The question whether, when Congress fails to provide a
regulation by law as to any particular subject of commerce among
the states, it is conclusive of its intention that that subject
shall be free from positive regulation, or that, until Congress
intervenes, it shall be left to be dealt with by the states, is one
to be determined from the circumstances of each case as it
arises.
So far as the will of Congress respecting commerce among the
states by means of railroads can be determined from its enactment
of the provisions of law found in Rev.Stat. § 5258, and Rev.Stat.
c. 6, Title 4S, §§ 4252-4289, they are indications of an intention
that such transportation of commodities between the states shall be
free except when restricted by Congress or by a state with the
express permission of Congress.
A state cannot, for the purpose of protecting its people against
the evils of intemperance, enact laws which regulate commerce
between its people and those of other states of the union unless
the consent of Congress, express or implied, is first obtained.
Section 1553 of the Code of the Iowa, as amended by c. 143 of
the acts of the 20th General Assembly in 1886 (forbidding common
carriers to bring intoxicating liquors into the state from any
other state or territory without being first furnished with a
certificate, under the seal of the auditor of the county to which
it is to be transported or consigned, certifying that the consignee
or person to whom it is to be transported or delivered is
authorized to sell intoxicating liquors in the county), although
adopted without a purpose of affecting interstate commerce but as a
part of a general system designed to protect the health and morals
of the people against the evils resulting from the unrestricted
manufacture and sale of intoxicating liquors within the state, is
neither an inspection law nor a quarantine law, but is essentially
a regulation of commerce among the states, affecting interstate
commerce in an essential and vital part, and, not being sanctioned
by the authority, express or implied, of Congress, is repugnant to
the Constitution of the United States.
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,
quaere.
Page 125 U. S. 466
This action was begun in the Circuit Court of the United States
for the Northern District of Illinois, June 15, 1886, on which day
the plaintiffs filed their declaration, as follows:
"George A. Bowman, a citizen of the State of Nebraska, and Fred.
W. Bowman, a citizen of the State of Iowa, co-partners, doing
business under the name, firm, and style of Bowman Bros. at the
City of Marshalltown, State of Iowa, plaintiffs in this suit, by
Blum & Blum, their attorneys, complain of the Chicago and
Northwestern Railway Company, a citizen of the Northern District of
the State of Illinois, having its principal office at the City of
Chicago, in said state, defendant in this suit, of a plea of
trespass on the case."
"For that whereas the defendant on May 20, 1886, and for a long
time previous thereto and thereafter, was possessed of and using
and operating a certain railway and was a common carrier of goods
and chattels thereon for hire, to-wit, from the City of Chicago, in
the State of Illinois, to the City of Council Bluffs, in the State
of Iowa."
"That said defendant was at said time and is now a corporation
existing under and by virtue of the laws of the State of Illinois,
and that it was and is the duty of said defendant to carry from and
to all stations upon its line of railway all freight tendered it
for shipment."
"That upon May 20, 1886, the plaintiffs offered to said
defendant for shipment over its line of railway and directed to
themselves at Marshalltown, Iowa, five thousand barrels of beer
which they had procure in the City of Chicago, to be shipped from
said city to the City of Marshalltown, in the State of Iowa, which
is a station lying and being on said defendant's line of railroad
between said Cities of Chicago and Council Bluffs, but the
defendant then and there refused to receive said beer or any part
thereof for shipment, to the damage of the plaintiffs of ten
thousand dollars, and therefore they bring their suit, etc."
"And for that the plaintiffs, neither of whom is an hotel
keeper, a keeper of a saloon, eating house, grocery, or
confectionery, on the 7th day of July, 1884, and upon several
occasions thereafter, presented to the Board of Supervisors of
Page 125 U. S. 467
Marshall county, Iowa, a certificate signed by a majority of the
legal electors of Marshalltown, Marshall County, Iowa, which stated
that said Fred. W. Bowman is a citizen of said county. That both of
said plaintiffs possess a good moral character, and that they (said
electors) believe said plaintiffs to be proper persons, and each of
them to be a proper person, to buy and sell intoxication liquors
for the purposes named in § 1526 of the Iowa Code; that at said
time and upon several occasions thereafter, they and each of them,
the said plaintiffs, filed a bond in the sum of three thousand
dollars with two sureties, which bond was approved by the auditor
of said county, as is provided by § 1528 of the Code of Iowa; that
thereupon said board of supervisors refused to grant such
permission to either of said plaintiffs, or to them jointly"
"And for that whereas the defendant on May 20th, 1886, and for a
long time previous thereto and thereafter, was possessed of and
using and operating a certain railroad, and was a common carrier of
goods and chattels thereon for hire, to-wit, from the City of
Chicago, in the State of Illinois, to the City of Council Bluffs,
in the State of Iowa."
"That said defendant is a corporation, existing under and by
virtue of the laws of the State of Illinois. That it was the duty
of the said defendant to carry from and to all stations upon its
line of railway all freight that might be entrusted to it, and that
it was the duty of said defendant to transport from said City of
Chicago to said City of Marshalltown the five thousand barrels of
beer hereinbefore and hereinafter mentioned, which plaintiffs
requested it so to transport. That in the commencement of May,
1886, the plaintiffs purchased at the City of Chicago, five
thousand barrels of beer at $6.50 per barrel, which beer they
intended to send to Marshalltown, Iowa, at which place and vicinity
they could have sold said beer at eight dollars per barrel, as the
defendant was then and there informed. That on May 20, 1886, said
plaintiffs offered for shipment to said defendant railway company
said five thousand barrels of beer, directed to said plaintiffs at
the City of Marshalltown, in the State of Iowa, and requested said
defendant
Page 125 U. S. 468
to ship said beer over its road, with which request the
defendant refused to comply, and declined to ship or receive said
beer or any part thereof for shipment as aforesaid, the said
defendant, by its duly authorized agent, then and there stating
that the said defendant company declined to receive said goods for
shipment, and would continue to decline to receive said goods or
any goods of like character for shipment into the State of Iowa.
That on said day, to-wit, May 20, 1886, and for a long time
theretofore and since, the plaintiffs were unable to purchase beer
in the State of Iowa. That said plaintiffs at said time, could
procure no other means of transportation for said beer than said
defendant, and that, by reason of the defendant's refusal to
transport said beer, plaintiffs were compelled to sell said beer in
the City of Chicago at $6.50 per barrel."
"That by reason of said refusal of said defendant to ship said
beer, plaintiffs have been damaged in the sum of ten thousand
dollars, and therefore they bring their suit,"
etc.
To this declaration the defendant filed the following plea: "Now
comes the said defendant, by W. C. Goudy, its attorney, and defends
the wrong and injury, jury, when," etc., "and says
action
non," etc.,
"because it says that the beer in said five thousand barrels in
the plaintiff's declaration and in each count thereof mentioned
was, at the several times in said declaration mentioned, and still
is, intoxicating liquor within the meaning of the statute of Iowa
hereinafter set forth. That the City of Marshalltown in said
declaration mentioned is within the limits of the State of Iowa.
That the said City of Chicago in the said declaration mentioned is
in the State of Illinois. That the said beer in said declaration
mentioned was offered to this defendant to be transported from the
State of Illinois to the State of Iowa."
"That heretofore, to-wit on the 5th day of April, A.D. 1886, the
General Assembly of the State of Iowa passed an act entitled"
"An act amendatory of chapter 143 of the Acts of the Twentieth
General Assembly, relating to intoxicating liquors and providing
for the more effectual suppression of the illegal sale and
transportation of intoxicating liquors and
Page 125 U. S. 469
abatement of nuisances,"
"which act is chapter 66 of the Laws of Iowa, passed at the
twenty-first General Assembly of said state, and which is printed
and published in the Laws of Iowa for the year 1886 at page 81, to
which act this defendant hereby refers and makes the same a part of
this plea."
"That in and by the tenth section of said act it was and is
provided as follows, to-wit:"
" That § 1553 of the Code, as amended and substituted by chapter
143 of the Acts of the Twentieth General Assembly, be, and the same
is hereby, repealed, and the following enacted in lieu
thereof:"
" SEC. 1553. If any express company, railway company, or any
agent or person in the employ of any express company or railway
company, or if any common carrier, or any person in the employ of
any common carrier, or any person, knowingly bring within this
state for any person or persons or corporation, or shall knowingly
transport or convey between points, or from one place to another,
in this state, for any other person or persons or corporation, and
intoxicating liquors without first having been furnished a
certificate from and under the seal of the county auditor of the
county to which said liquor is to be transported or is consigned
for transportation or within which it is to be conveyed from place
to place, certifying that the consignee or person to whom said
liquor is to be transported, conveyed, or delivered is authorized
to sell such intoxicating liquors in such county, such company,
corporation, or person so offending, and each of them, and any
agent of such company, corporation, or person so offending shall,
upon conviction thereof, be fined in the sum of one hundred dollars
for each offense, and pay costs of prosecution, and the costs shall
include a reasonable attorney fee, to be assessed by the court,
which shall be paid into the county fund, and stand committed to
the county jail until such fine and costs of prosecution are paid.
The offense herein defined shall be held to be complete, and shall
be held to have been committed in any County of the state through
or to which said intoxicating liquors are transported or in which
the same is unloaded for transportation or in which said liquors
are conveyed from
Page 125 U. S. 470
place to place or delivered. It shall be the duty of the several
county auditors of this state to issue the certificate herein
contemplated to any person having such permit, and the certificate
so issued shall be truly dated when issued, and shall specify the
date at which the permit expires, as shown by the county
records."
"And the defendant avers that at the several times mentioned in
said declaration, and each of them, the aforesaid section was the
law of the State of Iowa in full force and wholly unrepealed, and
that the said plaintiffs did not at any time furnish this defendant
with a certificate from and under the seal of the County Auditor of
the County of Marshall, the same being the county in which said
City of Marshalltown is located, and the county to which said beer
was offered to be transported, certifying that the person for or to
whom the said beer was to be transported, was authorized to sell
intoxicating liquors in said County of Marshall, nor was this
defendant furnished with any such certificate by any person
whatsoever. And the defendant avers that it could not receive said
beer for transportation in the manner named and specified in the
plaintiff's declaration without violating the law of the State of
Iowa above specified and without subjecting itself to the penalties
provided in said act, and that this defendant assigned at the time
the said beer was offered to it for transportation as aforesaid, as
a reason why it could not receive the same, the aforesaid statute
of Iowa, which prohibited this defendant from receiving said beer
to be transported into the State of Iowa or from transporting the
said beer into the State of Iowa."
"And this the said defendant is ready to verify. Wherefore it
prays judgment,"
etc.
To this plea the plaintiffs filed a general demurrer, and for
cause of demurrer assigned that the statute of Iowa referred to and
set out in the plea was unconstitutional and void. The demurrer was
overruled and judgment entered thereon against the plaintiffs, to
reverse which this writ of error is prosecuted.
Page 125 U. S. 473
MR. JUSTICE MATTHEWS, after stating the facts as above,
delivered the opinion of the Court.
It is not denied that the declaration sets out a good cause of
action. It alleges that the defendant was possessed of and operated
a certain railway by means of which it became and
Page 125 U. S. 474
was a common carrier of goods and chattels thereon for hire from
the City of Chicago in the State of Illinois to the City of Council
Bluffs in the State of Iowa, and that as such, it was its duty to
carry from and to all stations upon its line of railway all goods
and merchandise that might be entrusted to it for that purpose.
This general duty was imposed upon it by the common law as adopted
and prevailing in the States of Illinois and Iowa. The single
question therefore presented upon the record is whether the statute
of the State of Iowa set out in the plea constitutes a defense to
the action.
The section of the statute referred to, being § 1553 of the Iowa
Code, as amended by the Act of April 5, 1886, forbids 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 is to be transported or is consigned
for transportation certifying that the consignee or person to whom
said liquor is to be transported, conveyed, or delivered is
authorized to sell intoxicating liquors in such county.
This statutory provision does not stand alone, and must be
considered with reference to the system of legislation of which it
forms a part. The Act of April 5, 1886, in which it is contained,
relates to the sale of intoxicating liquors within the State of
Iowa, and is amendatory of chapter 143 of the Acts of the Twentieth
General Assembly of that state,
"relating to intoxicating liquors and providing for the more
effectual suppression of the illegal sale and transportation of
intoxicating liquors and abatement of nuisances."
The original § 1553 of the Iowa Code contains a similar
provision in respect to common carriers. By § 1523 of the Code, the
manufacture and sale of intoxicating liquors, except as hereinafter
provided, is made unlawful, and the keeping of intoxicating liquor
with intent to sell the same within the state, contrary to the
provisions of the act, is prohibited, and the intoxicating liquor
so kept, together with the vessels in which it is contained, is
declared to be a nuisance, to be forfeited and dealt with as
Page 125 U. S. 475
thereinafter provided. Section 1524 excepts from the operation
of the law sales 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 of 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. The law also permits the
manufacture in the state of liquors for the purpose of being sold,
according to the provisions of the statute, to be used for
mechanical, medicinal, culinary, or sacramental purposes, and for
these purposes only, any citizen of the state except hotel keepers,
keepers of saloons, eating houses, grocery keepers, and
confectioners, is permitted, within the County of his residence, to
buy and sell intoxicating liquors, provided he shall first obtain
permission from the board of supervisors of the county in which
such business is conducted. It also declares the building or
erection of whatever kind, or the ground itself in or upon which
intoxicating liquor is manufactured or sold, or kept with intent to
sell, contrary to law, to be a nuisance, and that it may be abated
as such. The original provisions of the Code (§ 1555) excluded from
the definition of intoxicating liquors, beer, cider from apples,
and wine from grapes, currants, and other fruits grown in the
state; but by an amendment, that section was made to include
alcohol, ale, wine, beer, spirituous, vinous, and malt liquors, and
all intoxicating liquors whatever. It thus appears that the
provisions of the statute set out in the plea, prohibiting the
transportation by a common carrier of intoxicating liquor from a
point within any other state for delivery at a place within the
State of Iowa, is intended to more effectually carry out the
general policy of the law of that state with respect to the
suppression of the illegal manufacture and sale of intoxicating
liquor within the state as a nuisance. It may therefore fairly be
said that the provision in question has been adopted by the State
of Iowa
Page 125 U. S. 476
not expressly for the purpose of regulating commerce between its
citizens and those of other states, but as subservient to the
general design of protecting the health and morals of its people
and the peace and good order of the state against the physical and
moral evils resulting from the unrestricted manufacture and sale
within the State of intoxicating liquors.
We have had recent occasion to consider state legislation of
this character in its relation to the Constitution of the United
States. In the case of
Mugler v. Kansas, 123 U.
S. 623, it was said:
"That legislation by a state prohibiting the manufacture, within
her limits, of intoxicating liquors to be 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 is made clear by the decisions of this Court rendered before
and since the adoption of the 14th amendment. . . . These cases
rest upon the acknowledged right of the states of the union to
control their purely internal affairs, and in so doing to protect
the health, morals, and safety of their people by regulations that
do not interfere with the execution of the powers of the general
government or violate rights secured by the Constitution of the
United States."
In
The License
Cases, 5 How. 504, the question was whether certain
statutes of Massachusetts, Rhode Island, and New Hampshire relating
to the sale of spirituous liquors were repugnant to the
Constitution of the United States by reason of an alleged conflict
between them and the power of Congress to regulate commerce with
foreign countries and among the several states. The statutes of
Massachusetts and of Rhode Island considered in those cases had
reference to the sale within those states respectively of
intoxicating liquor imported from foreign countries but not sold or
offered for sale within the state by the importer in original
packages. The statute of New Hampshire, however, applied to
intoxicating liquor imported from another state, and the decision
in that case upheld its validity in reference to the disposition,
by sale or otherwise, of the intoxicating liquor after it had been
brought into the state. That judgment therefore closely approached
the
Page 125 U. S. 477
question presented in this case. The Justices all concurred in
the result, but there was not a majority which agreed upon any
specific ground for the conclusion, and it is necessary to compare
the several opinions which were pronounced in order to extract the
propositions necessarily embraced in the judgment. Chief Justice
Taney was of the opinion that Congress had clearly the power to
regulate such importation and sale under the grant of power to
regulate commerce among the several states, "yet, as Congress has
made no regulations on the subject," he said,
"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."
Mr. Justice Catron and Mr. Justice Nelson agreed with the Chief
Justice that the statute of New Hampshire in question was a
regulation of commerce, but lawful because not repugnant to any
actual exercise of the commercial power by Congress. Mr. Justice
McLean seemed to think that the power of Congress ended with the
importation, and that the sale of the article after it reached its
destination was within the exclusive control of the state. He
said:
"If this tax had been laid on the property as an import into the
state, the law would have been repugnant to the Constitution. It
would have been a regulation of commerce among the states, which
has been exclusively given to Congress. . . . But this barrel of
gin, like all other property within the State of New Hampshire, was
liable to taxation by the state. It comes under the general
regulation, and cannot be sold without a license."
Mr. Justice Daniel denied that the right of importation included
the right to sell within the state contrary to its laws. He
impliedly admitted the exclusive power of Congress to regulate
importation, and maintained as equally exclusive the right of the
state to regulate the matter of sale. Mr. Justice Woodbury
concurred in the same distinction. He said (p.
46 U. S.
619):
"It is manifest also, whether as an abstract proposition or
practical measure, that a prohibition to import is one thing, while
a prohibition to sell without a
Page 125 U. S. 478
license is another and entirely different."
The first, he thought, was within the control of Congress; the
latter within the exclusive jurisdiction of the state. He said:
"The subject of buying and selling within a state is one as
exclusively belonging to the power of the state over its internal
trade as that to regulate foreign commerce is with the general
government under the broadest construction of that power. . . . The
idea, too, that a prohibition to sell would be tantamount to a
prohibition to import does not seem to me either logical or founded
in fact. For even under a prohibition to sell, a person could
import, as he often does, for his own consumption and that of his
family and plantations, and also if a merchant extensively engaged
in commerce often does import articles with no view of selling them
here, but of storing them for a higher and more suitable market in
another state or abroad."
He also said (p.
46 U. S.
625):
"But this license is a regulation neither of domestic commerce
between the states nor of foreign commerce. It does not operate on
either, or the imports of either, until they have entered the state
and become component parts of its property. Then it has by the
Constitution the exclusive power to regulate its own internal
commerce and business in such articles and bind all residents,
citizens or not, by its regulations if they ask its protection and
privileges, and Congress, instead of being opposed and thwarted by
regulations as to this, can no more interfere in it than the states
can interfere in regulation of foreign commerce."
Mr. Justice Grier concurred mainly in the opinion delivered by
Mr. Justice McLean, and did not consider that the question of the
exclusiveness of the power of Congress to regulate commerce was
necessarily connected with the decision of the point that the
states had a right to prohibit the sale and consumption of an
article of commerce within their limits which they believed to be
pernicious in its effects and the cause of pauperism, disease, and
crime.
From a review of all the opinions, the following conclusions are
to be deduced as the result of the judgments in those cases:
1. All the Justices concurred in the proposition that the
statutes in question were not made void by the mere existence
Page 125 U. S. 479
of the power to regulate commerce with foreign nations and among
the states delegated to Congress by the Constitution.
2. They all concurred in the proposition that there was no
legislation by Congress in pursuance of that power with which these
statutes were in conflict.
3. Some, including the Chief Justice, held that the matter of
the importation and sale of articles of commerce was subject to the
exclusive regulation of Congress whenever it chose to exert its
power, and that any statute of the state on the same subject in
conflict with such positive provisions of law enacted by Congress
would be void.
4. Others maintained the view that the power of Congress to
regulate commerce did not extend to or include the subject of the
sale of such articles of commerce after they had been introduced
into a state, but that when the act of importation ended by a
delivery to the consignee, the exclusive power over the subject
belonged to the states as a part of their police power.
From this analysis it is apparent that the question presented in
this case was not decided in
The License Cases. The point
in judgment in them was strictly confined to the right of the
states to prohibit the sale of intoxicating liquor after it had
been brought within their territorial limits. The right to bring it
within the states was not questioned, and the reasoning which
justified the right to prohibit sales admitted, by implication, the
right to introduce intoxicating liquor as merchandise from foreign
countries or from other states of the union free from the control
of the several states and subject to the exclusive power of
Congress over commerce.
It cannot be doubted that the law of Iowa now under examination,
regarded as a rule for the transportation of merchandise, operates
as a regulation of commerce among the states.
"Beyond all question, the transportation of freight or of the
subjects of commerce for the purpose of exchange or sale is a
constituent of commerce itself. This has never been doubted, and
probably the transportation of articles of trade from one state to
another was the prominent idea in the minds of the framers of the
Constitution when to Congress
Page 125 U. S. 480
was committed the power to regulate commerce among the several
states. A power to prevent embarrassing restrictions by any state
was the thing desired. The power was given by the same words and in
the same clause by which was conferred power to regulate commerce
with foreign nations. It would be absurd to suppose that the
transmission of the subjects of trade from the state to 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. . . . Nor does it
make any difference whether this interchange of commodities is by
land or by water. In either case, the bringing of the goods from
the seller to the buyer is commerce. Among the states, it must have
been principally by land when the Constitution was adopted."
Case of the State Freight
Tax, 15 Wall. 232,
82 U. S. 275,
per Mr. Justice Strong. It was therefore decided in that case that
a tax upon freight transported from state to state was a regulation
of interstate transportation, and for that reason a regulation of
commerce among the states. And this conclusion was reached
notwithstanding the fact that Congress had not legislated on the
subject and notwithstanding the inference sought to be drawn from
the fact that it was thereby left open to the legislation of the
several states. On that point, it was said by Mr. Justice Strong,
speaking for the Court as follows (p.
82 U. S.
279):
"Cases that have sustained state laws alleged to be regulations
of commerce among the states have been such as related to bridges
or dams across streams wholly within a state, police, or health
laws or subjects of a kindred nature, not strictly of commercial
regulations. The subjects were such as, in
Gilman v.
Philadelphia, 3 Wall. 713, it was said"
"can be best regulated by rules and provisions suggested by the
varying circumstances of different localities and limited in their
operation to such localities respectively."
However this may be, the rule has been asserted with great
clearness that whenever the subjects over which a power to regulate
commerce is asserted are in their nature national or admitting of
one uniform system or plan of regulation, they may justly be said
to be of such a nature
Page 125 U. S. 481
as to require exclusive legislation by Congress.
Cooley v. Port
Wardens, 12 How. 299;
Crandall
v. State, 6 Wall. 42. Surely transportation of
passengers or merchandise through a state, or from one state to
another, is of this nature. It is of national importance that over
that subject there should be but one regulating power, for if one
state can directly tax persons or property passing through it, or
tax them indirectly by levying a tax upon their transportation,
every other may, and thus commercial intercourse between states
remote from each other may be destroyed. The produce of western
states may thus be effectually excluded from eastern markets, for
though it might bear the imposition of a single tax, it would be
crushed under a load of many. It was to guard against the
possibility of such commercial embarrassments, no doubt, that the
power of regulating commerce among the states was conferred upon
the federal government.
The distinction between cases in which Congress has exerted its
power over commerce and those in which it has abstained from its
exercise, as bearing upon state legislation touching the subject,
was first plainly pointed out by Mr. Justice Curtis in the case of
Cooley v. Port
Wardens, 12 How. 299,
53 U. S. 318,
and applies to commerce with foreign nations as well as to commerce
among the states. In that case, speaking of commerce with foreign
nations, he said (p.
53 U. S.
319):
"Now the power to regulate commerce embraces a vast field,
containing not only many but exceedingly various subjects quite
unlike in their nature, some imperatively demanding a single
uniform rule, operating equally on the commerce of the United
States in every port, and some, like the subject now in question,
as imperatively demanding that diversity which alone can meet the
local necessities of navigation."
It was therefore held in that case that the laws of the several
states concerning pilotage, although in their nature regulations of
foreign commerce, were, in the absence of legislation on the same
subject by Congress, valid exercises of power. The subject was
local, and not national, and was likely to be best provided for not
by one system or plan of regulations, but by as many as the
legislative discretion of the several states should deem
applicable
Page 125 U. S. 482
to the local peculiarities of the ports within their limits, and
to this it may be added that it was a subject imperatively
demanding positive regulation. The absence of legislation on the
subject, therefore, by Congress was evidence of its opinion that
the matter might be best regulated by local authority, and proof of
its intention that local regulations might be made.
It may be argued, however, that aside from such regulations as
these, which are purely local, the inference to be drawn from the
absence of legislation by Congress on the subject excludes state
legislation affecting commerce with foreign nations more strongly
than that affecting commerce among the states. Laws which concern
the exterior relations of the United States with other nations and
governments are general in their nature, and should proceed
exclusively from the legislative authority of the nation. The
organization of our state and federal system of government is such
that the people of the several states can have no relations with
foreign powers in respect to commerce, or any other subject, except
through the government of the United States and its laws and
treaties.
Henderson v. Mayor of New York, 92 U. S.
259,
92 U. S.
273.
The same necessity, perhaps, does not exist equally in reference
to commerce among the states. The power conferred upon Congress to
regulate commerce among the states is indeed contained in the same
clause of the Constitution which confers upon it power to regulate
commerce with foreign nations. The grant is conceived in the same
terms, and the two powers are undoubtedly of the same class and
character, and equally extensive. The actual exercise of its power
over either subject is equally and necessarily exclusive of that of
the states and paramount over all the powers of the states, so that
state legislation, however legitimate in its origin or object, when
it conflicts with the positive legislation of Congress or its
intention, reasonably implied from its silence, in respect to the
subject of commerce of both kinds must fail. And yet, in respect to
commerce among the states, it may be, for the reason already
assigned, that the same inference is not always to be drawn from
the absence of congressional legislation, as might be in the case
of commerce with foreign
Page 125 U. S. 483
nations. The question therefore may be still considered in each
case as it arises whether the fact that Congress has failed in the
particular instance to provide by law a regulation of commerce
among the states is conclusive of its intention that the subject
shall be free from all positive regulation, or that, until it
positively interferes, such commerce may be left to be freely dealt
with by the respective states.
We have seen that in the case of the
State
Freight Tax, 15 Wall. 232, a tax imposed by one
state upon freight transported to or from another state was held to
be void as a regulation of commerce among the states on the ground
that the transportation of passengers or merchandise through a
state, or from one state to another, was in its nature national, so
that it should be subjected to one uniform system or plan of
regulation under the control of one regulating power. In that case,
the tax was not imposed for the purpose of regulating interstate
commerce, but in order to raise a revenue, and would have been a
legitimate exercise of an admitted power of the state if it had not
been exerted so as to operate as a regulation of interstate
commerce. Any other regulation of interstate commerce, applied as
the tax was in that case, would fall equally within the rule of its
decision. If the state has not power to tax freight and passengers
passing through it, or to or from it, from or into another state,
much less would it have the power directly to regulate such
transportation or to forbid it altogether. If, in the present case,
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 repugnant to
the Constitution of the United States. In point of fact, however,
it applies only to one class of articles of a particular kind, and
prohibits their introduction into the state upon special grounds.
It remains for us to consider whether those grounds are sufficient
to justify it as an exception from the rule which would govern if
they did not exist.
It may be material also to state, in this connection that
Congress had legislated on the general subject of interstate
commerce by means of railroads prior to the date of the
transaction
Page 125 U. S. 484
on which the present suit is founded. Section 5258, Rev.Stat.,
provides that
"Every railroad company in the United States whose road is
operated by steam, its successors and assigns, is hereby authorized
to carry upon and over its road, boats, bridges, and ferries all
passengers, troops, government supplies, mails, freight, and
property on their way from any state to another state, and to
receive compensation therefor, and to connect with roads of other
states so as to form continuous lines for the transportation of the
same to the place of destination."
In the case of
Railroad Co. v.
Richmond, 19 Wall. 584, this section, then
constituting a part of the Act of Congress of June 15, 1866, was
considered. Referring to this act and the Act of July 25, 1866,
authorizing the construction of bridges over the Mississippi River,
the Court said:
"These acts were passed under the power vested in Congress to
regulate commerce among the several states, and were designed to
remove trammels upon transportation between different states which
had previously existed, and to prevent a creation of such trammels
in future, and to facilitate railway transportation by authorizing
the construction of bridges over the navigable waters of the
Mississippi, and they were intended to reach trammels interposed by
state enactments or by existing laws of Congress. . . . The power
to regulate commerce among the several states was vested in
Congress in order to secure equality and freedom in commercial
intercourse against discriminating state legislation."
Congress had also legislated on the subject of the
transportation of passengers and merchandise in chapter 6, title 48
of the Revised Statutes, §§ 4252 to 4289, inclusive, having
reference, however, mainly to transportation in vessels by water.
But §§ 4278 and 4279 relate also to the transportation of
nitroglycerine and other similar explosive substances by land or
water and either as a matter of commerce with foreign countries or
among the several states. Section 4280 provides that
"The two preceding sections shall not be so construed as to
prevent any state, territory, district, city, or town within the
United States from regulating or from prohibiting the traffic in or
transportation of those substances between persons or
Page 125 U. S. 485
places lying or being within their respective territorial
limits, or from prohibiting the introduction thereof into such
limits for sale, use, or consumption therein."
So far as these regulations made by Congress extend, they are
certainly indications of its intention that the transportation of
commodities between the states shall be free except where it is
positively restricted by Congress itself or by the states in
particular cases by the express permission of Congress. On this
point the language of this Court in the case of
County of
Mobile v. Kimball, 102 U. S. 691,
102 U. S. 697,
is applicable. Repeating and expanding the idea expressed in the
opinion in the case of
Cooley v. Board of Port
Wardens, 12 How. 299, this Court said:
"The subjects, indeed, upon which Congress can act under this
power are of infinite variety, requiring for their successful
management different plans or modes of treatment. Some of them are
national in their character, and admit and require uniformity of
regulation, affecting alike all the states; others are local, or
are mere aids to commerce, and can only be properly regulated by
provisions adapted to their special circumstances and localities.
In the former class may be mentioned all that portion of commerce
with foreign countries or between the states which consists in the
transportation, purchase, sale, and exchange of commodities. Here
there can of necessity be only one system or plan of regulations,
and that Congress alone can prescribe. Its nonaction in such cases
with respect to any particular commodity or mode of transportation
is a declaration of its purpose that the commerce in that
commodity, or by that means of transportation, shall be free. There
would otherwise be no security against conflicting regulations of
different states, each discriminating in favor of its own products
and against the products of citizens of other states. And it is a
matter of public history that the object of vesting in Congress the
power to regulate commerce with foreign nations and among the
states was to insure uniformity of regulation against conflicting
and discriminating state legislation."
Also (p.
102 U. S.
702):
"Commerce with foreign countries and among the states, strictly
considered, consists in intercourse and traffic, including,
Page 125 U. S. 486
in these terms, navigation and the transportation and transit of
persons and property, as well as the purchase, sale, and exchange
of commodities. For the regulation of commerce as thus defined
there can be only one system of rules, applicable alike to the
whole country, and the authority which can act for the whole
country can alone adopt such a system. Action upon it by separate
states is not therefore permissible."
The principle thus announced has a more obvious application to
the circumstances of such a case as the present, when it is
considered that the law of the State of Iowa under consideration,
while it professes to regulate the conduct of carriers engaged in
transportation within the limits of that state, nevertheless
materially affects, if allowed to operate, the conduct of such
carriers both as respects their rights and obligations in every
other state into or through which they pass in the prosecution of
their business of interstate transportation. In the present case,
the defendant is sued as a common carrier in the State of Illinois,
and the breach of duty alleged against it is a violation of the law
of that state in refusing to receive and transport goods which, as
a common carrier, by that law, it was bound to accept and carry. It
interposes as a defense a law of the State of Iowa which forbids
the delivery of such goods within that state. Has the law of Iowa
any extraterritorial force which does not belong to the law of the
State of Illinois? If the law of Iowa forbids the delivery, and the
law of Illinois requires the transportation, which of the two shall
prevail? How can the former make void the latter? In view of this
necessary operation of the law of Iowa, if it be valid, the
language of this Court in the case of
Hall v. De Cuir,
95 U. S. 485,
95 U. S. 488,
is exactly in point. It was there said:
"But we think it may safely be said that state legislation,
which seeks to impose a direct burden upon interstate commerce or
to interfere directly with its freedom, does encroach upon the
exclusive power of Congress. The statute now under consideration,
in our opinion, occupies that position. It does not act upon the
business through the local instruments to be employed after coming
within the state, but directly upon the business as it comes into
the state from
Page 125 U. S. 487
without, or goes out from within. While it purports only to
control the carrier when engaged within the state, it must
necessarily influence his conduct to some extent in the management
of his business throughout his entire voyage. His disposition of
passengers taken up and put down within the state, or taken up
within to be carried without, cannot but affect in a greater or
less degree those taken up without and brought within, and
sometimes those taken up within and put down without. A passenger
in the cabin set apart for the use of whites without the state
must, when the boat comes within, share the accommodations of that
cabin with such colored persons as may come on board afterwards if
the law is enforced. It was to meet just such a case that the
commercial clause in the Constitution was adopted. The River
Mississippi passes through or along the borders of ten different
states, and its tributaries reach many more. The commerce upon
these waters is immense, and its regulation clearly a matter of
national concern. If each state was at liberty to regulate the
conduct of carriers while within its jurisdiction, the confusion
likely to follow could not but be productive of great inconvenience
and unnecessary hardship. Each state could provide for its own
passengers and regulate the transportation of its own freight
regardless of the interests of others. Nay, more, it could
prescribe rules by which the carrier must be governed within the
state in respect to passengers and property brought from without.
On one side of the river or its tributaries, he might be required
to observe one set of rules and on the other another. Commerce
cannot flourish in the midst of such embarrassments. No carrier of
passengers can conduct his business with satisfaction to himself or
comfort to those employing him if on one side of a state line his
passengers, both white and colored, must be permitted to occupy the
same cabin, and on the other be kept separate. Uniformity in the
regulations by which he is to be governed from one end to the other
of his route is a necessity in his business, and, to secure it,
Congress, which is untrammeled by state lines, has been vested with
the exclusive legislative power of determining what such
regulations shall be. "
Page 125 U. S. 488
It is impossible to justify this statute of Iowa by classifying
it as an inspection law. The right of the states to pass inspection
laws is expressly recognized in Article I, Section 10, of the
Constitution in the clause declaring that
"No state shall, without the consent of Congress, lay any
imposts or duties on imports or exports, except what may be
absolutely necessary for executing its inspection laws. . . . And
all such laws shall be subject to the revision and control of the
Congress."
The nature and character of the inspection laws of the states
contemplated by this provision of the Constitution were very fully
exhibited in the case of
Turner v. Maryland, 107 U. S.
38. "The object of inspection laws," said Chief Justice
Marshall in
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S. 203,
"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. They act upon the subject before it becomes an article of
foreign commerce, or of commerce among the states, and prepare it
for that purpose."
They are confined to such particulars as in the estimation of
the legislature, and according to the customs of trade, are deemed
necessary to fit the inspected article for the market by giving to
the purchaser public assurance that the article is in that
condition and of that quality which makes it merchantable and fit
for use or consumption. They are not founded on the idea that the
things in respect to which inspection is required are dangerous or
noxious in themselves. As was said in
Turner v. Maryland,
107 U. S. 38,
107 U. S.
55:
"Recognized elements of inspection laws have always been quality
of the article, form, capacity, dimensions, and weight of package,
mode of putting up, and marking and branding of various kinds, all
these matters being supervised by a public officer having authority
to pass or not pass the article as lawful merchandise, as it did or
did not answer the prescribed requirements. It has never been
regarded as necessary, and it is manifestly not necessary, that all
of these elements should coexist in order to make a valid
inspection law. Quality alone may be the subject of inspection,
without other requirement, or the inspection may be made to extend
to all of the above matters."
It has never been regarded as within
Page 125 U. S. 489
the legitimate scope of inspection laws to forbid trade in
respect to any known article of commerce, irrespective of its
condition and quality, merely on account of its intrinsic nature
and the injurious consequences of its use or abuse.
For similar reasons, the statute of Iowa under consideration
cannot be regarded as a regulation of quarantine, or a sanitary
provision for the purpose of protecting the physical health of the
community, or a law to prevent the introduction into the state of
disease, contagious, infectious, or otherwise. Doubtless the states
have power to provide by law suitable measures to prevent the
introduction into the states of articles of trade which, on account
of their existing condition, would bring in and spread disease,
pestilence, and death, such as rags or other substances infected
with the germs of yellow fever, or the virus of small-pox, or
cattle or meat or other provisions that are diseased or decayed, or
otherwise, from their condition and quality, unfit for human use or
consumption. Such articles are not merchantable. They are not
legitimate subjects of trade and commerce. They may be rightly
outlawed as intrinsically and directly the immediate sources and
causes of destruction to human health and life. The self-protecting
power of each state therefore may be rightfully exerted against
their introduction, and such exercises of power cannot be
considered regulations of commerce prohibited by the Constitution.
Upon this point the observations of Mr. Justice Catron in
The License
Cases, 5 How. 504,
46 U. S. 599,
are very much to the point. Speaking of the police power as
reserved to the states and its relation to the power granted to
Congress over commerce, he said:
"The assumption is that the police power was not touched by the
Constitution, but left to the states as the Constitution found it.
This is admitted, and whenever a thing, from character or
condition, is of a description to be regulated by that power in the
state, then the regulation may be made by the state, and Congress
cannot interfere. But this must always depend on facts subject to
legal ascertainment, so that the injured may have redress. And the
fact must find its support in this whether the prohibited article
belongs to, and is subject to be regulated as part of foreign
commerce or of
Page 125 U. S. 490
commerce among the states. If, from its nature, it does not
belong to commerce, or if its condition, from putrescence or other
cause, is such when it is about to enter the state that it no
longer belongs to commerce, or, in other words, is not a commercial
article, then the state power may exclude its introduction, and, as
an incident to this power, a state may use means to ascertain the
fact. And here is the limit between the sovereign power of the
state and the federal power -- that is to say that which does not
belong to commerce is within the jurisdiction of the police power
of the state, and that which does belong to commerce is within the
jurisdiction of the United States. And to this limit must all the
general views come, as I suppose, that were suggested in the
reasoning of this Court in the cases of
Gibbons v. Ogden,
supra, 25 U.
S. State of Maryland, 12 Wheat. 419, and
New York
v. Miln, 11 Pet. 102. What, then, is the assumption
of the state court? Undoubtedly, in effect, that the state had the
power to declare what should be an article of lawful commerce in
the particular state, and, having declared that ardent spirits and
wines were deleterious to morals and health, they ceased to be
commercial commodities there, and that then the police power
attached, and consequently the powers of Congress could not
interfere. The exclusive state power is made to rest not on the
fact of the state or condition of the article, nor that it is
property usually passing by sale from hand to hand, but on the
declaration found in the state laws and asserted as the state
policy that it shall be excluded from commerce. And by this means,
the sovereign jurisdiction in the state is attempted to be created
in a case where it did not previously exist. If this be the true
construction of the constitutional provision, then the paramount
power of Congress to regulate commerce is subject to a very
material limitation, for it takes from Congress, and leaves with
the states, the power to determine the commodities or articles of
property which are the subjects of lawful commerce. Congress may
regulate, but the states determine, what shall or shall not be
regulated. Upon this theory, the power to regulate commerce,
instead of being paramount over the subject, would become
subordinate to the state police
Page 125 U. S. 491
power, for it is obvious that the power to determine the
articles which may be the subjects of commerce, and thus to
circumscribe its scope and operation, is in effect the controlling
one. The police power would not only be a formidable rival, but, in
a struggle, must necessarily triumph over the commercial power, as
the power to regulate is dependent upon the power to fix and
determine upon the subjects to be regulated. The same process of
legislation and reasoning adopted by the state and its courts could
bring within the police power any article 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 produce 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."
This question was considered in the case of
Railroad Co. v.
Husen, 95 U. S. 465, in
which this Court declared an act of the Legislature of Missouri
which prohibited driving or conveying any Texas, Mexican, or Indian
cattle into the state between the 1st day of March and the 1st day
of November in each year, to be in conflict with the constitutional
provision investing Congress with power to regulate commerce among
the several states, holding that such a statute was more than a
quarantine regulation, and not a legitimate exercise of the police
power of the state. In that case it was said (p.
95 U. S.
472):
"While we unhesitatingly admit that a state may pass sanitary
laws, and laws for the protection of life, liberty, health, or
property within its borders; while it may prevent persons and
animals suffering under contagious or infectious diseases, or
convicts, etc., from entering the state; while, for the purpose of
self-protection, it may establish quarantine and reasonable
inspection laws, it may not interfere with transportation into or
through the state beyond what is absolutely necessary for its
self-protection. It may not, under the cover of exerting its police
powers, substantially prohibit or burden either foreign or
interstate commerce. . . . The reach of the statute
Page 125 U. S. 492
was far beyond its professed object, and far into the realm
which is within the exclusive jurisdiction of Congress. . . . The
police power of a state cannot obstruct foreign commerce or
interstate commerce beyond the necessity for its exercise, and,
under color of it, objects not within its scope cannot be secured
at the expense of the protection afforded by the federal
Constitution. And as its range sometimes comes very near to the
field committed by the Constitution to Congress, it is the duty of
the courts to guard vigilantly against any needless intrusion."
The same principles were declared in
Henderson v. Mayor of
New York, 92 U. S. 259, and
Chy Lung v. Freeman, 92 U. S. 275. In
the latter case, speaking of the right of the state to protect
itself from the introduction of paupers and convicted criminals
from abroad, the Court said: "such a right can only arise from a
vital necessity for its exercise, and cannot be carried beyond the
scope of that necessity." "It may also be admitted," as was said in
the case of
Railroad Co. v. Husen, 95 U. S.
465,
95 U. S.
471,
"that the police power of a state justifies the adoption of
precautionary measures against social evils. Under it, a state may
legislate to prevent the spread of crime, or pauperism, or
disturbance of the peace. It may exclude from its limits, convicts,
paupers, idiots, and lunatics, and persons likely to become a
public charge, as well as persons afflicted by contagious or
infectious diseases -- a right founded, as intimated in
The
Passenger Cases, 7 How. 283, by Mr. Justice Grier,
in the sacred law of self-defense.
Vide Neff v. Pennoyer,
3 Sawyer 283. The same principle, it may also be conceded, would
justify the exclusion of property dangerous to the property of
citizens of the state -- for example, animals having contagious or
infectious diseases. All these exertions of power are in immediate
connection with the protection of persons and property against
noxious acts of other persons or such a use of property as is
injurious to the property of others. They are self-defensive. But
whatever may be the nature and reach of the police power of a
state, it cannot be exercised over a subject confided exclusively
to Congress by the federal Constitution. It cannot invade the
domain of the national
Page 125 U. S. 493
government. . . . Neither the unlimited powers of a state to tax
nor any of its large police powers can be exercised to such an
extent as to work a practical assumption of the powers properly
conferred upon Congress by the Constitution."
It is conceded, as we have already shown, that for the purposes
of its policy, a state has legislative control, exclusive of
Congress, within its territory of all persons, things, and
transactions of strictly internal concern. 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 countries. 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, expressed
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.
The statute of Iowa under consideration falls within this
prohibition. It is not an inspection law; it is not a quarantine or
sanitary law. It is essentially a regulation of commerce among the
states within any definition heretofore given to that term or which
can be given, and although its motive and purpose are to perfect
the policy of the State of Iowa in protecting its citizens against
the evils of intemperance, it is none the less on that account a
regulation of commerce. If it had extended its provisions so as to
prohibit the introduction into the state from foreign countries of
all importations of intoxicating liquors produced abroad, no one
would doubt the nature of the provision as a regulation of foreign
commerce. Its nature is not changed by its application to commerce
among the states. Can it be supposed that by omitting any express
declarations on the subject, Congress has intended to submit to the
several states the decision of the question in each locality of
Page 125 U. S. 494
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 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 has intended to limit the freedom of
commercial intercourse among the people of the several states. "It
cannot be too strongly insisted upon," said this Court in
Wabash &c. Railway Co. v. Illinois, 118 U.
S. 557,
118 U. S.
572,
"that the right of continuous transportation from one end of the
country to the other is essential in modern times to that freedom
of commerce from the restraints which the states might choose to
impose upon it that the commerce clause was intended to secure.
This clause, giving to Congress the power to regulate commerce
among the states and with foreign nations, as this Court has said
before, was among the most important of the subjects which prompted
the formation of the Constitution.
Cook v. Pennsylvania,
97 U. S.
566,
97 U. S. 574;
Brown v.
Maryland, 12 Wheat. 419,
25 U. S.
446. And it would be a very feeble and almost useless
provision, but poorly adapted to secure the entire freedom of
commerce
Page 125 U. S. 495
among the states, which was deemed essential to a more perfect
union by the framers of the Constitution, if at every stage of the
transportation of goods and chattels through the country, the state
within whose limits a part of the transportation must be done could
impose regulations concerning the price, compensation, or taxation,
or any other restrictive regulation interfering with and seriously
embarrassing this commerce."
In
Brown v. Houston, 114 U. S. 622,
114 U. S. 630,
it was declared that the power of Congress over commerce among the
states
"is certainly so far exclusive that no state has power to make
any law or regulation which will affect the free and unrestrained
intercourse and trade between the states, as Congress has left it,
or which will impose any discriminating burden or tax upon the
citizens or products of other states, coming or brought within its
jurisdiction. All laws and regulations are restrictive of natural
freedom to some extent, and where no regulation is imposed by the
government which has the exclusive power to regulate, it is an
indication of its will that the matter shall be left free. So long
as Congress does not pass any law to regulate commerce among the
several states, it thereby indicates its will that that commerce
shall be free and untrammeled, and any regulation of the subject by
the states is repugnant to such freedom. This has frequently been
laid down as law in the judgments of this Court."
The present case is concluded, we think, by the judgment of this
Court in
Walling v. Michigan, 116 U.
S. 446. In that case, an act of the Legislature of the
State of Michigan which imposed a tax upon persons who, not
residing or having their principal place of business within the
state, engaged there in the business of selling or soliciting the
sale of intoxicating liquors to be shipped into the state from
places without it, but did not impose a similar tax upon persons
selling or soliciting the sale of intoxicating liquors manufactured
in the state, was declared to be void on the ground that it was a
regulation in restraint of commerce repugnant to the Constitution
of the United States. In that case, it was said (p.
116 U. S.
459):
"It is suggested by the learned judge who delivered the opinion
of the
Page 125 U. S. 496
Supreme Court of Michigan in this case that the tax imposed by
the act of 1875 is an exercise by the Legislature of Michigan of
the police power of the state for the discouragement of the use of
intoxicating liquors and the preservation of the health and morals
of the people. This would be a perfect justification of the act if
it did not discriminate against the citizens and products of other
states as a matter of commerce between the states, and thus usurp
one of the prerogatives of the national legislature. The police
power cannot be set up to control the inhibitions of the federal
Constitution or the powers of the United States government created
thereby."
It would be error to lay any stress on the fact that the statute
passed upon in that case made a discrimination between citizens and
products of other states in favor of those of the State of
Michigan, notwithstanding the intimation on that point in the
foregoing extract from the opinion. This appears plainly from what
was decided in the case of
Robbins v. Shelby Taxing
District, 120 U. S. 489. It
was there said (p.
120 U. S.
497):
"It is strongly urged, as if it were a material point in the
case, that no discrimination is made between domestic and foreign
drummers -- those of Tennessee and those of other states; that all
are taxed alike. But that does not meet the difficulty. Interstate
commerce cannot be taxed at all, even though the same amount of tax
should be laid on domestic commerce or that which is carried on
solely within the state. This was decided in the case of
The
State Freight Tax, 15 Wall. 232."
In answer to another suggestion in the opinion of the Supreme
Court of Michigan that the regulation contained in the act did not
amount to a prohibition, this Court said:
"We are unable to adopt the views of that learned tribunal as
here expressed. It is the power to regulate commerce among the
several states which the Constitution in terms confers upon
Congress, and this power, as we have seen, is exclusive in cases
like the present, where the subject of regulation is one that
admits and requires uniformity and where any regulation affects the
freedom of traffic among the states."
The relation of the police powers of the state to the powers
Page 125 U. S. 497
granted to Congress by the Constitution over foreign and
interstate commerce was stated by this Court in the opinion in the
case of
Robbins v. Shelby Taxing District, 120 U.
S. 489,
120 U. S. 493,
as follows:
"It is also an established principle, as already indicated, that
the only way in which commerce between the states can be
legitimately affected by state laws is when, by virtue of its
police power and its jurisdiction over persons and property within
its limits, a state provides for the security of the lives, limbs,
health, and comfort of persons, and the protection of property, or
when it does those things which may otherwise incidentally affect
commerce, such as the establishment and regulation of highways,
canals, railroads, wharves, ferries, and other commercial
facilities; the passage of inspection laws to secure the due
quality and measure of products and commodities; the passage of
laws to regulate or restrict the sale of articles deemed injurious
to the health or morals of the community; the imposition of taxes
upon persons residing within the state or belonging to its
population, and upon avocations and employments pursued therein not
directly connected with foreign or interstate commerce or with some
other employment or business exercised under authority of the
Constitution and laws of the United States, and the imposition of
taxes upon all property within the state mingled with and forming
part of the great mass of property therein. But in making such
internal regulations, the state cannot impose taxes upon persons
passing through the state or coming into it merely for a temporary
purpose, especially if connected with interstate or foreign
commerce; nor can it impose such taxes upon property imported into
the state from abroad or from another state, and not yet become a
part of the common mass of property therein, and no discrimination
can be made by any such regulations adversely to the persons or
property of other states, and no regulations can be made directly
affecting interstate commerce. Any taxation or regulation of the
latter character would be an unauthorized interference with the
power given to Congress over the subject. . . . In a word, it may
be said that in the matter of interstate commerce, the United
States are but one country, and are and must be subject
Page 125 U. S. 498
to one system of regulations, and not to a multitude of systems.
The doctrine of the freedom of that commerce, except as regulated
by Congress, is so firmly established that it is unnecessary to
enlarge further upon this subject."
The section of the statute of Iowa the validity of which is
drawn in question in this case does not fall within this
enumeration of legitimate exertions of the police power. It is not
an exercise of the jurisdiction of the state over persons and
property within its limits; on the contrary, it is an attempt to
exert that jurisdiction over persons and property within the limits
of other states. It seeks to prohibit and stop their passage and
importation into its own limits, and is designed as a regulation
for the conduct of commerce before the merchandise is brought to
its border. It is not one of those local regulations designed to
aid and facilitate commerce; it is not an inspection law to secure
the due quality and measure of a commodity; it is not a law to
regulate or restrict the sale of an article deemed injurious to the
health and morals of the community; it is not a regulation confined
to the purely internal and domestic commerce of the state; it is
not a restriction which only operates upon property after it has
become mingled with and forms part of the mass of the property
within the state. It is, on the other hand, a regulation directly
affecting interstate commerce in an essential and vital point. If
authorized, in the present instance, upon the grounds and motives
of the policy which have dictated it, the same reason would justify
any and every other state regulation of interstate commerce upon
any grounds and reasons which might prompt in particular cases
their adoption. It is therefore a regulation of that character
which constitutes an unauthorized interference with the power given
to Congress over the subject. If not in contravention of any
positive legislation by Congress, it is nevertheless a breach and
interruption of that liberty of trade which Congress ordains as the
national policy by willing that it shall be free from restrictive
regulations.
It may be said, however, that the right of the state to restrict
or prohibit sales of intoxicating liquor within its limits,
conceded to exist as a part of its police power, implies the
Page 125 U. S. 499
right to prohibit its importation because the latter is
necessary to the effectual exercise of the former. The argument is
that a prohibition of the sale cannot be made effective except by
preventing the introduction of the subject of the sale; that if its
entrance into the state is permitted, the traffic in it cannot be
suppressed. But the right to prohibit sales, so far as conceded to
the states, arises only after the act of transportation has
terminated, because the sales which the state may forbid are of
things within its jurisdiction. Its power over them does not begin
to operate until they are brought within the territorial limits
which circumscribe it. It might be very convenient and useful, in
the execution of the policy of prohibition within the state, to
extend the powers of the state beyond its territorial limits. But
such extraterritorial powers cannot be assumed upon such an
implication. On the contrary, the nature of the case contradicts
their existence, for if they belong to one state, they belong to
all, and cannot be exercised severally and independently. The
attempt would necessarily produce that conflict and confusion which
it was the very purpose of the Constitution, by its delegations of
national power, to prevent. It is easier to think that the right of
importation from abroad, and of transportation from one state to
another, includes by necessary implication the right of the
importer to sell in unbroken packages at the place where the
transit terminates, for the very purpose and motive of that branch
of commerce which consists in transportation is that other and
consequent act of commerce which consists in the sale and exchange
of the commodities transported. Such, indeed, was the point decided
in the case of
Brown v.
Maryland, 12 Wheat. 419, as to foreign commerce,
with the express statement in the opinion of Chief Justice Marshall
that the conclusion would be the same in a case of commerce among
the states. But it is not necessary now to express any opinion upon
the point, because that question does not arise in the present
case. The precise line which divides the transaction, so far as it
belongs to foreign or interstate commerce, from the internal and
domestic commerce of the state, we are not
Page 125 U. S. 500
now called upon to delineate. It is enough to say that the power
to regulate or forbid the sale of a commodity after it has been
brought into the state does not carry with it the right and power
to prevent its introduction by transportation from another
state.
For these reasons, we are constrained to pronounce against the
validity of the section of the statute of Iowa involved in this
case. The judgment of the Circuit Court of the United States for
the Northern District of Illinois is therefore
Reversed, and the cause remanded, with instructions to
sustain the demurrer to the plea, and to take further proceedings
therein in conformity with this opinion.
MR. JUSTICE FIELD, concurring.
I concur in the judgment of the Court in this case and in the
greater part of the opinion upon which it is founded. The opinion
clearly shows, as I think, that the law of Iowa prohibiting the
importation into that State of intoxicating liquors is an
encroachment on the power of Congress over interstate commerce.
That commerce is a subject of vast extent. It embraces intercourse
between citizens of different states for purpose of trade in any
and all its forms, including the transportation, purchase, sale,
and exchange of commodities. The power to regulate it, which is
vested in Congress in the same clause with the power to regulate
commerce with foreign nations, is general in its terms. And to
regulate this commerce is to prescribe the conditions under which
it shall be conducted -- that is, how far it shall be free and how
far subject to restrictions. The defendant is a common carrier,
engaged in the transportation of freight by railway not only
between places in the State of Illinois, but also between places in
different states. In the latter business, it is therefore engaged
in interstate commerce. Whatever is an article of commerce, it may
carry, subject to such regulations as may be necessary for the
convenience and safety of the community through which its cars
pass, and to insure safety in the carriage of the freight. The law
of Iowa prescribing the conditions
Page 125 U. S. 501
upon which certain liquors may be imported into that state is
therefore a regulation of interstate commerce. Such regulation,
where the subject, like the transportation of goods, is national in
its character, can be made only by Congress -- the power which can
act for the whole country. Action by the states upon such commerce
is not therefore permissible.
Mobile v. Kimball,
102 U. S. 691,
102 U. S.
697.
What is an article of commerce is determinable by the usages of
the commercial world, and does not depend upon the declaration of
any state. The state possesses the power to prescribe all such
regulations with respect to the possession, use, and sale of
property within its limits as may be necessary to protect the
health, lives, and morals of its people, and that power may be
applied to all kinds of property, even that which in its nature is
harmless. But the power of regulation for that purpose is one
thing, and the power to exclude an article from commerce by a
declaration that it shall not thenceforth be the subject of use and
sale is another and very different thing. If the state could thus
take an article from commerce, its power over interstate commerce
would be superior to that of Congress, where the Constitution has
vested it. The language of Mr. Justice Catron on this subject in
the License cases,
46 U. S. 5 How.
600, quoted in the opinion of the Court, is instructive. Speaking
of the assumption by the state of power to declare what shall and
what shall not be deemed an article of commerce within its limits,
and thus to permit the sale of one and prohibit the sale of the
other, without reference to congressional power of regulation, the
learned Justice said:
"The exclusive state power is made to rest not on the fact of
the state or condition of the article, nor that it is property
usually passing by sale from hand to hand, but on the declaration
found in the state laws and asserted as the state policy that it
shall be excluded from commerce, and by this means the sovereign
jurisdiction in the state is attempted to be created in a case
where it did not previously exist. If this be the true construction
of the constitutional provision, then the paramount power of
Congress to regulate commerce is subject to a very material
limitation, for it takes
Page 125 U. S. 502
from Congress, and leaves with the states, the power to
determine the commodities or articles of property which are the
subjects of lawful commerce. Congress may regulate, but the states
determine what shall or shall not be regulated. Upon this theory
the power to regulate commerce, instead of being paramount over the
subject, would become subordinate to the state police power, for it
is obvious that the power to determine the articles which may be
the subjects of commerce, and thus to circumscribe its scope and
operation, is, in effect, the controlling one. The police power
would not only be a formidable rival, but, in a struggle, must
necessarily triumph over the commercial power, as the power to
regulate is dependent upon the power to fix and determine upon the
subjects to be regulated."
In
Mugler v. Kansas, 123 U. S. 623
(recently decided), this Court held a statute of that state to be
valid which prohibited the manufacture and sale within its limits
of intoxicating liquors except for medical, scientific, or
mechanical purposes, and made a violation of its provisions a
misdemeanor punishable by fine or imprisonment. I agreed to so much
of the opinion of the Court in that case as asserted that there was
nothing in the Constitution or laws of the United States which
affected the validity of the statute prohibiting the sale of such
liquors manufactured in the state except under proper regulations
for the protection of the health and morals of the people. But at
the same time I stated, without expressing any opinion on the
subject, that I was not prepared to say that the state could
prohibit the sale of such liquors within its limits under like
regulations if Congress should authorize their importation,
observing that the right to import an article of merchandise,
recognized as such by the commercial world, whether the right be
given by act of Congress or by treaty with a foreign nation, would
seem necessarily to carry the right to sell the article when
imported. Where the importation is authorized from one state to
another, a similar right of sale of the article imported would seem
to follow. The question upon which I was then unwilling to express
an opinion is presented in this case -- not in a direct way, it is
true,
Page 125 U. S. 503
but in such a form as, it seems to me, to require
consideration.
A statute of Iowa contains a prohibition similar to that of the
Kansas statute upon the manufacture and sale of intoxicating
liquors within its limits, with the additional exception of
permission to use them for culinary purposes and to sell foreign
liquors imported under a law of Congress, in the original casks or
packages in which they are imported. The law under consideration in
this case, prohibiting the importation into Iowa of such liquors
from other states without a license for that purpose, was passed to
carry out the policy of the state to suppress the sale of such
liquors within its limits. And the argument is pressed with much
force that if the state cannot prohibit the importation, its policy
to suppress the sale will be defeated, and if legislation
establishing such policy is not in conflict with the Constitution
of the United States, this additional measure to carry the
legislation into successful operation must be permissible. The
argument assumes that the right of importation carries with it the
right to sell the article imported -- a position hereafter
considered.
The reserved powers of the states in the regulation of their
internal affairs must be exercised consistently with the exercise
of the powers delegated to the United States. If there be a
conflict, the powers delegated must prevail, being so much
authority taken from the states by the express sanction of their
people, for the Constitution itself declares that laws made in
pursuance of it shall be the supreme law of the land. But those
powers which authorize legislation touching the health, morals,
good order, and peace of their people were not delegated, and are
so essential to the existence and prosperity of the states that it
is not to be presumed that they will be encroached upon so as to
impair their reasonable exercise. How can these reserved powers be
reconciled with the conceded power of Congress of regulate
interstate commerce? As said above, the state cannot exclude an
article from commerce, and consequently from importation, simply by
declaring that its policy requires such exclusion, and yet its
regulations respecting the possession, use, and sale of any article
of commerce
Page 125 U. S. 504
may be as minute and strict as required by the nature of the
article, and the liability of injury from it for the safety,
health, and morals of its people.
In the opinion of the Court it is stated that the effect of the
right of importation upon the asserted right, as a consequence
thereof, to sell the article imported is not involved in this case,
and therefore it is not necessary to express any opinion on the
subject. The case, it is true, can be decided, and has been
decided, without expressing an opinion on that subject; but with
great deference to my associates, I must say that I think its
consideration is presented, and to some extent required, to meet
the argument that the right of importation, because carrying the
right to sell the article imported, is inconsistent with the right
of the state to prohibit the sale of the article absolutely, as
held in the Kansas case. With respect to most subjects of commerce,
regulations may be adopted touching their use and sale when
imported which will afford all the protection and security desired
without going to the extent of absolute prohibition. It is not
found difficult, even with the most dangerous articles, to provide
such minute and stringent regulations as will guard the public from
all harm from them. Arsenic, dynamite, powder, and nitroglycerine
are imported into every state under such restrictions as to their
transportation and sale as to render it safe to deal in them. There
may be greater difficulty in regulating the use and sale of
intoxicating liquors, and I admit that whenever the use of an
article cannot be regulated and controlled so as to insure the
health and safety of society, it may be prohibited and the article
destroyed.
That the right of importation carries with it the right to sell
the article imported does not appear to me doubtful. Of course, I
am speaking of an article that is in a healthy condition, for when
it has become putrescent or diseased it has ceased to be an article
of commerce, and it may be destroyed, or its use prohibited. To
assert that under the Constitution of the United States the
importation of an article of commerce cannot be prohibited by the
states, and yet to hold that when imported its use and sale can be
prohibited, is to declare
Page 125 U. S. 505
that the right which the Constitution gives is a barren one, to
be used only so far as the burden of transportation is concerned,
and to be denied so far as any benefits from such transportation
are sought. The framers of the Constitution never intended that a
right given should not be fully enjoyed. In
Brown
v. Maryland, 12 Wheat. 447, Chief Justice Marshall,
in delivering the opinion of the Court, speaking of the commercial
power of Congress and after observing that it is coextensive with
the subject on which it acts, and cannot be stopped at the exterior
boundary of a state, but must enter its interior, said:
"If this power reaches the interior of a state, and may be there
exercised, it must be capable of authorizing the sale of those
articles which it introduces. Commerce is intercourse; one of its
most ordinary ingredients is traffic. It is inconceivable that the
power to authorize this traffic, when given in the most
comprehensive terms, with the intent that its efficacy should be
complete, should cease at the point when its continuance is
indispensable to its value. To what purpose should the power to
allow importation be given unaccompanied with the power to
authorize a sale of the thing imported? Sale is the object of
importation, and is an essential ingredient of that intercourse of
which importation constitutes a part. It is as essential an
ingredient, as indispensable to the existence of the entire thing,
then, as importation itself. It must be considered as a component
part of the power to regulate commerce. Congress has a right not
only to authorize importation, but to authorize the importater to
sell. . . . The power claimed by the state is, in its nature, in
conflict with that given to Congress, and the greater or less
extent in which it may be exercised does not enter into the inquiry
concerning its existence. We think, then, that if the power to
authorize a sale exists in Congress, the conclusion that the right
to sell is connected with the law permitting importation, as an
inseparable incident, is inevitable."
And the Chief Justice added: "We suppose the principles laid
down in this case to apply equally to importations from a sister
state." P.
25 U. S.
449
Assuming, therefore, as correct doctrine that the right of
importation carries the right to sell the article imported, the
Page 125 U. S. 506
decision in the Kansas case may perhaps be reconciled with the
one in this case by distinguishing the power of the state over
property created within it, and its power over property imported --
its power in one case extending, for the protection of the health,
morals, and safety of its people, to the absolute prohibition of
the sale or use of the article, and in the other extending only to
such regulations as may be necessary for the safety of the
community, until it has been incorporated into and become a part of
the general property of the state. However much this distinction
may be open to criticism, it furnishes, as it seems to me, the only
way in which the two decisions can be reconciled.
There is great difficulty in drawing the line precisely where
the commercial power of Congress ends and the power of the state
begins. The same difficulty was experienced in
Brown v.
Maryland, in drawing a line between the restriction on the
states to lay a duty on imports and their acknowledged power to tax
persons and property. In that case, the Court said that the two --
the power and the restriction -- though distinguishable when they
did not approach each other, might, like the intervening colors
between white and black, approach so nearly as to perplex the
understanding as colors perplex the vision in marking the
distinction between them; but as the distinction existed, it must
be marked as the cases arise. And after observing that it might be
premature to state any rule as being universal in its application,
the Court held as sufficient for that case that when the importer
had so acted upon the thing imported that it had become
incorporated and mixed up with the mass of property in the country,
it had lost its distinctive character as an import, and had become
subject to the taxing power of the state; but that while remaining
the property of the importer, in his warehouse in the original form
or package in which it was imported, a tax upon it was plainly a
duty on imports.
So in the present case it is perhaps impossible to state any
rule which would determine in all cases where the right to sell an
imported article under the commercial power of the federal
government ends and the power of the state to restrict
Page 125 U. S. 507
further sale has commenced. Perhaps no safer rule can be adopted
than the one laid down in
Brown v. Maryland, that the
commercial power continues until the articles imported have become
mingled with and incorporated into the general property of the
state, and not afterwards. And yet it is evident that the value of
the importation will be materially affected if the article imported
ceases to be under the protection of the commercial power upon its
sale by the importer. There will be little inducement for one to
purchase from the importer if immediately afterwards he can himself
be restrained from selling the article imported, and yet the power
of the state must attach when the imported article has become
mingled with the general property within its limits, or its entire
independence in the regulation of its internal affairs must be
abandoned. The difficulty and embarrassment which may follow must
be met as each case arises.
In
The License
Cases, reported in 5 How. 600, this Court held that
the states could not only regulate the sales of imported liquors,
but could prohibit their sale. The judges differed in their views
in some particulars, but the majority were of opinion that the
states had authority to legislate upon subjects of interstate
commerce until Congress had acted upon them, and as Congress had
not acted, the regulation of the states was valid. The doctrine
thus declared has been modified since by repeated decisions. The
doctrine now firmly established is 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
Page 125 U. S. 508
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 has mingled with and become
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.
Cooley v. Board of Wardens of
Port of Philadelphia, 12 How. 299,
53 U. S. 319;
State Freight Tax
Cases, 15 Wall. 232,
82 U. S. 271;
Welton v. Missouri, 91 U. S. 275-282;
Railroad Co. v. Husen, 95 U. S. 465,
95 U. S. 469;
Mobile v. Kimball, 102 U. S. 691,
102 U. S. 697;
Gloucester Ferry Co. v. Pennsylvania, 114 U.
S. 196,
114 U. S. 203;
Brown v. Houston, 114 U. S. 622,
114 U. S. 631;
Walling v. Michigan, 116 U. S. 446,
116 U. S. 455;
Pickard v. Pullman Southern Car Co., 117 U. S.
34;
Wabash &c. Railway Co. v. Illinois,
118 U. S. 557;
Robbins v. Shelby County Taxing District, 120 U.
S. 489.
It is a matter of history that one of the great objects of the
formation of the Constitution was to secure uniformity of
commercial regulations, and thus put an end to restrictive and
hostile discriminations by one state against the products of other
states and against their importation and sale. "It may be doubted,"
says Chief Justice Marshall,
"whether any of the evils proceeding from the feebleness of the
federal government contributed more to that great revolution which
induced the present system than the deep and general conviction
that commerce ought to be regulated by Congress. It is not,
therefore, matter of surprise that the grant should be as extensive
as the mischief, and should comprehend all foreign commerce and all
commerce among the states. To construe the power so as to impair
its efficacy would tend to defeat an object, in the attainment of
which the American government took, and justly took, that strong
interest which arose from a full conviction as to its
necessity."
Brown v.
Maryland, 12 Wheat. 446. To these views I may add
that if the states
Page 125 U. S. 509
have the power asserted, to exclude from importation within
their limits any articles of commerce because in their judgment the
articles may be injurious to their interests or policy, they may
prescribe conditions upon which such importation will be admitted,
and thus establish a system of duties as hostile to free commerce
among the states as any that existed previous to the adoption of
the Constitution.
MR. JUSTICE HARLAN, with whom concurred THE CHIEF JUSTICE and
MR. JUSTICE GRAY, dissenting.
THE CHIEF JUSTICE, MR. JUSTICE GRAY, and myself are unable to
assent to the opinion and judgment of the Court. The effect of the
statutes of Iowa is to forbid the introduction of intoxicating
liquors from other states for sale except for medicinal,
mechanical, culinary, or sacramental purposes. They may be brought
in for such purposes by any person or carrier for another person or
corporation, if consigned to some one authorized by the laws of
Iowa to buy and sell intoxicating liquors. And these statutes
permit the sale of foreign intoxicating liquors, imported under the
laws of the United States, provided such sale is by the importer,
in the original casks or packages and in quantities not less than
those in which they are required to be imported. It appears upon
the face of the declaration that the plaintiffs -- one of whom is a
citizen of Iowa -- made application to the Board of Supervisors of
Marshall County in that state for permission under the statute to
buy and sell in that county intoxicating liquors for medicinal,
culinary, mechanical, and sacramental purposes, and that their
application was rejected. They then resorted to the expedient of
buying 5,000 barrels of beer in Chicago and tendering them to the
railroad company for transportation to the same county without
furnishing the certificate required by the laws of Iowa. The
refusal of the company to transport this beer into Iowa in
violation of her laws is the basis of the present suit. The
plaintiffs claim damages upon the ground that they could have sold
this beer in that state at a price in advance of what
Page 125 U. S. 510
it cost them. As they do not allege that the beer was to be
delivered in Iowa to a person authorized by her laws to sell it
there, no wrong was done of which the plaintiffs can complain
unless it be their right not only to have their beer carried into
the state, but to sell it there in defiance of her laws.
The fundamental question, therefore, is whether Iowa may
lawfully restrict the bringing of intoxicating liquors from other
states into her limits by any person or carrier for another person
or corporation except such as are consigned to persons authorized
by her laws to buy and sell them for the special purposes
indicated. In considering this question, we are not left to
conjecture as to the motives prompting the enactment of these
statutes, for it is conceded that the prohibition upon common
carriers bringing intoxicating liquors from other states except
under the foregoing conditions was adopted as subservient to the
general design of protecting the health and morals and the peace
and good order of the people of Iowa against the physical and moral
evils resulting from the unrestricted manufacture or sale of
intoxicating liquors. In
Mugler v. Kansas, 123 U.
S. 623, it was adjudged that state legislation
prohibiting the manufacture of intoxicating liquors to be sold or
bartered for general use as a beverage did not necessarily infringe
any right, privilege, or immunity secured by the Constitution of
the United States, and that the former decisions to that effect --
License Cases,
5 How. 504;
Bartemeyer v. Iowa, 18 Wall. 129;
Beer Co.
v. Massachusetts, 97 U. S. 25,
97 U. S. 33, and
Foster v. Kansas, 112 U. S. 201,
112 U.S. 206 --
"rest upon the acknowledged right of the states of the union to
control their purely internal affairs and, in so doing, to protect
the health, morals, and safety of their people by regulations that
do not interfere with the execution of the powers of the general
government or violate rights secured by the Constitution. The power
to establish such regulations, as was said in
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S.
203, reaches everything within the Territory of a state
not surrendered to the national government."
123 U.S.
123 U. S. 659.
Referring to the suggestion that no government could lawfully
prohibit a citizen from
Page 125 U. S. 511
manufacturing for his own use or for export or storage any
article of food or drink not endangering or affecting the rights of
others, the Court said:
"But by whom, or by what authority, is it to be determined
whether the manufacture of particular articles of drink, either for
general use or for the personal use of the maker, will injuriously
affect the public? Power to determine such questions so as to bind
all must exist somewhere, else society will be at the mercy of the
few who, regarding only their own appetites or passions, may be
willing to imperil the peace and security of the many provided only
they are permitted to do as they please. Under our system, that
power is lodged with the legislative branch of the government. It
belongs to that department to exert what are known as the 'police
powers of the state,' and to determine primarily what measures are
appropriate or needful for the protection of the public morals, the
public health, or the public safety."
123 U.S.
123 U. S.
660-661.
But it is contended that a statute forbidding the introduction
of intoxicating liquors from other states does not infringe rights
secured by the Constitution of the United States, and that view is
sustained by the opinion and judgment in this case. The decision is
placed upon the broad ground that intoxicating liquors are
merchantable commodities, or known articles of commerce, and that
consequently the Constitution, by the mere grant to Congress of the
power to regulate commerce, operates, in the absence of
legislation, to establish unrestricted trade, among the states of
the union, in such commodities or articles. To this view we cannot
assent. In
Mugler's Case, the Court said 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 country
are, in some degree at least, traceable to this evil."
The Court also said 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 not
Page 125 U. S. 512
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 view 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."
123 U.S.
123 U. S.
662-663.
In
Gibbons v.
Ogden, 9 Wheat. 203,
22 U. S. 205,
Chief Justice Marshall said that "inspection laws, quarantine laws,
and health laws of every description" were component parts of that
mass of legislation, "not surrendered to the general government,"
which "can be most advantageously exercised by the states
themselves;" that such laws "are considered as flowing from the
acknowledged power of a state to provide for the health of its
citizens." To this doctrine the Court has steadily adhered. In
Gilman v.
Philadelphia, 3 Wall. 730, after observing that a
state law requiring an importer to pay for and take out a license
before he should be permitted to sell a bale of goods imported from
a foreign country is void (
Brown v.
Maryland, 12 Wheat. 419) and that a state law which
requires the master of a vessel engaged in foreign commerce to pay
a certain sum to a state officer on account of each passenger
brought from a foreign country is also void (
Passenger
Cases, 7 How. 283), the Court said:
"But a state, in the exercise of its police power, may forbid
spirituous liquor imported from abroad or from another state to be
sold by retail or to be sold at all without a license, and it may
visit the violation of the prohibition with such punishment as it
may deem proper. Under quarantine laws, a vessel registered, or
enrolled and licensed may be stopped before entering her port of
destination, or be afterwards removed and detained elsewhere for an
indefinite period, and a bale of goods, upon which the duties have
or have not been paid, laden with infection, may be seized under
'health laws,'
Page 125 U. S. 513
and, if it cannot be purged of its poison, may be committed to
the flames."
In
Sherlock v. Alling, 93 U. S.
99,
93 U. S. 103, it
was said that
"In conferring upon Congress the regulation of commerce, it was
never intended to cut the states off from legislating on all
subjects relating to the health, life, and safety of their
citizens, though the legislation might indirectly affect the
commerce of the country."
In
Railroad Co. v. Husen, 95 U. S.
465,
95 U. S. 471,
the Court adjudged that a statute of Missouri prohibiting the
introduction into that State of all Texas, Mexican, or Indian
cattle between May 1st and November 1st of each year, whether
diseased or not, and which imposed burdensome conditions upon their
transportation through the state, was void because a regulation of
interstate commerce. But it was distinctly declared that the
delegation to Congress of the power to regulate commerce with
foreign nations and among the states "was not a surrender of that
which may properly be denominated
police power,'" which
included, the Court said, the power in each state to adopt
"precautionary measures against social evils;" to "prevent the
spread of crime or pauperism, or disturbance of the peace;" to
"exclude from its limits convicts, paupers, idiots, and lunatics,
and persons likely to become a public charge, as well as persons
afflicted by contagious or infectious diseases;" and to exclude
"property dangerous to the property of citizens of the state -- for
example, animals having contagious or infectious diseases." "All
these," it was said,
"are in immediate connection with the protection of persons and
property against noxious acts of other persons, or such use of
property as is injurious to the property of others; they are
self-defensive."
It was only because the Missouri statute embraced cattle that
were free from disease that it was declared unconstitutional. In
Patterson v. Kentucky, 97 U. S. 501,
97 U. S. 505,
the principle was affirmed that the police power of the states was
not surrendered when authority was conferred upon Congress to
regulate commerce with foreign nations and among the states.
It seems to us that the decision just rendered does not conform
to the doctrines of the foregoing cases, and may impair,
Page 125 U. S. 514
if it does not destroy, the power of a state to protect her
people against the injurious consequences that are admitted to flow
from the general use of intoxicating liquors. It was said in
Brown v.
Maryland, 12 Wheat. 419,
25 U. S.
439-441:
"There is no difference, in effect, between the power to
prohibit the sale of an article and a power to prohibit its
introduction into the country. . . . When the importer has so acted
upon the thing imported that it has become incorporated and mixed
up with the mass of property in the country, it has, perhaps, lost
its distinctive character as an import, and has become subject to
the taxing power of the state; but while remaining the property of
the importer in his warehouse in the original form or package in
which it was imported, a tax upon it is too plainly a duty on
imports to escape the prohibition in the Constitution."
Considering the question in that case, under the power of
Congress to regulate commerce, the Court said:
"Sale is the object of importation, and is an essential
ingredient in that intercourse of which importation constitutes a
part. It is as essential an ingredient, as indispensable to the
entire thing, then, as importation. It must be considered as a
component part of the power to regulate commerce."
P.
25 U. S. 447.
Although there was no question in that case as to commerce among
the states, the Court further said: "We suppose the principles laid
down in this case to apply equally to importations from a sister
state." If, therefore, as the Court now decides, the Constitution
gives the right to transport intoxicating liquors into Iowa from
another state, and if that right carries with it, as one of its
essential ingredients, authority in the consignee, to sell or
exchange such articles after they are so brought in, and while in
his possession in the original packages, it is manifest that the
regulation forbidding sales of intoxicating liquors within the
state for other than medicinal, mechanical, culinary, or
sacramental purposes, and then only under a permit from a board of
supervisors, will be of little practical value. In this view,
anyone -- even a citizen of Iowa -- desiring to sell intoxicating
liquors in that state need only arrange to have them delivered to
him from some point in another state, in
Page 125 U. S. 515
packages of varying sizes as suit customers, or he may erect his
manufacturing establishment or warehouse just across the Iowa line
in some state having a different public policy, and thence, with
wagons, transport liquors into Iowa in original packages. If the
state arraigns him for a violation of her laws, he may claim --
and, under the principles of the present decision, it may become
difficult to dispute the claim -- that although such laws were
enacted solely to protect the health and morals of the people and
to promote peace and good order among them, and although they are
fairly adapted to accomplish those objects, yet the Constitution of
the United States, without any action upon the part of Congress,
secures to him the right to bring or receive from other states
intoxicating liquors in original packages and to sell them, while
held by him in such packages, to all choosing to buy them. Thus,
the mere silence of Congress upon the subject of trade among the
states in intoxicating liquors is made to operate as a license to
persons doing business in one state to jeopardy the health, morals,
and good order of another state by flooding the latter with
intoxicating liquors against the expressed will of her people.
It is admitted that a state may prevent the introduction within
her limits of rags or other goods infected with disease, or of
cattle or meat or other provisions which from their conditio, are
unfit for human use or consumption, because, it is said, such
articles are not merchantable or legitimate subjects of trade and
commerce. But suppose the people of a state believe, upon
reasonable grounds, that the general use of intoxicating liquors is
dangerous to the public peace, the public health, and the public
morals, what authority has Congress or the judiciary to review
their judgment upon that subject and compel them to submit to a
condition of things which they regard as destructive of their
happiness and the peace and good order of society? If, consistently
with the Constitution of the United States, a state can protect her
sound cattle by prohibiting altogether the introduction within her
limits of diseased cattle, she ought not to be deemed disloyal to
that Constitution when she seeks by similar legislation to
protect
Page 125 U. S. 516
her people and their homes against the introduction of articles,
which are, in good faith, and not unreasonably, regarded by her
citizens as "laden with infection" more dangerous to the public
than diseased cattle, or than rags containing the germs of
disease.
It is not a satisfactory answer to these suggestions to say that
if the state may thus outlaw the manufacture and sale of
intoxicating liquors as a beverage and exclude them from her
limits, she may adopt the same policy with reference to articles
that confessedly have no necessary or immediate connection with the
health, the morals, or the safety of the community, but are proper
subjects of trade the world over. This possible abuse of
legislative power was earnestly dwelt upon by the counsel in
Mugler's Case. The same argument can be, as it often is,
made in reference to powers that all concede to be vital to the
public safety; but it does not disprove their existence. This Court
said that the judicial tribunals were not to be misled by mere
pretenses, and were under a solemn duty to look at the substance of
things whenever it became necessary to inquire whether the
legislature had transcended the limits of its authority, and
that
"if, therefore, a statute purporting to have been enacted to
protect the public health, the public morals, or the public safety
has no real or substantial relation to those objects or is a
palpable invasion of rights secured by the fundamental law, it is
the duty of the courts to so adjudge, and thereby give effect to
the Constitution."
123 U.S.
123 U. S. 661.
In view of these principles, the Court said it was difficult to
perceive any ground for the judiciary to declare that the
prohibition by a state of the manufacture or sale, within her
limits, of intoxicating liquors for general use there as a
beverage, is not fairly adapted to the end of protecting the
community against the evils which confessedly result from the
excessive use of ardent spirits.
Id. at
123 U. S. 662.
In the same case, the Court sustained without qualification the
authority of Kansas to declare not only that places where such
liquors were manufactured, sold, bartered, or given away, or were
kept for sale, barter, or delivery in violation of her statutes
should be deemed common nuisances, but to provide
Page 125 U. S. 517
for the forfeiture, without compensation, of the intoxicating
liquors found in such places, and the property used in maintaining
said nuisances.
Now can it be possible that the framers of the Constitution
intended -- whether Congress chose or not to act upon the subject
-- to withhold from a state authority to prevent the introduction
into her midst of articles or commodities the manufacture of which,
within her limits, she could prohibit, without impairing the
constitutional rights of her own people? If a state may declare a
place where intoxicating liquors are sold for use as a beverage to
be a common nuisance, subjecting the person maintaining the same to
fine and imprisonment, can her people be compelled to submit to the
sale of such liquors when brought there from another state for that
purpose? This Court has often declared that the most important
function of government was to preserve the public health, morals,
and safety; that it could not divest itself of that power, nor, by
contract, limit its exercise, and that even the constitutional
prohibition upon laws impairing the obligation of contracts does
not restrict the power of the state to protect the health, the
morals, or the safety of the community, as the one or the other may
be involved in the execution of such contracts.
Stone v.
Mississippi, 101 U. S. 814,
101 U. S. 816;
Butchers' Union Co. v. Crescent City Co., 111 U.
S. 746,
111 U. S. 751;
New Orleans Gas Co. v. Louisiana Light Co., 115 U.
S. 650,
115 U. S. 672;
Mugler v. Kansas, 123 U. S. 664.
Does the mere grant of the power to regulate commerce among the
states invest individuals of one state with the right, even without
the express sanction of congressional legislation, to introduce
among the people of another state articles which, by statute, they
have declared to be deleterious to their health, and dangerous to
their safety? In our opinion, these questions should be answered in
the negative. It is inconceivable that the wellbeing of any state
is at the mercy of the liquor manufacturers of other states.
These views are sustained by
Walling v. Michigan,
116 U. S. 446. It
was there held that a statute of Michigan which imposed a tax upon
persons who, not residing or having their
Page 125 U. S. 518
principal place of business in that state, engaged there in the
business of selling or soliciting the sale of intoxicating liquors
to be shipped into Michigan from other states, but which did not
impose a similar tax upon persons selling or soliciting the sale of
intoxicating liquors manufactured in that state, was a
discrimination against the products of other states, and void as a
regulation in restraint of commerce. In reference to the suggestion
by the state court that the statute was an exercise by the
legislature of the police power for the discouragement of the use
of intoxicating liquors, and the preservation of the health and
morals of the people, this Court said:
"This would be a perfect justification of the act if it did not
discriminate against the citizens and products of other states in a
matter of commerce between the states, and thus usurp one of the
prerogatives of the national legislature."
The clear implication from this language is that the state law
would have been sustained if it had applied the same rule to the
products of Michigan which it attempted to apply to the products of
other states.
At the argument, it was insisted that the contention of the
plaintiffs was supported by
Brown v.
Maryland, 12 Wheat. 419,
25 U. S. 436,
where the question was whether the legislature of a state could
constitutionally require an importer of foreign articles or
commodities to take out a license from the state before he should
be permitted to sell a bale or package so imported. The indictment
in that case charged Brown with having sold one package of foreign
"dry goods" without having such a license. The Court held the state
regulation to be repugnant to that clause of the Constitution
declaring that no state shall, without the consent of Congress, lay
any imposts or duties on imports or exports, except what may be
absolutely necessary for executing its inspection laws, as well as
to that clause which clothes Congress with power to regulate
commerce with foreign nations and among the several states and with
the Indian tribes. Among other things, it said that the right to
sell articles imported from foreign countries is connected with the
law permitting importation as an inseparable incident, observing at
the close of the
Page 125 U. S. 519
opinion that it supposed the principle laid down to apply
equally to importations from a sister state. It is, however, clear
from the whole opinion that the Court in that observation had
reference to commerce in articles having no connection whatever
with the health, morals, or safety of the people, and that it had
no purpose to withdraw or qualify the explicit declaration in
Gibbons v. Ogden that the health laws of the states were a
component part of that mass of legislation, the power to enact
which remained with the states, because never surrendered to the
general government. In behalf of Maryland, it was insisted that the
constitutional prohibition of state imposts or duties upon imports
ceased the instant the goods entered the country; otherwise, it was
argued, the importer,
"may introduce articles -- as gunpowder -- which endanger a city
into the midst of its population; he may introduce articles which
endanger the public health, and the power of self-preservation is
denied."
To this argument Chief Justice Marshall replied:
"The power to direct the removal of gunpowder is a branch of the
police power which unquestionably remains, and ought to remain,
with the states. If the possessor stores it himself out of town,
the removal cannot be a duty on imports, because it contributes
nothing to the revenue. If he prefers placing it in a public
magazine, it is because he stores it there, in his own opinion,
more advantageously than elsewhere. We are not sure that this may
not be classed among inspection laws. The removal or destruction of
infectious or unsound articles is undoubtedly an exercise of that
power, and forms an express exception to the prohibition we are
considering. Indeed, the laws of the United States expressly
recognize the health laws of a state."
This we understand to have been a distinct readjudication that
the police power so far as it involves the public health, the
public morals, or the public safety, remains with the states, and
is not overriden by the national Constitution.
In
Gibbons v. Ogden it was said by counsel that the
Constitution does not confer the right of intercourse between state
and state, and that such right has its source in those laws whose
authority is acknowledged by civilized man throughout
Page 125 U. S. 520
the world. Chief Justice Marshall said: "This is true. The
Constitution found it an existing right, and gave to Congress the
power to regulate it." 9 Wheat.
22 U. S. 211. In
the same case, he said that this power is "the power to regulate --
that is, to prescribe the rule by which commerce is to be
governed." P.
22 U. S. 196. It
may be said generally that free commercial intercourse exists among
the several states by force of the Constitution. But as by the
express terms of that instrument the powers not delegated to the
United States nor prohibited to the states are reserved to the
states respectively or to the people, and as, by the repeated
adjudications of this Court, the states have not surrendered, but
have reserved, the power to protect by police regulations the
health, morals, and safety of their people, Congress may not
prescribe any rule to govern commerce among the states which
prevents the proper and reasonable exercise of this reserved power.
Even if Congress, under the power to regulate commerce, had
authority to declare what shall or what shall not be subjects of
commerce among the states, that power would not fairly imply
authority to compel a state to admit within her limits that which
in fact is or which upon reasonable grounds she may declare to be
destructive of the health, morals, and peace of her people. The
purpose of committing to Congress the regulation of commerce was to
insure equality of commercial facilities by preventing one state
from building up her own trade at the expense of sister states. But
that purpose is not defeated when a state employs appropriate means
to prevent the introduction into her limits of what she lawfully
forbids her own people from making. It certainly was not meant to
give citizens of other states greater rights in Iowa than Iowa's
own people have.
But if this be not a sound interpretation of the Constitution;
if intoxicating liquors are entitled to the same protection by the
national government as ordinary merchandise entering into commerce
among the states; if Congress, under the power to regulate
commerce, may, in its discretion, permit or prohibit commerce among
the states in intoxicating liquors, and if therefore state police
power as the health,
Page 125 U. S. 521
morals, and safety of the people may be involved in its proper
exercise, can be overborne by national regulations of commerce, the
former decisions of this Court would seem to show that such laws of
the states are valid even where they affect commercial intercourse
among the states, until displaced by federal legislation or until
they come in direct conflict with some act of Congress. Such was
the doctrine announced in
Willson v. Blackbird Creek
Marsh Co., 2 Pet. 250. That case involved the
validity of an act of the Legislature of Delaware authorizing a dam
to be built across a navigable stream, in which the tide ebbed and
flowed and in which there was a common and public way in the nature
of a highway. The Court, speaking by Chief Justice Marshall,
said:
"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 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."
The counsel having insisted that the statute came in conflict
with the power of Congress to regulated commerce with foreign
nations and among the several states, the Court said:
"If Congress had passed any act which bore on this case -- any
act in execution of the power to regulate commerce the object of
which was to control state legislation over small navigable creeks
into which the tide flows and which abound throughout the middle
and southern states -- we should not feel 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
Page 125 U. S. 522
foreign nations and among the several states -- a power which
has not been so exercised as to affect the question."
The same principle is announced in many other cases.
Gilman v.
Philadelphia, 3 Wall, 713;
Escanaba Co. v.
Chicago, 107 U. S. 678;
Cardwell v. American Bridge Co., 113 U.
S. 205;
Hamilton v. Vicksburg &c. Railroad,
119 U. S. 281;
Huse v. Glover, 119 U. S. 546.
These were all cases of the erection of bridges and other
structures within the limits of states and under their authority
across public navigable waters of the United States. They were held
not to be forbidden by the Constitution, although such structures
actually interfered with interstate commerce. In
Gilman v.
Philadelphia and
Cardwell v. American Bridge Co., the
bridges were without draws, entirely preventing the passage of
boats to points, in one case, where the tide ebbed and flowed, and
in both cases to points where commerce had been previously carried
on. In
Hamilton v. Vicksburg &c. Railroad, the Court
said:
"What the form and character of the bridges should be -- that is
to say, of what height they should be erected, and of what
materials constructed, and whether with or without draws -- were
matters for the regulation of the state, subject only to the
paramount authority of Congress to prevent any unnecessary
obstruction to the free navigation of the streams. Until Congress
intervenes in such cases and exercises its authority, the power of
the state is plenary. When the state provides for the form and
character of the structure, its directions will control except as
against the action of Congress, whether the bridge be with or
without draws and irrespective of its effect upon navigation."
But perhaps the language of this Court -- all the judges
concurring -- which most directly bears upon the question before us
is found in
County of Mobile v. Kimball, 102 U.
S. 691,
102 U. S. 701,
reaffirming
Willson v. Blackbird Creek Marsh Company. It
was there said:
"In
The License Cases, 5 How.
504, which were before the Court in 1847, there was great diversity
of views in the opinions of the different judges upon the operation
of the grant of the commercial power of Congress in the absence of
congressional legislation. Extreme
Page 125 U. S. 523
doctrines upon both sides of the question were asserted by some
of the judges; but the decision reached, so far as it can be viewed
as determining any question of construction, was confirmatory of
the doctrine that legislation of Congress is essential to prohibit
the action of the states upon the subject thus considered."
This language is peculiarly significant in view of the fact that
in one of the
License Cases --
Peirce v.
New Hampshire, 5 How. 504,
46 U. S. 557,
46 U. S. 578 --
the question was as to the validity of an act of that state under
which Pierce was indicted, convicted, and fined for having sold,
without a local town license, a barrel of gin which he purchased in
Boston, transported to Dover, New Hampshire, and there sold in the
identical cask in which it was carried to that state from
Massachusetts.
"In harmony with these principles, the Court affirmed at the
present term, in
Smith v. State of Alabama, 124 U. S.
465, the validity of a statute of that state making it
unlawful for a locomotive engineer, even when his train is employed
in interstate commerce, to drive or operate any train of cars upon
a railroad in that state used for the transportation of persons,
passengers, or freight without first undergoing an examination by,
and obtaining a license from, a board of engineers appointed by the
governor of Alabama. If a train of cars passed through that state
to New Orleans, the engineer, however well qualified for his
station, if not licensed by that local board, was subject to be
fined not less than fifty nor more than five hundred dollars and
sentenced to hard labor for the county for not more than six
months. The Court held that this statute 'is not, considered in its
own nature, a regulation of interstate commerce;' that"
"it is properly an act of legislation within the scope of the
admitted power reserved to the states to regulate the relative
rights and duties of persons, being and acting within its
territorial jurisdiction, intended to operate so as to secure for
the public safety of person and property;"
and that
"so far as it affects transactions of commerce among the states,
it does so only indirectly, incidentally, and remotely, and not so
as to burden or impede them, and in the particulars on which it
touches those transactions at all, it
Page 125 U. S. 524
is not in conflict with any express enactment of Congress on the
subject nor contrary to any intention of Congress to be presumed
from its silence."
Until Congress by legislation prescribed the qualification of
locomotive engineers employed by railroad companies engaged in the
transportation of passengers and goods among the states, Alabama,
it was adjudged, could fix the qualifications of such engineers,
even when running in that state trains employed in interstate
commerce.
It would seem that if the Constitution of the United States does
not, by its own force, displace or annul a state law authorizing
the construction of bridges or dams across public navigable waters
of the United States, thereby wholly preventing the passage of
vessels engaged in interstate commerce upon such waters, the same
Constitution ought not to be held to annul or displace a law of one
of the states which, by its operation, forbids the bringing within
her limits, from other states, articles which that state, in the
most solemn manner, has declared to be injurious to the health,
morals, and safety of her people. The silence of Congress upon the
subject of interstate commerce, as affected by the police laws of
the states, enacted in good faith to promote the public health, the
public morals, and the public safety, and to that end prohibiting
the manufacture and sale within their limits of intoxicating
liquors to be used as a beverage, ought to have at least as much
effect as the silence of Congress in reference to physical
obstructions placed under the authority of a state in a navigable
water of the United States. The reserved power of the states to
guard the health, morals, and safety of their people is more vital
to the existence of society than their power in respect to trade
and commerce having no possible connection with those subjects.
For these reasons, we feel constrained to dissent from the
opinion and judgment of the Court.
MR. JUSTICE LAMAR was not present at the argument of this case,
and took no part in its decision.