The sun. [volume] (New York [N.Y.]) 1833-1916, 1890-06-29

Justice FULLER. Upon tho whole, there
fore" said the old Chief Justice, the law oil
New Hampshire IL, in my Judgment, valid
one. For although the gln sold was an I'M
port from another State, and Congress have
clearly the power to regulate ouch importa-
lions under the grant of power to regulate
commerce among the several States yet as
Congress has made no regulation on the
subject, the traffic in the article may be law
fully regulated by the state rs coon as 1t Is
landed in its territory, and tax imposed
upon It, or license required, or the sale al
together prohibited, according to the policy
which the State may suppose to be Its In
terest or duty to pursue"
The dissenting opinion in the Iowa original
package case Is written by Mr.. Justice GRAY
OF Massachusetts, and is a mastorly specl-
men OF judicial statement and reasoning. lie
insists upon the correctness OF the former
decision OF the Supreme Court In the New
Hampshire barrel-of-gin case reported ms
one Of the license cases In the fifth volume
OF HowARD's United States Reports, and
argues further, that the power conferred
upon Congress- to regulate commerce
was not designed to Interfere with the
States In the exercise OF what Is known as
the police power, that Is to say, the right
by means OF legislation to preserve the
public peace, health and morals. Under
this power nuisances are suppressed, SAM
tary regulations are enacted, and the sale
Of gunpowter is controlled. "Guupowder,"
says Mr.. Justice GRAY, ais subject OF
commerce and OF lawful use, yet because
a 4 tt- oil MI
init that the State may regulate its keep
Ing and SALE" and he points out that the
authority OF the States in the exercise OF their
police power to pass laws affecting articles
OF commerce has been expressly recognized
by Congress in the enactment Of statutes
concerning the transportation of nitro-glyc-
crime and in regard to quarantine matters.
In the prevailing opinion, very little is
said, even indirectly on this subject of the
police powers OF the several States in re-
gard to which the dissenting Judges have
SO much to say. As nearly as can be gath
cred from the language OF Chief Justice
FULLER, however, the idea Of the ma
jority OF the court seems to be that
the police power of State cannot be
exercised so as to interfere at oil
with Interstate commerce, even in
the absence OF any law of Congress on the
subject, where the subject is national in its
character and requires uniformity Of legs-
ation This is met by the suggestion in tho
minority opinion, that the local option laws
in many OF the States indicate the iudg-
ment of as many Legislatures that the sale
OF Intoxicating liquors does not admit Of
regulation by uniform rule over so large
an area as a single State, much less over the
area Of continent"
Where the Judges Of the highest tribunal
in the country differ as to the true construc-
ton and application of the fundamental law,
some freedom in the expression OF opinion
may be expected on the part of others. We
believe that under the Constitution the |
right to regulate the liquor traffic be-
longs to the several States. and eX-
tends to imported liquor in the orig |
innl package, no less than to such as is |
within the State. This is |
genuine Democratic doctrine, and has been |
the doctrine of the Supreme Court of the |
United States until the decision in the Iowa |
original package case. 1t would still be the |
law OF the land If Chiof-Justicc FULLER and |
Mr.. Justice LAMAR had agreed with |
the three Republican Judges, who |
were willing to uphold State rights |
when they thought their duty re-
quircd them to do SO, even though such a
course involved the denial of a claim to !
paramount power on the part Of the ma |
tional Government.
The Democracy Of the members of the SUI !
preme Court appointed by President CLEvE- |
LAND seems to be as doubtful as the De- |
of the man who appointed them.