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Bowman v. Chicago N W Railway Company/Opinion of the Court

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Opinion of the Court
Concurring Opinion

United States Supreme Court

125 U.S. 465

Bowman  v.  Chicago N W Railway Company

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 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 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 intrusted 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 section 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 transporation of intoxicating liquors and abatement of nuisances.' The original section 1553 of the Iowa Code contains a similar provision in respect to common carriers. By section 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 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 thes 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 (section 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, 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 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 judg ment. 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, (page 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 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 prantations; 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, (page 625:) 'But this license is a regulation neither of domestic commerce between the states, nor of foreign commerce. It does not operate on wither, 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 ause 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 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 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, 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, (page 279:) 'Cases that have sustained state laws, alleged to be regulations of c mmerce 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 as to require exclusive legislation by congress. Cooley v. Board of 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. Board of Wardens, 12 How. 299, 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, (page 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 to the local peculiarities of the ports within their limite; 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, 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 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 on which the present suit is founded. Section 5258, Rev. St., 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 say: '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, tit. 48, Rev. St.; sections 4252 to 4289, inclusive, having reference, however, mainly to transportation in vessels by water. But sections 4278 and 4279 relate also to the transportation of nitro-glycerine, 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 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, 697, is applicable. Repeating and expanding the idea expressed in the opinion in the case of Cooley v. Board of 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 non-action, 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 discrimi ating state legislation.' Also, (page 702:) 'Commerce with foreign countries and among the states, strictly considered, consists in intercourse and traffic; including, 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, 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 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 passngers, 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. n 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.' 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 1, § 10, Const., 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, 2 Sup. Ct. Rep. 44. 'The object of inspection laws,' said Chief Justice MARSHALL in Gibbons v. Ogden, 9 Wheat. 1, 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, 55, 2 Sup. Ct. Rep. 44, 58: '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 co-exist, 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 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 mea 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, 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 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, Brown v. State, 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 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 strugg e, 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 drank, 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, (page 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 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, Id. 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, 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 Sawy. 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, o 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 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 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 proteet. 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 tates. 'It cannot be too strongly insisted upon,' said this court in Railroad Co. v. Illinois, 118 U.S. 557, 572, 7 Sup. Ct. Rep. 4, '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, 574; Brown v. Maryland, 12 Wheat. 419, 446. And it would be a very feeble and almost useless provision, but poorly adapted to secure the entire feedom of commerce 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, 630, 5 Sup. Ct. Rep. 1091, 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, 6 Sup. Ct. Rep. 454. 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, (page 459:) 'It is suggested by the learned judge who delivered the opinion of the 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 o Michigan, not withstanding 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. Taxing Dist., 120 U.S. 489, 7 Sup. Ct. Rep. 592. It was was there said, (page 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 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. Taxing Dist., 120 U.S. 489, 493, 7 Sup. Ct. Rep. 592, 594, 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 interestate 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 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 right to prohibit its imporation, 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 domestice commerce of the state, we are not 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.

LAMAR, J., was not present at the argument of this case, and took no part in its decision.


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