control of the states by subjecting interstate commerce in such liquors to present and future state prohibitions, and hence, in the nature of things, was wanting in uni. formity. Let us test the contentions by reason and authority.

as interstate commerce despite the state but of a want of power to reach the result prohibition because the Webb-Kenyon Law accomplished because of the method resortwas not correctly applied, for the following ed to for that purpose. This is certain reason: Coming to consider the text of that since the sole claim is that the act was law, the court said that as the Webb-not within the power given to Congress to Kenyon Act prohibited the shipment of in-regulate because it submitted liquors to the toxicants "only when liquor is intended to be used in violation of the law of the state," and as the liquor shipped was intended for personal use, which was not forbidden, therefore the shipment, although prohibited by the state law, was beyond the reach of the Webb-Kenyon Act. But we see no ground for following the ruling thus made, since, as we have already pointed out, it necessarily rested upon an entire misconception of the text of the Webb-Kenyon Act, because that act did not simply forbid the introduction of liquor into a state for a prohibited use, but took the protection of interstate commerce away from all receipt and possession of liquor prohibited by state law.

The movement of liquor in interstate commerce and the receipt and possession and right to sell prohibited by the state law having been in express terms divested by the Webb-Kenyon Act of their interstate commerce character, it follows that if that act was within the power of Congress to adopt, there is no possible reason for holding that to enforce the prohibitions of the state law would conflict with the commerce clause of the Constitution; and this brings us to the last question, which is:

The power conferred is to regulate, and the very terms of the grant would seem to repel the contention that only prohibition of movement in interstate commerce was embraced. And the cogency of this is manifest since, if the doctrine were applied to those manifold and important subjects of interstate commerce as to which Congress from the beginning has regulated, not prohibited, the existence of government under the Constitution would be no longer pos|sible.

The argument as to delegation to the states rests upon a mere misconception. It is true the regulation which the WebbKenyon Act contains permits state prohibitions to apply to movements of liquor from one state into another, but the will which causes the prohibitions to be applicable is that of Congress, since the application of state prohibitions would cease the instant the act of Congress ceased to apply. In fact, the contention previously made, that

4. Did Congress have power to enact the the prohibitions of the state law were not Webb-Kenyon Law?

We are not unmindful that opinions adverse to the power of Congress to enact the law were formed and expressed in other departments of the government. Opinion of the Attorney General, 30 Ops. Atty. Gen. 88; Veto Message of the President, 49 Cong. Rec. 4291. We are additionally conscious, therefore, of the responsibility of determining these issues and of their serious character.

applicable to the extent that they were broader than the Webb-Kenyon Act, is in direct conflict with the proposition as to delegation now made.

So far as uniformity is concerned, there is no question that the act uniformly ap plies to the conditions which call its provisions into play, that its provisions apply to all the states, so that the question really is a complaint as to the want of uniform existence of things to which the It is not in the slightest degree disputed act applies, and not to an absence of unithat if Congress had prohibited the ship- formity in the act itself. But, aside from ment of all intoxicants in the channels of this, it is obvious that the argument seeks interstate commerce, and therefore had to engraft upon the Constitution a restricprevented all movement between the several tion not found in it; that is, that the states, such action would have been lawful, power to regulate conferred upon Congress because within the power to regulate which obtains subject to the requirement that the Constitution conferred. Lottery Case regulations enacted shall be uniform (Champion v. Ames) 188 U. S. 321, 47 L. throughout the United States. In view of ed. 492, 23 Sup. Ct. Rep. 321, 13 Am. Crim. the conceded power on the part of Congress Rep. 561; Hoke v. United States, 227 U. to prohibit the movement of intoxicants S. 308, 57 L. ed. 523, 43 L.R.A. (N.S.) 906, in interstate commerce, we cannot admit 33 Sup. Ct. Rep. 281, Ann. Cas. 1913E, that because it did not exert its authority 905. The issue, therefore, is not one of an to the full limit, but simply regulated to absence of authority to accomplish in sub- the extent of permitting the prohibitions stance a more extended result than that in one state to prevent the use of interbrought about by the Webb-Kenyon Law, state commerce to ship liquor from another

state, Congress exceeded its authority to movement of intoxicants in interstate comregulate. We can see, therefore, no force merce was under the control of Congress in the argument relied upon tested from despite the wide scope of the police authorthe point of view of reason, and we come to ity of the state over the subject, it was the question of authority. said (p. 108): "Yet a subject matter It is settled, says the argument, that in which has been confided exclusively to Conterstate commerce is divided into two great gress by the Constitution is not within the classes, one embracing subjects which do jurisdiction of the police power of the not exact uniformity, and which, although state, unless placed there by congressional subject to the regulation of Congress, are, action." Again, referring to the uniform in the absence of such regulation, subject operation of interstate commerce regulato the control of the several states (Cooley tions, it was said (p. 109): "Hence, inv. Port Wardens, 12 How. 299, 13 L. ed. asmuch as interstate commerce, consisting 996), and the other embracing subjects in the transportation, purchase, sale, and which do require uniformity, and which, in exchange of commodities, is national in its the absence of regulation by Congress, re- character, and must be governed by a unimain free from all state control (Leisy v. form system, so long as Congress does not Hardin, 135 U. S. 100, 34 L. ed. 128, 3 pass any law to regulate it, or allowing Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681). the states so to do, it thereby indicates its As to the first, it is said, Congress may, will that such commerce shall be free and when regulating, to the extent it deems untrammeled." Further the court said (p. wise to do so, permit state legislation en- 119): "The conclusion follows that, as acted or to be enacted to govern, because the grant of the power to regulate comto do so would only be to do that which merce among the states, so far as one syswould exist if nothing had been done by tem is required, is exclusive, the states Congress. As to the second class, the ar- cannot exercise that power without the asgument is, that in adopting regulations sent of Congress." Again, after pointing Congress is wholly without power to pro- out that the question of the prohibition vide for the application of state power to of manufacture and sale of particular arany degree whatever, because, in the ab- ticles was a matter of state concern, it was sence of the exertion by Congress of power said (p. 123): "But, notwithstanding it to regulate, the subject matter would have is not vested with supervisory power over been free from state control; and because, matters of local administration, the rebesides, the recognition of state power un-sponsibility is upon Congress, so far as the der such circumstances would be to bring regulation of interstate commerce is conabout a want of uniformity. But granting cerned, to remove the restriction upon the the accuracy of the two classifications state in dealing with imported articles of which the proposition states, the limitation trade within its limits, which have not been upon the power of Congress to regulate mingled with the common mass of property which is deduced from the classifications therein, if, in its judgment, the end to be finds no support in the authority relied secured justifies and requires such action." upon to sustain it. Let us see if this is And finally, after pointing out that the not the case by examining the authority states had no power to interfere with the relied upon. What is that authority? The movement of goods in interstate commerce ruling in Leisy v. Hardin, supra. But that before they had been commingled with the case, instead of supporting the contention, property of the state, it was said that this plainly refutes it for the following reason: limitation obtained "in the absence of conAlthough Leisy v. Hardin declared in ex-gressional permission" to the state (p press terms that the movement of intoxicants in interstate commerce belonged to Thus it follows that although we accept that class which was free from all inter- the classification of interstate commerce in ference by state control in the absence of intoxicants made in Leisy v. Hardin, we regulation by Congress, it was at the same could not accept the contention which is time in the most explicit terms declared now based upon that classification without that the power of Congress to regulate in- in effect overruling that case, or, what is terstate commerce in intoxicants embraced equivalent thereto, refusing to give effect the right to subject such movement to state to the doctrine of that case announced in prohibitions, and that the freedom of in- terms so certain that there is no room for toxicants to move in interstate commerce controversy or contention concerning them. and the protection over it from state con- But we would be required to go further trol arose only from the absence of con- than this, since it would result that we gressional regulation, and would endure would have to shut our eyes to the cononly until Congress had otherwise provided.struction put upon the ruling in Leisy v. Thus in that case, in pointing out that the Hardin by Congress in legislating when

124).

it adopted the Wilson Act, and also to done by the Webb-Kenyon Law) making it practically overrule the line of decisions impossible for one state to violate the prowhich we have already referred to sustain-hibitions of the laws of another through ing and enforcing that act. Let us see if the channels of interstate commerce. Inthis is not certain. As we have already deed, we can see no escape from the conpointed out, the very regulation made by clusion that if we accepted the proposition Congress in enacting the Wilson Law to urged, we would be obliged to announce minimize the evil resulting from violating the contradiction in terms that because prohibitions of state law by sending liquor Congress had exerted a regulation lesser through interstate commerce into a state, in power than it was authorized to exert, and selling it in violation of such law, was therefore its action was void for excess of to divest such shipments of their interstate power. Or, in other words, stating the commerce character and to strip them of necessary result of the argument from a the right to be sold in the original pack- concrete consideration of the particular age free from state authority which other-subject here involved, that because Conwise would have obtained. And that gress, in adopting a regulation, had conCongress had the right to enact this legisla-sidered the nature and character of our tion making existing and future state pro- dual system of government, state and nahibitions applicable was the express result tion, and instead of absolutely prohibiting, of the decided cases to which we have re- had so conformed its regulation as to proferred, beginning with Re Rahrer, 140 U. duce co-operation between the local and naS. 545, 35 L. ed. 572, 11 Sup. Ct. Rep. 865. tional forces of government to the end of As the power to regulate which was mani-preserving the rights of all, it had therefested in the Wilson Act, and that which by transcended the complete and perfect was exerted in enacting the Webb-Kenyon power of regulation conferred by the ConLaw, are essentially identical, the one being stitution. And it is well again to point but a larger degree of exertion of the iden-out that this abnormal result to which the tical power which was brought into play in argument leads concerns a subject as to the other, we are unable to understand which both state and nation, in their reupon what principle we could hold that the spective spheres of authority, possessed the one was not a regulation without holding supremest authority before the action of that the other had the same infirmity,- Congress which is complained of; and a result which, as we have previously said, hence the argument virtually comes to the would reverse Leisy v. Hardin and over- assertion that, in some undisclosed way, by throw the many adjudications of this court the exertion of congressional authority, sustaining the Wilson Act. power possessed has evaporated.

It is only necessary to point out that the considerations which we have stated dispose of all contentions that the Webb-Kenyon Act is repugnant to the due process

we have said concerning that clause in the 14th Amendment as applied to state power is decisive.

These considerations dispose of the contention, but we do not stop with stating them, but recur again to the reason of things for the purpose of pointing out the fundamental error upon which the conten-clause of the 5th Amendment, since what tion rests. It is this: the mistaken assumption that the accidental considerations which cause a subject, on the one hand, to come under state control in the absence Before concluding, we come to consider of congressional regulation, and other sub- what we deem to be arguments of inconjects, on the contrary, to be free from state venience which are relied upon; that is, control until Congress has acted, are the the dread expressed that the power by essential criteria by which to test the ques-regulation to allow state prohibitions to tion of the power of Congress to regulate and the mode in which the exertion of that power may be manifested. The two things are widely different, since the right to regulate and its scope and the mode of exertion must depend upon the power possessed by Congress over the subject regulated. Following the unerring path pointed out by that great principle we can see no reason for saying that although Congress, in view of the nature and character of intoxicants, had a power to forbid their movement in interstate commerce, it had not the authority to so deal with the subject as to establish a regulation (which is what was

The

attach to the movement of intoxicants lays
the basis for subjecting interstate com-
merce in all articles to state control, and
therefore destroys the Constitution.
want of force in the suggested inconven-
ience becomes patent by considering the
principle which, after all, dominates and
controls the question here presented; that
is, the subject regulated and the extreme
power to which that subject may be sub-
jected. The fact that regulations of liquor
have been upheld in numberless instances
which would have been repugnant to the
great guaranties of the Constitution but
for the enlarged right possessed by govern-

Mr. Justice McReynolds concurs in the a car inspector in the employ of the plainresult. tiff in error, when attempting to cross a track to inspect a train of cars which had

Mr. Justice Holmes and Mr. Justice Van just arrived, was run down and killed by Devanter dissent.

Up to this time no claim had been made by defendant and no facts had been pleaded Argued December 4, 1916. Decided January or evidence offered by either party from 15, 1917. which it could be inferred that the deceased at the time of his death was engaged in

N ERROR to the Supreme Court of the interstate commerce, or that the Federal

INER OR to the Supreme to review a Employers' Liability Act was in any manner

applicable to the case.

When the plaintiff rested her case on the

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

second trial, the defendant for the first | Even at this stage of the trial the assertion time offered to introduce testimony which it is claimed, if admitted, would have tended to prove that the train which the deceased was in the act of approaching to inspect when he was killed "was engaged in interstate commerce and that the deceased was in this respect and otherwise engaged in interstate commerce." The trial court rejected this proffer of testimony on the ground that it came too late and was not relevant to any issue tendered by the pleadings in the case. No applica tion was made for leave to amend the answer by adding the claim under the Federal law.