But the ground on which the law is held to fail is fundamental and therefore it is unnecessary to consider matters of detail.

The criterion of constitutionality is not whether we believe the law to be for the public good. We certainly cannot be prepared to deny that a reasonable man reasonably might have that belief in view of the legislation of Great Britain, Victoria and a number of the States of this Union. The belief is fortified by a very remarkable collection of documents submitted on behalf of the appellants, material here, I conceive, only as showing that the belief reasonably may be held. In Australia the power to fix a minimum for wages in the case of industrial disputes extending beyond the limits of any one State was given to a Court, and its President wrote a most interesting account of its operation. 29 Harv. Law Rev. 13. If a legislature should adopt what he thinks the doctrine of modern economists of all schools, that "freedom of contract is a misnomer as applied to a contract between an employer and an ordinary individual employee," ibid. 25, I could not pronounce an opinion with which I agree impossible to be entertained by reasonable men. If the same legislature should accept his further opinion that industrial peace was best attained by the device of a Court having the above powers, I should not feel myself able to contradict it, or to deny that the end justified restrictive legislation quite as adequately as beliefs concerning Sunday or exploded theories about usury. I should have my doubts, as I have them about this statute-but they would be whether the bill that has to be paid for every gain, although hidden as interstitial detriments, was not greater than the gain was worth: a matter that it is not for me to decide.

I am of opinion that the statute is valid and that the decree should be reversed.

NOTE. The protection of the health of the community is everywhere recognized as a proper subject of police regulation. Among the innumerable cases in which it is discussed may be noted Dent v. West Virginia (1889), 129 U. S. 114 (physicians may be required to be licensed); Kimmish v. Ball (1889), 129 U. S. 217, Rasmussen v. Idaho (1901), 181 U. S. 198, Smith v. St. Louis Southwestern Ry. (1901), 181 U. S. 248, and Reid v. Colorado (1902), 187 U. S. 137 (acts for preventing importation of infected live stock); Austin v. Tennessee (1900), 179 U. S. 343, and Cook v. Marshall County (1905), 196 U. S. 261 (sale of cigarettes); Powell v. Pennsylvania (1888), 127 U. S. 678, Schollenberger v. Pennsylvania (1898), 171 U. S. 1, and Collins v. New Hampshire (1898), 171 U. S. 30 (sale of oleomargarine); Lieber.

man v. Van De Carr (1905), 199 U. S. 552 (sale of milk); California Reduction Co. v. Sanitary Reduction Works (1905), 199 U. S. 306 (disposal of garbage); Sturges & Burns Mfg. Co. v. Beauchamp (1914), 231 U. S. 320 (prohibiting the employment of children of tender years in hazardous industries); Baccus v. Louisiana (1914), 232 U. S. 334 (forbidding the sale of drugs by itinerant vendors); Reinman v. Little Rock (1915), 237 U. S. 171 (livery stables may be excluded from certain areas); Booth v. Indiana (1915), 237 U. S. 391 (employers may be required to furnish suitable washhouses for their workmen); Hadacheck v. Los Angeles (1915), 239 U. S. 394 (brick making may be forbidden in certain districts); Northwestern Laundry v. Des Moines (1916), 239 U. S. 486 (emission of smoke from factories may be restrained); Crane v. Johnson (1917), 242 U. S. 339 (drugless practitioners are subject to regulation); McNaughton v. Johnson (1917), 242 U. S. 344 (optometry is subject to regulation); Hebe Company v. Shaw (1919), 248 U. S. 297 (sale of condensed milk from which cream has been removed may be forbidden); Whipple v. Martinson (1921), 256 U. S. 41 (the furnishing of habit-forming drugs may be regulated); Douglas v. Noble (1923), 261 U. S. 165 (dentists may be required to be licensed).

SECTION 3. THE PROTECTION OF MORALS.

MUGLER v. KANSAS.

SUPREME COURT OF THE UNITED STATES. 1887.

123 United States, 623.

Error to the Supreme Court of the State of Kansas.

The constitution of the State of Kansas contains the following article, being art. 15 of § 10, which was adopted by the people November 2, 1880:

"The manufacture and sale of intoxicating liquors shall be forever prohibited in this State, except for medical, scientific, and mechanical purposes."

The legislature of Kansas enacted a statute to carry this into effect.

The plaintiff in error, Mugler, the proprietor of a brewery in Saline County, Kansas, was indicted in the District Court in that county in November, 1881, for offens; against this statute.

Mugler was adjudged to be guilty, and was sentenced to pay a fine of one hundred dollars and costs, and motions for a new

trial and in arrest of judgment were overruled. This judgment being affirmed by the Supreme Court of the State on appeal, the cause was brought here by writ of error on his motion.

[The case of Kansas v. Ziebold, which was appealed from the Circuit Court of the United States for the District of Kansas, was heard at the same time.]

MR. JUSTICE HARLAN delivered the opinion of the court.

These cases involve an inquiry into the validity of certain statutes of Kansas relating to the manufacture and sale of intoxicating liquors.

The general question in each case is, whether the foregoing statutes of Kansas are in conflict with that clause of the Fourteenth Amendment, which provides that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”

In Foster v. Kansas, 112 U. S. 201, 206, the court said that the question as to the constitutional power of a State to prohibit the manufacture and sale of intoxicating liquors was no longer an open one in this court.

It is, however, contended that, although the State may prohibit the manufacture of intoxicating liquors for sale or barter within her limits, for general use as a beverage, "no convention or legislature has the right, under our form of government, to prohibit any citizen from manufacturing for his own use, or for export, or storage, any article of food or drink not endangering or affecting the rights of others." The argument made in support of the first branch of this proposition, briefly stated, is, that in the implied compact between the State and the citizen certain rights are reserved by the latter, which are guaranteed by the constitutional provision protecting persons against being deprived of life, liberty, or property, without due process of law, and with which the State cannot interfere; that among those rights is that of manufacturing for one's use either food or drink; and that while according to the doctrines of the Commune, the State may control the tastes, appetites, habits, dress, food, and drink of the people, our system of government, based upon the individuality and intelligence of the citizen, does not claim to control him, except as to his conduct to others, leaving him the sole judge as to all that only affects himself.

It will be observed that the proposition, and the argument

made in support of it, equally concede that the right to manufacture drink for one's personal use is subject to the condition that such manufacture does not endanger or affect the rights of others. If such manufacture does prejudicially affect the rights and interests of the community, it follows, from the very premises stated, that society has the power to protect itself, by legislation, against the injurious consequences of that business. As was said in Munn v. Illinois, 94 U. S. 113, 124, while power does not exist with the whole people to control rights that are purely and exclusively private, government may require "each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another."

But by whom, or by what authority, is it to be determined whether the manufacture of particular articles of drink, either for general use or for the personal use of the maker, will injuriously affect the public? Power to determine such questions, so as to bind all, must exist somewhere; else society will be at the mercy of the few, who, regarding only their own appetites or passions, may be willing to imperil the peace and security of the many, provided only they are permitted to do as they please. Under our system that power is lodged with the legislative branch of the government. It belongs to that department to exert what are known as the police powers of the State, and to determine, primarily what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety.

It does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate. exertion of the police powers of the State. There are, of necessity, limits beyond which legislation cannot rightfully go.. The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty-indeed, are under a solemn duty-to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health. the public morals, or the public safety, has no real or substantia! relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.

Keeping in view these principles, as governing the relations of the judicial and legislative departments of government with

each other, it is difficult to perceive any ground for the judiciary to declare that the prohibition by Kansas of the manufacture or sale, within her limits, of intoxicating liquors for general use there as a beverage, is not fairly adapted to the end of protecting the community against the evils which confessedly result from the excessive use of ardent spirits. There is no justification for holding that the State, under the guise merely of police regulations, is here aiming to deprive the citizen of his constitutional rights; for we cannot shut out of view the fact, within the knowledge of all, that the public health, the public morals, and the public safety, may be endangered by the general use of intoxicating drinks; nor the fact, established by statistics accessible to everyone, that the idleness, disorder, pauperism, and crime existing in the country are, in some degree at least, traceable to this evil.

It is contended that, as the primary and principal use of beer is as a beverage; as their respective breweries were erected when it was lawful to engage in the manufacture of beer for every purpose; as such establishments will become of no value as property; or, at least, will be materially diminished in value, if not employed in the manufacture of beer for every purpose; the prohibition upon their being so employed is, in effect, a taking of property for public use without compensation, and depriving the citizen of his property without due process of law. In other words, although the State, in the exercise of her police powers, may lawfully prohibit the manufacture and sale, within her limits, of intoxicating liquors to be used as a beverage, legislation having that object in view cannot be enforced against those who, at the time, happen to own property, the chief value of which consists in its fitness for such manufacturing purposes, unless compensation is first made for the diminution in the value of their property, resulting from such prohibitory enactments.

This interpretation of the Fourteenth Amendment is inadmissible. It cannot be supposed that the States intended, by adopting that Amendment, to impose restraints upon the exercise of their powers for the protection of the safety, health, or morals of the community. In respect to contracts, the obligations of which are protected against hostile state legislation, this court in Butchers' Union Co. v. Crescent City Co., 111 U. S. 746, 751, said that the State could not, by any contract, limit the exercise of her power to the prejudice of the public health and the public morals. So, in Stone v. Mississippi, 101 U. S. 814, 816, where