This is an action to recover certain penalties given by a statute of the state of New York, passed in the year 1824, concerning passengers in vessels brought from foreign countries into the port of New York, and founded on the neglect to report -his passengers, according to the provisions of the act
The declaration contains two counts: The first is special, setting out the-act and its provisions so far as it relates to this case, and averring the facts which are supposed to bring the case within the act The main objection relied upon to the form of this count is, that •the offence is laid in the alternative.’ . This objection we think not well founded. The objection seems to be founded on a mistaken view of the act The act contemplates two distinct offences: the one where the vessel arrives with the passengers in the port of New York, and the other is where the passengers have been landed at some other place, or put on board some other vessel, with the intention of proceeding to the city of New York. Under the first branch of the act, the penalty is incurred by coming directly from the foreign country to New York, or circuitously, having touched at some other port in the United States. ; The offence alleged to have been. committed in this case, falls under this first branch of the-act; and the manner in which the offence is alleged, is not in the alternative, looking to one or the other of two of-fences. The offence is the coming into' the port of New York, and whether directly from ihe foreign port, or circuitously, by the way of some other port in the United States, is immaterial.
The second count is according to the form prescribed by the late revision of the laws of this state, and we see no objection to it But the great objection relied upon is, that the act is unconstitutional, on the ground of its interfering with powers of congress to reg•ulate commerce. A full answer to this objection is contained in the doctrine of the supreme court of the United States, in the case of Wilson v. Black Bird Greek Marsh Co., 2 Pet [27 U. S.] 252. This act does not conflict with any existing act of congress; and ‘ if should be admitted- that the subject of this law- comes under the cognizance of the general government under the .power to regulate commerce, until that power is exercised it does not conflict with state legislation. But we think the subject-matter of this law is properly within the scope of state legislation; it relates entirely to the internal police of the state, and falls within that class of subjects which the supreme court says in Gibbons v. Ogden, 9 Wheat. [22 U. S.] 203, forms a portion of that immense mass of legislation which embraces everything within a state not surrendered to the general government, viz., inspection laws, quarantine laws of every description, and laws regulating the internal commerce of a' state; also, to regulate its own police.