Mr. Justice Wayne and Mr. Justice McKinley, who do not appear by the report to have taken part in the decision of those cases, although the former appears at page 545 to have been present at the argument, and by the clerk's minutes to have been upon the bench when the judgments were delivered. It is certain that neither of them dissented from the decision of the

court.

The consequences of an opposite conclusion in the case from New Hampshire, regarding liquors brought from one State into another, were forcibly stated by several of the judges.

Mr. Justice McLean said: "If the mere conveyance of property from one State to another shall exempt it from taxation, and from general State regulation, it will not be difficult to avoid the police laws of any State, especially by those who live at or near the boundary." Page 595.

Mr. Justice Catron said: "To hold that the State license law was void, as respects spirits coming in from other States as articles of commerce, would open the door to an almost entire evasion, as the spirits might be introduced in the smallest divisible quantities that the retail trade would require; the consequence of which would be, that the dealers in New Hampshire would sell only spirits produced in other States, and that the products of New Hampshire would find an unrestrained market in the neighboring States having similar license laws to those of New Hampshire." Page 608.

Mr. Justice Woodbury said: "If the proposition was maintainable, that without any legislation by Cougress as to the trade between the States (except that in coasting, as before explained, to prevent smuggling), any thing imported from another State, foreign or domestic, could be sold of right in the package in which it was imported, not subject to any license or internal regulation of a State, then it is obvious that the whole license system may be evaded and nullified, either from abroad, or from a neighboring State. And the more especially can it be done from the latter, as imports may be made in bottles of any size, down to half a pint, of spirits or wines; and if its sale cannot be interfered with and regulated, the retail business can be carried on in any small quantity, and by the most irresponsible and unsuitable persons, with perfect impunity." Pages 625, 626.

Mr. Justice Grier, in au opinion marked by his characteristic vigor and directness of thought and expression (after saying that he mainly concurred with Mr. Justice McLean), summed up the whole matter as follows:

"The true question presented by these cases, and one which I am not disposed to evade, is whether the States have a right to prohibit the sale and consump tion of an article of commerce which they believe to be pernicious in its effects, and the cause of disease, pauperism and crime. I do not consider the question of the exclusiveness of the power of Congress to regulate commerce as necessarily connected with the decision of this point.

"It has been frequently decided by this court, 'that the powers which relate to merely municipal regulations, or what may more properly be called internal police, are not surrendered by the States, or restrained by the Constitution of the United States; and that consequently, in relation to these, the authority of a State is complete, unqualified and exclusive.' Without attempting to define what are the peculiar subjects or limits of this power, it may safely be affirmed, that every law for the restraint and punishment of crime, for the preservation of the public peace, health and morals, must come within this category.

"As subjects of legislation they are from their very nature of primary importance; they lie at the foundation of social existence; they are for the protection of

It is for this reason that quarantine laws, which protect the public health, compel mere commercial regulations to submit to their control. They restrain the liberty of the passengers, they operate on the ship which is the instrument of commerce, and its officers and crew, the agents of navigation. They seize the infected cargo and cast it overboard. The soldier and the sailor, though in the service of the government, are arrested, imprisoned and punished for their of fenses against society. Paupers and convicts are refused admission into the country. All these things are done, not from any power which the States assume to regulate commerce or to interfere with the regula tious of Congress, but because police laws for the preservation of health, prevention of crime and protection of the public welfare, must of necessity have full and free operation, according to the exigency which requires their interference.

"It is not necessary, for the sake of justifying the State legislation now under consideration, to array the appalling statistics of misery, pauperism and crime which have their origin in the use or abuse of ardent spirits. The police power, which is exclusively in the States, is alone competent to the correction of these great evils, and all measures of restraint or prohibition necessary to effect the purpose are within the scope of that authority. There is no conflict of power, or of legislation, as between the States and the United States; each is acting within its sphere, and for the public good; and if a loss of revenue should accrue to the United States from a diminished consumption of ardent spirits, she will be the gainer a thousand fold in the health, wealth and happiness of the people." Pages 631, 632.

This abstract of the License Cases shows (what is made yet clearer by an attentive reading of the opin ions as a whole) that the difference of opinion among the judges was upon the question whether the State statutes, which all agreed had some influence upon commerce, and all agreed were valid exercises of the police power, could properly be called regulations of

commerce.

While many of the judges said or assumed that a State could not restrict the sale by the importer and in the original packages of intoxicating liquors imported from a foreign country, which Congress had authorized the importation of, and had caused duties to be levied upon; all of them undoubtingly held that where Congress had not legislated a State might, for the protection of the health, the morals and the safety of its inhabitants, restrict or prohibit, at its discretion and according to its own views of policy, the sale by the importer of intoxicating liquors brought into it from another State, and remaining in the barrels or packages in which they were brought in.

The ability and thoroughness with which those cases were argued at the bar and on the bench, the care and thought bestowed upon their consideration, as manifested in the opinions delivered by the several judges, and the confidence with which each judge expressed his concurrence in the result, make the decision of the highest possible authority. It has been accepted and acted on as such by the Legislatures, the courts and the people of the nation and of the States, for forty

years. It has not been touched by any act of Congress; it has guided the legislation of many of the States; and it has been treated as beyond question by this court in a long series of cases. Veazie v. Moor (1832), 14 How. 568, 575; Sinnot v. Davenport (1859), 22 id. 227, 243; Gilman v. Philadelphia (1865), 3 Wall. 713, 730; Pervear v. Commonwealth (1866), 5 id. 475, 479; Woodruff v. Parham (1868), 8 id. 123, 139; United States v. Dewitt (1869), 9 id. 41, 45; Henderson v. Mayor of New York (1875), 92 U. S. 259, 274; Beer Co. v. Massa1chusetts (1877), 97 id. 25, 33; Patterson v. Kentucky (1878), 97 id. 501, 503; Mobile County v. Kimball (1889), 102 id. 691, 701; Brown v. Houston (1885), 114 id. 622, 631; Walling v. Michigan (1886), 116 id. 446, 461; Mugler v. Kansas (1887), 123 id. 623, 657, 658.

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. Either absolutely to affirm, or deny, that the nature of this power requires exclusive legislation by Congress, is to lose sight of the nature of the subjects of this power, and to assert, concerning all of them, what is really applicable but to a part. Whatever subjects of this power are in their nature National, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress." He then stated that the act of Congress of August 7, 1789, chapter 9, section 4 (1 Stat. 54), in regard to pilotage, manifested the understanding of Congress, at the outset of the government, that the nature of the subject was not such as to require its exclusive legislation, but was such, that until Congress should find it necessary to exercise its power, it should be left to the legislation of the States, because it was local and not National, and was likely to be best provided for, not by one system or plan of

When Mr. Justice Grier, in the Passenger Cases, 7 How. 462, said: "And to what weight is that argument entitled, which assumes, that because it is the policy of Congress to leave this intercourse free, therefore it has not been regulated, and each State may put as many restrictions upon it as she pleases?" the context shows that he had in mind cases in which the policy to leave commerce free had been manifested by statute or treaty; and he had already (p. 457) made it manifest that he did not intend to retract or to qualify his opinion in the License Cases.

An intention on the part of Congress that commerce shall be free from the operation of laws passed by a State in the exercise of its police power cannot be inferred from the mere fact of there being no National legislation upon the subject, unless in matters as to which the power of Congress is exclusive. Where the power of Congress is exclusive, the States have, of course, no power to legislate; and it may be said that Congress, by not legislating, manifests an intention that there should be no legislation on the subject. But in matters over which the power of Congress is paramount only, and not exclusive, the power of the State is not excluded until Congress has legislated; and no intention that the States should not exercise, or continue to exercise, their power over the subject can be inferred from the want of congressional legislation. Transportation Co. v. Parkersburg, 107 U. S. 691, 702-704.

The true test for determining when the power of Congress to regulate commerce is, and when it is not, exclusive, was formulated and established in Cooley v. Board of Wardens, 12 How. 299, concerning the validity of a State law for the regulation of pilots and pilotage, in which Mr. Justice Curtis, in delivering judgment, said: When the nature of a power like this is spoken of, when it is said that the nature of the power requires that it should be exercised exclusively by Congress, it must be intended to refer to the subjects of that power, and to say they are of such a nature as to require exclusive legislation by Congress.

tion of the several States should deem applicable to the local peculiarities of the ports within their limits; and he added, in words which appear to us equally appropriate to the case now before the court: "The practice of the States, and of the National government has been in conformity with this declaration, from the origin of the National government to this time; aud the nature of the subject, when examined, is such as to leave no doubt of the superior fitness and propriety, not to say the absolute necessity, of different systems of regulation, drawn from local knowledge and experience, and conformed to local wants." "We are of opinion that this State law was enacted by virtue of a power residing in the State to legislate; that it is not in conflict with any law of Congress; that it does not interfere with any system which Congress has established by making regulations, or by intentionally leaving individuals to their own unrestricted action." 12 How. 319-321.

In Gilman v. Philadelphia, 3 Wall. 713, 730, this court, speaking by Mr. Justice Swayne, applying the same test, and relying on Willson v. Blackbird Creek Marsh Co., and Cooley v. Board of Wardens, above cited, upheld the validity of a statute of Pennsylvania authorizing the construction of a bridge across the Schuylkill river, so as to prevent the passage of vessels with masts; and after stating the points adjudged in Brown v. Maryland, and in the Passenger Cases, said: "But a State, in the exercise of its police power, may forbid spirituous liquor imported from abroad, or from another State, to be sold by retail, or to be sold at all, without a license; and it may visit the violation of the prohibition with such punishment as it may deem proper. License Cases, 5 How. 504."

By the same test, and upon the authority of Willson v. Blackbird Creek Marsh Co., a statute of Wisconsin, authorizing the erection of a dam across a navigable river, was held to be constitutional in Pound v. Turck, 95 U. S. 459, 463. To the like effect are Willamette Bridge v. Hatch, 125 id. 1, 8-12, and other cases there cited.

Upon like grounds it was held, in Mobile County v. Kimball, 102 U. S. 691, that a statute of Alabama, authorizing the improvement of the harbor of Mobile, did not trench upon the commercial power of Congress; and the court, after pointing out that some expressions of Chief Justice Marshall, in Gibbons v. Ogden, as to the exclusiveness of the power of Congress to regulate commerce were restricted by the

facts of that case, and by the subsequent judgment in Willson v. Blackbird Creek Marsh Co., said: "In the License Cases, which were before the court in 1847, there was great diversity of views in the opinions of the different judges upon the operation of the grant of the commercial power of Congress in the absence of congressional legislation. Extreme doctrines upon both sides of the question were asserted by some of the judges; but the decision reached, so far as it can be viewed as determining any question of construction, was confirmatory of the doctrine that legislation of Congress is essential to prohibit the action of the States upon the subjects there considered." 102 U. S. 700, 701.

In Woodruff v. Parham, 8 Wall. 123, a State statute, imposing a uniform tax on all sales by auction within it, was held constitutional, as applied to sales of goods the product of other States and sold in the original and unbroken packages. In Hinson v. Lott, 8 Wall. 148, decided at the same time, it was adjudged that a State statute which prohibited any dealers, introducing any intoxicating liquors into the State, from offering them for sale, without first paying a tax of fifty cents a gallon, and imposed a like tax on liquors manufactured within the State, was valid, as applied to liquors brought from another State, and held and offered for sale in the same barrels or packages in which they were brought in; because in the words of Mr. Justice Miller, who delivered the opinion of the court in both cases, it was not "an attempt to regulate commerce, but an appropriate and legitimate exercise of the taxing power of the State." 8 Wall. 153. These two cases were cited by the court in Low v. Austin, 13 Wall. 29, 34, and in Cook v. Pennsylvania, 97 U. S. 566, 573, in which, in accord with the opinions in the License Cases, State taxation upon original cases of wines imported from a foreign country, and upon which duties had been paid under acts of Congress, was held to be invalid.

In Welton v. Missouri,91U.S. 275, the point decided was that a State statute, requiring the payment of a license tax from persons selling, by going from place to place within the State for the purpose, goods not the growth or manufacture of the State, and not from persons so selling goods which were the growth or manufacture of the State, was unconstitutional and void, by reason of the discrimination; and in Machine Co. v. Gage, 100 U. S. 676, a State statute imposing a like tax, without discriminating as to the place of growth or produce of material or manufacture, was adjudged to be constitutional and valid, as applied to machines made in and brought from another State.

In Brown v. Houston, 114 U. S. 622, it was decided that coal mined in Pennsylvania and brought in boats by river from Pittsburg to New Orleans to be there sold by the boatload on account of the Pennsylvania owner, and remaining afloat in its original condition and original packages, was subject, in common with all other property in the city, to taxation under the general tax laws of Louisiana; and the court referred to Woodruff v. Parham, above cited, as upholding the validity of a "tax laid on auction sales of all property indiscriminately," and " which had no relation to the movement of goods from one State to another." 114 U. S. 634.

In Walling v. Michigan, 116 U. S. 446, the statute of Michigan, which was held to be an unconstitutional restraint of Inter-State commerce, imposed a different tax upon persons engaged within the State in the business of selling or soliciting the sale of intoxicating liquors to be sent into the State, from that imposed upon persons selling or soliciting the sale of such liquors manufactured within the State; and the court declared that the statute would be perfectly justified as an exercise by the Legislature of Michigan of the police power of the State for the discouragement of

66

the use of intoxicating liquors, and the preservation of the health and morals of the people," "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." 116 U. S. 460.

In Wabash, St. Louis & Pacific Railway v. Illinois, 118 U. S. 557, the only point decided was that a State had no power to regulate the rates of freight of any part of continuous transportation upon railroads partly within the State and partly in other States. In Robbins v. Shelby Taxing District, 120 U. S. 489, a State law requiring the payment of a license tax by drummers and persons not having a regularly licensed house of business within the taxing district, offering for sale or selling any goods by sample, was decided to be unconstitutional as applied to persons offering to sell goods on behalf of merchauts residing in other States, because as the majority of the court held, its effect was to tax the sale of such goods, or the offer to sell them, before they are brought into the State." 120 U. S. 497. Neither of those cases appears to us to tend to limit the police power of the State to protect the public health, the public morals and the public peace within its own borders.

As was said by this court in Sherlock v. Alling, BU. S. 99, 103: In conferring upon Congress the regula tion of commerce, it was never intended to cut the States off from legislating on all subjects relating to the health, life and safety of their citizens, though the legislation might indirectly affect the commerce of the country. Legislation, in a great variety of ways, may affect commerce and persons engaged in it, without constituting a regulation of it, within the meaning of the Constitution." It was accordingly held in that case that an action against a carrier engaged in interState commerce might be maintained under a State statute giving a civil remedy, unknown to the common law, for negligence causing death; and in subsequent cases that what a State might punish or afford redress for, it might seek by proper precautions to prevent; and consequently, that a State statute .requiring, under a penalty, engineers of all railroad trains within the State to be examined and licensed by a State board, either as to their qualifications generally, or as to their capacity to distinguish between color signals, was not in its nature a regulation of commerce, but was a constitutional exercise of the power reserved to the States, and intended to secure the safety of per sons and property within their territorial limits, and so far as it affected inter-State commerce, not in conthe flict with any express enactment of Congress upon subject, nor contrary to any intention of Congress to be presumed from its silence. Smith v. Alabama, 124 U. S. 465; Nashville, Chattanooga & St. Louis Railway v. Alabama, 128 id. 96.

In Railroad Co. v. Husen, 95 U. S. 465, it was expressly conceded, in the opinion of the court delivered by Mr. Justice Strong, that a State, in the exercise of its police power, could "legislate to prevent the spread of crime, or pauperism, or disturbance of the peace," as well as "justify the exclusion of property, dangerous to the property of citizens of the State; for example, animals having contagious or infectious diseases." 95 U. S. 471. And the decision, by which the statute of Missouri, forbidding the introduction of any Texas, Mexican or Indian cattle into the State, was held to be an unconstitutional interference with inter-State commerce, rested, as clearly appears in the opinion in that case, and has since been distinctly recognized by the court, upon the ground that the statute made no distinction in the transportation forbidden, between cattle which might be diseased and those which were Kimmish v. Bull, 129 U. S. 217, 221.

not.

The authority of the States, in the exercise of their police power, and for the protection of life and health,

to pass laws affecting things which are lawful subjects or instruments of commerce, and even while they are actually employed in commerce, has been expressly recognized by Congress in the acts regulating the transportation of nitro-glycerine, as well as in the acts for the observation and execution of the quarantine and health laws of the States. R. S., §§ 4278-4280, 4792– 4796.

In Morgan's Steamship Co. v. Louisiana Board of Health, 118 U. S. 455, 465, the system of quarantine laws established by the State of Louisiana was held, in accordance with earlier opinions, to be a constitutional exercise of the police power; and it was said by the court: "Quarantine laws belong to that class of State legislation which, whether passed with intent to regulate commerce or not, must be admitted to have that effect, and which are valid until displaced or contravened by some legislation of Congress. The matter is one in which the rules that should govern it may in many respects be different in different localities, and for that reason be better understood and more wisely established by the local authorities. The practice which should control a quarantine station on the Mississippi river, a hundred miles from the sea, may be widely and wisely different from that which is best for the barbor of New York." It was added that in this respect the case fell within the principle of Willson Blackbird Creek Marsh Co., Cooley v. Board of Wardens, Gilman v. Philadelphia, Pound v. Turck, and other cases.

In Mugler v. Kansas, 123 U. S. 623, the court said: "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. In determining that question, it became necessary to inquire whether there was any conflict between the exercise by Congress of its power to regulate commerce with foreign countries, or among the several States, and the exercise by a State of what are called police powers. Although the members of the court did not fully agree as to the grounds upon which the decision should be placed, they were unanimous in holding that the statutes then under examination were not inconsistent with the Constitution of the United States, or with any act of Congress." 123 U. S. 657, 658.

In Bowman v. Chicago & Northwestern Railway, 125 U. S. 465, the point, and the only point decided, was that a statute of Iowa, which forbade common carriers to bring intoxicating liquors into the State from any other State, without first obtaining a certificate from a county officer of Iowa that the consignee was authorized by the laws of Iowa to sell such liquors, was an unconstitutional regulation of inter-State com

merce.

While Mr. Justice Field in his separate opinion (p. 507) intimated, and three dissenting justices (pp. 514, 515) feared, that the decision was in effect inconsistent with the decision in the License Cases, Mr. Justice Matthews, who delivered the judgment of the majority of the court, not only cautiously avoided committing the court to any such conclusion, but took great pains to mark the essential difference between the two decisions. On the one hand, after making a careful analysis of the opinions in the License Cuses, he said: "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." On the other hand, in stating the reasons for holding the statute of Iowa, prohibiting the transportation of liquors from another State, not to be a legitimate exertion of the police power of the State of Iowa, he said: "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." "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." 125 U. S. 479, 498, 499.

In the opinion of the majority of the court in that case, it was noted that the omission of Congress to legislate might not so readily justify an inference of its intention to exclude State legislation in matters affecting inter-State commerce, as in those affecting foreign commerce; Mr. Justice Matthews saying: "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. 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." 125 U. S. 482, 483.

In Kidd v. Pearson, 128 U. S. 1, a statute of Iowa, prohibiting the manufacture or sale of intoxicating liquors, except for mechanical, medicinal, culinary and sacramental purposes only, and authorizing any building used for their unlawful manufacture to be abated as a nuisance, was unanimously held to be constitutional, as applied to a case in which the liquors were manufactured for exportation and were sold outside the State; and the court, in showing how impracticable it would be for Congress to regulate the manufac ture of goods in one State to be sold in another, said: "The demands of such a supervision would require, not uniform legislation generally applicable throughout the United States, but a swarm of statutes only locally applicable and utterly inconsistent." "A situation more paralyzing to the State governments, and more provocative of conflicts between the general government and the States, and less likely to have been what the framers of the Constitution intended, it would be difficult to imagine." 128 U. S. 21, 22.

The language thus applied to congressional super