The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1890-05-05
LIQUORS IN ORIGINAL PACKAGES.
IcoNrrNuED FROM THE FIRST pAeE.l

5ratfc, like any other commoditv in
sdncanas right OF property exists. And
commerce with foreign nations, may prescribe
what article of merchandise Shall be admitted
an ny wnat excluaed and may therefore admit, or
ios as u snail deem best the importation Of ar
tent Splits. And inasmuch as the laws of Con
; hJss auso.ne tner Importation no state has
5,sgilt 70 DronlDlt their Introduction.
nese state laws act altogether upon the retail or
1omestlc traffic within their respective borders
upon the article after It has passed the line
General s. mass Of property in the state. These
laws may. indeed, discourage imports, and dmin-
lsn the price which ardent spirits would other
wise bring. But although a state is bound to re:
ceive and TO permit the sale by the importer of
any article OF merchandise which Congress au-
thorlzes to be imported it is not bound to furnish
market for 1t, nor TO abstain from the passage OF
any law which it may deem necessary or advis- |
able to guard the health morals of lis citizens,
although such law may discourage importation,
or diminish the profits Of the importer, or lessen
the revenue Of the general government. And II
any state deems the retail and internal trafc IN
ardent spirits injurious to its citizens and cacu-
lated to produce indleness, vice or debauchery,
see nothing in the Constitution of the United |
States to prevent it from regulating and restrain.
ing the traffic. or from prohibiting 1t altogether, If
it thinks proper"
The New Hampshire case, the Chief JUS
tice observed, differs from Brotcn v. Mary
land. In that the latter was case arising out
Congress had regulated by law; whereas the
case in hand was one of commerce between
two states, in relation to which Congress
had not exercised its power. "But the law
import from one state to another, while in
the hands of the importer for sale,
and is therefore regulation of commerce.
acting upon the article while it is
within the admitted jurisdiction of the gem
eral government, and subject to its control
and regulation. The question, therefore,
brought up for decision is, whether state
Is prohibited by the Constitution of the Uni
ted States from making any regulations of
foreign isi,h .nc commerce or Of commerce
wsa an0thsg o snf although 20 su9h
territory, and made for its own convenience
or interest, and does not come in conflict
with any law of Congress. In other words,
whether the grant OF power to Congress is of
itself prohibition to the state, and renders
all state laws upon the subject null and
void" He declares it to appear to him very
clear that the mere grant of power to the
general government cannot, upon any Just
principles of construction, be construed to
be an absolute prohibition to the exercise of
any power over the same subject by the
States. The controlling and supreme pc wer
over commerce with foreign nations and the
several states is undoubtedly conferred upon
Congress. Yet, in my judgment, the state
may, nevertheless, for the safety or conven-
fence of trade, or tor the protection of the
health OF its citizens, make regulations of
commerce for its own ports and harbors, and
for its own territory; and such regulations
are valid unless they come in conflict with a
law OF Congress-" He comments on the
omission OF any prohibition In terms, and
concludes that If, as he thinks, "the trainers
OF the Constitution (knowing that multi
tude of minor regulations must be necessary,
which Congress amid its great concerns
could never find time to consider and pro-
vide Intended merely to make the power of
the Federal government supreme upon this
subject over that of the states, then the
omission of any prohibition is accounted
for, and Is consistent with the whole instru-
ment. The supremacy Of the laws of Con-
gress, In cases of collision with state laws, is
secured in the article which declares that the
laws OF Congress, passed in pursuance of the
powers granted, shall be the supreme law;
and It is only where both governments may
legislate on the same subject that this
the legislation of Congress and the states
has conformed to this construction from the
foundation OF the government, as exempli-
fed in state laws In relation to pilots and
pilotage and health and quarantine laws
But cOnceding the weight properly to be
ascribed to the judicial utterances Of this
eminent Jurist, we are constrained to say
that the distinction between subjects in res
pect of which there can be of necessity only
one system or plan of regulation for the
whole country, and subjects local in their
nature and, so far as relating to commerce,
mere aids rather than regulations, does not
appear to us to have been sufficiently re-
cognized by him in arriving at the conclu-
sions announced. That distinction has been
settled by repeated decisions of this court,
and can no longer be regarded as open to re-
examination After all, it amounts to no
more than drawing the line between the ex-
excise of power over commerce with foreign
nations and among the states, and the ex-
ercise OF power over purely local commerce
and local concerns.
The authority of PIERCE v. Neao Hanap-
shire, in so far as 1t rests on the view that
the law of New Hampshire was valid be-
cause Congress had made no regulation on
the subject, must be regarded as having been
distinctly overthrown by the numerous cases
e eaatJeE Es}fE J% iii esrapsueu IS as
stated by Mr.. Justice Field, in Bopman "
Chicago, de-, Raillcoy Co., 125 U. S. 5o7:
''That where the subject upon which Congress
can act under its commercial power is local in its
nature or sphere of operation such as harbor pi-
lfo5Sage the Improvement OF harbors the estab
and out of port, the construction Of bridges over
nayigable rivers the erection of wharves, piers,
regulated only by special provisions adapted to
their localities, the state can act until Congress
interferes and super sedes its authority but
where the subject is national in Its character and
admits and requires uniformity of regulation, af-
fectng alike all the states, such transportation
goods from one state into another. Congress- can
alone act upon II and provide the needed regula-
tons. The absence OF any law of Congress on the
subject is equivalent to It's declaration that COM
merce in that matter shall be flee. Thus the abb
sence OF regulations as to Interstate commerce
with reference TO any particular subject is taken
as declaration that the importation of that arti
Gle into the states shall be Unrestricted 1t is only
after the importation is completed, and the prop
Of the general property of the state that its regu
latons can act upon 1t, except so far as may be
necessary to insure safety in the disposition of
the import until thus mingled"
The conclusion follows that, as the grant
Of the power to regulate commerce among
the states, so far as one system is reQuired,is
exclusive, the states cannot exercise that
power without the assent of Congress, and,
In the absence OF legislation, 1t Is left for the
courts to determine when state action does
or does not amount to such exercise, or, in
other words, what is.or is not regulation of
such commerce. When that is determined,
controversy Is at an end. Illustrations ex-
employing the general rule are numerous.
Thus we have held the following to be regu-
lations of interstate commerce: A tax upon
freight transported from state to state, Case
of the State Freight Tao, 10 Wall. 232;
statute imposing burdensome condition
on shlp-masters as prerequisite to the land
ing of passengers, Henderson v. Mayor, &C.,
90 U. s. 259; statute prohibiting the driving
or conveying of any Texas, Mexican, or In
dian cattle, whether sound or diseased, into
the state between the first day of March and
the first day of November in each year,
hutTOuW W y. HuSe1t, 10 u. -. 400 statute
requiring every auctioneer to collect and
pay into the state treasury tax on his sales,
when applied to imported goods in the origi-
nal packages by him sold for the importer,
Cook v. Pennsylvania, 81 U. S. 566; statute
intended to regulate or tax, or to impose any
other restriction upon, the transmission of
persons or property, or Geographic messages
from one state to another. Wabash, DC Rail
scay Co. v. Illinois, 11S U. S. 557; a statute
leyying tax upon nonresident drummers
offering for sale or selling goods, wares, or
merchandise by. sample, manufactured or be-
longing to citizens of other states, Robbins
v. Shelby TAXING District, 100 U. S. 4S9.
On the other hand, we have decided in
County OF Mobile v. Kin.bdll, 102 u. S. 691,
that state statute providing for the i'm
proyement of the river, bay, and harbor of
Mobile. since what was authorized to be
done was only as mere aid to commerce,
was, in the absence of action by Congress,
not in conflict with the Constitution; in
EscGnaba Co. v. Chicago, 107 U. S. 67S, that
the state of Illinois could lawfully authorize
the city of Chicago to deepen, widen and
change the channel of, and construct bridges
oyer. the Chicago River; in TransportG ton
20. v. Pdrkers5urg, Id. COL, that theiiurisdic-
ton and control OF wharves properly belong