1. The 29th section of the Internal Revenue Act of March 2,
1867, 14 Stat. at Large 484, which makes it a misdemeanor,
punishable by fine and imprisonment, to mix for sale naphtha and
illuminating oils or to sell or offer such mixture for sale, or to
sell or offer for sale oil made of petroleum for illuminating
purposes, inflammable at less temperature or fire test than 110
degrees Fahrenheit, is in fact a police regulation, relating
exclusively to the internal trade of the states.
2. Accordingly, it can only have effect where the legislative
authority of Congress excludes, territorially, all state
legislation, as for example, in the District of Columbia. Within
state limits, it can have no constitutional operation.
Page 76 U. S. 42
Section 29 of the act of March 2, 1867, [
Footnote 1] declares,
"That no person shall mix for sale naphtha and illuminating
oils, or shall knowingly sell or keep for sale, or offer for sale
such mixture, or shall sell or offer for sale oil made from
petroleum for illuminating purposes, inflammable at less
temperature or fire test than 110 degrees Fahrenheit, and any
person so doing shall be held to be guilty of a misdemeanor, and on
conviction thereof by indictment or presentment in any court of the
United States having competent jurisdiction, shall be punished by
fine &c., and imprisonment,"
&c.
Under this section, one Dewitt was indicted, the offense charged
being the offering for sale, at Detroit, in Michigan, oil made of
petroleum of the description specified. There was no allegation
that the sale was in violation or evasion of any tax imposed on the
property sold. It was alleged only that the sale was made contrary
to law.
To this indictment there was a demurrer, and thereupon arose two
questions on which the judges were opposed in opinion.
(1) Whether the facts charged in the indictment constituted any
offense under any valid and constitutional law of the United
States?
(2) Whether the aforesaid section 29 of the act of March 2d,
1867, was a valid and constitutional law of the United States?
Page 76 U. S. 43
THE CHIEF JUSTICE delivered the opinion of the Court.
The questions certified resolve themselves into this: has
Congress power, under the Constitution, to prohibit trade within
the limits of a state?
That Congress has power to regulate commerce with foreign
nations and among the several states, and with the Indian tribes,
the Constitution expressly declares. But this
Page 76 U. S. 44
express grant of power to regulate commerce among the states has
always been understood as limited by its terms, and as a virtual
denial of any power to interfere with the internal trade and
business of the separate states, except, indeed, as a necessary and
proper means for carrying into execution some other power expressly
granted or vested.
It has been urged in argument that the provision under which
this indictment was framed is within this exception; that the
prohibition of the sale of the illuminating oil described in the
indictment was in aid and support of the internal revenue tax
imposed on other illuminating oils. And we have been referred to
provisions, supposed to be analogous, regulating the business of
distilling liquors, and the mode of packing various manufactured
articles; but the analogy appears to fail at the essential point,
for the regulations referred to are restricted to the very articles
which are the subject of taxation, and are plainly adapted to
secure the collection of the tax imposed; while, in the case before
us, no tax is imposed on the oils the sale of which is prohibited.
If the prohibition, therefore, has any relation to taxation at all,
it is merely that of increasing the production and sale of other
oils, and, consequently, the revenue derived from them, by
excluding from the market the particular kind described.
This consequence is too remote and too uncertain to warrant us
in saying that the prohibition is an appropriate and plainly
adapted means for carrying into execution the power of laying and
collecting taxes.
There is, indeed, no reason for saying that it was regarded by
Congress as such a means, except that it is found in an act
imposing internal duties. Standing by itself, it is plainly a
regulation of police; and that it was so considered, if not by the
Congress which enacted, it, certainly by the succeeding Congress,
may be inferred from the circumstance, that while all special taxes
on illuminating oils were repealed by the act of July 20, 1868,
which subjected distillers and refiners to the tax on sales as
manufacturers, this prohibition was left unrepealed.
Page 76 U. S. 45
As a police regulation, relating exclusively to the internal
trade of the state, it can only have effect where the legislative
authority of Congress excludes, territorially, all state
legislation, as for example, in the District of Columbia. Within
state limits, it can have no constitutional operation. This has
been so frequently declared by this Court, results so obviously
from the terms of the Constitution, and has been so fully explained
and supported on former occasions, [
Footnote 2] that we think it unnecessary to enter again
upon the discussion.
The first question certified must, therefore, be answered in the
negative.
The second question must also be answered in the negative,
except so far as the section named operates within the United
States, but without the limits of any state.
[
Footnote 1]
14 Stat. at Large 484.
[
Footnote 2]
License Cases,
5 How. 504;
Passenger
Cases, 7 How. 283;
License Tax
Cases, 5 Wall. 470, and the cases cited.
