Speaking generally, the police power is reserved to the states,
and there is no grant thereof to Congress in the Constitution.
Notwithstanding the offensiveness of the crime, the courts
cannot sustain a federal penal statute if the power to punish the
same has not been delegated to Congress by the Constitution.
Where there is collision between the power of the state and that
of Congress, the superior authority of the latter prevails. While
Congress has power to exclude aliens from, and to prescribe the
terms and conditions on which aliens may come into, the United
States, Turner v. Williams, 194 U.
, that power does not extend to controlling
dealings with aliens after their arrival merely on account of their
Page 213 U. S. 139
That portion of the Act of February 20, 1907, c. 1134, 34 Stat.
898, which makes it a felony to harbor alien prostitutes
unconstitutional as to one harboring such a
prostitute without knowledge of her alienage or in connection with
her coming into the United States, as a regulation of a matter
within the police power reserved to the state and not within any
power delegated to Congress by the Constitution.
Section 3 of the Act of Congress of February 20, 1907, 34 Stat.
898, 899, c. 1134, entitled "An Act to Regulate the Immigration of
Aliens into the United States," reads as follows:
"SEC. 3. That the importation into the United States of any
alien woman or girl for the purpose of prostitution, or for any
other immoral purpose, is hereby forbidden, and whoever shall,
directly or indirectly, import, or attempt to import, into the
United States, any alien woman or girl for the purpose of
prostitution, or for any other immoral purpose, or whoever shall
hold or attempt to hold any alien woman or girl for any such
purpose in pursuance of such illegal importation, or whoever
shall keep, maintain, control, support, or harbor in any house or
other place, for the purpose of prostitution, or for any other
immoral purpose, any alien woman or girl, within three years after
she shall have entered the United States, shall, in every such
case, be deemed guilty of a felony, and, on conviction thereof, be
imprisoned not more than five years, and pay a fine of not more
than five thousand dollars,
and any alien woman or girl who
shall be found an inmate of a house of prostitution or practicing
prostitution at any time within three years after she shall have
entered the United States, shall be deemed to be unlawfully within
the United States, and shall be deported as provided by sections
twenty and twenty-one of this act."
The plaintiffs in error were indicted for a violation of this
section, the charge against them being based upon that portion of
the section which is in italics, and, in terms, that they
"willfully and knowingly did keep, maintain, control, support, and
harbor in their certain house of prostitution" (describing it),
"for the purpose of prostitution, a certain alien woman, to-wit,
Irene Bodi," who was, as they well knew, a subject of the
Page 213 U. S. 140
King of Hungary, who had entered the United States within three
years. A trial was had upon this indictment; the plaintiffs in
error were convicted and sentenced to the penitentiary for eighteen
Page 213 U. S. 143
MR. JUSTICE BREWER delivered the opinion of the Court.
The single question is one of constitutionality. Has Congress
power to punish the offense charged, or is jurisdiction thereover
solely with the state? Undoubtedly, as held,
"Congress has the power to exclude aliens from the United
States; to prescribe the terms and conditions on which they may
come in; to establish regulations for sending out of the country
such aliens as have entered in violation of law, and to commit the
enforcement of such conditions and regulations to executive
Page 213 U. S. 144
Turner v. Williams, 194 U. S. 279
194 U. S. 289
See also Fong Yue Ting v. United States, 149 U.
, 149 U. S. 708
Head Money Cases, 112 U. S. 580
112 U. S. 591
Lees v. United States, 150 U. S. 476
150 U. S. 480
United States v. Bitty, 208 U. S. 393
It is unnecessary to determine how far Congress may go in
legislating with respect to the conduct of an alien while residing
here, for there is no charge against one; nor to prescribe the
extent of its power in punishing wrongs done to an alien, for there
is neither charge nor proof of any such wrong. So far as the
statute or the indictment requires, or the testimony shows, she was
voluntarily living the life of a prostitute, and was only furnished
a place by the defendants to follow her degraded life. While the
keeping of a house of ill fame is offensive to the moral sense, yet
that fact must not close the eye to the question whether the power
to punish therefor is delegated to Congress or is reserved to the
state. Jurisdiction over such an offense comes within the accepted
definition of the police power. Speaking generally, that power is
reserved to the states, for there is in the Constitution no grant
thereof to Congress.
In Patterson v. Kentucky, 97 U. S.
, 97 U. S. 503
is this declaration:
"'In the American constitutional system,' says Mr. Cooley, 'the
power to establish the ordinary regulations of police has been left
with the individual states, and cannot be assumed by the national
government.' Cooley, Const.Lim. 574. While it is confessedly
difficult to mark the precise boundaries of that power, or to
indicate, by any general rule, the exact limitations which the
states must observe in its exercise, the existence of such a power
in the states has been uniformly recognized in this Court.
9 Wheat. 1; License
5 How. 504; Gilman v.
3 Wall. 713; Henderson v. New
York, 92 U. S. 259
; Railroad Co. v.
Husen, 95 U. S. 465
; Beer Co. v.
Massachusetts, 97 U. S. 25
. It is embraced in
what Mr. Chief Justice Marshall, in Gibbons v. Ogden,
Page 213 U. S. 145
of legislation' which can be most advantageously exercised by
the states, and over which the national authorities cannot assume
supervision or control."
And in Barbier v. Connolly, 113 U. S.
, 113 U. S. 31
"But neither the amendment -- broad and comprehensive as it is
-- nor any other amendment was 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."
Further, as the rule of construction, Chief Justice Marshall,
speaking for the Court in the great case of M'Culloch
4 Wheat. 316, 17 U. S. 405
"This government is acknowledged by all to be one of enumerated
powers. The principle that it can exercise only the powers granted
to it would seem too apparent to have required to be enforced by
all those arguments which its enlightened friends, while it was
depending before the people, found it necessary to urge. That
principle is now universally admitted. But the question respecting
the extent of the powers actually granted is perpetually arising,
and will probably continue to arise, as long as our system shall
In Houston v.
5 Wheat. 1, 18 U. S. 48
Justice Story says:
"Nor ought any power to be sought, much less to be adjudged, in
favor of the United States, unless it be clearly within the reach
of its constitutional charter. Sitting here, we are not at liberty
to add one jot of power to the national government beyond what the
people have granted by the Constitution."
Art. X of Amendments; New York v.
11 Pet. 102, 36 U. S. 133
5 How. 504, 46 U. S. 608
46 U. S. 630
United States v.
9 Wall. 41, 76 U. S. 44
Patterson v. Kentucky, 97 U. S. 501
97 U. S. 503
Barbier v. Connolly, 113 U. S. 27
113 U. S. 31
In re Rahrer, 140 U. S. 545
140 U. S. 555
United States v. Knight Co., 156 U. S.
, 156 U. S. 11
Cooley, Constitutional Limitations 574.
Doubtless it not infrequently happens that the same act
Page 213 U. S. 146
may be referable to the power of the state, as well as to that
of Congress. If there be collision in such a case, the superior
authority of Congress prevails. As said in New York
11 Pet. 102, 36 U. S.
"From this it appears that whilst a state is acting within the
legitimate scope of its power as to the end to be attained, it may
use whatsoever means, being appropriate to that end, it may think
fit, although they may be the same, or so nearly the same as
scarcely to be distinguishable from those adopted by Congress,
acting under a different power, subject only, say the court, to
this limitation, that, in the event of collision, the law of the
state must yield to the law of Congress. The court must be
understood, of course, as meaning that the law of Congress is
passed upon a subject within the sphere of its power."
In Gulf, Colorado & Santa Fe Railway v. Hefley,
158 U. S. 98
158 U. S. 104
the rule is stated in these words:
"Generally it may be said, in respect to laws of this character,
that, though resting upon the police power of the state, they must
yield whenever Congress, in the exercise of the powers granted to
it, legislates upon the precise subject matter, for that power,
like all other reserved powers of the states, is subordinate to
those in terms conferred by the Constitution upon the nation."
"No urgency for its use can authorize a state to exercise it in
regard to a subject matter which has been confided exclusively to
the discretion of Congress by the Constitution."
"Henderson v. New York, 92 U. S.
, 92 U. S. 271
"Definitions of the police power must, however, be taken subject
to the condition that the state cannot, in its exercise, for any
purpose whatever, encroach upon the powers of the general
government, or rights granted or secured by the supreme law of the
"New Orleans Gas Co. v. Louisiana Light Co.,
115 U. S.
, 115 U. S. 661
"While it may be a police power in the sense that all provisions
for the health, comfort, and security of the citizens are police
regulations, and an exercise of the police power, it has been said
more than once in this Court that, where such powers are so
exercised as to come within the domain of federal authority as
Page 213 U. S. 147
by the Constitution, the latter must prevail."
Morgan's v. Louisiana, 118 U.
, 118 U. S. 464
See also Lottery Case, 188 U. S. 321
The question is therefore whether there is any authority
conferred upon Congress by which this particular portion of the
statute can be sustained. By § 2 of Article II of the Constitution,
power is given to the President, by and with the advice and consent
of the Senate, to make treaties, but there is no suggestion in the
record or in the briefs of a treaty with the King of Hungary under
which this legislation can be supported.
The general power which exists in the nation to control the
coming in or removal of aliens is relied upon, the government
stating in its brief these two propositions:
"The clause in question should be held valid because it relates
to and materially affects the conditions upon which an alien female
may be permitted to remain in this country, and the grounds which
warrant her exclusion."
"* * * *"
"The validity of the provision in question should be determined
from its general effect upon the importation and exclusion of
But it is sufficient to say that the act charged has no
significance in either direction.
As to the suggestion that Congress has power to punish one
assisting in the importation of a prostitute, it is enough to say
that the statute does not include such a charge; the indictment
does not make it, and the testimony shows, without any
contradiction, that the woman Irene Bodi came to this country in
November, 1905; that she remained in New York until October, 1907;
then came to Chicago, and went into the house of prostitution which
the defendants purchased in November, 1907, finding the woman then
in the house; that she had been in the business of a prostitute
only about ten or eleven months prior to the trial of the case in
October, 1908, and that the defendants did not know her until
November, 1907. In view of those facts, the question of the power
of Congress to punish
Page 213 U. S. 148
those who assist in the importation of a prostitute is entirely
The act charged is only one included in the great mass of
personal dealings with aliens. It is her own character and conduct
which determine the question of exclusion or removal. The acts of
others may be evidence of her business and character. But it does
not follow that Congress has the power to punish those whose acts
furnish evidence from which the government may determine the
question of her expulsion. Every possible dealing of any citizen
with the alien may have more or less induced her coming. But can it
be within the power of Congress to control all the dealings of our
citizens with resident aliens? If that be possible, the door is
open to the assumption by the national government of an almost
unlimited body of legislation. By the census of 1900 the population
of the United States between the oceans was, in round numbers,
76,000,000. Of these, 10,000,000 were of foreign birth, and
16,000,000 more were of foreign parentage. Doubtless some have
become citizens by naturalization, but certainly scattered through
the country there are millions of aliens. If the contention of the
government be sound, whatever may have been done in the past,
however little this field of legislation may have been entered
upon, the power of Congress is broad enough to take cognizance of
all dealings of citizens with aliens. That there is a moral
consideration in the special facts of this case, that the act
charged is within the scope of the police power, is immaterial,
for, as stated, there is in the Constitution no grant to Congress
of the police power. And the legislation must stand or fall
according to the determination of the question of the power of
Congress to control generally dealings of citizens with aliens. In
other words, an immense body of legislation, which heretofore has
been recognized as peculiarly within the jurisdiction of the
states, may be taken by Congress away from them. Although Congress
has not largely entered into this field of legislation, it may do
so, if it has the power. Then we should be brought face to face
with such a change in the internal conditions of this country
Page 213 U. S. 149
as was never dreamed of by the framers of the Constitution.
While the acts of Congress are to be liberally construed in order
to enable it to carry into effect the powers conferred, it is
equally true that prohibitions and limitations upon those powers
should also be fairly and reasonably enforced. Fairbank v.
United States, 181 U. S. 283
exaggerate in the one direction and restrict in the other will tend
to substitute one consolidated government for the present federal
system. We should never forget the declaration in Texas v.
7 Wall. 700, 74 U. S. 725
that "the Constitution, in all its provisions, looks to an
indestructible Union, composed of indestructible states."
The judgments are reversed, and the cases remanded to the
District Court of the United States for the Northern District of
Illinois, with instructions to quash the indictment.
MR. JUSTICE HOLMES, dissenting:
For the purpose of excluding those who unlawfully enter this
country Congress has power to retain control over aliens long
enough to make sure of the facts. Japanese Immigrant Case,
189 U. S. 86
this end, it may make their admission conditional for three years.
Pearson v. Williams, 202 U. S. 281
the ground of exclusion is their calling, practice of it within a
short time after arrival is or may be made evidence of what it was
when they came in. Such retrospective presumptions are not always
contrary to experience or unknown to the law. Bailey v.
Alabama, 211 U. S. 452
211 U. S. 454
If a woman were found living in a house of prostitution within a
week of her arrival, no one, I suppose, would doubt that it tended
to show that she was in the business when she arrived. But how far
back such an inference shall reach is a question of degree, like
most of the questions of life. And while a period of three years
seems to be long, I am not prepared to say, against the judgment of
Congress, that it is too long.
The statute does not state the legal theory upon which it was
enacted. If the ground is that which I have suggested, it is
Page 213 U. S. 150
to observe that the presumption that it creates is not open to
rebuttal. I should be prepared to accept even that, however, in
view of the difficulty of proof in such cases. Statutes of which
the justification must be the same are familiar in the states. For
instance, one creating the offense of being present when gaming
implements are found, Commonwealth v. Smith,
370, 375-376, or punishing the sale of intoxicating liquors without
regard to knowledge of their intoxicating quality, Commonwealth
103 Mass. 452, or throwing upon a seducer the risk
of the woman turning out to be married or under a certain age,
Commonwealth v. Elwell,
2 Met.190. It is true that, in
such instances, the legislature has power to change the substantive
law of crimes, and it has been thought that, when it is said to
create a conclusive presumption as to a really disputable fact, the
proper mode of stating what it does at least, as a general rule, is
to say that it has changed the substantive law. 2 Wigmore, Ev. §§
1353 et seq.
This may be admitted without denying that
considerations of evidence are what lead to the change. And if it
should be thought more philosophical to express this law in
substantive terms, I think that Congress may require, as a
condition of the right to remain, good behavior for a certain time
in matters deemed by it important to the public welfare and of a
kind that indicates a preexisting habit that would have excluded
the party if it had been known. Therefore I am of opinion that it
is within the power of Congress to order the deportation of a woman
found practicing prostitution within three years.
If Congress can forbid the entry and order the subsequent
deportation of professional prostitutes, it can punish those who
cooperate in their fraudulent entry. "If Congress has power to
exclude such laborers . . . , it has the power to punish any who
assist in their introduction." That was a point decided in Lees
v. United States, 150 U. S. 476
150 U. S. 480
The same power must exist as to cooperation in an equally unlawful
stay. The indictment sets forth the facts that constitute such
Page 213 U. S. 151
and need not allege the conclusion of law. On the principle of
the cases last cited, in order to make its prohibition effective,
the law can throw the burden of finding out the fact and date of a
prostitute's arrival from another country upon those who harbor her
for a purpose that presumably they know, in any event, to be
contrary to law. Therefore, while I have admitted that the time
fixed seems to me to be long, I can see no other constitutional
objection to the act, and, as I have said, I think that that one
ought not to prevail.
MR. JUSTICE HARLAN and MR. JUSTICE MOODY concur in this