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ordinate the protection of the safety, health and morals of the people to the promotion of trade and commerce.

The police power extends to the control and regulation of things which, when used in a lawful and proper manner, are subjects of property and of commerce, and yet may be used so as to be injurious or dangerous to the public safety, the public health or the public morals. Common experience has shown that the general and unrestricted use of intoxicating liquors tends to produce idleness, disorder, disease, pauperism, and crime. The power of regulating or prohibiting the manufacture and sale of intoxicating liquors appropriately belongs, as a branch of the police power, to the legislatures of the several States, and can be judiciously and effectively exercised by them alone, according to their views of public policy and local needs; and cannot practically, if it can constitutionally, be wielded by Congress as part of a national and uniform system.

The statutes in question were enacted by the State of Iowa in the exercise of its undoubted power to protect its inhabitants against the evils, physical, moral and social, attending the free use of intoxicating liquors. They are not aimed at interstate commerce. They have no relation to the movement of goods from one State to another, but operate only on intoxicating liquors within the territorial limits of the State. They include all such liquors without discrimination, and do not even mention where they are made or whence they come. They affect commerce much more remotely and indirectly than laws of a State (the validity of which is unquestioned), authorizing the erection of bridges and dams across navigable waters within its limits, which wholly obstruct the course of commerce and navigation; or than quarantine laws, which operate directly upon all ships and merchandise coming into the ports of the State.

If the statutes of a State, restricting or prohibiting the sale of intoxicating liquors within its territory, are to be held inoperative and void as applied to liquors sent or brought from another State, and sold by the importer in what are called original packages," the consequence must be that an inhabitant of the State may, under the pretext of interstate com

merce, and without license or supervision of any public authority, carry or send into, and sell in, any or all of the other States of the Union, intoxicating liquors of whatever description, in cases or kegs, or even in single bottles or flasks, despite any legislation of those States on the subject, and although his own State should be the only one which had not enacted similar laws. It would require positive and explicit legislation on the part of Congress to convince us that it contemplated or intended such a result.

The decision in the License Cases (1847), 5 How. (46 U. S.) 504, by which the Court, maintaining these views, unanimously adjudged that a general statute of a State, prohibiting the sale of intoxicating liquors without license from municipal authorities, included liquors brought from another State and sold by the importer in the original barrel or package, should be upheld and followed, because it was made upon full argument and great consideration; because it established a wise and just rule regarding a most delicate point in our complex system of government, a point always difficult of definition and adjustment, the contact between the paramount commercial power granted to Congress, and the inherent police power reserved to the States; because it is in accordance with the usage and practice which have prevailed during the century since the adoption of the Constitution; because it has been accepted and acted on for forty years by Congress, by the State legislatures, by the Courts and by the People; and because to hold otherwise would add nothing to the dignity and supremacy of the powers of Congress, while it would cripple, not to say destroy, the whole control of every State over the sale of intoxicating liquors within its borders.

The silence and inaction of Congress upon the subject, during the long period since the decision of the License Cases, appear to us to require the inference that Congress intended that the law should remain as thereby declared by this Court, rather than to warrant the presumption that Congress intended that commerce among the States should be free from the indirect effect of such an exercise of the police power for the public safety, as had been adjudged by that decision to be within the constitutional authority of the States.

For these reasons we are compelled to dissent from the opinion and judgment of the majority of the Court.

The fundamental principle, upon which was founded the popular objections to the foregoing judgment, was a principle of Constitutional interpretation irreconcilable with that declared and applied by MARSHALL (ante, pages 451, 417, 418), and JOHNSON (ante, page 419), and even BALDWIN (ante, page 420); that is, the commerce powers ought to be exercised in subordination to the supreme dominion of the States. Its usual form of application is that delivery to the consignee terminates the importation and the State may immediately act upon the merchandise: ante, pages 450, 462. This is one of the commonest errors, even by writers who ought to be familiar with the principles of Brown v. Maryland, The Passenger Cases, Cooley v. Port Wardens, and the decisions based upon these judgments (ante, pages 420, 439, 441, 442, 459, 462, 466, 470). The newspaper writers cannot therefore be expected to do better than criticise the claim that there must be a transfer of the property from the consignee before the State law applies, as "unreasonable and illogical," and even without a shadow of reason and justice.

A curious variation of this legal heresy is the denial that the owner of an original package has any more rights than he who has broken up the packages in which his merchandise was received, and offers the separate parcels for sale. This denial appears to be prevalent in the Western States, and is perhaps as well expressed as may be by Chief Justice REED of Iowa in Collins v. Hills (supra, pages 483, 485). To that opinion may be ad

ded another thought which has also prevailed, though no Justice of the Supreme Court of the United States has given it countenance. It is, that the State has power to declare certain articles prohibited and no longer merchandise. But Chief Justice TANEY, in the License Cases (supra, pages 456–7) at its first suggestion and Chief Justice Fuller, in the Original Package Case (supra, page 499), at its last, have alike laid down the rule that commercial usage, and not bucolic simplicity, or State prejudice affords the test of an article of commerce. The difficulty arises from a misreading of Brown v. Maryland and Woodruff v. Parham. As the correct understanding of these cases is the subject of the fourteenth division of the leading article (supra) on the law govering an original package, it is not necessary to repeat it here: the power of the State does not attach until the original package is broken, but in Brown v. Maryland the Court was compelled by the dissent of Justice THOMPSON (supra, page 444) to observe the effect of allowing the State to act upon broken up original packages. Yet the line was drawn at that point in the boundary between goods brought in for sale, and those incorporated and mixed up with the mass of property subject to State laws.

It is manifest that the dissenting opinion of Justice GRAY has no other foundation than the License Cases. It is unnecessary to repeat what has been already printed on pages 453-9, ante; the effort to separate the interpretation of two immediately adjoining and similar

qualifications of the phrase "To regulate commerce," (ante, page 420) could have no other reasonable basis than the principle of State superiority already mentioned. Yet, when applied in this manner, such principle of interpretation carries with it the means of its own destruction whenever the necessities of interstate commerce should become as pressing as those which arose from State regulation of foreign commerce: (ante, pages 416, 422). The much safer interpretation is that which from time to time, as new necessities arise, like the telegraph and telephone, applies (in the absence of Congressional action) the test of the necessity of general as distinguished from State regulation.

The effort in the License Cases, the Miln case, and in this dissenting opinion of Justice GRAY, was really to define the police powers of the States. By the authority of these powers and the great mass of judicial expressions relating to them, instead of an Act of Congress, every State was to regulate its own internal traffic, so far as to single out certain commodities introduced from other States and effectually prevent their sale within the State to which they might be shipped. Thus, it has been said that a person in a State which prohibits the sale of liquor, may import it for his own use, "but if he proceed to employ it as a stock in trade, the local government may put forth its police power to restrain the inhibited traffic, even by seizure and destruction of the property." Such is not the law, simply because the local authority is made expressly subject to the Constitutional powers: (supra, page 425).


The dissenting opinion of Justice GRAY operates to uphold restraints upon the liquor traffic by giving full play to State laws in all cases where Congress had not acted. Upon first thought, nothing is more entrancing the local authority should be able to protect the local community, even if that community be some small local option township. But this principle of KENT (ante, page 421) was not legitimately used. For this, the inaction of Congress was largely the cause, and that, in turn, was the result of the reaction which brought JEfferSON to be a commanding political personage: in other words, the country was not truly commercial, not yet bound together by the railroad, the telegraph and the telephone, and the principles of local and social prejudice were dominant. In this condition of the country, State jealousies brought before the Supreme Court, a Wheeling Bridge Case as well as Passenger Cases, and forced that Court to proceed somewhere, either straight along the boundary laid out by MARSHALL, or declining more or less away from it towards encouraging the jealousies which called for decisions upon concurrent powers and the supremacy of the Constitution, as well as upon the immediate questions of navigation, immigration, and State taxation. Such decisions proceeded from a Court whose supreme judgment had been denied, refused execution by a president of the United States, and finally sustained only by repeated reversals of the State Courts by Justices of both political faiths. It was natural that the Court would uphold its own authority, and would carefully guard the commerce di

rectly under the care of Congress. Who else could authoritatively decide upon the effect of such action as suitors would suppose to have been taken by Congress in coasting licenses, revenue laws and foreign treaties for this authority lay at the foundation of the jurisdiction.

The Court was almost compelled to decide that Congressional action and non-action alike were efficacious to regulate commerce with foreign nations, and among the several States, and with the Indian Tribes.



An answer alleging that a note was executed in consideration of the extension of a street railroad by the payee, and deposited with a bank, with the stipulation that it was not to be delivered until the condition was fulfilled, is not demurrable, the road not having been extended. McLaughlin v. Clausen, S. Ct. Cal., Aug. 4, 1890.


A court of admiralty has only jurisdiction of a maritime tort where the damage has been done, and the injury consummated, upon the water. The fact that the wrongful act was done upon a ship is insufficient. Therefore, where libelant, was engaged in repairing a vessel lying in winter quarters at her wharf, access being gained by means of a ladder leading from the wharf to her bulwarks, which was secured at the bottom by a cleat, the removal of which, while the libelant was on the vessel and without his knowledge, caused injury, he cannot recover. The H. S. Pickands, D. Ct., E. D. Mich., March 17, 1890.

Lien is not lost by the fact that suit is brought by the master, who is also manager of the company to which the vessel belongs, for the engineer's wages, in the latter's absence, although the claim be knowingly brought for less than is due, and although the manager inform the engineer he could afterwards claim the balance, provided the engineer does not admit the claim as for the full amount, except by ratifying the suit. The Lillie. Crosby v. The Lillie, C. Ct., S. D. Fla., March 26, 1890.


Failure to file the record at the term succeeding the allowance of an appeal, causes the appeal to have no operation or effect. Small v. Northern Pac. R. Co., S. Ct. U. S., March 31, 1890.

But, such failure is not a bar to another appeal within the prescribed time. ·Evans et ux. v. State Nat. Bank of New Orleans, S. Ct. U. S., March 17, 1890.

Filing the transcript of the record, although no citation is obtained or bond given until after the time prescribed for appeal, will give the Supreme Court of the United States jurisdiction of an appeal from a circuit court.


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