adjudged the State action to be proper, and then contrast with these cases which have been pronounced invasions of private rights. Let us consider them under the constitutional guaranties.

No person shall be deprived of life, liberty, or property, without due process of law.'

The State may regulate or prohibit the manufacture or sale of intoxicating liquors within its limits.' It may regulate charges in public warehouses for warehousing and inspecting grain, on the ground that the property is devoted to public use and

therefore subject to public control.' It may grant to a corporation the exclusive right to slaughter animals for food within a certain prescribed territory about a city, even though this act impairs the value of property formerly devoted to such use; or prohibit the manufacture of substances noxious to the health of the community without making recompense to the owners of the property injured by the prohibition, who had been chartered by the State to carry on the business subsequently prohibited; or provide that clothes-washing in public laundries should be done only within certain hours and under certain conditions. It may pass a law making every railroad company in the State liable for all damage occurring to its employes through negligence of its agents'; or compel a railroad company to erect and maintain fences along the sides of its road so that cattle might not be injured; or

1 Art. XIV. Amend.

* Bartemeyer vs. Iowa, 18 Wall. 129; Weil vs. Calhoun, 25 Fed. Rep. 865; Mugler vs. Kansas, 123 U. S. 661; Beer Co. vs. Mass., 97 U. S. 25. Munn vs. Illinois, 94 U. S. 113, 147; Budd vs. People, 117 N. Y. 1.

Slaughter House Cases, 16 Wall. 36.

Fertilizer Co. vs. Hyde Park, 97 U. S. 501. Barbier vs. Connolly, 113 U. S. 27; Loon Hing vs. Crowley, 113 U. S. 703.

Mo. Pac. R. R. Co. vs. Mackey, 127 U. S. 205. 8 Mo. Pac. R. R. Co. vs. Humes, 115 U.S. 512,523.

Under this head the court has held that a State might forbid the manufacture of oleomargarine for use as food," or forbid the carrying on of a business producing odors noxious to the public health," or prohibit the sale of intoxicating liquor in existence either before or after the passage of the statute," or regulate the rates of charge for handling grain in grain elevators." Police power and eminent domain are distinct, but sometimes in the exercise of police power private property is taken for public use, when compensation must be made." This does not apply to cases where the act is within the police power and incidentally injures private property, as where private property is destroyed to prevent further spread of fire. Whenever the State has made a contract it may not impair it under claim of police power. When a State gives permission for the carrying on of any enterprise involving the health and morals of the community, it does not bind itself by contract, but gives merely a revocable license."

9 Union & St. L. R. R. Co. vs. Beckwith, 129 U. S. 26.

10 Kemmish vs. Ball, 129 U. S. 217. 11 Const., Amend. V.

12 Powell vs. Penn., 127 U. S. 683.

18 Fertilizer Co. vs. Hyde Park, 97 U. S. 501.

14 Mugler vs. Kansas, 123 U. S. 661.

15 Munn vs. Illinois, 94 U. S. 113, 147; People vs. Budd, 117 N. Y. 1.

16 New Orleans Water Works Co. vs. St. Tammany Water Works Co., 14 Fed. Rep. 194; 120 U. S. 64.

A State may not impose a tax on the sale of goods manufactured outside of the State but sold within the State, when it imposes no tax on similar goods made within the State'; or forbid the recapture of runaway slaves within its borders' or discriminate against any race or class of persons by directing that the hair of every person imprisoned in the city jail should be clipped within an inch of his head'; nor against the products of another State by providing that before any flesh of cattle, sheep, or swine could be exposed for sale within the State for human food, the animals from which such flesh was taken must be inspected within the State before being slaughtered."

Congress shall have power to regulate commerce with foreign nations and among the several States.

Although under proper exercise of police power a State may compel masters of foreign vessels bringing passengers to the ports of the State to file with the authorities a record of the place of birth, age, etc., of each passenger,' or direct the inspection at quarantine of incoming vessels and 1 Const., Amend. XIV.

2 Webber vs. Virginia, 103 U. S. 344; Welton vs. Missouri, 91 U. S. 275.

10

impose a charge for such service, or charge wharfage fees, or force a railroad company to post in a conspicuous place on its stations its rates of fare, or protect itself against paupers, idlers, idiots, insane persons, and criminals; it has no power to reject in general persons" or goods " wishing to enter it. No State may grant exclusive right to navigate the waters of the United States within its boundaries," nor pass laws regulating pilots," nor impose a tonnage tax," nor impose a tax upon immigrants " or goods" coming to the State, and so raise a revenue under claim of protecting the State against an influx of foreign paupers; nor fobid generally the importation of cattle or other animals on pretence that they introduced contagious diseases,1 nor prescribe that a common carrier may not bring intoxicating liquors into the State without a certificate." What the police power is on this point is no more defined than on other subjects. Commerce is intercourse and any restriction on ingress or egress whether of goods or persons, unless such intercourse is a direct menace to the health and morals of the State, is a regulation of commerce." Measures, however, which are properly within the police regulation are not to be regarded as regulations of commerce however much they may incidentally affect it.

It must be borne in mind, too, that the use and consumption of property are not commerce." This will serve to explain the

12 Leisy vs. Hardin, 135 U. S. 100.

13 Gibbons vs. Ogden, 9 Wheat. I.

14 Cooley vs. Port Wardens, 12 Howard 299; Wilson vs. McNamee, 102 U. S. 572.

15

12 Wall. 204.

16 Passenger Cases, 7 How. 283, 15 Wall. 280, 281. 17 Brown vs. Maryland, 12 Wheat. 419; Tiernan

vs. Rinker, 102 U. S. 123, 15 Wall. 232.

18 Railroad Co. vs. Husen, 95 U. S. 465.

19 Bowman vs. Chicago & N. W. R. R. Co., 125 U. S. 465.

20 Henderson vs. Mayor, 92 U. S. 259. 21 25 Am. Law Rev. 168.

long line of cases which hold that while the State has no control over the importation of goods, it may regulate their use and consumption as soon as they become part of the general property in the State, which is not the instant the property comes into the State, but when the importer has acted upon it so that the original package is no longer in his hands.'

The term "conflict" implies that the State and Federal courts have come to opposite conclusions on the same or similar state of facts. It implies that the Federal courts have inquired into the acts of the State to determine whether those acts actually are within the police power of the State or outside the police power and done merely under pretence of an exercise of police regulation. If there is

The charter to maintain waterworks' or supply a city with gas is a contract not to be impaired by the State. The permission to manufacture or sell intoxicating liquors is not a contract which the State may not impair; or to manufacture fertilizers, or to conduct a lottery.' The dividing line between what the State may or may not do seems to be drawn at the cases which properly involve the health and morals of the community. The courts hold that the State has no power to divest itself of police power and that a charter to carry on any business involving the health and morals of the community is not a contract, but a revocable license. "No State can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. . . . Government is organized with a view to their preservation and cannot divest itself of the power to provide for them." No law can bind future legislatures on questions of health and morals.

1 Brown vs. Maryland, 12 Wheat. 419; Leisy vs. Hardin, 135 U. S. 100.

* Art. I., Const., Sec. 10; Dart. Coll. vs. Woodward, 4 Wheat. 518.

3 N. O. Water Works Co. vs. St. Tammany Water Works Co., 14 Fed. Rep. 194.

650.

N. O. Gas. Co. vs. Louis. Light Co., 115 U. S.

Beer Co. vs. Mass., 97 U. S. 25; Mugler vs. Kansas, 123, U. S. 661.

Fertilizer Co., vs. Hyde Park, 97 U. S. 501.

is of vital importance to the rights of the individual that such inquiry be made. For that reason the doctrine announced by the Supreme Court in Powell vs. Pennsylvania' must be viewed with alarm. We cannot but regret the decision of the Slaughter House Cases," Powell vs. Pennsylvania,” Munn vs. Illinois," People vs. Budd," and Fertilizer Co. vs. Hyde Park," in which the Supreme Court has receded from the high ground of Federal supremacy so strenuously asserted by Chief-Justice Marshall and his colleagues, and vindicated by fifty years of forensic combat and four years' resort to arms. While these cases seem to have gone too far in allowing the State to trespass on the constitutional rights of the individual they at least made inquiry to determine whether the State acts were properly with the self-regulating power of the State and concluded that the Federal authorities could not interfere, but in one case a doctrine was announced which bid fair to strip the individual of Federal protection and leave the State the final arbiter of rights guaranteed to the individual by ? Stone vs. Mississippi, 101 U. S. 814, 816. * Stone vs. Mississippi, 101 U. S. 814, 816; Boyd vs. Alabama, 94 U. S. 645; Beer Co. vs. Massachusetts, 97 U. S. 25.

ment.

The very purpose of giving to the Federal courts the power to supervise the action of the State on questions of individual liberty was to guard the individual against State encroachment upon his guaranteed rights, and yet the Supreme Court announced that it was for the State legislature to determine when its acts were properly within the police power.' The legislature of Pennsylvania, by act of May 21, 1885, prohibited the manufacture of butter and cheese, within the State of Pennsylvania, out of oleaginous substances or from any compound thereof, other than that produced from unadulterated milk, and also prohibited the sale or offer of the same for sale as an article of food. The real object of this legislation was not to protect the public health, but to create a monopoly for the manufacturers of butter from milk and cream. The court said: "Whether the manufacture of oleomargarine or imitation butter of the kind described in the statute, is, or may be, conducted in such a way, or with such skill and secrecy as to baffle ordinary inspection, or whether it involves such danger to the public health as to require for the protection of the people the entire suppression of the business, rather than its regulation in such manner as to permit the manufacture and sale of articles of that class that do not contain noxious ingredients, are questions of fact and of public policy which belong to the legislative department to determine, and as it does not appear upon the face of the statute or from any facts of which the courts must take judicial cognizance, that it infringes rights secured by the

1 Powell vs. Pennsylvania, 127 U. S. 683.

2 Patterson vs. Kentucky, 97 U. S. 504.
3 Powell
vs. Pennsylvania, 127 U. S. 684.

of those questions is conclusive upon the courts" (p. 685). The Slaughter House cases, after inquiry, decided that the State act was within police power and the Federal courts had no right to interfere, but the doctrine of Powell vs. Pennsylvania shuts off even inquiry. What is to prevent a State legislature from passing a bill cunningly devised, so that on its face it does not infringe private rights? Justice Field, dissenting, said (p. 695): “Undoubtedly this power of a State extends to all regulations affecting not only the health, but the good order, morals, and safety of society; but a law does not necessarily fall under the class of police regulations because it is passed under the pretence of such regulation as in this case, by a false title, purporting to protect the health and prevent the adulteration of dairy products and fraud in the sale thereof. It must have in its provisions some relation to the end to be accomplished. If that which is forbidden is not injurious to the health or morals of the people, if it does not disturb their peace or menace their safety, it derives no validity by calling it a police or health law." Before this case the court had laid down the rule that if the State act were within the police power, the Supreme Court had no right to inquire into the wisdom of the act,' and that every presumption is in favor of the validity of the State act'; but in no case was the doctrine announced that the Supreme Court had no right to inquire into the State act unless, on the face of the statute or from some fact of which the court must take judicial notice, the act was in contravention of private rights.

Fletcher vs. Peck, 6 Cranch 87, 128. Dartmouth Coll. vs. Woodward, 4 Wendel 518, 625; Livingston vs. Darlington, 101 U. S. 407.

Bartemeyer vs. Iowa' held that, under pretence of exercising police power the State must not encroach upon any just rights of the citizen. In every case since the foundation of the government where the Supreme Court has reversed the decisions of the State court on a question of police power, the State had acted under a claim of police power. I think the proper rule was laid down by Mr. Justice Field in Loon Hing vs. Crowley' (p. 710): “And the rule is general with reference to the enactments of all legislative bodies that the courts cannot inquire into the motives of the legislators in passing them except as they may be disclosed on the face of the acts, or inferrible from their operation." The effect of the laws should be the test. The courts should take judicial notice of whatever should be known generally within their jurisdiction,* and, among other things, the reasonable effect of a statute. Before Powell vs. Pennsylvania the doctrine had been announced by Mr. Justice Harlan,' which, had the court adhered to it, would not have necessitated a return. “The courts are not bound by mere forms, nor are they to be misled by mere pretences. They are at liberty-indeed are under a solemn duty—to look at the substance of things, whenever they enter upon the inquiry whether the legislation has transcended its authority. 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

1 18 Wall. 129, 138.

Gibbons vs. Ogden, 9 Wheat. I; N. O. Gas Co. vs. Louis. Light Co,, 115 U. S. 650; Henderson vs. Mayor, R. R. Co. vs. Husen, 95 U. S. 465; Passenger Cases, 7 How. 283; Butchers' Union vs. C. C. Co., III U. S. 746; Leisy vs. Hardin, 135 U. S. 100.

Loon Hing vs. Crowley, 113 U. S. 703.

fundamental law, it is the duty of the court to so adjudge and thereby give effect to the Constitution." This doctrine is enforced by some State courts. The New York State decisions stand in shining contrast to those of the United States on this subject.' In People vs. Marx," a case involving the same questions as Powell vs. Pennsylvania, the Court of Appeals repudiated the United States' doctrine, and in all cases has it been declared that the courts were under a duty to ascertain the real intent of a statute, no matter what it might purport to be. Judge Earl said in matter of Jacobs: "When a health law is challenged in the courts as unconstitutional on the ground that it arbitrarily interferes with personal liberty and private property without due process of law, the courts must be able to see that it has at least in fact some relation to the public health, that the public health is the end actually aimed at, and that it is appropriate and adapted to that end." In a late case, however" (supra p. 9), the Supreme Court has come out squarely against the doctrine in Powell vs. Pennsylvania. The court said (p. 319): "The presumption that this statute was enacted in good faith for the purpose expressed in the title, namely, to protect the health of the people of Minnesota, cannot control the final determination of the question whether it is not repugnant to the Constitution of the United States." It is to be seen that there is no definite rule which the court must follow in policepower questions. Each case as it arises must be decided by itself; the Constitu

1 Green. Ev., sec. 6.

5 Mugler vs. Kansas, 123 U. S. 661.

• People vs. Marx, 99 N. Y. 377; People vs. Gilson, 109 N. Y. 389.

Matter Application of Jacobs, 98 N. Y. 98. People vs. Marx, 89 N. Y. 377. 998 N. Y. 98.

10 Minnesota vs. Barber, 136 U. S. 313.