liquors under the internal revenue laws of the United States, affords any defense to an indictment by a State for selling the same liquors contrary to its statutes: License Tax Cases (1866), 5 Wall. (72 U.S.) 462; Peryear v. Com. (1866), Id. 475.

The clause of the Constitution, which declares that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States," has no bearing upon this case. The privileges and immunities thus secured are those fundamental rights and privileges which appertain to citizenship: Conner v. Elliott (1855), 18 How. (59 U. S.) 591, 593; CURTIS, J., in Scott v. Sanford (1856), 19 How. (60 U. S.) 393, 580; Paul v. Virginia (1868), 8 Wall. (75_U. S.) 168, 180; McCready v. Virginia (1876), 94 U. S. 391, 395. As observed by the Court in Bartemeyer v. Iowa":—

"The right to sell intoxicating liquors, so far as such a right exists, is not one of the rights growing out of citizenship of the United States: " (18 Wall. 133).

Nor is the case affected by the Fourteenth Amendment of the Constitution. As was said in the unanimous opinion of this Court in Barbier v. Connolly, after stating the true scope of that Amendment :—

"But neither the Amendment,-broad and comprehensive as it is,—nor any other Amendment, was designed to interfere with the power of the State, sometimes termed its 'police power,' to prescribe regulations to promote the health, peace, morals, education and good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and add to its wealth and prosperity:" (113 U. S. 27, 31).

Upon that ground, the Amendment has been adjudged not to apply to a State statute prohibiting the sale or manufacture of intoxicating liquors in buildings long before constructed for the purpose, or the sale of oleomargarine lawfully manufactured before the passage of the statute: Mugler v. Kansas (1887), 123 U. S. 623, 663; Powell v. Pennsylvania (1887), 127 U. S. 678, 683, 687.

The remaining and the principal question is whether the statutes of Iowa, as applied to the sale within that State of intoxicating liquors in the same cases or kegs, unbroken and unopened, in which they were brought by the seller from another State, is repugnant to the clause of the Constitution granting

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

In the great and leading case of Gibbons v. Ogden (1824), 9 Wheat. (22 U. S.) 1, the point decided was that acts of the Legislature of New York, granting to certain persons for a term of years the exclusive navigation by steamboats of all waters within the jurisdiction of the State, were, so far as they affected such navigation by vessels of other persons licensed under the laws of the United States, repugnant to the clause of the Constitution empowering Congress to regulate foreign and interstate commerce. Chief Justice MARSHALL, in delivering judgment, after speaking of the inspection laws of the States, and observing that they had a remote and considerable influence on commerce, but that the power to pass them was not derived from a power to regulate commerce, said :

"They form a portion of that immense mass of legislation which embraces everything within the territory of a State not surrendered to the general government,-all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, etc., are component parts of this mass. No direct general power over these objects is granted to Congress; and, consequently, they remain subject to State legislation. If the legislative power of the Union can reach them, it must be for national purposes; it must be where the power is expressly given for a special purpose, or is clearly incidental to some power which is expressly given:" (Pages 203, 204).

Again, he said that quarantine and health laws " are considered as flowing from the acknowledged power of a State to provide for the health of its citizens," and that the constitutionality of such laws had never been denied: (Page 205).

Mr. Justice JOHNSON, in his concurring opinion, said :—

"It is no objection to the existence of distinct, substantive powers that, in their application, they bear upon the same subject. The same bale of goods, the same cask of provisions, or the same ship that may be the subject of commercial regulation may also be the vehicle of disease. And the health laws that require them to be stopped and ventilated are no more intended as regulations on commerce than the laws which permit their importation are intended to inoculate the community with disease. Their different purposes mark the distinction between the powers brought into action, and, while frankly exercised, they can produce no serious collision:" (Page 235).

That Chief Justice MARSHALL, and his associates did not consider the constitutional grant of power to Congress to regulate foreign and interstate commerce, as, of its own force, and without national·legislation, impairing the police power of each State within its own borders to protect the health and welfare of its inhabitants, is clearly indicated in the passages above quoted from the opinions in Gibbons v. Ogden, and is conclusively proved by the unanimous judgment of the Court delivered by the Chief Justice, five years later, in Willson v. Marsh Co. (1829), 2 Pet. (27 U. S.) 245. In that case, the Legislature of Delaware had authorized a dam to be erected across a navigable tide-water creek which opened into Delaware bay, thereby obstructing the navigation of the creek by a vessel enrolled and licensed under the navigation laws of the United States. The decision in Gibbons v. Ogden was cited by counsel as conclusive against the validity of the statute of the State. But its validity was upheld by the Court, for the following

reasons:

"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 some distance. The value of the property on its banks must be enhanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce these objects, provided they do not come into collision with the powers of the general government, are undoubtedly within those which are reserved to the States. But the measure authorized by this act stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgment, unless it comes in conflict with the Constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this court can take no cognizance. The counsel for, the plaintiffs in error insists that it comes in conflict with the power of the United States 'to regulate commerce with foreign nations and among the several States.' If Congress had passed any act which bore upon the case; any act in execution of the power to regulate commerce, the object of which was to control State legislation over those small navigable creeks into which the tide flows, and which abound throughout the lower country of the middle and southern States, we should feel not 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. We do not think that

the act empowering the Blackbird Creek Marsh Company to place a dam across the creek can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject:" (2 Pet. 251, 252).

The

In Brown v. Maryland (1827), 12 Wheat. (25 U. S.) 419, the point decided was that an act of the Legislature of Maryland, requiring all importers of foreign goods by the bale or package, or of spirituous liquors, and "other persons selling the same by wholesale, bale or package, hogshead, barrel, or tierce," to first take out a license and pay $50 for it, and imposing a penalty for failure to do so, was, as applied to sales by an importer of foreign liquors in the original packages, unconstitutional, both as laying an impost, and as repugnant to the power of Congress to regulate foreign commerce. statute there in question was evidently enacted to raise revenue from importers of foreign goods of every description, and was not an exercise of the police power of the State. And Chief Justice MARSHALL, in answering an argument of counsel, expressly admitted that the power to direct the removal of gunpowder, or the removal or destruction of infectious or unsound articles which endanger the public health, "is a branch of the police power, which unquestionably remains and ought to remain with the States:" (Pages 443, 444)Moreover, the question there presented and decided concerned foreign commerce only, and not commerce among the States. Chief Justice MARSHALL, at the outset of his opinion so defined it, saying :—

"The cause depends entirely on the question whether the legislature of a State can constitutionally require the importer of foreign articles to take out a license from the State, before he shall be permitted to sell a bale or package so imported:" (Page 436).

It is true that, after discussing and deciding that question, he threw out this brief remark:

"It may be proper to add that we suppose the principles laid down in this case to apply equally to importations from a sister State:" (Page 449).

But this remark was obiter dictum, wholly aside from the question before the Court, and having no bearing on its decision, and therefore extra-judicial, as has since been noted by

Chief Justice TANEY and Mr. Justice MCLEAN in the License Cases (1847), 5 How. (46 U. S.) 504, 575, 578, 594; and by Mr. Justice MILLER in Woodruff v. Parham (1869), 8 Wall. (75 U. S.) 123, 139. To a remark made under such circumstances, are peculiarly applicable the warning words of Chief Justice MARSHALL himself in an earlier case, where, having occasion to explain away some dicta of his own in delivering judgment in Marbury v. Madison (1803), 1 Cranch. (5 U. S.) 137, he said:

"It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles, which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated: Cohens v. Virginia (1821), 6 Wheat. (19 U. S.) 264, 399, 400.”

Another striking instance in which that maxim has been applied and acted on, is to be found in the opinion of the Court at the present term in Hans v. Louisiana (1890), 134 U. S. 1, 20.

But the unanimous judgment of this court in 1847, in Peirce v. New Hampshire, reported together with Thurlow v. Massachusetts and Fletcher v. Rhode Island as the License Cases (1847), 5 How. (46 U. S.) 504, is directly in point, and appears to us conclusively to govern the case at bar. Those cases were elaborately argued by eminent counsel, and deliberately considered by the Court, and Chief Justice TANEY, as well as each of six associate Justices, stated his reasons for concurring in the judgment. The cases from Massachusetts and Rhode Island arose under statutes of either State prohibiting sales of spirituous liquors by any person, in less than certain quantities, without first having obtained an annual license from municipal officers,-in the one case from county commissioners, who by the express terms of the statute were not required to grant any licenses when in their opinion the public good did not require them to be granted; and in the other case, from a town council, who were forbidden to grant licenses