugitives from justice, is not involved; for it does not appear that the Chinese as a class are of that description; nor does the act pretend to deal with them as such. They are not by the act denied a residence in the State, but are taxed for the privilege of residing here, without reference to their condition or character.

The Chinese may be taxed as other residents; but they cannot be set apart as special subjects of taxation, and be compelled to contribute to the revenue of the State in their character of foreigners.

Per Norton, J.—Under the decisions of the Supreme Court of the United States in the cases commonly called the Passenger Cases, (7 Howard) and Brown v. The State of Maryland, (12 Wheat. 419) any State law must be void, the purpose and effect of which is to prevent foreigners from coming to and residing in the State; and it would be an empty sound to say that the several States cannot pass any law to prevent foreigners from coming here, if they may pass laws which will compel such foreigners to depart as soon as they arrive.

The question in this case is not the same as that in the case of The People v. Naglee (1 Cal. 232).

In that case, it was decided that a State law, requiring foreigners to take out a license for the privilege of working the mines, was constitutional, but not that they could be taxed merely for the privilege of residing in the State.

Per Field, C. J. dissenting.—The act in question is not in conflict with that clause of the Constitution of the United States which vests in Congress the power to regulate commerce with foreign nations.

The Passenger Cases commented upon, and the acts declared unconstitutional in those cases, distinguished from the act in question.