Dissenting Opinion: Waite, C.J., Harlan, Gray, JJ. morals, and safety of the people may be involved in its proper exercise, can be overborne by national regulations of commerce, the former decisions of this court would seem to show that such laws of the States are valid, even where they affect commercial intercourse among the States, until displaced by Federal legislation, or until they come in direct conflict with some act of Congress. Such was the doctrine announced in Willson v. Blackbird Creek Marsh Co., 2 Pet. 245. That case involved the validity of an act of the legislature of Delaware, authorizing a dam to be built across a navigable stream, in which the tide ebbed and flowed, and in which there was a common and public way in the nature of a highway. The court, speaking by Chief Justice Marshall, said: "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 for 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." p. 251. The counsel having insisted that the statute came in conflict with the power of Congress to regulate commerce with foreign nations and among the several States, the court said: "If Congress had passed any act which bore on this case, any act in execution of the power to regulate commerce, the object of which was to control state legislation over small navigable creeks into which the tide flows, and which abound throughout the lower country of the middle and southern States, we should not feel 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 Dissenting Opinion: Waite, C.J., Harlan, Gray, JJ. foreign nations and among the several States; a power which has not been so exercised as to affect the question." The same principle is announced in many other cases. Gilman v. Phila delphia, 3 Wall. 713; Escanaba Co. v. Chicago, 107 U. S. 678; Cardwell v. American Bridge Co., 113 U. S. 205; Hamilton V. Vicksburg &c. Railroad, 119 U. S. 280; Huse v. Glover, 119 U. S. 543, 546. These were all cases of the erection of bridges and other structures within the limits of States, and under their authority, across public navigable waters of the United States. They were held not to be forbidden by the Constitution, although such structures actually interfered with interstate commerce. In Gilman v. Philadelphia and Cardwell v. American Bridge Co., the bridges were without draws, entirely preventing the passage of boats to points, in one case, where the tide ebbed and flowed, and, in both cases, to points where commerce had been previously carried on. In Hamil ton v. Vicksburg &c. Railroad, the court said: "What the form and character of the bridges should be, that is to say, of what height they should be erected, and of what materials constructed, and whether with or without draws, were matters for the regulation of the State, subject only to the paramount authority of Congress to prevent any unnecessary obstruction to the free navigation of the streams. Until Congress intervenes in such cases, and exercises its authority, the power of the State is plenary. When the State provides for the form and character of the structure its directions will control, except as against the action of Congress, whether the bridge be with or without draws, and irrespective of its effect upon navigation." p. 281. But, perhaps, the language of this court — all the judges concurring - which most directly bears upon the question before us, is found in County of Mobile v. Kimball, 102 U. S. 691, 701, reaffirming Willson v. Blackbird Creek Marsh Company. It was there said: "In The License Cases, (5 How. 504,) 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 Dissenting Opinion: Waite, C.J., Harlan, Gray, JJ. 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 subject thus considered." This language is peculiarly significant in view of the fact that in one of the License Cases - Pierce v. New Hampshire, 5 How. 504, 557, 578- the question was as to the validity of an act of that State, under which Pierce was indicted, convicted, and fined, for having sold, without a local town license, a barrel of gin, which he purchased in Boston, transported to Dover, New Hampshire, and there sold in the identical cask in which it was carried to that State from Massachusetts. In harmony with these principles the court affirmed at the present term, in Smith v. State of Alabama, 124 U. S. 465, the validity of a statute of that State, making it unlawful for a locomotive engineer, even when his train is employed in interstate commerce, to drive or operate any train of cars upon a railroad in that State, used for the transportation of persons, passengers, or freight; without first undergoing an examination by, and obtaining a license from, a board of engineers appointed by the governor of Alabama. If a train of cars passed through that State to New Orleans, the engineer, however well qualified for his station, if not licensed by that local board, was subject to be fined not less than fifty nor more than five hundred dollars, and sentenced to hard labor for the county, for not more than six months. The court held that this statute "is not, considered in its own nature, a regulation of interstate commerce"; that "it is properly an act of legislation within the scope of the admitted power reserved to the States to regulate the relative rights and duties of persons, being and acting within its territorial jurisdiction, intended to operate so as to secure for the public safety of person and property"; and that "so far as it affects transactions of commerce among the States, it does so only indirectly, incidentally, and remotely, and not so as to burden or impede them, and in the particulars on which it touches those transactions at all it Dissenting Opinion: Waite, C.J., Harlan, Gray, JJ. is not in conflict with any express enactment of Congress on the subject, nor contrary to any intention of Congress to be presumed from its silence." Until Congress, by legislation, prescribed the qualification of locomotive engineers employed by railroad companies engaged in the transportation of passengers and goods among the States, Alabama, it was adjudged, could fix the qualifications of such engineers, even when running in that State trains employed in interstate commerce. It would seem that if the Constitution of the United States does not, by its own force, displace or annul a state law, authorizing the construction of bridges or dams across public navigable waters of the United States, thereby wholly preventing the passage of vessels engaged in interstate commerce upon such waters, the same Constitution ought not to be held to annul or displace a law of one of the States which, by its operation, forbids the bringing within her limits, from other States, articles which that State, in the most solemn manner, has declared to be injurious to the health, morals, and safety of her people. The silence of Congress upon the subject of interstate commerce, as affected by the police laws of the States, enacted in good faith to promote the public health, the public morals, and the public safety, and to that end prohibiting the manufacture and sale, within their limits, of intoxicating liquors to be used as a beverage, ought to have, at least, as much effect as the silence of Congress in reference to physical obstructions placed, under the authority of a State, in a navigable water of the United States. The reserved power of the States to guard the health, morals, and safety of their people is more vital to the existence of society, than their power in respect to trade and commerce having no possible connection with those subjects. For these reasons, we feel constrained to dissent from the opinion and judgment of the court. MR. JUSTICE LAMAR was not present at the argument of this case, and took no part in its decision. Statement of the Case. HARTRANFT v. OLIVER. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA. No. 190. Argued March 22, 1888. - Decided April 9, 1888. A vessel arrived at a port of the United States from a foreign port on the 30th of June, 1883, and was entered at the custom-house on that day. A custom-house inspector took charge of it, and the vessel remained with unbroken hatches until after the following 1st of July. Held, that the goods on board, being in the custody and under the control of officers of the customs, were in "a public store," or "bonded warehouse," within the meaning of those terms as used in § 10 of the act of March 3, 1883, 22 Stat. 488, 525, and were subject to the duty imposed by the provisions of that act. THE Court stated the case as follows: In 1883 the plaintiffs were merchants in the city of Philadelphia, and during that year they imported from Leghorn, Italy, by the bark Pellegra Madre, 155 cases of salad olive oil, and ten cases of lamp olive oil. The bark arrived at the port of Philadelphia on Saturday, the 30th of June, 1883, and was entered at the custom-house of that port between the hours of one and two in the afternoon. It was not practicable on that day after that time to remove the cases from the vessel into any public store or bonded warehouse; and the next day, July 1st, 1883, was Sunday. On the 7th of July the cases were entered in bond at the custom-house, and on the same day the plaintiffs made a withdrawal entry for the goods, and offered to pay the defendant, who was at the time collector of the port, duty thereon at the rate of 25 per cent ad valorem, as provided by § 6 of the act of Congress of March 3d, 1883, 22 Stat. 494, c. 121; but the defendant refused to permit the withdrawal entry, or to accept the duty at that rate, and exacted duty on the 155 cases of salad olive oil, gauging 645% gallons, at the rate of one dollar per gallon, and on the ten cases of lamp olive oil, gauging one hundred gallons, at the rate of |