* measures against social evils;" to "prevent | little practical value. In this view, anyone the spread of crime or pauperism, or disturb-even a citizen of Iowa-desiring to sell inance of the peace;" to "exclude from its lim- toxicating liquors in that State, need only its convicts, paupers, idiots and lunatics, and arrange to have them delivered to him from persons likely to become a public charge, as some point in another State, in packages of well as by persons afflicted by contagious or varying sizes, as may suit customers. Or, he infectious diseases;" and to exclude "property may erect his manufacturing establishment, or dangerous to the property of citizens of the warehouse, just across the Iowa line, in some State; for example, animals having contagious State having a different public policy, and or infectious diseases." "All these," it was thence, with wagons, transport liquors into said, "are in immediate connection with the Iowa, in original packages. If the State arprotection of persons and property against raigns him for a violation of her laws, he may noxious acts of other persons, or such use of claim-and, under the principles of the present property as is injurious to the property of decision, it may become difficult to dispute the others, they are selfdefensive." It was only claim-that, although such laws were enacted because the Missouri Statute embraced cattle solely to protect the health and morals of the that were free from disease, that it was de- people, and to promote peace and good order clared unconstitutional. In Patterson v. Ken- among them, and although they are fairly tucky, 97 U. S..501, 505 [24: 1115, 1117], the adapted to accomplish those objects, yet the principle was affirmed that the police power Constitution of the United States, without any of the States was not surrendered, when au- action upon the part of Congress, secures to thority was conferred upon Congress to regu- him the right to bring or receive from other late commerce with foreign Nations and among States intoxicating liquors in original packages, the States. and to sell them, while held by him in such It seems to us that the decision just rendered packages, to all choosing to buy them. Thus, does not conform to the doctrines of the fore the mere silence of Congress upon the subject going cases, and may impair, if it does not de- of trade among the States in intoxicating liqstroy the power of a State to protect her peo-uors is made to operate as a license to persons ple against the injurious consequences that are doing business in one State to jeopard the admitted to flow from the general use of intoxi- health, morals and good order of another cating liquors. It was said in Brown v. Mary State, by flooding the latter with intoxicating land, 25 U. S. 12 Wheat, 419, 439, 441 [6: 678, liquors, against the express will of her people. 685, 686]: "There is no difference, in effect, It is admitted that à State may prevent the between the power to prohibit the sale of an ar- introduction, within her limits, of rags or other ticle and a power to prohibit its introduction goods infected with disease, or of cattle or into the country. * * When the importer meat or other provisions which, from their has so acted upon the thing imported, that it condition, are unfit for human use or consumphas become incorporated and mixed up with tion; because, it is said, such articles are not the mass of property in the country, it has, merchantable or legitimate subjects of trade perhaps, lost its distinctive character as an im and commerce. But suppose the people of a port, and has become subject to the taxing State believe, upon reasonable grounds, that power of the State; but while remaining the the general use of intoxicating liquors is danproperty of the importer, in his warehouse, in gerous to the public peace, the public health, the original form or package in which it was and the public morals; what authority has Conimported, a tax upon it is too plainly a dutygress or the judiciary to review their judgment on imports to escape the prohibition in the upon that subject, and compel them to submit Constitution." Considering the question into a condition of things which they regard as that case, under the power of Congress to regulate commerce, the court said: "Sale is the object of importation, and it is an essential ingredient in that intercourse, of which im portation constitutes a part. It is as essential an ingredient, as indispensable to the entire thing, then, as importation. It must be considered as a component part of the power to regulate commerce.' p. 447, [688]. 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 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 prohib iting 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 peo ple 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 coun sel in Mugler's Case. The same argument can be, as it often is, made in reference to powers and dangerous to their safety? In our that all concede to be vital to the public safety. opinion, these questions should be answered in But it does not disprove their existence. This the negative. It is inconceivable that the well court said that the judicial tribunals were not being of any State is at the mercy of the liquor to be misled by mere pretenses, and were under manufacturers of other States. 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 re-liciting the sale of intoxicating liquors to be lation 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 [31: 210]. 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 fair ly adapted to the end of protecting the community against the evils which confessedly result from the excessive use of ardent spirits. Id. 662 [210]. In the same case the court sus tained, 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 nui sances. Now, can it be possible that the framers of the Constitution intended-whether Congress chose or not to act upon the subject-to with hold 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 main taining the same to fine and imprisonment, can her people be compelled to submit to the sale of such liquors, when brought there from an other State for that purpose? This court has often declared that the most important func tion of government was to preserve the public health, morals, and safety; that it could not devest itself of that power, nor, by contract, limit its exercise; and that even the con stitutional 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 contract. Stone v. Miss. 101 U. S. 814, 816 [25:1079]; Butchers Union Co. v. Crescent City Co. 111 U. §. 746, 751 [28: 585, 587]; N 0. Gas Co. v. La. Light Co. 115 U. S. 650, 672 [29: 516, 521]; Mugler v. Kansas, 123 U. S. 664 31: 211]. 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 These views are sustained by Walling v. Michigan, 116 U. S. 446 [29: 691]. 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 soshipped 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 liq uors, 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 Legisla ture." 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 ap ply to the products of other States. At the argument it was insisted that the contention of the plaintiffs was supported by Brown v. Maryland, 25 U. S. 12 Wheat, 419, 436 [6: 678, 684], where the question was whether the Legislature of a State could consti tutionally require an importer of foreign arti cles 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 exe cuting 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; ob serving, at the close of the opinion that it sup posed 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 com merce 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, 22 U. 8. 9 Wheat. 1 [6: 23], that the health laws of the States were a component part of that mass of legislation, the power to enact which remained with the States, because never surrendered to the General Government, In behalf of Maryland it was insisted that the constitutional prohibition of state imposts or duties upon imports ceased the instant the goods entered the country; otherwise, it was argued, the importer "may introduce articles, as gunpowder, which endanger a city, into the midst of its population; he may introduce articles which endanger the public health, and the power of self preservation is denied." To this argument Chief Justice Marshall replied: "The power to direct the removal of gunpowder is a branch of the police power, which unquestion. ably remains, and ought to remain, with the States. If the possessor stores it himself out of town, the removal cannot be a duty on im ports, because it contributes nothing to the revenue. If he prefers placing it in a public magazine, it is because he stores it there, in bis own opinion, more advantageously than else where. 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 overridden by the National Constitution. 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 exer cise, 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 com. mercial intercourse among the States, until displaced by federal legislation, or until they come in direct conflict with some Act of Congress. Such was the doctrine announced in Wilson v. Blackbird Creek Marsh Co. 27 U. S. 2 Pet. 250 [7: 414]. 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 In Gibbons v. Ogden, 22 U. S. 9 Wheat. 211 court, speaking by Chief Justice Marshall, said: [6: 73], it was said by counsel that the Consti- "The Act of Assembly, by which the plaintiffs tution does not confer the right of intercourse were authorized to construct their dam, shows between State and State, and that such right plainly that this is one of those many creeks, has its source in those laws whose authority is passing through a deep level marsh adjoining acknowledged by civilized man throughout the the Delaware, up which the tide flows for world. Chief Justice Marshall said: "This is some distance. The value of the property on true. The Constitution found it an existing its banks must be enhanced by excluding the right, and gave to Congress the power to reg water from the marsh, and the health of the Measures ulate it." In the same case he said that inhabitants probably improved. this power is "the power to regulee; that is, calculated to produce these objects, provided to prescribe the rule by which commerce is to they do not come into collision with the pow be governed." p. 196 [70]. It may be said, ers of the General Government, are undoubtgenerally, that free commercial intercourse ex-edly within those which are reserved to the ists among the several States by force of the States. But the measure authorized by this Constitution. But as, by the express terms of Act stops a navigable creek, and must be supthat instrument, the pow-s not delegated to posed to abridge the rights of those who have the United States, nor are reserved to the Sutested to the States, been accustomed to use it." The counsel hav respectively, or to the people; and as, y the repeated adjudica tions of this court, he States have not surrendered, but have rserved, the power to protect by police regulatons, the health, morals and safety of their eople, Congress may not prescribe any rul to govern commerce among the States whih prevents the proper and reasonable exercse of this reserved power. Even if Congress, under the power to regulate commerce, had uthority to declare what shall or what shall pt be subjects of commerce among the States hat power would not fairly imply authority o compel a State to admit within her limis that which, in fact is, or which, upon resonable grounds, she may declare to be destictive of the health, morals and peace of her eople. The purpose of committing to Congres the regulation of commerce was to insur equality of commercial facilities, by prevnting one State from building up her own irad at the expense of sister States. But that hen a State employs ing insisted that the statute came in conflict be, as it often is, made in reference to powers and dangerous to their safety? In our that all concede to be vital to the public safety. opinion, these questions should be answered in But it does not disprove their existence. This the negative. It is inconceivable that the well court said that the judicial tribunals were not being of any State is at the mercy of the liquor to be misled by mere pretenses, and were under manufacturers of other States. 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 [31: 210]. 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 fair ly adapted to the end of protecting the community against the evils which confessedly result from the excessive use of ardent spirits. ld. 662 [210]. 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 nui sances. 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 main taining 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 devest 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 contract. Stone v. Miss. 101 U. S. 814, 816 [25:1079]; Butchers Union Co. v. Crescent City Co. 111 U. S. 746, 751 [28: 585, 587]; N. 0. Gas Co. v. La. Light Co. 115 U. S. 650, 672 [29: 516, 524]; Mugler v. Kansas, 123 U. S. 664 31: 2111. 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 These views are sustained by Walling v. Michigan, 116 U. S. 446 [29: 691]. It was there held that a Statute of Michigan which imposed a tax upon persons who, not residing or having their principai place of business in that State, engaged there in the business of selling or soliciting the sale of intoxicating liquors to be shipped into Michigan from other States, but which did not impose a similar tax upon persons selling or soliciting the sale of intoxicating liquors manufactured in that State, was a discrimination against the products of other States, and void as a regulation in restraint of commerce. In reference to the suggestion by the state court that the statute was an exercise by the Legislature of the police power for the discouragement of the use of intoxicating liquors, and the preservation of the health and morals of the people, this court said: "This would be a perfect justification of the Act if it did not discriminate against the citizens and products of other States in a matter of commerce between the States, and thus usurp one of the prerogatives of the National Legislature." The clear implication from this language is that the state law would have been sustained if it had applied the same rule to the products of Michigan which it attempted to apply to the products of other States. At the argument it was insisted that the contention of the plaintiffs was supported by Brown v. Maryland, 25 U. S. 12 Wheat, 419, 436 [6: 678, 684], 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; ob serving, 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, 22 U. S. 9 Wheat. 1 [6: 23], 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. 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. In behalf of Maryland it was insisted that the constitutional prohibition of state imposts or duties upon imports ceased the instant the goods entered the country; otherwise, it was argued, the importer "may introduce articles, as gunpowder, which endanger a city, into the midst of its population; he may introduce articles which endanger the public health, and the power of self preservation is denied." To this argument Chief Justice Marshall replied: "The power to direct the removal of gunpowder is a branch of the police power, which unquestion. ably remains, and ought to remain, with the States. If the possessor stores it himself out of town, the removal cannot be a duty on im-toxicating liquors; and if, therefore, state poports, because it contributes nothing to the revenue. If he prefers placing it in a public magazine, it is because he stores it there, in bis own opinion, more advantageously than else where. 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 prohibi tion 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 overridden by the National Constitution. In Gibbons v. Ogden, 22 U. S. 9 Wheat. 211 [6: 73], 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 reg ulate it." In the same case he said that this power is "the power to regulate; that is, to prescribe the rule by which commerce is to be governed." p. 196 [70]. 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 adjudica tions 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 rea sonable 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 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 inlice power, as the health, morals and safety of the people may be involved in its proper exer cise, can be overborne by national regulations of commerce, the former decisions of this court would seem to show that such laws of the States are valid, even where they affect commercial intercourse among the States, until displaced by federal legislation, or until they come in direct conflict with some Act of Congress. Such was the doctrine announced in Wilson v. Blackbird Creek Marsh Co. 27 U. S. 2 Pet. 250 [7: 414]. 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 pow ers 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 regulate 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. Phila. 70 U. S. 3 Wall. 713 [18: 96]; Escanaba Co. v. Chicago, 107 U. S. 678 [27: 442]; Cardicell v. Am. Bridge Co. 113 |