The sun. [volume] (New York [N.Y.]) 1833-1916, 1890-07-06

may sell 1t within the State, notwith-
standing the State prohibits sale
OF the article In any form, quantity,
or package whatever. There can DO no
question of the power OF Congress to regu-
late tho transportation OF merchandise from
one State into another by protecting 1t on
the passage; nor can there be much doubt OF
the power of Congress to determine what
articles OF merchandise may and what may
not be transported from one State into an
other. But it is admitted by the Supreme
Court that tho truo test OF the point of time
at which the article becomes subject to tho
police power OF the State into which 1t has
been brought Is when 1t has been incor-
porated with the mass OF personal property
have held that tho article Is not
Incorporated with the mass Of personal prop
erty within the State, so long as the con,
signee holds 1t In the original package.
The original package may be BARREL a Quart,
or IA pint bottle Of liquor, or even single
glass in a small phial. In each OF these
forms and quantities., according to the doc,
trine OF this decision, the liquor may be sold
by the consgnee within the State, against
the express will OF the State, because 1t re-
mains in the hands Of the consgnee. sub.
ject OF tho Interstate commercial power OF
Congress.
II we apply analogies as the proper test OF
this question, 1t becomes at once apparent
that the decision is wrong. An article Of
merchandise brought from one State into
of personal property within the State, for
the purposes of State taxation, when 1t has
reached the hands OF the consignee. such
taxation does not curtail tho power OF the
disc. So. too, If in the judgment Of the
State the use OF tho article be dele
ferrous to- good morals good order
public, safety OF. the. public health,
the State, in the hands OF an inhabitant Of
the State. subject to the police power OF the
state both in respect to its protection as an
article OF property and to the prohibition OF
its sale. II 1t Is stolen, or improperly re-
moved from the possession of the owner. he
may replevy 1t, and the treSpasser may be
indicted for larceny, under the process OF
the State courts. 1t makes no dlherence
long as the consignee has a property
in It, II he is entitled to have 1t protected
as property while he holds 1t, he must sub
init to the power Of the state to prohibit a
sale OF it within the borders or the state
He may sell and transport 1t beyond the
limits Of the State, but he may not sell 1t
within the State, II the State forbds the lat
ter; and so, long as It remains WITHIN the
steps to send it out Of the State, 1t Is subject
to the State power Of taxation.
now direct public attention to the extra
ordinary remedy that Is proposed to pal
!iuSc SilO SOoSO VA shAi4H" PASNSNN ~ N'0
late decision.
The Supreme Court having made, the de-
cision which have described, In its opin-
Ion Mr. Justice ,s MILLER uttef tea o Waat
that notwithstanding the States under the
Constitution as 1t stands, cannot prohibit the
sale In original packages Of liquors brought
into the State from another State, for the
reasons assigned in the opinion Of the ma
jority Of the court, yet that Congress may,
II 1t sees tit, bestOw that power on the States
by an act OF Federal legislation. This has
led to the introduction into the Senate
Of the United States OF bill to authorize
the States to prohibit the sale OF merchan-
disc in bulk, which the supreme Court says
they cannot now prohibit This bill has been
followed by desutory discussions, In which
it is apparent that our Federal legislators do
not know how to act. The bill has been
amended several times but the latest sub
stitute proposed Is as follows:
o. yus eS State or OF o S
sumption or sale therein shall exempt shall
S n. e %
s % Sg s Ss
sI y on or
tuition Of the United States was established
by the people OF the States compos-
ing the Union at the time of it's adoption.
While for the purposes OF decision between
party anu party llllBhItu CdocS, ~ ID lOI
the Supreme Court to interpret the powers
OF Congress. and assuming that on the pres
ent subject the court has made right de-
cision, nothing short OF an amendment OF
which that decision has caused. To hold |
that Congress can confer on the States a |
power that they do not now possess would |
be to hold that the creature can act
lean idea of government Is that the
people are the source OF all power; that |
they make and unmake Governments at
their pleasure; and when the people OF
ton, created a legislative body called the |
Congress, and gave to 1t certain limited and |
defined powers OF legislation. they gave that |
body no authority over or power to affect |
amendments TO be submitted to the State |
Legislatures or by calling Federal Con-
yention for tho proposal OF amendments. |
When Congress has to exercise any Of its |
powers of legislation, it must interpret the |
Constitution for itself and determine
what it's legislative powers are. But
when it comes to question how
State is to be authorized to exercise
its reserved powers, 1t is perfectly clear
that Congress can do nothing but to propose
such amendments of tho Constitution as may
be needful, or else to call Federal Convcn-
ton for the same purpose. Congress can no
more confer on the States power to do some
thing which they cannot now do than 1t can
by legislation determine what the reserved |
powers Oh lHe States hTc. by no leRlsidIlOu
whatever can Congress enlarge or diminish
the reserved powers Of the States.
1t matters little, in my Judgment by what
process Of words Congress shall undertake
to legisate so rs to vest III the States
power which the Supreme Court has declared
they do not now possess under the Consti-
tuition. A majority. OF the Senators appear
TO assume that the late decision OF the court
In the Iowa case is to be taken as correct;
and however they may differ about tho
dictum OF the court. which suggested that
Congress can cure the difficulty. they must,
If they egisate at all, act as II 1t were true
that Congress can bestow a power on
the States, by Legislation. which tho
court denies to them. 1t was to have
been expected that Republican legs-
lators would accept the doctrines OF a
Republican court but the dilemma is a very
serious one. The friends OF prohibition, and
the friends of Il sound Interpretation of the
Constitution. must now see the consequences
of maintaining such extreme crimes OF the
power to regulate commerce
among tho several States. For these doc
trnes, the country Is indebted to the Repub-
lican party. All that can now be done is to
appeal to the judicial mind OF the nation to
correct nil Instrumentation OF the Constitution |