Qui non prohibet, cum prohibere possit, jubet. He who does not forbid, when he might forbid, commands. Qui non prohibet, quod prohibere potest, assentire videtur. He who does not prevent what he can prevent, is viewed as assenting. See ESTOPPEL; SUFFER. 1. The act of forbidding or interdicting. Whence prohibitory. Compare INHIBITION; MANDATE. The imposition of punishment implies a prohibition of the act punished.2 While the XIIIth and XIVth Amendments are prohibitory, they imply positive immunity from legal discriminations. In marine insurance, words equivalent to a prohibition amount to a warranty.4 The right to pass an ordinance usually involves the incidental right to enforce it by a reasonable pecuniary penalty. Power "to prohibitand suppress " the maintenance of a place as a nuisance includes the power to provide a punishment. Power in the authorities of a city to prohibit or regulate a thing includes partial prohibition or regulation." If a statute does not declare void a contract which is in violation of it, and if it is not necessary to hold the contract void to accomplish the purpose of the statute, the inference is that the statute was intended to be directory, and not prohibitory of the contract. A statute often speaks as plainly by inference, and by means of the purpose which underlies it, as in any other manner. When it appears by necessary inference from what is expressed that an act is opposed to the policy of the law, and will defeat its purpose, such act should be held to be prohibited. When a statute directs that a thing should be done in a given manner, it ordinarily excludes other modes of doing it. See LEGAL; ILLEGAL. Writ of prohibition. A writ directed to the judge and parties to a suit in any inferior court, commanding them to cease from the prosecution thereof, upon a suggestion that either the cause originally, or some col1 L. prohibere, q. v. 2 Exp. Siebold, 100 U. S. 388 (1879). 3 Strauder v. West Virginia, 100 U. S. 507 (1879); Exp. Virginia, ib. 345 (1879). Odiorne v. New England Mut. Mar. Ins. Co., 101 Mass. 554 (1869), cases. 1 Dillon. Mun. Corp. §§ 338, 376, cases; 1 Bishop, Stat. Cr. § 21. • Rogers v. People, 9 Col. 453 (1883). lateral matter arising therein, does not be long to that jurisdiction, but to the cognizance of some other court.1 Commands the person to whom it is directed not to do something which, by the suggestion of the relator, the court is informed he is about to do.2 Suspends all action, prevents further proceeding in the prohibited direction; is never used as a remedy for an act already completed.2 Prevents an unlawful assumption of jurisdiction. Cannot be made to perform the office of a proceeding for the correction of mere errors and irregularities. If there is jurisdiction, and no provision for appeal or writ of error, the judgment of the trial court is conclusive. 4 It is often said that the granting or refusing of the writ is discretionary, and, therefore, not the subject of a writ of error. That may be true, where there is another legal remedy, by appeal or otherwise, or where the question of the jurisdiction of the court, whose action is sought to be prohibited, is doubtful, or depends on facts which are not made matter of record, or where a stranger, as he may in England, applies for the writ. But where that court has clearly no jurisdiction of the suit or prosecution instituted before it, and the defendant therein has objected to its jurisdiction at the outset, and has no other remedy, he is entitled to a writ of prohibition as a matter of right; and a refusal to grant it, where all the proceedings appear of record, may be reviewed on error. The writ will not be granted unless the defendant has unavailingly objected to the jurisdiction.. 2. Interdiction of the liberty of making, and of selling or giving away, intoxicating liquors, for other than medicinal, scientific, and religious (sacramental) purposes. Sometimes called total prohibition, and, of late years, effected by amendments to the constitutions of several of the States. Authority conferred upon a town, by its charter, to prohibit the sale of intoxicating liquors, does not fairly embrace a power to regulate sales. The exercise of the power to regulate sales provides for the continuance of the traffic under prescribed rules. The power to prohibit is to be wielded only for suppression." "The weight of authority is overwhelming that no 13 Bl. Com. 112. 2 United States v. Hoffman, 4 Wall. 161-62 (1866), Miller, J. 3 Exp. Gordon, 104 U. S. 516 (1881), Waite, C. J. 4 Exp. Ferry Co., 104 U. S. 520 (1881), Waite, C. J. Smith v. Whitney, 116 U. S. 173-74 (1886), cases, Gray, J. See also 49 Conn. 124; 29 Minn. 523; 77 Va. Chicago Packing, &c. Co. v. Chicago, 88 III. 221, 229, 332; 21 W. Va. 140. 225 (1878); Keokuk v. Dressell, 47 Iowa, 599 (1878). • Bowditch v. New England Ins. Co., 141 Mass. 293-95 (1886), cases, Morton, C. J. • State v. Williams, 48 Ark. 227 (1886); 26 id. 52, cases. State v. Fay, 44 N. J. L. 476-77 (1882), Dixon, J., citing 68 III. 444; 92 id. 569; 2 Mo. 113. See also 48 Ind. • United States v. O'Connor, 31 F. R. 451 (1887), 308; 25 id. 283; 25 Iowa, 440; 54 Mo. 33, 172; 42 N. J. L. Thayer, J. 364; 82 N. Y. 318. such immunity has heretofore existed as would prevent State legislatures from regulating, and even prohibiting, traffic in intoxicating drinks, with a solitary exception. That exception is the case of a law operating so rigidly on property in existence at the time of its passage, absolutely prohibiting its sale, as to amount to depriving the owner of his property. A single case, that of Wynehamer v. The People [3 Kernan, 378, N. Y., 1856], has held that as to such property, the statute would be void for that reason. But no case has held that such a law was void as violating the priv ileges or immunities of citizens of a State or of the United States. If, however, such a proposition is seri. ously urged, we think that the right to sell intoxicating liquors, so far as such a right exists, is not one of the rights growing out of citizenship of the United States, and in this regard the case falls within the principles laid down by this court in the Slaughter-House Cases [16 Wall. 36, 1872[."ג "No one has ever doubted that a Legislature may prohibit the vending of articles deemed injurious to the safety of society, provided it does not interfere with vested rights of property. When such rights stand in the way of the public good, they can be removed by awarding compensation to the owner. When they are not in question, the claim of a right to sell a prohibited article can never be deemed one of the privileges and immunities of the citizen. It is toto coelo different from the right not to be deprived of property without due process of law, or the right to pursue such lawful avocation as a man chooses to adopt, unrestricted by tyrannical and corrupt monopolies." 2 "I have no doubt of the power of the State to regulate the sale of intoxicating liquors, when such regulation does not amount to the destruction of the right of property in them. The right of property in an article involves the power to sell and dispose of such article as well as to use and enjoy it. Any act which declares that the owner shall neither sell it nor dispose of it, nor use and enjoy it, confiscates it, depriving him of his property without due process of law. Against such arbitrary legislation by any State, the Fourteenth Amendment affords protection. But the prohibition of sale in any way, or for any use, is quite a different thing from a regulation of the sale or use so as to protect the health and morals of the community. All property, even the most harmless in its nature, is equally subject to the power of the State in this respect with the most noxious." 3 "If the public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the legislature cannot be stayed from providing for its discontinuance, by any incidental inconvenience which individuals or corporations may suffer. All rights are held subject to the police power of the State" a power of which the legislature cannot divest itself by contract.4 Bartemeyer v. Iowa, 18 Wall. 133 (1873), Miller, J. Ibid., 136, Bradley, J. Ibid., 137-38, Field, J. See also State v. Mugler, 29 Kan. 252 (1883). "In Bartemeyer v. Iowa it was decided that a State law prohibiting the manufacture and sale of intoxicating liquors was not repugnant to the Constitution of the United States. This was re-affirmed in Beer Company v. Massachusetts, and that question is now no longer open in this court." 1 But a State may not by taxation discriminate against the products or the citizens of another State. The police power of a State to regulate the sale of intoxicating liquors does not warrant the enactment of a law infringing a positive provision of the Constitution of the United States.2 "All property is the creation of the law, either the common or the statute law, and must, in its existence and enjoyment, be subjected to the policy and provisions of the law." " December 5, 1887, Mr. Justice Harlan, in writing the opinion of the Supreme Court in the cases of Mugler v. Kansas and Kansas v. Ziebold, reported in 123 U. S. 623, 657-74, said: The general question is whether the prohibition statutes of Kansas, approved February 19, to take effect May 1, 1881, and March 7, 1885, amendatory and supplementary to the act of 1881, 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." That legislation by a State prohibiting the manufacture within her limits of intoxicating liquors, to be there sold or bartered for general use as a beverage, does not necessarily infringe any right, privilege, or immunity secured by the Constitution, is made clear by the decisions of this Court, rendered before and since the adoption of that Amendment. In the License Cases, 5 How. 504 (1847), the question was whether certain statutes of Massachusetts, Rhode Is Federal government has no power. The acknowledged police power of a State extends often to the destruction of property. A nuisance may be abated. Everything prejudicial to health or morals may be removed." Mr. Justice Woodbury observed: "How can they [the States] be sovereign within their respective spheres, without power to regulate all their internal commerce, as well as police, and direct how, when, and where it shall be conducted in articles intimately connected with the public morals, public safety, or public prosperity." Mr. Justice Grier said: "The true question is whether the States have a right to prohibit the sale and consumption of an article of commerce which they believe to be pernicious in its effects, and the cause of disease, pauperism, and crime. Without attempting to define what are the peculiar subjects or limits of this power, it may safely be affirmed that every law for the restraint or punishment of crime, for the preservation of the public peace, health, and morals comes within this category. It is not necessary, for the sake of justifying the legislation under consideration, to array the appalling statistics of misery, pauperism, and crime which have their origin in the use or abuse of ardent spirits. The police power, which is exclusively in the States, is alone competent to the correction of these great evils, and all measures of restraint or prohibition necessary to effect the purpose are within the scope of that authority." In Bartemeyer v. Iowa, 18 Wall. 129 (1873), it was said that, prior to the Fourteenth Amendment, State enactments, prohibiting traffic in intoxicating liquors, raised no question under the Constitution; and that such legislation was left to the discretion of the respective States, subject to no other limitation than those imposed by their own constitution, or by the general principles supposed to limit all legislative power. Referring to the contention that the right to sell intoxicating liquors was secured by the Fourteenth Amendment, the court, speaking by Mr. Justice Miller, said that "so far as such right exists, it is not one of the rights growing out of citizenship of the United States." In Boston Beer Co. v. Massachusetts, 97 U. S. 33 (1877), it was said, by Mr. Justice Bradley, speaking for the court, that "as a measure of police regulation, looking to the preservation of public morals, a State law prohibiting the manufacture and sale of intoxicating liquors is not repugnant to any clause of the Constitution. Finally, in Foster v. Kansas, 112 U. S. 206 (1884), the court, by Chief Justice Waite, 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. These cases rest upon the acknowledged rights of the States to control their purely internal affairs, and, in so doing, to protect the health, morals, and safety of cheir people by regulations that do not interfere with the execution of the powers of the general government, or violate rights secured by the Constitution. The power to establish such regulations, as was said by Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 203 (1824), reaches everything within the territory of a State not surrendered to the National government. 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 to prohibit any citizen from manufacturing for his own use, or export or storage, any article of food or drink not endangering or affecting the rights of others." The proposition concedes that the right to manufacture drink for one's personal use is subject to the condition that it does not endanger or affect the rights of others. If such manufacture does prejudicially affect the interests of the community, it follows, from the 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. 124 (1876), by Chief Justice Waite, while power does not exist in 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, for general personal use, 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 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 legislature. It belongs to that department to exert what are known as the police powers of the State, and t the knowledge of all, that the public health, the public morals, and the public safety may be endangered by the general use of intoxicating drink; nor the fact established by statistics accessible to every one, that the idleness, disorder, pauperism, and crime existing in the country are, in some degree at least, traceable to this evil. If, therefore, a State deems the absolute prohibition of the manufacture and sale, within her limits, of intoxicating liquors for other than medical, scientific, or mechanical purposes, to be necessary to the peace and security of society, the courts cannot, without usurping legislative functions, override the will of the people as thus expressed by their chosen representatives. They have nothing to do with the mere policy of legislation. Indeed, it is a fundamental principle in our institutions, indispensable to the preservation of public liberty, that one of the separate departments of government shall not usurp power committed by the constitution to another department. And so, if, in the judgment of the legis lature, the manufacture of intoxicating liquors for the maker's own use, as a beverage, would tend to cripple, if it did not defeat, the efforts to guard the community against the evils attending the excessive use of such liquors, it is not for the courts, from their views as to what is best and safest for the community, to disregard the legislative determination of that question. So far from such a regulation having no relation to the general end sought to be accomplished, the entire scheme of prohibition, as embodied in the constitution and laws of a State, might fail, if the right of each citizen to manufacture intoxicating liquors for his own use as a beverage were recognized. Such a right does not inhere in citizenship. Nor can it be said that the government interferes with or impairs any one's constitutional rights of liberty or of property, when it determines that the manufacture and sale of intoxicating drinks, for general or individual use, as a beverage, are, or may become, hurtful to society, and constitute, therefore, a business in which no one may lawfully engage. Those rights are best secured in our government by the observance, upon the part of all, of such regulations as are established by competent authority, to promote the common good. No one may rightfully do that which the lawmaking power, upon reasonable grounds, declares to be prejudicial to the general welfare. This conclusion is unavoidable, unless the Fourteenth Amendment takes from the States those powers of police that were reserved at the time the original Constitution was adopted. But this court has declared, upon full consideration, in Barbier v. Connolly, 113 U. S. 31 (1885), that that Amendment had no such effect. Upon this ground, it is contended, that, as the primary and principal use of beer is as a beverage; as the breweries of the defendants 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, happened 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 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 Landing Co., 111 U. S. 751 (1884), said that the State could not, by any contract, limit the exercise of her powers to the prejudice of the public health and the public morals. So, in Stone v. Mississippi, 101 U. S. 816 (1879), where the Constitution was invoked against the repeal by that State of a charter, granted to a private corporation, to conduct a lottery, and for which that corporation had paid to the State a valuable consideration in money, the court said: "No legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. Government is organized with a view to their preservation, and cannot divest itself of th which did not come up to the standard required by said statute, and having been indicted therefor, disputed the State's authority to prevent or obstruct the exercise of his rights under the letters patent. This court upheld the legislation, upon the ground that while the State could not impair the exclusive right of the patentee, or of his assignee, in the discovery described in the letters patent, the tangible property, the fruit of the discovery, was not beyond control in the exercise of her police powers. In the second case, the court sustained the validity of an ordinance of Hyde Park, in Cook county, Illinois, passed under legislative authority, forbidding any person from transporting through that village offal or other offensive or unwholesome matter, or from maintaining or carrying on an offensive or unwholesome business or establishment within its limits. The fertilizing company, at large expense, and under authority expressly conferred by its charter, had located its works at a particular point in the county. Besides that, the charter of the village provided that it should not interfere with parties engaged in transporting animal matter from Chicago, or from manufacturing it into a fertilizer or other chemical product. The enforcement of the ordinance operated to destroy the business of the company and seriously to impair the value of its property. As, however, its business had become a nuisance, producing discomfort, and often sickness, among large masses of people, the court maintained the authority of the village, acting under legislative sanction, to protect the public health against such nuisance, - to regulate and to abate nuisances being an ordinary exercise of the police power, which the States had never surrendered, but which they all retained and still possess. A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a "taking" or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration that its use by any one, for certain forbidden purposes, is prejudicial to the public interests. Nor can legislation of that character come within the Fourteenth Amendment, in any case, unless it is apparent that its real object is not to protect the community, or to promote the general well-being, but, under the guise of a police regulation, to deprive the owner of his liberty and property, without "due process of law." The power which the States have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not, and, consistently with the existence and safety of organized society, cannot be burdened with the condition that the State must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by noxious use of their property, to inflict injury upon the community. The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciative, is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated; in the other, unoffending property is taken away from the innocent owner. It is true, when the defendants erected their breweries, the laws of the State did not forbid the manufacture of intoxicating liquors. But the State did not thereby give any assurance, or come under an obligation, that its legislation upon that subject would remain unchanged. Indeed, as was said in Stone v. Mississippi, the supervision of the public health and the public morals is a governmental power, "continuing in its nature," and "to be dealt with as the special exigencies of the moment may require; " and that, "for this purpose, the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself." So in Beer Co. v. Massachusetts: "If the public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the legislature cannot be stayed from providing for its discontinuance by any incidental inconvenience which individuals or corporations may suffer." A portion of the argument in behalf of the defendants is to the effect that the statutes of Kansas forbid the manufacture of intoxicating liquors to be exported, or to be carried to other States, and, upon that ground, they are repugnant to the clause of the Constitution giving Congress power to "regulate commerce" with foreign nations and among the several States. We need only say, upon this point, that there is no intimation in the recor By this section it is not declared that every establishment is to be deemed a common nuisance because it may have been maintained, prior to the passage of the statute, as a place for manufacturing liquors. The statute is prospective in its operation; that is, it does not put the brand of a common nuisance upon any place, unless, after its passage, that place is kept and maintained for purposes declared by the legislature to be injurious to the community. Nor is the court required to adjudge any place to be a common nuisance simply because it is charged by the State to be such. It must first find it to be of that character; that is, must ascertain, in some legal mode, whether the place in question has been or is being so used as to make it a common nuisance. Equally untenable is the proposition that proceedings in equity for the abatement of the nuisances in dicated in the thirteenth section are inconsistent with due process of law. See further NUISANCE. To the objection that the statute makes no provision for a jury trial, it is sufficient to say that such a mode of trial is not required in suits in equity brought to abate a public nuisance. The statutory direction that an injunction issue at the commencement of the action is not to be construed as dispensing with such preliminary proof as is necessary to authorize an injunction pending the suit. The statute leaves the court at liberty to give effect to the principle that an injunction will not be granted to restrain a nuisance, except upon clear and satisfactory evidence that one exists. Here the fact to be ascertained was not whether a place, kept for purposes forbidden by the statutes, was per se a nuisance, that fact being conclusively determined by the statute itself, but whether the place in question was so kept and maintained. If the proof upon that point is not sufficient, the court can refuse an injunction, or postpone action until the State first obtains the verdict of a jury in her favor. Mr. Justice Field, dissenting from the judgment concurred in by the rest of the court in Ziebold's Case, in substance said: I am not prepared to say that the State can prohibit the manufacture of intoxicating liquors within its limits if they are intended for exportation, or forbid their sale within its limits, under proper regulations for the protection of the health and morals of the people, if Congress has authorized their importation, though the act of Kansas is broad enough to include both such manufacture and sale. The right to import an article of merchandise, recognized as such by the commercial world, whether the right be given by an act of Congress or by a treaty with a foreign country, would seem necessarily to carry the right to sell the article when imported. In Brown v. Maryland, 12 Wheat. 447 (1827), Chief Justice Marshall, in delivering the opinion of the court, said: "Sale is the object of importation, and is an essential ingredient of that intercourse of which importation constitutes a part. It is as essential an ingredient, as indispensable to the existence of the entire thing, then, as importation itself. It must be considered as a component part of the power to regulate commerce. Congress has a right, not only to authorize importation, but to authorize the importer to sell." If one State can forbid the sale within its limits of an imported article, so may all the States, each selecting a different article. There would then be little uniformity of regulations with respect to articles of foreign commerce imported into different States, and the same may be said of regulations with respect to articles of inter-State commerce. By the thirteenth section of the act of 1885, the legislature, without notice to the owner or hearing of any kind, declares every place where liquors are sold, bartered, etc., to be a common nuisance; and then prescribes what shall follow, upon a court having jurisdiction finding one of such places to be what the legislature has already pronounced it. The court is not to determine whether the place is a common nuisance in fact, but is to find it to be so if it comes within the definition of the statute, and, having thus found it, the executive officers of the court are to be directed to shut up and abate the place by taking possession of it; and, as though this were not sufficient security against the continuance of the business, they are to be required to destroy all the liquor found therein, and all other property used in maintaining the nuisance. It matters not whether they are of such a character as could be used in any other business, or be of value for any other purposes. No discretion is left in the judge or in the officer. These clauses appear to deprive one who owns a brewery and manufactures beer for sale, of property without due process of law. The destruction to be ordered is not as a forfeiture upon conviction of any offense, but merely because the legislature has so commanded. Assuming, which is not conceded, county to which such liquor is to be transported, or is consigned, certifying that the consignee or person to whom the liquor is to be transported or delivered is authorized to sell intoxicating liquors. Section 1524 excepts from the operation of the law sales by the importer thereof of foreign intoxicating liquor, imported under the authority of the laws of the United States, provided that the liquor at the time of sale by the importer remains in the original casks or packages in which it was by him imported, and in quantities of not less than the quantities in which the laws of the United States require such liquors to be imported, and is sold by him in the original casks or packages and in said quantities only. Held, that § 1553, as amended in 1886, is void, being in conflict with the provisions of the Constitution granting to Congress the power to regulate commerce among the States.1 commerce. with a certificate under the seal of the auditor of the portation of merchandise, operates as a regulation of That law, while it professes to regulate the conduct of carriers engaged in transportation within the limits of the State, nevertheless materially affects, if allowed to operate, the conduct of such carriers, as respects both their rights and obligations, in every other State into or through which they pass in the prosecution of their business of inter-State transportation. The defendant is sued as a common carrier in Illinois, and the breach of duty alleged is a violation of the law of that State in refusing to transport goods which as a common carrier, by that law, it was bound to accept and carry. It interposes as a defense the law of Iowa which forbids the delivery of such goods within that State. Has the law of Iowa an extra-territorial force which does not belong to the law of Illinois? If the law of Iowa forbids the delivery, and the law of Illinois requires the transportation, which of the two shall prevail? How can the former make void the latter? In view of this necessary operation of the law of Iowa, if it be valid, the language of this court in the case of Hall v. De Cuir, 95 U. S. 488 (1877), is exactly in point, viz.: "We think it may safely be said that State legislation which seeks to impose a direct burden upon inter-State commerce, or to interfere directly with its freedom, encroaches upon the exclusive power of Congress." Mr. Justice Matthews, delivering the opinion of the court, in the course of his argument, said, in substance: The provision in question (§ 1553, as amended in 1886) was adopted, not expressly for the purpose of regulating commerce between its citizens and those of other States, but as subservient to the general design of protecting the health and morals of its people, and the good order of the State, against the physical and moral evils resulting from the unrestricted manufacture and sale of intoxicating liquors. The point in judgment in the License Cases, 5 How. 504 (1847), was confined to the right of the States to prohibit the sale of intoxicating liquor after it had been brought within their territorial limits. The right to bring it within the States was not questioned; and the reasoning which justified the right to prohibit sales admit ted, by implication, the right to introduce intoxicating liquor, as merchandise, from foreign countries or from other States, free from the control of the States and subject to the exclusive power of Congress over commerce. It cannot be doubted that the law of Iowa under examination, regarded as a rule for the transBowman v. Chicago & Northwestern R. Co., 125 U. S. 465, 473-500 (March 19, 1888), Matthews, Miller, Field, and Blatchford, JJ. Field, J., filed a concurring opinion, 500-9. Waite, C. J., Gray, and Harlan, JJ., dissented - opinion by Harlan, J., 509-24. Lamar, J., not having been present at the argument of the case, took no part in its decision. The plaintiffs one of them a citizen of Iowa - applied to the board of supervisors of Marshall county, Iowa, for permission to buy and sell intoxicating liquors for medicinal, culinary, mechanical, and sacramental purposes, but their application was rejected. They then bought 5,000 barrels of beer in Chicago, and tendered them to the railroad company for transportation to Marshalltown, said county, without furnishing the required certificate the company being a common carrier of merchandise from Chicago, Illinois, to Council Bluffs, Iowa, and under a duty to carry to all stations along its line merchandise entrusted to it for that purpose. The refusal of the company to transport the beer into lowa, in violation of her laws, was the basis of the suit. The plaintiffs claimed damages upon the ground that they could have sold the beer in that State at an advance. The statute of Iowa cannot be justified by classifying it as an inspection law which the States may pass (Constitution, Art. I, § 10). It has never been regarded as within the scope of an inspection law to forbid trade in respe produced abroad, no one would have doubted the nature of the provision as a regulation of foreign commerce. Its nature is not changed by its application to commerce among the States. Can it be supposed that, by omitting any express declarations on the subject, Congress has intended to submit to the States the decision of the question in each locality of what shall and what shall not be articles of traffic in the interState commerce of the country? If so, it has left to each State, according to its own caprice and arbitrary will, to discriminate for or against every article grown, produced, manufactured, or sold in any State, and sought to be introduced as an article of commerce into any other. The section of the statute in question is an attempt to exercise the jurisdiction of the State of Iowa over persons and property within the limits of other States. It seeks to prohibit their importation into its own limits, and is designed as a regulation for the conduct of commerce before the merchandise is brought to its border. It is not one of those local regulations designed to facilitate commerce; it is not an inspection law to secure the due quality and measure of a commodity; it is not a law to regulate or restrict the sale of an article deemed injurious to the health and morals of the community; it is not a regulation confined to the purely internal commerce of the State; it is not a restriction which only operates upon property after it has become mingled with and forms part of the mass of the property within the State. It is, on the other hand, a regulation directly affecting inter-State commerce in an essential and vital point. If authorized, in the present instance, upon the grounds and motives of the policy which have dictated it, the same reason would justify any and every other State regulation of inter-State commerce upon any grounds and reasons which might prompt in particular cases their adoption. It is, therefore, a regulation of that character which constitutes an unauthorized interference with the power given to Congress. If not in contravention of any positive legislation by Congress, it is nevertheless a breach and interruption of that liberty of trade which Congress ordains as the national policy, by willing that it shall be free from restrictive regulations. It may be argued, however, that a prohibition of the sale cannot be made effective except by prevent ing the introduction of the subject of sale; that, if its entrance into the State is permitted, traffic in it cannot be suppressed. But the right to prohibit sales, so far as conceded to the States, arises only after the act of transportation has terminated, because the sales which the State may forbid are of things within its jurisdiction. Its power over them does not begin to operate until they are brought within its limits. It might be very convenient and useful, in the execution of the policy of prohibition within the State, to extend the power of the State beyond its territorial limits. But such extra-territorial powers cannot be assumed upon such an implication. On the contrary, the nature of the case contradicts their existence; for, if they be long to one State, they belong to all, and cannot be exercised severally and independently. The attempt would necessarily produce that conflict and confusion which it was the very purpose of the Constitution, by its delegations of national power, to prevent. It is easier to think that the right of importation from abroad, and of transportation from one State to another, includes, by necessary implication, the right of the importer to sell in unbroken packages at the place where the transit terminates; for the very purpose and motive of that branch of commerce which consists in transportation is that other and consequent act of commerce which consists in the sale and exchange of the commodities transported. Such, indeed, was the point decided in the case of Brown v. Maryland, 12 Wheat. 419 (1827), as to foreign commerce, with the express statement, in the opinion of Chief Justice Marshall, that the conclusion would be the same in a case of commerce among the States. But it is not necessary now to express an opinion upon the point because that question does not arise in the present case. The precise line which divides the transaction, so far as it belongs to foreign or inter-State commerce, from the internal and domestic commerce of the State, we are not now called upon to delineate. It is enough to say that the power to regulate or forbid the sale of a commodity, after it has been brought into the State, does not carry with it the power to prevent its introduction by transportation from another State. Mr. Justice Harlan, delivering the opinion of the minority, in substance said: The decision of the majority is placed upon the broad ground that intoxicating liquors are merchantable commodities, or known articles of commerce; and that consequently the Constitution, by the mere grant to Congress States intoxicating liquors in original packages, and to sell them, while held by him in such packages, to all who choose to buy them. Thus, the mere silence of Congress upon the subject of trade among the States in intoxicating liquors is made to operate as a license to persons doing business in one State to jeopardize the health, the morals, and good order of another State, by flooding the latter with intoxicating liquors, against the expressed will of her people. It is admitted that a State may prevent the introduction within her limits of goods infected with disease, or of cattle or provisions, which, from their condition, are unfit for human use or consumption; because, it is said, such articles are not merchantable or legitimate subjects of trade and commerce. But suppose the people of a State believe, upon reasonable grounds, that the general use of intoxicating liquors is dangerous to the public peace, the public health, and the public morals, what authority has Congress or the judiciary to review their judgment upon that subject, and compel them to submit to a condition of things which they regard as destructive of their happiness and the peace and good order of society? If, consistently with the Constitution, a State can protect her sound cattle by prohibiting altogether the introduction within her limits of diseased cattle, -as was decided in Hannibal & St. Joseph R. Co. v. Husen, 95 U. S. 471 (1877), she ought not to be deemed disloyal to their Constitution when she seeks by similar legislation to protect her people and their homes against the introduction of articles, which are, in good faith, and not unreasonably, regarded by her citizens as "laden with infection" more dangerous to the public than diseased cattle, or than rags containing the germs of disease. It is not a satisfactory answer to these suggestions to say that if the State may thus outlaw the manufacture and sale of intoxicating liquors as a beverage, and exclude them from her limits, she may adopt the same policy with reference to articles that confessedly have no necessary or immediate connection with the health, the morals, or the safety of the community, but are proper subjects of trade the world over. This possible abuse of legislative power was earnestly dwelt upon by the counsel in Mugler's Case. The same argument can be, as it often is, made in reference to powers that all concede to be vital to the public safety; but it does not disprove their existence. This court there said that the judicial tribunals were not to be misled by mere pretenses, and were under a solemn duty to look at the substance of things whenever it became necessary to inquire whether the legislature had transcended the limits of its authority; and, further, that it was difficult to perceive any ground for the judiciary to declare that the prohibition by a State of the manufacture or sale, within her limits, of intoxicating liquors for general use 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. (123 U. S. 661-62.) In the same case the court sustained, without qualification, the authority of Kansas to declare, not only that places where liquors were manufactured or kept for sale, barter, or delivery, in violation of her statutes, should be deemed common nuisances, but to provide for the forfeiture, without compensation, of the intoxicating liquors found in such places, and the property used in maintaining such nuisances. Now, can it be possible that the framers of the Constitution intended whether Congress chose or not to act upon the subject to withhold from a State authority to prevent the introduction into her midst of articles the manufacture of which, within her limits, she could prohibit, without impairing the Constitutional rights of her own people? If a State may declare a place where liquors are sold for use as a beverage a common nuisance, subjecting the keeper to fine and imprisonment, can her people be compelled to submit to the sale of such liquors when brought there from another State for that purpose? This court has often declared that the most important function of government was to preserve the public health, morals, and safety; that it could not divest itself of that power, nor, by contract, limit its exercise; and that even the Constitutional prohibition upon laws impairing the obligation of contracts does not restrict the power of the State to protect the health, the morals, or the safety of the community, as one or the other may be involved in the execution of such contracts. Does the mere grant of the power to regulate commerce among the States invest individuals of one State with the right, even without the express sanction of Congressional legislation, to introduce among the people of another State articles which, by statute, they have declared to be deleterious to their health, and dangerous to their safety? In our opi ceases the instant goods enter the country; otherwise, it was argued, the importer "may introduce articles as, gunpowder - which endanger a city into the midst of its population; he may introduce articles which endanger the public health, and the power of self-preservation is denied." To this Chief Justice Marshall replied: "The power to direct the removal of gunpowder is a branch of the police power which unquestionably remains, and ought to remain, with the States. The removal or destruction of infectious or unsound articles is undoubtedly an exercise of that power [to pass inspection laws], and forms an express exception to the prohibition we are considering. Indeed, the laws of the United States expressly recognize the health laws of a State." This we understand to have been a distinct re-adjudication that the police power remains with the States, and is not overridden by the national Constitution. The purpose of committing to Congress the regulation of commerce was to insure the equality of commercial facilities, by preventing one State from building up her own trade at the expense of sister States. But that purpose is not defeated when a State employs appropriate means to prevent the introduction into her limits of what she lawfully forbids her own people from making. It certainly was not meant to give citizens of other States greater rights in Iowa than Iowa's own people have. But if this be not a sound interpretation of the Constitution; if intoxicating liquors are entitled to the same protection as ordinary merchandise entering into commerce among the States; if Congress, under the power to regulate commerce, may, in its discretion, permit or prohibit commerce in intoxicating liquors; and if, therefore, State police power, as the health, morals, and safety of the people may be involved in its proper exercise, can be overborne by national regulations of commerce, - the former decisions of this court would seem to show that such laws of the States are valid, even where they affect commercial intercourse among the States, until displaced by Federal legislation, or until they come in direct conflict with some act of Congress. This principle has been announced in many cases decided by this courtall of them cases of the erection • of bridges and other structures within the limits of States, and under their authority, across public navigable waters of the United States. They were held not forbidden by the Constitution, although the structures actually interfered with inter-State commerce. Perhaps the language of this court-all the judges concurring - which most directly bears upon the question is found in County of Mobile v. Kimball, 102 U. S. 701 (1880), re-affirming Willson v. Marsh Company, 2 Pet. 250 (1829). It was there said: "In the License Cases, 5 How. 504 (1847), there was great diversity of views in the opinions of the judges upon the operation of the grant of the commercial power in the absence of Congressional legislation; but the decision reached was confirmatory of the doctrine that legislation of Congress is essential to prohibit the actions of the States upon the subject thus considered." This language is significant in view of the fact that in one of the License Cases - Peirce v. New Hampshire, 5 How. 557, 578-the question was as to the validity of an act of that State, under which Peirce was convicted and fined for having sold, without license, a barrel of gin which he had purchased in Boston, transported to Dover, New Hampshire, and there sold in the identical cask in which it had been transported from Massachusetts. In harmony with these principles, the court affirmed at the present term, in Smith v. State, 124 U. S. 465 (1888), the validity of a statute of Alabama making it unlawful for a locomotive engineer, even when his train is employed in inter-State commerce, to operate a train of cars upon a railroad in that State, used for the transportation of persons or freight, without first having obtained a license, after examination, from a board of engineers. This court held that the statute in question was "an act of legislation within the scope of the admitted power reserved to the States to regulate the relative rights and interests of persons within its territorial jurisdiction, intended to operate so as to secure the public safety of personal property; " and that, "so far as it affects transactions of commerce among the States, it does so only indirectly, incidentally, and remotely, and not so as to burden or impede them; and in the particulars on which it touches those transactions at all it is not in conflict with any express enactment of Congress on the subject, nor contrary to any intention of Congress to be presumed from its silence." It would seem that if the Constitution does not, by its own force, displace or annul a State law, authorizing the construction of bridges or dams across navigable waters, thereby preventing the passage of vessels engaged in inter-State commerce, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character, and every article or thing designed or intended for the prevention of conception or procuring of abortion, and every article or thing intended or adapted for any indecent or immoral use, and every written or printed card, letter, circular, book, pamphlet, advertisement or notice of any kind giving information, directly or indirectly, where or how, or of whom, or by what means any of the hereinbefore mentioned matters, articles, or things may be obtained or made, whether sealed as first-class matter or not, are hereby declared to be non-mailable matter, and shall not be conveyed in the mails or delivered from any post-office nor by any letter-carrier; and any person who shall knowingly deposit, or cause to be deposited, for mailing or delivery, anything declared by this section to be non-mailable matter, and any person who shall knowingly take the same, or cause the same to be taken, from the mails for the purpose of circulating or disposing of, or of aiding in the circulation or disposition of the same, shall, for each and every offense, be fined upon conviction thereof not more than five thousand dollars, or imprisoned at hard labor not more than five years, or both, at the discretion of the court. And all offenses committed under the section of which this is amendatory, prior to the approval of this act, may be prosecuted and punished under the same in the same manner and with the same effect as if this act had not been passed: Provided, That nothing in this act shall authorize any person to open any letter or sealed matter of the first-class not addressed to himself." PROHIBITION, page 832. as a nuisance, and that he be perpetually enjoined from manufacturing such liquors therein. The con. cluding averment was that Kidd manufactures and keeps for sale, and sells within the State, intoxicating liquors to be taken out of the State for use as a bever. age, and for other than "mechanical, medicinal, culinary, or sacramental purposes," contrary to the statute. Kidd, in his answer, pleaded that he had at all times complied with the requirements of the law. Upon the trial it was proven that all the liquors he manufactured were for exportation and were sold outside of Iowa. A decree was rendered against him, ordering that his distillery be abated as a nuisance, etc., as prayed for. This decree being affirmed by the supreme court of the State, the case was carried to the Supreme Court of the United States, by which the constitutionality of the law and proceedings was upheld. Mr. Justice Lamar, delivering the unanimous opinion of the court, said in substance: That the State of Iowa could abate the distillery without depriving the owner of his property "without due process of law," within the meaning of the Fourteenth Amendment to the Constitution, was settled by the opinion in the case of Mugler v. Kansas. The only question to be decided is then as to whether the legislation of Iowa undertakes to "regulate commerce." That power, conferred upon Congress, is absolute and complete in itself, with no limitation other than prescribed in the Constitution; is to a certain extent exclusively vested in Congress, so far free from State action; is co-extensive with the subject on which it acts, and cannot stop at the external boundary of a Case of Kidd v. Pearson, argued before the Su State, but must enter into the interior of every State preme Court April 4, and decided October 22, 1888. The code of Iowa (ch. 6, tit. 11), as amended in 1884 (Laws, ch. 143), provides: That no person shall manufacture or sell intoxicating liquors, except for mechanical, medicinal, culinary, and sacramental purposes; keeping liquors with intent to sell them within the State contrary to law is prohibited, and liquor so kept " is a nuisance," and shall be forfeited (secs. 1523, 1526). "Nothing in this chapter shall be construed to forbid the sale by the importer thereof of foreign in toxicating liquor imported under the authority of the laws of the United States regarding the importation of such liquors and in accordance with such laws: Provided, That said liquor at the time of said sale by said importer remains in the original casks or packages in which it was by him imported, and in quantities not less than the quantities in which the laws of the United States require such liquors to be imported, and is sold by him in said original casks or packages and in said quantities only. (Sec. 1524.) Permission to manufacture or buy and sell for "mechanical, medicinal, culinary, or sacramental purposes " is to be obtained from the board of supervisors of the county in which the business is to be conducted, under conditions prescribed as to moral character, the wants of the locality, etc. December 24, 1885, I. E. Pearson and S. J. Loughran filed a petition in equity against J. S. Kidd, praying that a certain distillery used by him for the unlawful manufacture and sale of intoxicating liquors be abated whenever required by the interests of commerce with foreign nations, or among the States. This power, however, does not comprehend the purely internal domestic commerce of a State which is carried on between man and man within a State or between different parts of the same State. Whenever power reserved to one of the States is so exercised as to conflict with the free course of a power vested in Congress, the law of the State must yield to the supremacy of the Federal authority, though the law may have been enacted in the exercise of a power indisputably reserved to the States. It is a mistake to say, as in this case, that the act of transporting alcohol from the State in the course of lawful commerce with other States not being a crime, to perform that act was not a criminal intent, whether formed before or after the manufacture. It is not the criminality of the intent to export that is in question, but the innocence or criminality, under the statute, of the manufacture, in the absence of the specific exceptions to the prohibition, the actual and controlling and bona fide presence of at least one of which eхсерtions was indispensable to the legality of the manu facture. The construction contended for by Kidd would extend the words of the grant to Congress beyond their obvious import. "Manufacture" is transformationfashioning raw materials into a change of form for use. The functions of "commerce" are different. The buying and selling and the transportation inci- dental thereto constitute commerce; and the regulation of commerce in the constitutional sense embraces the regulation at least of such transportation. If it be held that the term "commerce" includes the regulation of all such manufactures as are intended to be the subject of commercial transactions in the future, it is impossible to deny that it would also include all productive industries that contemplate the same thing. The result would be that Congress would be invested, to the exclusion of the States, with the power to regulate, not only manufactures, but also agriculture, horticulture, stock-raising, domestic fisheries, mining,- every branch of industry; for there is not one of these that does not contemplate, more or less clearly, an inter-State or foreign market. The power being vested in Congress and denied to the States, it would follow that the duty would devolve on Congress to regulate all those delicate, multiform, and vital interests, -interests which are and must be local in all the details of their successful management. We find in the statute no provision the purpose of which is to exert the jurisdiction of the State over persons or property or transactions within the limits of other States; or to act upon intoxicating liquors as exports, or while in process of exportation or importation. Its avowed object is to prevent, not the carrying of liquors out of the State, but their manufacture, except for specified purposes, within the State. Because the products of a domestic manufacture may ultimately become the subjects of inter-State commerce, it does not follow that State legislation respecting such manufacture is an attempted exercise of the power to regulate commerce exclusively conferred upon Congress. The right of a State wholly to prohibit the manufacture of intoxicating liquors is not to be overthrown by the fact that a manufacturer intends to export the product of his distillery. And a statute, by merely omitting to except from its operation liquors manufactured for export, does not interfere with the power vested in Congress. In License Tax Cases, 5 Wall. 471 (1866), it was said: "No interference by Congress with the business of citizens transacted within a State is warranted by the Constitution, except such as is strictly incidental to the exercise of powers clearly granted to the legislature [Congress). The power to authorize a business within a State is plainly repugnant to the exclusive power of the State over the same subject." The manufacture of intoxicating liquors in a State is none the less a business within that State because the manufacturer intends, at his convenience, to export the liquors to other States. It has already been decided that the fact that an article was manufactured for export to another State does not of itself make it an article of inter-State commerce, and that the intent of the manufacturer does not determine the time when the article or product passes from the control of the State and belongs to commerce. In the case of Coe v. Errol, 116 U. S. 517, 524 (1886), logs, which had been cut in New Hampshire and hauled to Errol on the Androscoggin river, in the same State, to be floated down that river to Lewiston, Maine, while being held at Errol for a convenient opportunity for the transportation were assessed for local and State taxes. This court held that the logs were liable for taxes like other property in New Hampshire; that "goods do not cease to be part of the general mass of property in a State, subject, as such, to its jurisdiction, and to taxation in the usual way, until they have been shipped or entered with a common carrier for transportation to another State, or 'have been started upon such transportation in a continuous route or journey." The police power of a State is as broad and plenary as its taxing power; and property within a State is subject to the operations of the former as long as it is within the regulating restrictions of the latter. (The case is reported in 128 U. S. 1, 15-26. Fuller, C. J., not being a member of the Court when it was argued, took no part in the decision. With Coe v. Errol compare Low v. Austin, 13 Wall. 29 (1871), determining when goods lose their character as "imports.") ## p. (#1159) ############################################### ! ## p. (#1160) ############################################### ## p. (#1161) ############################################### ## p. (#1162) ############################################### ## p. (#1163) ############################################### i ## p. (#1164) ############################################### ## p. (#1165) ############################################### ## p. (#1166) ############################################### x = ±0 ## p. (#1167) ############################################### KF 156 A55 1890 Author Anderson, William Caldwell Title Dictionary of law Date Borrower's Name Vol. Copy ## p. (#1168) ###############################################