Leisy v. Hardin
135 U.S. 100 (1890)

Annotate this Case

U.S. Supreme Court

Leisy v. Hardin, 135 U.S. 100 (1890)

Leisy v. Hardin

No. 1459

Submitted January 6, 1890

Decided April 28, 1890

135 U.S. 100




A statute of a state prohibiting the sale of any intoxicating liquors except for pharmaceutical, medicinal, chemical, or sacramental purposes and under a license from a county court of the state is, as applied to a sale by the importer, and in the original packages or kegs, unbroken and unopened, of such liquors manufactured in and brought from another state, unconstitutional and void as repugnant to the clause of the Constitution granting to Congress the power to regulate commerce with foreign nations and among the several states.

Peirce v. New Hampshire, 5 How. 504, overruled.

MR. CHIEF JUSTICE FULLER, on behalf of the Court, stated the case as follows:

Christine Leisy, Edward Leisy, Lena and Albert Leisy, composing the firm of Gus. Leisy & Co., citizens of Illinois, brought their action of replevin against A. J. Hardin, the duly elected and qualified Marshal of the City of Keokuk, Iowa, and ex officio constable of Jackson Township, Lee County, Iowa, in the Superior Court of Keokuk, in said county, to recover 122 one-quarter barrels of beer, 171 one-eighth barrels of beer, and 11 sealed cases of beer, which had been seized by him in a proceeding on behalf of the State of Iowa against said defendants under certain provisions of the code of the Iowa, and upon issue joined, a jury having been duly waived by the parties, the case was submitted to the court for trial, and, having been tried, the court, after having taken the case under advisement, finally

"rendered and filed in said cause its findings of fact and conclusions of law in words and figures following, to-wit:"

"1st. That plaintiffs, Gus. Leisy & Co., are a firm of that name and style, residing in the State of Illinois, with principal place of business at Peoria, Illinois; that said firm is composed wholly of citizens of Illinois; that said firm is engaged as

Page 135 U. S. 101

brewers in the manufacture of beer in the said City of Peoria, Illinois, selling same in the States of Illinois and Iowa."

"2d. That the property in question, to-wit, 122 one-quarter barrels of beer, of the value of $300, 171 one-eighth barrels of beer, value $215, and 11 sealed cases of beer, value of $25, was all manufactured by said Leisy & Co. in the City of Peoria, Illinois, and put up in said kegs and cases by the manufacturers, viz., Gus. Leisy & Co. at Peoria, Illinois; that each of said kegs was sealed and had placed upon it, over the plug in the opening of each keg, a United States internal revenue stamp of the district in which Peoria is situated; that said cases were substantially made of wood, each one of them containing 24 quart bottles of beer, each bottle of beer corked, and the cork fastened in with a metallic cap, sealed and covered with tin foil, and each case was sealed with a metallic seal; that said beer in all of said kegs and cases was manufactured and put up into said kegs and cases as aforesaid by the manufacturers, to-wit, Gus. Leisy & Co., plaintiffs in this suit, and to open said cases, the metallic seals had to be broken."

"3d. That the property herein described was transported by said Gus. Leisy & Co. from Peoria, Illinois, by means of railways, to Keokuk, Iowa, in said sealed kegs and cases, as same was manufactured and put up by them in the City of Peoria, Illinois."

"4th. That said property was sold and offered for sale in Keokuk, Iowa, by John Leisy, a resident of Keokuk, Iowa, who is agent for said Gus. Leisy & Co.; that the only sales and offers to sell of said beer was in the original keg and sealed case as manufactured and put up by said Gus. Leisy & Co., and imported by them into the State of Iowa; that no kegs or cases sold or offered for sale were broken or opened on the premises; that as soon as same was purchased, it was removed from the premises occupied by Gus. Leisy & Co., which said premises are owned by Christiana Leisy, a member of the firm of Gus. Leisy & Co., residing in and being a citizen of Peoria, Illinois; that none of such sales or offers to sell were made to minors or persons in the habit of becoming intoxicated."

"5th. That on the 30th day of June, 1888, the defendant, as

Page 135 U. S. 102

Constable of Jackson Township, Lee County, Iowa, by virtue of a search warrant issued by J. G. Garrettson, an acting justice of the peace of said Jackson Township, upon an information filed charging that in premises occupied by said John Leisy there were certain intoxicating liquors, etc., seized the property therein described, and took same into his custody."

"6th. And the court finds that said intoxicating liquors thus seized by the defendant in his official capacity as constable were kept for sale in the premises described in the search warrant in Keokuk, Lee County, Iowa, and occupied by Gus. Leisy & Co. for the purpose of being sold in violation of the provisions of the laws of Iowa, but which laws, the court holds, are unconstitutional and void, as herein stated."

"7th. That on the second day of July, 1888, plaintiffs filed in this Court their petition, alleging, among other things, that they were the owners and entitled to the possession of said property, and that the law under which said warrant was issued was unconstitutional and void, being in violation of Section 8 of Article I of the Constitution of the United States, and having filed a proper bond a writ of replevin issued, and the possession of said property was given to plaintiffs."

"From the foregoing facts, the court finds the following conclusions:"

"That plaintiffs are the sole and unqualified owners of said property, and entitled to the possession of same, and judgment for one dollar damages for their detention, and costs of suit; that so much of chapter 6, title XI, Code of 1873, and the amendments thereto, as prohibits such sales by plaintiffs as were made by plaintiffs is unconstitutional, being in contravention of Section 8 of Article I of the Constitution of the United States; that said law has been held unconstitutional in a like case heretofore tried and determined by this Court involving the same question, in the case of Collins v. Hills, decided prior to the commencement of this suit, and prior to the seizure of said property by defendant, to all of which the defendant at the time excepted."

Judgment was thereupon rendered as follows:

"This cause coming on for hearing, plaintiffs appearing by

Page 135 U. S. 103

Anderson & Davis, their attorneys, and the defendant by H. Scott Howell & Son and Wm. B. Collins, his attorneys, and the cause coming on for final hearing on the pleadings on file and the evidence introduced, the court makes the special finding of facts and law herewith ordered to be made or record, and finds that plaintiffs are the sole and unqualified owners and entitled to possession of the following described personal property, to-wit, 122 one-quarter (1/4) barrels of beer, of the value of $300.00; 171 one-eighth (1/8) barrels of beer, of the value of $215.00, and eleven (11) sealed cases of beer, of the value of $25.00."

"That, plaintiffs being in possession of said property by virtue of a bond heretofore given, said possession in plaintiffs is confirmed. The court further finds that the writ issued by J. G. Garrettson, a justice of the peace, under which defendant held possession of said property and seized same, is void, same having been issued under sections of the law of Iowa that are unconstitutional and void."

"That plaintiff is entitled to one dollar damages for the wrongful detention of said property."

"It is therefore ordered and considered by the court that the plaintiffs have and recover of defendant the sum of one dollar damages, and costs of this action, taxed at $_____."

"To which findings, order, and judgment of court the defendant at the time excepts, and asks until the 31st day of October, 1888, to prepare and file his bill of exceptions, which request is granted, and order hereby made."

A motion for new trial was made and overruled, and the cause taken to the Supreme Court of Iowa by appeal, and errors therein assigned as follows:

"I. The court erred in finding that the plaintiffs were the sole and unqualified owners, and were entitled to the possession of the intoxicating liquors seized and held by appellant."

"II. In finding that the plaintiffs were entitled to one dollar damages for their detention, and for costs of suit."

"III. The court erred in holding that the sales of beer in 'original packages,' by the keg and case, as made by John Leisy, agent of plaintiffs, were lawful."

"IV. The court erred in its conclusions and finding that so

Page 135 U. S. 104

much of the law of the State of Iowa embraced in chapter 6, title XI, Code o 1873, and the amendments thereto, as prohibits such sales of beer in the State of Iowa was unconstitutional, being in contravention of Section 8, Article I, of the Constitution of the United States."

"V. The court erred in rendering a judgment for plaintiffs, and awarding them the intoxicating liquors in question, and damages and costs against defendant."

"VI. The court erred in overruling the defendant's motion for a new trial."

The supreme court reversed the judgment of the superior court and entered judgment against the plaintiffs and their sureties on the replevin bond in the amount of the value of the property, with costs. The judgment thus concluded:

"And it is further certified by this Court, and hereby made a part of the record, that in the decision of this suit there is drawn in question the validity of certain statutes of the State of Iowa, namely, chap. 6 of title XI of the Code of Iowa of 1873 and the amendments thereto, on the ground of their being repugnant to and in contravention of Section 8 of Article I of the Constitution of the United States, said appellees, Gus. Leisy & Co., claiming such statutes of the State of Iowa are invalid, and the decision in this cause is in favor of the validity of said statutes of the State of Iowa."

To review this judgment, a writ of error was sued out from this Court. The opinion of the supreme court, not yet reported in the official series, will be found in 43 N.W. 188.

The seizure of the beer in question by the constable was made under the provisions of chapter 6, Tit. XI, Code of 1873, and amendments thereto. Code 1873, p. 279; Laws 1884, c. 8, p. 8; c. 143, p. 146; Laws 1888, c. 71, p. 91; 1 McClain's Ann.Code §§ 2359-2431, p. 603.

Section 1523 of the Code is as follows:

"No person shall manufacture or sell, by himself, his clerk, steward, or agent, directly or indirectly, any intoxicating liquors except as hereinafter provided. And the keeping of intoxicating liquor with the intent on the part of the owner thereof

Page 135 U. S. 105

or any person acting under his authority or by his permission to sell the same within this state contrary to the provisions of this chapter is hereby prohibited, and the intoxicating liquor so kept, together with the vessels in which it is contained, is declared a nuisance, and shall be forfeited and dealt with as hereinafter provided."

Chapter 71 of the Laws of the 22d General Assembly is an Act approved April 12, 1888, Laws Iowa 1888, p. 91, of which the first section is as follows:

"That after this act takes effect, no person shall manufacture for sale, sell, keep for sale, give away, exchange, barter, or dispense any intoxicating liquor for any purpose whatever otherwise than as provided in this act. Persons holding permits as herein provided shall be authorized to sell and dispense intoxicating liquors for pharmaceutical and medicinal purposes, and alcohol for specified chemical purposes, and wine for sacramental purposes, but for no other purposes whatever, and all permits must be procured as hereinafter provided from the district court of the proper county at any term thereof after this act takes effect, and a permit to buy and sell intoxicating liquors when so procured shall continue in force for one year from date of its issue, unless revoked according to law, or until application for renewal is disposed of, if such application is made before the year expires, provided that renewals of permits may be annually granted upon written application by permit holders who show to the satisfaction of the court or judge that they have, during the preceding year, complied with the provisions of this act, and execute a new bond as in this act required to be originally given, but parties may appear and resist renewals the same as in applications for permits."

Section 2 provides for notice of application for permit, and section 3 reads thus:

"Applications for permits shall be made by petition signed and sworn to by the applicant and filed in the office of the clerk of the district court of the proper county at least ten days before the first day of the term, which petition shall state the applicant's name, place of residence, in what business he is then engaged, and in what business he has been engaged for

Page 135 U. S. 106

two years previous to filing petition; the place, particularly describing it, where the business of buying and selling liquor is to be conducted; that he is a citizen of the United States and of the State of Iowa; that he is a registered pharmacist, and now is, and for the last six months has been, lawfully conducting a pharmacy in the township or town wherein he proposes to sell intoxicating liquors under the permit applied for, and, as the proprietor of such pharmacy, that he has not been adjudged guilty of violating the law relating to intoxicating liquors within the last two years next preceding his application, and is not the keeper of a hotel, eating house, saloon, restaurant, or place of public amusement; that he is not addicted to the use of intoxicating liquors as a beverage, and has not, within the last two years next preceding his application, been directly or indirectly engaged, employed, or interested in the unlawful manufacture, sale, or keeping for sale, of intoxicating liquors, and that he desires a permit to purchase, keep, and sell such liquors for lawful purposes only."

Various sections follow relating to giving bond, petition as to the good moral character of applicant, hearing on the application, oath upon the issuing of permit, keeping of record, punishment by fine, imprisonment, etc.

By section 20, sections 1524, 1526, and other sections of the Code were in terms repealed.

The Code provided for the seizure of intoxicating liquors unlawfully offered for sale, and no question in reference to that arises here if the law in controversy be valid.

By section 1 of chapter 8 of the Laws of 1884, p. 8, ale, beer, wine, spirituous, vinous, and malt liquors are defined to be intoxicating liquors.

Section 1524, Code 1873, p. 279, was as follows:

"Nothing in this chapter shall be construed to forbid the sale by the importer thereof of foreign intoxicating liquor imported under the authority of the laws of the United States regarding the importation of such liquors and in accordance with such laws, provided that the said liquor at the time of said sale by said importer remains in the original casks or packages in which it was by him imported, and in quantities

Page 135 U. S. 107

not less than the quantities in which the laws of the United States require such liquors to be imported, and is sold by him in said original casks or packages, and in said quantities only, and nothing contained in this law shall prevent any persons from manufacturing in this state liquors for the purpose of being sold according to the provisions of this chapter, to be used for mechanical, medicinal, culinary, or sacramental purposes."

This section is substantially identical with section 2 of chapter 45 of the Acts of the Fifth General Assembly of Iowa, approved January 22, 1855, Laws Iowa 1854-1855, p. 58, and it was carried into the revision of 1860 as section 1560, Revision 1860, c. 64, p. 259. It was repealed by section 20 of the Act of April 12, 1888, as before stated.

Section 1553 of the Code, as amended by the Act of April 5, 1886, Laws Iowa, 1886, p. 83, forbade any common carrier to bring within the State of Iowa, for any person or persons or corporation, any intoxicating liquors from any other state or territory of the United States without first having been furnished with a certificate, under the seal of the county auditor of the county to which said liquor was to be transported or was consigned for transportation certifying that the consignee, or person to whom such liquor was to be transported, conveyed, or delivered was authorized to sell intoxicating liquors in such county. This was held to be in contravention of the federal Constitution in Bowman v. Chicago & Northwestern Railway Co.,125 U. S. 465.

MR. CHIEF JUSTICE FULLER, after stating the facts as above, delivered the opinion of the Court.

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The power vested in Congress "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes" is the power to prescribe the rule by which that commerce is to be governed, and is a power complete in itself, acknowledging no limitations other than those prescribed in the Constitution. It is coextensive with the subject on which it acts, and cannot be stopped at the external boundary of a state, but must enter its interior, and must be capable of authorizing the disposition of those articles which it introduces, so that they may become mingled with the common mass of property within the territory entered. Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 Wheat. 419.

And while, by virtue of its jurisdiction over persons and property within its limits, a state may provide for the security of the lives, limbs, health, and comfort of persons and the protection of property so situated, yet a subject matter which has been confided exclusively to Congress by the Constitution is not within the jurisdiction of the police power of the state unless placed there by congressional action. Henderson v. Mayor of New York,92 U. S. 259; Railroad Co. v. Husen,95 U. S. 465; Walling v. Michigan,116 U. S. 446; Robbins v. Shelby Taxing District,120 U. S. 489. The power to regulate commerce among the states is a unit, but if particular subjects within its operation do not require the application of a general or uniform system, the states may legislate in regard to them with a view to local needs and circumstances until Congress otherwise directs; but the power thus exercised by the states is not identical in its extent with the power to regulate commerce among the states. The power to pass laws in respect to internal commerce, inspection laws, quarantine laws, health laws, and laws in relation to bridges, ferries, and highways belongs to the class of powers pertaining to locality, essential to local intercommunication, to the progress and development of local prosperity, and to the protection, the safety, and the welfare of society, originally necessarily belonging to, and upon the adoption of the Constitution reserved by, the states, except so far as falling within the scope of a power confided to the general government. Where the subject

Page 135 U. S. 109

matter requires a uniform system as between the states, the power controlling it is vested exclusively in Congress, and cannot be encroached upon by the states; but where, in relation to the subject matter, different rules may be suitable for different localities, the states may exercise powers which, though they may be said to partake of the nature of the power granted to the general government, are strictly not such, but are simply local powers, which have full operation until or unless circumscribed by the action of Congress in effectuation of the general power. Cooley v. Port Wardens of Philadelphia, 12 How. 299.

It was stated in the thirty-second number of the Federalist that the states might exercise concurrent and independent power in all cases but three: first, where the power was lodged exclusively in the federal constitution; second, where it was given to the United States and prohibited to the states; third, where, from the nature and subjects of the power, it must be necessarily exercised by the national government exclusively. But it is easy to see that Congress may assert an authority, under one of the granted powers, which would exclude the exercise by the states upon the same subject of a different but similar power between which and that possessed by the general government no inherent repugnancy existed. Whenever, however, a particular power of the general government is one which must necessarily be exercised by it, and Congress remains silent, this is not only not a concession that the powers reserved by the states may be exerted as if the specific power had not been elsewhere reposed, but, on the contrary, the only legitimate conclusion is that the general government intended that power should not be affirmatively exercised, and the action of the states cannot be permitted to effect that which would be incompatible with such intention. Hence, inasmuch as interstate commerce, consisting in the transportation, purchase, sale, and exchange of commodities, is national in its character and must be governed by a uniform system, so long as Congress does not pass any law to regulate it, or allowing the states so to do, it thereby indicates its will

Page 135 U. S. 110

that such commerce shall be free and untrammeled. County of Mobile v. Kimball,102 U. S. 691; Brown v. Houston,114 U. S. 622, 114 U. S. 631; Wabash, St. Louis &c. Railway v. Illinois,118 U. S. 557; Robbins v. Shelby Taxing District,120 U. S. 489, 120 U. S. 493.

That ardent spirits, distilled liquors, ale, and beer are subjects of exchange, barter, and tariff, like any other commodity in which a right of traffic exists, and are so recognized by the usages of the commercial world, the laws of Congress, and the decisions of courts is not denied. Being thus articles of commerce, can a state, in the absence of legislation on the part of Congress, prohibit their importation from abroad or from a sister state?, or, when imported, prohibit their sale by the importer? If the importation cannot be prohibited without the consent of Congress, when does property imported from abroad or from a sister state so become part of the common mass of property within a state as to be subject to its unimpeded control?

In Brown v. Maryland, supra, the act of the state legislature drawn in question was held invalid as repugnant to the prohibition of the Constitution upon the states to lay any impost or duty upon imports or exports and to the clause granting the power to regulate commerce, and it was laid down by the great magistrate who presided over this Court for more than a third of a century that the point of time when the prohibition ceases and the power of the state to tax commences is not the instant when the article enters the country, but when the importer has so acted upon it that it has become incorporated and mixed up with the mass of property in the country, which happens when the original package is no longer such in his hands; that the distinction is obvious between a tax which intercepts the import as an import on its way to become incorporated with the general mass of property and a tax which finds the article already incorporated with that mass by the act of the importer; that as to the power to regulate commerce, none of the evils which proceeded from the feebleness of the federal government contributed more to the great revolution which introduced the present system than

Page 135 U. S. 111

the deep and general conviction that commerce ought to be regulated by Congress; that the grant should be as extensive as the mischief, and should comprehend all foreign commerce and all commerce among the states; that that power was complete in itself, acknowledged no limitations other than those prescribed by the Constitution, was coextensive with the subject on which it acts, and not to be stopped at the external boundary of a state, but must be capable of entering its interior; that the right to sell any article imported was an inseparable incident to the right to import it, and that the principles expounded in the case applied equally to importations from a sister state. Manifestly this must be so, for the same public policy applied to commerce among the states as to foreign commerce, and not a reason could be assigned for confiding the power over the one which did not conduce to establish the propriety of confiding the power over the other. Story, Constitution § 1066. And although the precise question before us was not ruled in Gibbons v. Ogden and Brown v. Maryland, yet we think it was virtually involved and answered, and that this is demonstrated, among other cases, in Bowman v. Chicago & Northwestern Railway Co.,125 U. S. 465. In the latter case, section 1553 of the Code of the State of Iowa, as amended by chapter 66 of the Acts of the Twenty-first General Assembly in 1886, forbidding common carriers to bring intoxicating liquors into the state from any other state or territory, without first being furnished with a certificate as prescribed, was declared invalid because essentially a regulation of commerce among the states, and not sanctioned by the authority, express or implied, of Congress. The opinion of the court, delivered by MR. JUSTICE MATTHEWS, the concurring opinion of MR. JUSTICE FIELD, and the dissenting opinion by MR. JUSTICE HARLAN, on behalf of Mr. Chief Justice Waite, MR. JUSTICE GRAY and himself, discussed the question involved in all its phases, and while the determination of whether the right of transportation of an article of commerce from one state to another includes by necessary implication the right of the consignee to sell it in unbroken packages at the place where the transportation terminates was in terms reserved, yet the argument of the majority

Page 135 U. S. 112

conducts irresistibly to that conclusion, and we think we cannot do better than repeat the grounds upon which the decision was made to rest. It is there shown that the transportation of freight or of the subjects of commerce, for the purpose of exchange or sale, is beyond all question a constituent of commerce itself; that this was the prominent idea in the minds of the framers of the Constitution when to Congress was committed the power to regulate commerce among the several states; that the power to prevent embarrassing restrictions by any state was the end desired; that the power was given by the same words and in the same clause by which was conferred power to regulate commerce with foreign nations, and that it would be absurd to suppose that the transmission of the subjects of trade from the state of the buyer, or from the place of production to the market, was not contemplated, for without that, there could be no consummated trade either with foreign nations or among the states. It is explained that where state laws alleged to be regulations of commerce among the states have been sustained, they were laws which related to bridges or dams across streams wholly within the state, or police or health laws, or to subjects of a kindred nature, not strictly of commercial regulation. But the transportation of passengers or of merchandise from one state to another is in its nature national, admitting of but one regulating power, and it was to guard against the possibility of commercial embarrassments which would result if one state could directly or indirectly tax persons or property passing through it, or prohibit particular property from entrance into the state, that the power of regulating commerce among the states was conferred upon the federal government.

"If in the present case," said Mr. Justice Matthews,

"the law of Iowa operated upon all merchandise sought to be brought from another state into its limits, there could be no doubt that it would be a regulation of commerce among the states,"

and he concludes that this must be so though it applied only to one class of articles of a particular kind. The legislation of Congress on the subject of interstate commerce by means of railroads, designed to remove trammels

Page 135 U. S. 113

upon transportation between different states, and upon the subject of the transportation of passengers and merchandise, Revised Statutes, sections 4252 to 4289, inclusive, including the transportation of nitroglycerine and other similar explosive substances, with the proviso that as to them, "any state, territory, district, city, or town within the United States" should not be prevented by the language used

"from regulating or from prohibiting the traffic in or transportation of those substances between persons or places lying or being within their respective territorial limits, or from prohibiting the introduction thereof into such limits for sale, use, or consumption therein,"

is referred to as indicative of the intention of Congress that the transportation of commodities between the states shall be free except where it is positively restricted by Congress itself or by states in particular cases by the express permission of Congress. It is said that the law in question was not an inspection law the object of which "is to improve the quality of articles produced by the labor of a country, to fit them for exportation, or it may be for domestic use," Gibbons v. Ogden, 9 Wheat. 1, 22 U. S. 203; Turner v. Maryland,107 U. S. 38, 107 U. S. 55, nor could it be regarded as a regulation of quarantine or a sanitary provision for the purpose of protecting the physical health of the community; nor a law to prevent the introduction into the state of diseases, contagious, infectious, or otherwise. Articles in such a condition as tend to spread disease are not merchantable, are not legitimate subjects of trade and commerce, and the self-protecting power of each state therefore may be rightfully exerted against their introduction, and such exercise of power cannot be considered a regulation of commerce prohibited by the Constitution, and the observations of Mr. Justice Catron in The License Cases, 5 How. 504, 46 U. S. 599, are quoted to the effect that what does not belong to commerce is within the jurisdiction of the police power of the state, but that which does belong to commerce is within the jurisdiction of the United States; that to extend the police power over subjects of commerce would be to make commerce subordinate to that power, and would enable the state to bring within the police power

"any article

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of consumption that a state might wish to exclude, whether it belonged to that which was drunk, or to food and clothing, and with nearly equal claims to propriety, as malt liquors and the products of fruits other than grapes stand on no higher ground than the light wines of this and other countries, excluded, in effect, by the law as it now stands. And it would be only another step to regulate real or supposed extravagance in food and clothing."

And Mr. Justice Matthews thus proceeds:

"For the purpose of protecting its people against the evils of intemperance, it has the right to prohibit the manufacture within its limits of intoxicating liquors. It may also prohibit all domestic commerce in them between its own inhabitants, whether the articles are introduced from other states or from foreign counties. It may punish those who sell them in violation of its laws. It may adopt any measures tending even indirectly and remotely to make the policy effective until it passes the line of power delegated to Congress under the Constitution. It cannot, without the consent of Congress, express or implied, regulate commerce between its people and those of the other states of the union in order to effect its end, however desirable such a regulation might be. . . . Can it be supposed that by omitting any express declaration on the subject, Congress has intended to submit to the several states the decision of the question in each locality of what shall and what shall not be articles of traffic in the interstate commerce of the country? If so, it has left to each state, according to its own caprice and arbitrary will, to discriminate for or against every article grown, produced, manufactured, or sold in any state and sought to be introduced as an article of commerce into any other. If the State of Iowa may prohibit the importation of intoxicating liquors from all other states, it may also include tobacco, or any other article, the use or abuse of which it may deem deleterious. It may not choose, even, to be governed by considerations growing out of the health, comfort, or peace of the community. Its policy may be directed to other ends. It may choose to establish a system directed to the promotion and benefit of its own agriculture, manufactures, or arts of any

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description, and prevent the introduction and sale within its limits of any or of all articles that it may select as coming into competition with those which it seeks to protect. The police power of the state would extend to such cases as well as to those in which it was sought to legislate in behalf of the health, peace, and morals of the people. In view of the commercial anarchy and confusion that would result from the diverse exertions of power by the several states of the union, it cannot be supposed that the Constitution or Congress have intended to limit the freedom of commercial intercourse among the people of the several states."

Many of the cases bearing upon the subject are cited and considered in these opinions, and among others, The License Cases, 5 How. 504, wherein laws passed by Massachusetts, New Hampshire, and Rhode Island in reference to the sale of spirituous liquors came under review and were sustained, although the members of the Court who participated in the decisions did not concur in any common ground upon which to rest them. That of Peirce v. New Hampshire is perhaps the most important to be referred to here. In that case, the defendants had been fined for selling a barrel of gin in New Hampshire which they had bought in Boston and brought coastwise to Portsmouth, and there sold in the same barrel, and in the same condition in which it was purchased in Massachusetts, but contrary to the law of New Hampshire in that behalf. The conclusion of the opinion of Mr. Chief Justice is in these words:

"Upon the whole, therefore, the law of New Hampshire is, in my judgment, a valid one, for although the gin sold was an import from another state, and Congress have clearly the power to regulate such importations, under the grant of power to regulate commerce among the several states, yet as Congress has made no regulation on the subject, the traffic in the article may be lawfully regulated by the state as soon as it is landed in its territory, and a tax imposed upon it, or a license required, or the sale altogether prohibited, according to the policy which the state may suppose to be its interest or duty to pursue."

Referring to the cases of Massachusetts and Rhode Island,

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the Chief Justice, after saying that if the laws of those states came in collision with the laws of Congress authorizing the importation of spirits and distilled liquors, it would be the duty of the Court to declare them void, thus continues:

"It has, indeed, been suggested that if a state deems the traffic in ardent spirits to be injurious to its citizens and calculated to introduce immorality, vice and pauperism into the state, it may constitutionally refuse to permit its importation notwithstanding the laws of Congress, and that a state may do this upon the same principles that it may resist and prevent the introduction of disease, pestilence, or pauperism from abroad. But it must be remembered that disease, pestilence, and pauperism are not subjects of commerce, although sometimes among its attendant evils. They are not things to be regulated and trafficked in, but to be prevented as far as human foresight or human means can guard against them. But spirits and distilled liquors are universally admitted to be subjects of ownership and property, and are therefore subjects of exchange, barter, and traffic like any other commodity in which a right of property exists. And Congress, under its general power to regulate commerce with foreign nations, may prescribe what article of merchandise shall be admitted and what excluded, and may therefore admit or not, as it shall deem best, the importation of ardent spirits. And inasmuch as the laws of Congress authorize their importation, no state has a right to prohibit their introduction. . . . These state laws act altogether upon the retail or domestic traffic within their respective borders. They act upon the article after it has passed the line of foreign commerce and become a part of the general mass of property in the state. These laws may indeed discourage imports and diminish the price which ardent spirits would otherwise bring. But although a state is bound to receive and to permit the sale by the importer of any article of merchandise which Congress authorizes to be imported, it is not bound to furnish a market for it nor to abstain from the passage of any law which it may deem necessary or advisable to guard the health or morals of its citizens, although such law may discourage importation or

Page 135 U. S. 117

diminish the profits of the importer or lessen the revenue of the general government. And if any state deems the retail and internal traffic in ardent spirits injurious to its citizens, and calculated to produce idleness, vice, or debauchery, I see nothing in the Constitution of the United States to prevent it from regulating and restraining the traffic, or from prohibiting it altogether, if it thinks proper."

The New Hampshire case, the Chief Justice observed, differs from Brown v. Maryland in that the latter was a case arising out of commerce with foreign nations, which Congress had regulated by law, whereas, the case in hand was one of commerce between two states in relation to which Congress had not exercised its power.

"But the law of New Hampshire acts directly upon an import from one state to another while in the hands of the importer for sale, and is therefore a regulation of commerce, acting upon the article while it is within the admitted jurisdiction of the general government and subject to its control and regulation. The question, therefore, brought up for decision is whether a state is prohibited by the Constitution of the United States from making any regulations of foreign commerce, or of commerce with another state, although such regulation is confined to its own territory and made for its own convenience or interest, and does not come in conflict with any law of Congress. In other words, whether the grant or power to Congress is of itself a prohibition to the states, and renders all state laws upon the subject null and void."

He declares it to appear to him very clear

"that the mere grant of power to the general government cannot upon any just principles of construction be construed to be an absolute prohibition to the exercise of any power over the same subject by the states. The controlling and supreme power over commerce with foreign nations and the several states is undoubtedly conferred upon Congress. Yet, in my judgment, the state may nevertheless, for the safety or convenience of trade or for the protection of the health of its citizens, make regulations of commerce for its own ports and harbors and for its own territory, and such regulations are valid unless they come in conflict with a law

Page 135 U. S. 118

of Congress."

He comments on the omission of any prohibition in terms and concludes that if, as he thinks,

"the framers of the Constitution (knowing that a multitude of minor regulations must be necessary, which Congress amid its great concerns could never find time to consider and provide) intended merely to make the power of the federal government supreme upon this subject over that of the states, then the omission of any prohibition is accounted for, and is consistent with the whole instrument. The supremacy of the laws of Congress, in cases of collision with state laws, is secured in the article which declares that the laws of Congress, passed in pursuance of the powers granted, shall be the supreme law, and it is only where both governments may legislate on the same subject that this article can operate."

And he considers that the legislation of Congress and the states has conformed to this construction from the foundation of the government, as exemplified in state laws in relation to pilots and pilotage, and health and quarantine laws.

But conceding the weight properly to be ascribed to the judicial utterances of this eminent jurist, we are constrained to say that the distinction between subjects in respect of which there can be of necessity only one system or plan of regulation for the whole country, and subjects local in their nature, and, so far as relating to commerce, mere aids, rather than regulations, does not appear to us to have been sufficiently recognized by him in arriving at the conclusions announced. That distinction has been settled by repeated decisions of this Court, and can no longer be regarded as open to reexamination. After all, it amounts to no more than drawing the line between the exercise of power over commerce with foreign nations and among the states and the exercise of power over purely local commerce and local concerns.

The authority of Peirce v. New Hampshire, insofar as it rests on the view that the law of New Hampshire was valid because Congress had made no regulation on the subject, must be regarded as having been distinctly overthrown by the numerous cases herein after referred to.

Page 135 U. S. 119

The doctrine now firmly established is, as stated by MR. JUSTICE FIELD, in Bowman v. Chicago &c. Railway Co.,125 U. S. 507,

"that where the subject upon which Congress can act under its commercial power is local in its nature or sphere of operation, such as harbor pilotage, the improvement of harbors, the establishment of beacons and buoys to guide vessels in and out of port, the construction of bridges over navigable rivers, the erection of wharves, piers, and docks, and the like, which can be properly regulated only by special provisions adapted to their localities, the state can act until Congress interferes and supersedes its authority; but where the subject is national in its character, and admits and requires uniformity of regulation, affecting alike all the states, such as transportation between the states, including the importation of goods from one state into another, Congress can alone act upon it, and provide the needed regulations. The absence of any law of Congress on the subject is equivalent to its declaration that commerce in that matter shall be free. Thus the absence of regulations as to interstate commerce with reference to any particular subject is taken as a declaration that the importation of that article into the states shall be unrestricted. It is only after the importation is completed and the property imported is mingled with and becomes a part of the general property of the state that its regulations can act upon it, except so far as may be necessary to insure safety in the disposition of the import until thus mingled."

The conclusion follows that as the grant of the power to regulate commerce among the states, so far as one system is required, is exclusive, the states cannot exercise that power without the assent of Congress, and, in the absence of legislation, it is left for the courts to determine when state action does or does not amount to such exercise -- or, in other words, what is or is not a regulation of such commerce. When that is determined, controversy is at an end. Illustrations exemplifying the general rule are numerous. Thus we have held the following to be regulations of interstate commerce: a tax upon freight transported from state to state, Case of the State Freight Tax, 15 Wall. 232; a statute imposing a burdensome condition

Page 135 U. S. 120

on ship-masters as a prerequisite to the landing of passengers, Henderson v. Mayor of New York,92 U. S. 259; a statute prohibiting the driving or conveying of any Texas, Mexican, or Indian cattle, whether sound or diseased, into the state between the first day of March and the first day of November in each year, Railroad Co. v. Husen,95 U. S. 465; a statute requiring every auctioneer to collect and pay into the state treasury a tax on his sales, when applied to imported goods in the original packages by him sold for the importer, Cook v. Pennsylvania,97 U. S. 566; a statute intended to regulate or tax or to impose any other restriction upon the transmission of persons or property or telegraphic messages from one state to another, Wabash, St. Louis &c. Railway v. Illinois,118 U. S. 557; a statute levying a tax upon nonresident drummers offering for sale or selling goods, wares, or merchandise by sample, manufactured or belonging to citizens of other states, Robbins v. Shelby Taxing District,120 U. S. 489.

On the other hand, we have decided in County of Mobile v. Kimball,102 U. S. 691, that a state statute providing for the improvement of the river, bay, and harbor of Mobile, since what was authorized to be done was only as a mere aid to commerce, was, in the absence of action by Congress, not in conflict with the Constitution; in Escanaba Co. v. Chicago,107 U. S. 678, that the State of Illinois could lawfully authorize the City of Chicago to deepen, widen, and change the channel of, and construct bridges over, the Chicago River; in Transportation Co. v. Parkersburg,107 U. S. 691, that the jurisdiction and control of wharves properly belong to the states in which they are situated, unless otherwise provided; in Brown v. Houston,114 U. S. 622, that a general state tax, laid alike upon all property, is not unconstitutional because it happens to fall upon goods which, though not then intended for exportation, are subsequently exported; in Morgan Steamship Co. v. Louisiana Board of Health,118 U. S. 455, that a state law requiring each vessel passing a quarantine station to pay a fee for examination as to her sanitary condition, and the ports from which she came, was a rightful exercise

Page 135 U. S. 121

of police power; in Smith v. Alabama,124 U. S. 46, and in Nashville &c. Railway Co. v. Alabama,128 U. S. 96, that a state statute requiring locomotive engineers to be examined and obtain a license was not in its nature a regulation of commerce, and in Kimmish v. Ball,129 U. S. 217, that a statute providing that a person having in his possession Texas cattle which had not been wintered north of the southern boundary of Missouri at least one winter shall be liable for any damages which may accrue from allowing them to run at large, and thereby spread the disease known as the Texas fever, was constitutional.

We held also in Welton v. Missouri,91 U. S. 275, that a state statute requiring the payment of a license tax from persons dealing in goods, wares, and merchandise which are not the growth, produce, or manufacture of the state, by going from place to place to sell the same in the state, and requiring no such license tax from persons selling in a similar way goods which are the growth, produce, or manufacture of the state, is an unconstitutional regulation, and to the same effect in Walling v. Michigan,116 U. S. 446, in relation to a tax upon nonresident sellers of intoxicating liquors to be shipped into a state from places without it. But it was held in Patterson v. Kentucky,97 U. S. 501, and in Webber v. Virginia,103 U. S. 344, that the right conferred by the patent laws of the United States did not remove the tangible property in which an invention might take form from the operation of the laws of the state, nor restrict the power of the latter to protect the community from direct danger inherent in particular articles.

In Mugler v. Kansas,123 U. S. 623, it was adjudged that

"state legislation which prohibits the manufacture of spirituous, malt, vinous, fermented, or other intoxicating liquors within the limits of the state, to be there sold or bartered for general use as a beverage, does not necessarily infringe any right, privilege, or immunity secured by the Constitution of the United States, or by the amendments thereto."

And this was in accordance with our decisions in Bartemeyer v. Iowa, 18 Wall. 129; Beer Co. v. Massachusetts, 97 U.S.

Page 135 U. S. 122

25, and Foster v. Kansas,112 U. S. 201. So in Kidd v. Pearson,128 U. S. 1, it was held that a state statute which provided (1) that foreign intoxicating liquors may be imported into the state, and there kept for sale by the importer, in the original packages, or for transportation in such packages and sale beyond the limits of the state, and (2) that intoxicating liquors may be manufactured and sold within the state for mechanical, medicinal, culinary, and sacramental purposes, but for no other, not even for the purpose of transportation beyond the limits of the state, was not an undertaking to regulate commerce among the states. And in Eilenbecker v. District Court of Plymouth County,134 U. S. 31, 134 U. S. 40, we affirmed the judgment of the Supreme Court of Iowa sustaining the sentence of the District Court of Plymouth, in that state, imposing a fine of $500 and costs and imprisonment in jail for three months, if the fine was not paid within thirty days, as a punishment for contempt in refusing to obey a writ of injunction issued by that court enjoining and restraining the defendant from selling or keeping for sale any intoxicating liquors, including ale, wine, and beer, in Plymouth County. MR. JUSTICE MILLER there remarked:

"If the objection to the statute is that it authorizes a proceeding in the nature of a suit in equity to suppress the manufacture and sale of intoxicating liquors which are by law prohibited, and to abate the nuisance which the statute declares such acts to be, wherever carried on, we respond that, so far as at present advised, it appears to us that all the powers of a court, whether at common law or in chancery, may be called into operation by a legislative body for the purpose of suppressing this objectionable traffic, and we know of no hindrance in the Constitution of the United States to the form of proceedings, or to the court in which this remedy shall be had. Certainly it seems to us to be quite as wise to use the processes of the law and the powers of a court to prevent the evil as to punish the offense as a crime after it has been committed."

These decisions rest upon the undoubted right of the states of the union to control their purely internal affairs, in doing which they exercise powers not surrendered to the national

Page 135 U. S. 123

government, but whenever the law of the state amounts essentially to a regulation of commerce with foreign nations or among the states, as it does when it inhibits, directly or indirectly, the receipt of an imported commodity, or its disposition before it has ceased to become an article of trade between one state and another, or another country and this, it comes in conflict with a power which in this particular has been exclusively vested in the general government, and is therefore void.

In Mugler v. Kansas, supra, the court said (p. 123 U. S. 662) that it could not

"shut out of view the fact, within the knowledge of all, that the public health, the public morals, and the public safety may be endangered by the general use of intoxicating drinks, nor the fact established by statistics accessible to everyone that the idleness, disorder, pauperism, and crime existing in the county are, in some degree at least, traceable to this evil."

And that

"if in the judgment of the legislature [of a state] the manufacture of intoxicating liquors for the maker's own use, as a beverage, would tend to cripple, if it did not defeat, the effort to guard the community against the evils attending the excessive use of such liquors, it is not for the courts, upon their views as to what is best and safest for the community, to disregard the legislative determination of that question. . . . Nor can it be said that government interferes with or impairs anyone's constitutional rights of liberty or of property when it determines that the manufacture and sale of intoxicating drinks for general or individual use as a beverage are, or may become, hurtful to society, and constitute therefore a business in which no one may lawfully engage."

Undoubtedly it is for the legislative branch of the state governments to determine whether the manufacture of particular articles of traffic, or the sale of such articles, will injuriously affect the public, and it is not for Congress to determine what measures a state may properly adopt as appropriate or needful for the protection of the public morals, the public health, or the public safety; but, notwithstanding it is not vested with supervisory power over matters of local administration, the responsibility is upon Congress, so far as the

Page 135 U. S. 124

regulation of interstate commerce is concerned, to remove the restriction upon the state in dealing with imported articles of trade within its limits which have not been mingled with the common mass of property therein if in its judgment the end to be secured justifies and requires such action.

Prior to 1888, the statutes of Iowa permitted the sale of foreign liquors imported under the laws of the United States, provided the sale was by the importer in the original casks or packages, and in quantities not less than those in which they were required to be imported, and the provisions of the statute to this effect were declared by the Supreme Court of Iowa in Pearson v. International Distillery, 72 Ia. 354, to be

"intended to conform the statute to the doctrine of the United States Supreme Court, announced in Brown v. Maryland, 12 Wheat. 419, and License Cases, 5 How. 504, so that the statute should not conflict with the laws and authority of the United States. But that provision of the statute was repealed in 1888, and the law so far amended that we understand it now to provide that, whether imported or not, wine cannot be sold in Iowa except for sacramental purposes, nor alcohol except for specified chemical purposes, nor intoxicating liquors, including ale and beer, except for pharmaceutical and medicinal purposes, and not at all except by citizens of the State of Iowa who are registered pharmacists, and have permits obtained as prescribed by the statute, a permit being also grantable to one discreet person in any township where a pharmacist does not obtain it."

The plaintiffs in error are citizens of Illinois, are not pharmacists, and have no permit, but import into Iowa beer which they sell in original packages, as described. Under our decision in Bowman v. Chicago &c. Railway Co., supra, they had the right to import this beer into that state, and in the view which we have expressed, they had the right to sell it, by which act alone it would become mingled in the com on mass of property within the state. Up to that point of time, we hold that, in the absence of congressional permission to do so, the state had no power to interfere by seizure, or any other action, in prohibition of importation and sale by the foreign

Page 135 U. S. 125

or nonresident importer. Whatever our individual views may be as to the deleterious or dangerous qualities of particular articles, we cannot hold that any articles which Congress recognizes as subjects of interstate commerce are not such, or that whatever are thus recognized can be controlled by state laws amounting to regulations while they retain that character, although at the same time if directly dangerous in themselves, the state may take appropriate measures to guard against injury before it obtains complete jurisdiction over them. To concede to a state the power to exclude, directly or indirectly, articles so situated without congressional permission is to concede to a majority of the people of a state, represented in the state legislature, the power to regulate commercial intercourse between the states by determining what shall be its subjects when that power was distinctly granted to be exercised by the people of the United States, represented in Congress, and its possession by the latter was considered essential to that more perfect union which the Constitution was adopted to create. Undoubtedly there is difficulty in drawing the line between the municipal powers of the one government and the commercial powers of the other, but when that line is determined in the particular instance, accommodation to it without serious inconvenience may readily be found, to use the language of Mr. Justice Johnson in Gibbons v. Ogden, 9 Wheat. 1, 22 U. S. 238, in "a frank and candid cooperation for the general good."

The legislation in question is to the extent indicated repugnant to the third clause of Section 8, Article I, of the Constitution of the United States, and therefore the judgment of the Supreme Court of Iowa is

Reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

MR. JUSTICE GRAY, with whom concurred MR. JUSTICE HARLAN and MR. JUSTICE BREWER, dissenting.

MR. JUSTICE HARLAN, MR. JUSTICE BREWER, and myself are unable to concur in this judgment. As our dissent is based on

Page 135 U. S. 126

the previous decisions of this Court, the respect due to our associates as well as to our predecessors induces us to state our position, as far as possible, in the words in which the law has been heretofore declared from this bench.

The facts of the case, and the substance of the statutes whose validity is drawn in question, may be briefly stated.

It was an action of replevin of sundry kegs and cases of beer, begun in an inferior court of the State of Iowa against a constable of Lee County, in Iowa, who had seized them at Keokuk, in that county, under a search warrant issued by a justice of the peace pursuant to the statutes of Iowa which prohibit the sale, the keeping for sale, or the manufacture for sale of any intoxicating liquor (including malt liquor) for any purpose whatever except for pharmaceutical, medicinal, chemical, or sacramental purposes, and under an annual license granted by the district court of the proper county, upon being satisfied that the applicant is a citizen of the United States and of the State of Iowa, and a resident of the county, and otherwise qualified.

The plaintiffs were citizens and residents of the State of Illinois, engaged as brewers in manufacturing beer at Peoria in that state and in selling it in the States of Illinois and Iowa. The beer in question was manufactured by them at Peoria and there put up by them in said kegs and cases, each keg being sealed and having upon it, over the plug at the opening, a United States internal revenue stamp, and each case being substantially made of wood, containing two dozen quart bottles of beer, and sealed with a metallic seal, which had to be broken in order to open the case. The kegs and cases owned by the plaintiffs and so sealed were transported by them from Peoria by railway to Keokuk, and there sold and offered for sale by their agent in a building owned by one of them, and without breaking or opening the kegs or cases. The Supreme Court of Iowa having given judgment for the defendant, the question presented by this writ of error is whether the statutes of Iowa, as applied to these facts, contravene Section 8 of Article I, or Section 2 of Article IV, of the Constitution of the United States, or Section I of Article XIV of the amendments to the Constitution.

Page 135 U. S. 127

By Section 8 of Article I of the Constitution, "The Congress shall have power," among other things, "to regulate commerce with foreign nations, and among the several states," and "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers." By Section 2 of Article IV, "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." By Section 1 of the Fourteenth Amendment,

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

By the Tenth Amendment,

"The powers not delegated to the United States by he Constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people."

Among the powers thus reserved to the several states is what is commonly called the "police power" -- that inherent and necessary power, essential to the very existence of civil society and the safeguard of the inhabitants of the state against disorder, disease, poverty, and crime. "The police power belonging to the states in virtue of their general sovereignty," said Mr. Justice Story, delivering the judgment of this Court, "extends over all subjects within the territorial limits of the states, and has never been conceded to the United States." Prigg v. Pennsylvania, 16 Pet. 539, 41 U. S. 625. This is well illustrated by the recent adjudications that a statute prohibiting the sale of illuminating oils below a certain fire test is beyond the constitutional power of Congress to enact except so far as it has effect within the United States -- as, for instance, in the District of Columbia -- and without the limits of any state, but that it is within the constitutional power of a state to pass such a statute, even as to oils manufactured under letters patent from the United States. United States v. Dewitt, 9 Wall. 41; Patterson v. Kentucky,97 U. S. 501.

Page 135 U. S. 128

The police power includes all measures for the protection of the life, the health, the property, and the welfare of the inhabitants, and for the promotion of good order and the public morals. It covers the suppression of nuisances, whether injurious to the public health, like unwholesome trades, or to the public morals, like gambling houses and lottery tickets. Slaughterhouse Cases, 16 Wall. 36, 83 U. S. 62, 83 U. S. 87; Fertilizing Co. v. Hyde Park,97 U. S. 659; Phalen v. Virginia, 8 How. 163, 49 U. S. 168; Stone v. Mississippi,101 U. S. 814. This power, being essential to the maintenance of the authority of local government and to the safety and welfare of the people, is inalienable. As was said by Chief Justice Waite, referring to earlier decisions to the same effect:

"No legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. The supervision of both these subjects of governmental power is continuing in its nature, and they are to be dealt with as the special exigencies of the moment may require. Government is organized with a view to their preservation, and cannot divest itself of the power to provide for them. For this purpose, the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself."

Stone v. Mississippi,101 U. S. 814, 101 U. S. 819. See also Butchers' Union Co. v. Crescent City Co.,111 U. S. 746, 111 U. S. 753; New Orleans Gas Co. v Louisiana Light Co.,115 U. S. 650, 115 U. S. 672; New Orleans v. Houston,119 U. S. 265, 119 U. S. 275.

The police power extends not only to things intrinsically dangerous to the public health, such as infected rags or diseased meat, but to things which, when used in a lawful manner, are subjects of property and of commerce, and yet may be used so as to be injurious or dangerous to the life, the health, or the morals of the people. Gunpowder, for instance, is a subject of commerce, and of lawful use; yet, because of its explosive and dangerous quality, all admit that the state may regulate its keeping and sale. And there is no article the right of the state to control or to prohibit the sale or manufacture of which within its limits is better established than

Page 135 U. S. 129

intoxicating liquors. License Cases, 5 How. 504; Downham v. Alexandria Council, 10 Wall. 173; Bartemeyer v. Iowa, 18 Wall. 129; Beer Co. v. Massachusetts,97 U. S. 25; Tiernan v. Rinker,102 U. S. 123; Foster v. Kansas,112 U. S. 201; Mugler v. Kansas and Kansas v. Ziebold,123 U. S. 623; Kidd v. Pearson,128 U. S. 1; Eilenbecker v. Plymouth County Court,134 U. S. 31.

In Beer Co. v. Massachusetts, above cited, this Court, affirming the judgment of the Supreme Judicial Court of Massachusetts, reported in 115 Mass. 153, held that a statute of the state prohibiting the manufacture and sale of intoxicating liquors, including malt liquors, except as therein provided, applied to a corporation which the state had long before chartered, and authorized to hold real and personal property, for the purpose of manufacturing malt liquors. Among the reasons assigned by this Court for its judgment were the following:

"If the public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the legislature cannot be stayed from providing for its discontinuance by any incidental inconvenience which individuals or corporations may suffer. All rights are held subject to the police power of the state. Whatever differences of opinion may exist as to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health, and property of the citizens, and to the preservation of good order and the public morals. The legislature cannot by any contract divest itself of the power to provide for these objects. They belong emphatically to that class of objects which demand the application of the maxim salus populi suprema lex, and they are to be attained and provided for by such appropriate means as the legislative discretion may devise. That discretion can no more be bargained away than the power itself."

"Since we have already held in the case of Bartemeyer v. Iowa that as a measure of police regulation looking to the

Page 135 U. S. 130

preservation of public morals, a state law prohibiting the manufacture and sale of intoxicating liquors is not repugnant to any clause of the Constitution of the United States, we see nothing in the present case that can afford any sufficient ground for disturbing the decision of the Supreme Court of Massachusetts."

97 U.S. 32, 97 U. S. 33.

In Mugler v. Kansas and Kansas v. Ziebold, above cited, a statute of Kansas prohibiting the manufacture or sale of intoxicating liquors as a beverage and declaring all places where such liquors were manufactured or sold in violation of the statute to be common nuisances and prohibiting their future use for the purpose was held to be a valid exercise of the police power of the state even as applied to persons who, long before the passage of the statute, had constructed buildings specially adapted to such manufacture.

It has also been adjudged that neither the grant of a license to sell intoxicating liquors nor the payment of a tax on such liquors under the internal revenue laws of the United States affords any defense to an indictment by a state for selling the same liquors contrary to its statutes. License Tax Cases, 5 Wall. 462; Pervear v. Commonwealth, 5 Wall. 475.

The clause of the Constitution which declares that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states" has no bearing upon this case. The privileges and immunities thus secured are those fundamental rights and privileges which appertain to citizenship. Conner v. Elliott, 18 How. 591, 59 U. S. 593; Curtis, J., in Scott v. Sandford, 19 How. 393, 60 U. S. 580; Paul v. Virginia, 8 Wall. 168, 75 U. S. 180; McCready v. Virginia,94 U. S. 391, 94 U. S. 395. As observed by the Court in Bartemeyer v. Iowa: "The right to sell intoxicating liquors, so far as such a right exists, is not one of the rights growing out of citizenship of the United States." 18 Wall. 85 U. S. 133.

Nor is the case affected by the Fourteenth Amendment of the Constitution. As was said in the unanimous opinion of this Court in Barbier v. Connolly, after stating the true scope of that amendment:

"But neither the amendment -- broad and comprehensive as it is -- nor any other amendment, was

Page 135 U. S. 131

designed to interfere with the power of the state, sometimes termed its 'police power,' to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity."

113 U.S. 27, 113 U. S. 31. Upon that ground, the amendment has been adjudged not to apply to a state statute prohibiting the sale or manufacture of intoxicating liquors in buildings long before constructed for the purpose, or the sale of oleomargarine lawfully manufactured before the passage of the statute. Mugler v. Kansas,123 U. S. 623, 123 U. S. 663; Powell v. Pennsylvania,127 U. S. 678, 127 U. S. 683, 127 U. S. 687.

The remaining and the principal question is whether the statute of Iowa, as applied to the sale within that State of intoxicating liquors in the same cases or kegs, unbroken and unopened, in which they were brought by the seller from another state, is repugnant to the clause of the Constitution granting to Congress the power to regulate commerce with foreign nations and among the several states.

In the great and leading case of Gibbons v. Ogden, 9 Wheat. 1, the point decided was that acts of the Legislature of New York granting to certain persons for a term of years the exclusive navigation by steamboats of all waters within the jurisdiction of the state were, so far as they affected such navigation by vessels of other persons licensed under the laws of the United States, repugnant to the clause of the Constitution empowering Congress to regulate foreign and interstate commerce.

Chief Justice Marshall, in delivering judgment, after speaking of the inspection laws of the states and observing that they had a remote and considerable influence on commerce, but that the power to pass them was not derived from a power to regulate commerce, said:

"They form a portion of that immense mass of legislation which embraces everything within the Territory of a state not surrendered to the general government, all which can be most advantageously exercised by the states themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating

Page 135 U. S. 132

the internal commerce of a state, and those which respect turnpike roads, ferries, etc., are component parts of this mass. No direct general power over these objects is granted to Congress, and consequently they remain subject to state legislation. If the legislative power of the union can reach them, it must be for national purposes; it must be where the power is expressly given for a special purpose, or is clearly incidental to some power which is expressly given."

Pp. 22 U. S. 203-204. Again, he said that quarantine and health laws "are considered as flowing from the acknowledged power of a state to provide for the health of its citizens," and that the constitutionality of such laws had never been denied. P. 22 U. S. 205.

Mr. Justice Johnson, in his concurring opinion, said:

"It is no objection to the existence of distinct substantive powers that in their application they bear upon the same subject. The same bale of goods, the same cask of provisions, or the same ship that may be the subject of commercial regulation may also be the vehicle of disease. And the health laws that require them to be stopped and ventilated are no more intended as regulations on commerce than the laws which permit their importation are intended to inoculate the community with disease. Their different purposes mark the distinction between the powers brought into action, and, while frankly exercised, they can produce no serious collision."

P. 22 U. S. 235.

That Chief Justice Marshall and his associates did not consider the constitutional grant of power to Congress to regulate foreign and interstate commerce as, of its own force and without national legislation, impairing the police power of each state within its own borders to protect the health and welfare of its inhabitants is clearly indicated in the passages above quoted from the opinions in Gibbons v. Ogden, and is conclusively proved by the unanimous judgment of the Court delivered by the Chief Justice five years later in Willson v. Blackbird Creek Marsh Co., 2 Pet. 245. In that case, the Legislature of Delaware had authorized a dam to be erected across a navigable tidewater creek which opened into Delaware Bay, thereby obstructing the navigation of the creek by a vessel enrolled and licensed under the navigation

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laws of the United States. The decision in Gibbons v. Ogden was cited by counsel as conclusive against the validity of the statute of the state. But its validity was upheld by the Court for the following reasons:

"The act of assembly by which the plaintiffs were authorized to construct their dam shows plainly that this is one of those many creeks, passing through a deep, level marsh adjoining the State of Delaware, up which the tide flows for some distance. The value of the property on its banks must be enhanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce these objects, provided they do not come into collision with the powers of the general government, are undoubtedly within those which are reserved to the states. But the measure authorized by this act stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgment, unless it comes in conflict with the Constitution or a law of the United States, is an affair between the government of Delaware and its citizens of which this Court can take no cognizance."

"The counsel for the plaintiffs in error insists that it comes in conflict with the power of the United States 'to regulate commerce with foreign nations and among the several states.'"

"If Congress had passed any act which bore upon the case, any act in execution of the power to regulate commerce, the object of which was to control state legislation over those small navigable creeks into which the tide flows, and which abound throughout the lower country of the middle and southern states, we should feel not much difficulty in saying that a state law, coming in conflict with such act, would be void. But Congress has passed no such act. The repugnancy of the law of Delaware to the Constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several states, a power which has not been so exercised as to affect the question."

"We do not think that the act empowering the Blackbird Creek Marsh Company to place a dam across the creek can, under all the circumstances of the case, be considered as

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repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject."

2 Pet. 27 U. S. 251-252.

In Brown v. Maryland, 12 Wheat. 419, the point decided was that an act of the Legislature of Maryland requiring all imports of foreign goods by the bale or package, or of spirituous liquors, and "other persons selling the same by wholesale, bale or package, hogshead, barrel, or tierce," to first take out a license and pay fifty dollars for it, and imposing a penalty for failure to do so, was, as applied to sales by an importer of foreign liquors in the original packages, unconstitutional both as laying an impost and as repugnant to the power of Congress to regulate foreign commerce. The statute there in question was evidently enacted to raise revenue from importers of foreign goods of every description, and was not an exercise of the police power of the state. And Chief Justice Marshall, in answering an argument of counsel, expressly admitted that the power to direct the removal of gunpowder, or the removal or destruction of infectious or unsound articles which endanger the public health, "is a branch of the police power, which unquestionably remains, and ought to remain, with the states." Pp. 25 U. S. 443-444.

Moreover, the question there presented and decided concerned foreign commerce only, and not commerce among the states. Chief Justice Marshall, at the outset of his opinion, so defined it, saying:

"The cause depends entirely on the question whether the legislature of a state can constitutionally require the importer of foreign articles to take out a license from the state, before he shall be permitted to sell a bale or package so imported."

P. 25 U. S. 436.

It is true that after discussing and deciding that question, he threw out this brief remark: "It may be proper to add that we suppose the principles laid down in this case to apply equally to importations from a sister state." P. 25 U. S. 449. But this remark was obiter dictum, wholly aside from the question before the Court and having no bearing on its decision, and therefore extrajudicial, as has since been noted by Chief Justice Taney and Mr. Justice McLean in the License Cases,

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5 How. 504, 46 U. S. 575, 46 U. S. 578, 46 U. S. 594, and by MR. JUSTICE MILLER in Woodruff v. Parham, 8 Wall. 123, 75 U. S. 139.

To a remark made under such circumstances are peculiarly applicable the warning words of Chief Justice Marshall himself in an earlier case, where, having occasion to explain away some dicta of his own in delivering judgment in Marbury v. Madison, 1 Cranch 137, he said:

"It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the Court is investigated with care and considered in its full extent. Other principles, which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated."

Cohens v. Virginia, 6 Wheat. 264, 19 U. S. 399-400. Another striking instance in which that maxim has been applied and acted on is to be found in the opinion of the Court at the present term in Hans v. Louisiana,134 U. S. 1, 134 U. S. 20.

But the unanimous judgment of this Court in 1847 in Peirce v. New Hampshire, reported together with Thurlow v. Massachusetts and Fletcher v. Rhode Island as the License Cases, 5 How. 504, is directly in point, and appears to us conclusively to govern the case at bar. Those cases were elaborately argued by eminent counsel, and deliberately considered by the court, and Chief Justice Taney, as well as each of six Associate Justices, stated his reasons for concurring in the judgment. The cases from Massachusetts and Rhode Island arose under statutes of either state prohibiting sales of spirituous liquors by any person in less than certain quantities without first having obtained an annual license from municipal officers -- in the one case from county commissioners, who by the express terms of the statute were not required to grant any licenses when in their opinion the public good did at require them to be granted, and in the other case from a town council, who

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were forbidden to grant licenses whenever the voters of the town in town meeting decided that none should be granted. Mass.Rev.Stat. 1836, c. 47, §§ 3, 17, 23-25; Stat. 1837, c. 242,

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