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Concurring Opinion

United States Supreme Court

125 U.S. 465

Bowman  v.  Chicago N W Railway Company

FIELD, J., 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 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, 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, 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 exclusivce 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 previousl 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 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 trinumph 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, 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 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 md e 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 may be as minute and strict as required by the nature of the article, and the liability of injury from it for the sefety, 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 nitro-glycerine 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 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 co-extensive 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.' Page

Assuming, therefore, as correct doctrine, that the right of importation carries the right to sell the article imported, the 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 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 commercia 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 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 particlar 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, etc., 12 How. 299, 319; State Freight Tax Cases, 15 Wall. 232, 271; Welton v. Missouri, 91 U.S. 275-282; Railroad Co. v. Husen, 95 U.S. 465, 469; Mobile v. Kimball, 102 U.S. 691, 697; Ferry Co. v. Pennsylvania, 114 U.S. 196, 203, 5 Sup. Ct. Rep. 826; Brown v. Houston, 114 U.S. 622, 631, 5 Sup. Ct. Rep. 1091; Walling v. Michigan, 116 U.S. 446, 455, 6 Sup. Ct. Rep. 454; Pickard v. Car Co., 117 U.S. 34, 6 Sup. Ct. Rep. 635; Railway Co. v. Illinois, 118 U.S. 557, 7 Sup. Ct. Rep. 4; Robbins v. Taxing Dist., 120 U.S. 489, 7 Sup. Ct. Rep. 592. 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 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.

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 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 liq ors, 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, 33; and Foster v. Kansas, 112 U.S. 201, 206, 5 Sup. Ct. Rep. 8-'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, 203, reaches everything within the territory of a state not surrendered to the national government.' 123 U.S. 659. Referring to the suggestion that no government could lawfully prohibit a citizen from 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. 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 every one, 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 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 any one'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. 662, 663. In Gibbons v. Ogd n, 9 Wheat. 203, 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, and, if it cannot be purged of its poison, may be committed to the flames.' In Sherlock v. Alling, 93 U.S. 99, 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, 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 afflicated 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, 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, 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 f intoxicating liquors. It was said in Brown v. State, 12 Wheat. 419, 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.' Page 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, any one,-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 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 jeopard 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 condition, 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 hich 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 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. 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. 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 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. Mississ ppi, 101 U.S. 814, 816; Union Co. v. Crescent City Co., 111 U.S. 746, 751, 4 Sup. Ct. Rep. 652; Gas Co. v. Light Co., 115 U.S. 650, 672, 6 Sup. Ct. Rep. 252; 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 well-being of any state is at the mercy mercy of the liquor manufacturers of other states. These views are sustained by Walling v. Michigan, 116 U.S. 446, 6 Sup. Ct. Rep. 454. It was there held that a statute of Michigan which imposed a tax upon persons who, not residing or having their 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 appy 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, 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 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, 'm y 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 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. 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.' Page 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, 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 displac d by federal legislation, or until they come in direct conflict with some act of congress. Such was the doctrine announced in Willson v. 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 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; Escambia Co. v. Chicago, 107 U.S. 678, 2 Sup. Ct. Rep. 185; Cardwell v. Bridge Co., 113 U.S. 205, 5 Sup. Ct. Rep. 423; Hamilton v. Railroad, 119 U.S. 281, 7 Sup. Ct. Rep. 206; Huse v. Glover, 119 U.S. 546, 7 Sup. Ct. Rep. 313. 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. 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. 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, 701, reaffirming Willson v. Marsh Co. It was there said: 'In the License Cases, 5 How. 504, which were before the co rt 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 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, 557, 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, 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 enginner, 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 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 ref rence 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.

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).