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In this case the law in question declared it unlawful to have in possession game for transportation beyond the State, even though such game had been lawfully killed during the “ open season. Thus the question was whether the State could permit such game to be killed and used within the State, and yet forbid its transportation to another State. After a careful examination of the nature of the State's ownership and control of wild game, the court say:
“ The foregoing analysis of the principles upon which alone rests the right of an individual to acquire a qualified ownership in game, and the power of the State, deduced therefrom, to control such ownership for the common benefit, clearly demonstrates the validity of the statute of the State of Connecticut here in controversy. The sole consequence of the provision forbidding the transportation of game killed within the State, beyond the State, is to confine the nse of such game to those who own it, the people of that State. The proposition that the State may not forbid carrying it beyond her limits involves, therefore, the contention that a State cannot allow its own people the enjoyment of the benefits of the property be longing to them in common, without at the same time permitting the citizens of other States to participate in that which they do not own. It was said in the discussion at bar, although it be conceded that the State has an absolute right to control and regulaie the killing of game as its judgment deems best in the interest of its people, inasmuch as the State has here chosen to allow the people within her borders to take game, to dispose of it, and thus cause it to become an object of state commerce, as a resulting necessity such property has become the subject of interstate commerce, hence controlled by the provisions of U. S. Const. art. 1, $ 8. But the errors which this argument involves are manifest. It presupposes that where the killing of game and its sale within the State are allowed, it thereby becomes commerce within the legal meaning of that word. In view of the authority of the State to affix conditions to the killing and sale of game, predicated as is this power on the peculiar nature of such property and its common ownership by all the citizens of the State, it may well be doubted whether commerce is created by an authority given by a State to reduce game within its borders to possession, provided such game be not taken, when killed, without the jurisdiction of the State. The common ownership imports the right to keep the property, if the sovereign so chooses, always within its jurisdiction for every purpose.
The qualification which forbids its removal from the State necessarily entered into and formed part of every transaction on the subject, and deprived the mere sale or exchange of these articles of that element of freedom of contract and of full ownership which is an essential attribute of commerce. Passing, however, as we do, the decision of this question, and granting that the dealing in game killed within the State, under the provision in question, created internal state commerce, it does not follow that such internal commerce becomes necessarily the subject matter of interstate commerce, and therefore under the control of the Constitution of the United States."
And in conclusion the court say: “ The power of a State to protect by adequate police regulation its people against the adulteration of articles of food
although in doing so commerce might be remotely affected, necessarily carries with it the existence of a like power to preserve a food supply which belongs in common to all the people of the State, which can only become the subject of ownership in a qualified way, and which can never be the object of commerce except with the consent of the State and subject to the conditions which it may deem best to impose for the public good.”
§ 317. The States May Absolutely Exclude from Their Borders
only such Articles as Are Intrinsically not Merchant
able or not Legitimate Articles of Commerce. In the exercise of their police powers the States may absolutely exclude from their borders only such articles as are in themselves not merchantable or legitimate articles of commerce.
In Bowman v. Chicago & Northwestern R. Co.4 the court say: “ Doubtless the States have power to provide by law suitable measures to prevent the introduction into the States of articles of trade, which, on account of their existing condition, would bring in and spread disease, pestilence, and death, such as rags or other substances infected with the germs of yellow fever or the virus of small pox, or cattle or meat or other provisions that are diseased or decayed, or otherwise, from their condition and quality, unfit for human use or consumption. Such articles are not merchantable; they are not legitimate subjects of trade and commerce. They may be rightly outlawed as intrinsically and directly the immediate sources and causes of destruction to human health and life. The self-protecting power of each State, therefore, may be rightfully exerted against their introduction, and such exercises of power cannot be considered regulations of commerce prohibited by the Constitution."
4 125 U. S. 465; 8 Sup. Ct. Rep. 689; 31 L. ed. 700.
This power of exclusion by the States may not be exercised by the States with reference to articles as a class, unless as an entire class, they are intrinsically unfit for commerce and not merchantable. In all other cases their unfitness for commerce must be determined by inspection aud upon reasonable grounds. In the Bowman case the court say: “It has never been regarded within the legitimate scope of inspection laws to forbid trade in respect to any known article of commerce, irrespective of its condition and quality, merely on account of its intrinsic nature and the injurious consequences of its use or abuse."
In no case may the States exclude from their borders or interfere with the importation of such articles as have directly or impliedly been recognized by Congress as legitimate articles of interstate commerce. And, furthermore, it is an established principle that as to articles legitimately the subjects of commerce, the silence of Congress as to them is to be construed as equivalent to a declaration that interstate trade as to them is to be unrestricted.5
These principles have been excellently illustrated with reference to state liquor and oleomargarine laws.
6 Leisy v. Hardin, 135 U. S. 100; 10 Sup. Ct. Rep. 681; 34 L. ed. 128.
§ 318. Liquor Legislation.
In Mugler v. Kansas certain liquor laws of the State were held not to violate the due process clause of the Fourteenth Amendment.
In the License Cases the constitutionality of the liquor laws of a number of the States was considered both with reference to the Fourteenth Amendment and the commerce clause, and, upon the whole, a considerable power on the part of the States to regulate the sale of imported liquors, recognized.
But in Bowman v. Railroad the court explained that it had not in the License Cases passed squarely upon the application of state laws to liquors brought into the States from outside, and, in the case at bar, held invalid, as a regulation of interstate commerce, a law which forbade any common carrier to bring intoxicating liquors within the State from any other State or Territory, without first obtaining a certificate from the proper state officials that the consignees were licensed by the State to sell such liquors.
The argument of the court is that the statute in question was neither an inspection law, nor a police measure confining its direct operation to domestic goods, or to imported goods after they had beconie commingled with, and therefore a part of, the general goods of the State.
“ 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. It is not one of those local regulations designed to aid and facilitate commerce; it is not an inspection law to secure the due quality and measure of a commodity; it is not a law to regulate or restrict the sale of an article deemed injurious to the health and morals of the community; it is not a regulation confined to the purely internal and domestic commerce of the State; it is not a restriction which only operates upon property after it has become mingled with and forms part of the mass of the property within the State. It is, on the other hand, a regulation directly affecting interstate commerce in an essential and vital point. If authorized, in the present instance, upon the grounds and motives of the policy which have dictated it, the same would justify any and every other state regulation of interstate commerce upon any grounds and reasons which might prompt in particular cases their adoption. It is, therefore, a regulation of that character which constitutes an unauthorized interference with the power given to Congress over the subject. If not in contravention of any positive legislation by Congress, it is nevertheless a breach and interruption of that liberty of trade which Congress ordains as the national policy, by willing that it shall be free from restrictive regulations.”
6 123 U. S. 623; 8 Sup. Ct. Rep. 273; 31 L. ed. 205. 75 How. 504; 12 L. ed. 256. 8 125 U. S. 465; 8 Sup. Ct. Rep. 689; 31 L. ed. 700.
". It may be said, however, that the right of the State to restrict or prohibit sale of intoxicating liquor within its limits, conceded to exist as a part of its police power implies the right to prohibit its importation, because the latter is necessary to the effectual exercise of the former. The argument is that a prohibition of the sale cannot be made effective, except by preventing the introduction of the subject of the sale; that if its entrance into the State is permitted, the traffie in it cannot be suppressed. But the right to prohibit sales, so far as conceded to the States, arises only after the act of transportation has terminated, because the sale 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.”
$ 319. The Wilson Act.
The position taken by the Supreme Court in the Bowman and succeeding cases very seriously crippled the powers of the States to control the sale of intoxicating liquors within their borders.
That their efficiency in this respect might be, at least partially, i restored to them, Congress, in 1890, passed the so-called Wilson
Act, which act, still in force, provides: “ That all fermented,
9 26 Stat. at L. 313.