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whilst the remaining two expressed opinions in the cases separately. As stated by Mr. Justice Matthews, in Bowman v. C. and N. W. Ry. Co. (125 U. S., 465–477):
The justices all concurred in the result, but there was not a majority which agreed upon any specific ground for the conclusion.
The doctrine of concurrent power was triumphant. Six of the justices of the court advocated it, while not one member of the court advocated the doctrine of the exclusive power of Congress. Mr. Justice Wayne and Mr. Justice McKinley expressed no opinion, while Mr. Justice Nelson concurred with Chief Justice Taney and Mr. Justice Catron.
Chief Justice Taney, in the opening of his opinion, says:
The justices of this court do not, however, altogether agree in the principles upon which these cases are decided, and I therefore proceed to state the grounds upon which I concurred in affirming the judgments. The first two of these cases depend upon precisely the same principles, and although the case against the State of New Hampshire differs in some respects from the others, yet there are important principles common to all of them, and on that account it is more convenient to consider them together.
In order to test the opening statement of the learned Chief Justice and to know what was involved and what was decided and what changes made by subsequent cases, it will be necessary to ascertain exactly what the facts were in each case.
In Thurlow v. Massachusetts Thurlow was convicted of selling liquor without a license, contrary to the laws of the State. There was no evidence that he had applied for one. Some of the sales were of foreign liquors. The statute prohibited the sale of spirits to be used on the premises of the vendor, and no one could sell for the purpose of being carried away in less quantity than 28 gallons, which should be bought and removed all at one time. Thurlow was a retail dealer and sold in quantities of gallons, quarts, and pints. He purchased all of his liquor in the home market. No claim was made that he was an importer. Some liquor that he sold was purchased from importers.
In Fletcher v. Rhode Island the law of Rhode Island prohibited the sale of liquor in less quantities than 10 gallons without a license first had and obtained from the town council of the town where the vendor resided. The town council was forbidden to grant licenses to sell in less quantities than 10 gallons whenever the voters of the town, in town meeting, decided that none should be granted, and the township where Fletcher resided had voted no license. Fletcher did not have and could not obtain a license to sell at retail or in less quan. tities than 10 gallons. He sold in excess of 10 gallons and also sold at retail in quantities of less than 10 gallons. It was conceded that all of the liquor he sold was duly imported into the United States and the duties properly paid; that he purchased it in Boston, Mass., from the importer, and shipped it into the township in Rhode Island where he resided and where the sale was made.
In Pierce v. New Hampshire the State law prohibited the sale of liquor without a license. Pierce did not have a license, but insisted that, as an importer, he had a right to sell without a license. He was convicted of selling a barrel of gin which the proof shows he purchased in Massachusetts and brought coastwise to his place of business in Dover, N. H., and which was afterwards sold by him in the
same barrel and same condition in which it was purchased in Massachusetts. The plaintiffs in error, defendants below, were convicted, and the judgments in each case were affirmed by the Supreme Court of the United States.
It is very clear that the cases of Massachusetts and Rhode Island should have been affirmed without argument and without division, while the New Hampshire case should have been reversed, all on the authority of Brown v. Maryland, holding that an article authorized by a law of Congress to be imported, including internalrevenue laws, continued to be part of the foreign commerce of the country, while it remained in the hands of the importer for sale in the original bale, package, or vessel in which it was imported; that the authority given to the importer necessarily carried with it the right to sell the imported article in the form and shape in which it was imported, and that no State, either by direct assessment or by requiring a license from the importer before he was permitted to sell, could impose any burden upon him or the property imported beyond what the law of Congress had itself imposed; but that when the original package was broken up for use or for retail by the importer, and also when the commodity had passed from his hands into the hands of a purchaser, it ceased to be an import or a part of foreign commerce and became subject to the laws of the State and might be taxed for State purposes and the sale regulated by the State like any other property.
Chief Justice Taney says he argued this case in behalf of the State of Maryland, and thought at the time of the decision that it was wrong, but that further and more mature reflection convinced them that the rule laid down in this case by Chief Justice Marshall was a just and safe one and perhaps the best that could be adopted for preserving the right of the United States on the one hand and of the States on the other and preventing collision between them.
The case of Brown v. Maryland was that of an importer selling foreign goods, and Chief Justice Marshall, writing the opinion of the court, says, page 449 :
It may be proper to add that we suppose the principles laid down in this case to apply equally to importations from a sister State.
The facts show, in the cases of Massachusetts and Rhode Island, the liquor sold was domestic commerce wholly and absolutely under the control of the State and therefore subject to the laws of the State forbidding sales at retail and absolutely and wholly beyond Federal control. The laws of these States, on the facts, were not and could not be drawn in question, upon the ground of repugnancy to the Constitution of the United States. It has always been conceded, whenever the question was raised, that the States could prohibit the manufacture and sale of liquor, the only exception being in case of importers, they being permitted to make sale in original packages of their product by virtue of the right to import. This is the extent of the law and the right.
The liquor in the New Hampshire case was interstate commerce. Chief Justice Taney, in his opinion, concedes that the legislation of the State of New Hampshire was a regulation of interstate commerce; hence the law of that State was drawn in question upon the grounds of repugnancy to the Constitution of the United States.
While Chief Justice Taney approved of the judgment in Brown v. Maryland, he distinguished the case. As part of his opinion for strongly adopting the rule laid down in Brown v. Maryland, he said, at page 578:
The present case, however, differs from Brown v. Maryland in this, that the former was one arising out of commerce with foreign nations, which Congress had regulated by law, whereas the present is a case of commerce between two States, in relation to which Congress has not exercised its power. Some acts of Congress bave, indeed, been referred to in relation to the coasting trade, but they are evidently intended merely to prevent smuggling and do not regulate imports or exports from one State to another. This case differs also from the cases of Massachusetts and Rhode Island, because in these two cases the laws of tbe States operated upon the articles after they had passed beyond the limits of foreign commerce, and consequently were beyond the control and power of Congress. But the law of New Hampshire acts directly upon an import from one State to another while in the hands of the importer for sale, and is therefore a regulation of commerce acting upon the article while it is within the admitted jurisdiction of the General Government and subject to its control and regulation
This last statement of the learned Chief Justice proves that the cases of Massachusetts and Rhode Island were properly affirmed, while the case of New Hampshire should have been reversed. This case holds that, in the absence of legislation by Congress permitting the importation of liquors from one State to another, the States can regulate interstate commerce by prohibiting sales by the importer; that there is a difference beween foreign commerce and commerce between the States. The case of Brown v. Maryland is not overruled; it is followed, but distinguished. The right to import did not of itself confer the · right to sell. In this case the right to import was not denied. It was the fact of selling that constituted the offense. An article of interstate commerce could not be sold in defiance of the laws of the State unless the law of Congress permitted or authorized its importation from another State.
In a very short time, without any change in the personnel of the court, the doctrine of exclusive power of Congress gained ground and the doctrine of concurrent power lost ground, and the paramount police power of the States disappeared in the so-called Passenger cases (7 How., 283). The States of New York and Massachusetts had imposed taxes upon alien passengers arriving in the ports of those States, and the Supreme Court of the United States, five to four, condemned the legislation of both States as a regulation of interstate and foreign commerce, weakening the license cases. The majority for the revival of the old doctrine of Marshall was not large, but for a short time the advocates of the exclusive power of Congress had much to encourage them.
The next case of interest is Cooley v. Board of Wardens (12 How., 299). There was one change of membership in the court, Mr. Justice Curtis succeeding Mr. Justice Woodbury, deceased. The question generally was whether the power of Congress to regulate interstate commerce was exclusive or concurrent with a like power in the States, in particular whether the grant of the commercial power to Congress excluded the States from regulating pilots and fixing pilotage fees. Five of the justices who had so strongly contended in the Passenger cases for the exclusive power were on the bench and took this important question out of politics, brought all of the discordant cases into line, including Wilson v. Blackbird Creek Marsh Company, holding
The power to regulate commerce includes the regulation of navigation. The regulation of pilots and fixing their compensation constitutes regulation of navigation and consequently of commerce. The regulation of pilots and fixing their compensation is local in character, and whether the power of Congress to regulate commerce is exclusive or concurrent with a like power in the States was to be determined, not from the nature of the power itself, but from the nature of the subjects over which the power was to be exercised. Whatever subjects of this power are in their nature national or admit only of one uniform system or plan of regulation may justly be said to be of such a nature as to require exclusive legislation by Congress. For many years this question had a stormy time, the Supreme Court varying the doctrine as each case came up. The line is not very straight, but the flexibility of the court is apparent.
Now the question was at rest, the sole inquiry being, Is the subject upon which the law must operate local or national in its nature? If local, the concurrent power exists and State legislation is valid until set aside by Congress. If national, the exclusive doctrine prevails. The doctrine of both exclusive and concurrent power is recognized, and a rule adopted to determine when the power of Congress is exclusive and when concurrent, overruling the license cases in four years, by the same court, with only one change of membership, Mr. Justice Curtis succeeding Mr. Justice Woodbury, deceased, and that great case being no longer authority. In the license cases it had been held that if Congress legislated the State were powerless to act, but in the absence of legislation by Congress, the States could legislate to the extent of regulating interstate commerce. As applied to the New Hampshire case, Congress not having legislated with reference to the transportation of interstate commerce from one State to another, the State of New Hampshire could prohibit the sale in original packages of articles of interstate commerce shipped from Massachusetts. In other words, the silence of Congress gave the States permission to legislate, and if Congress had given permission for the shipment from Massachusetts to New Hampshire the State of New Hampshire could not have prevented the sale in the original package. Now, when the subject of the power is national the silence of Congress is an indication of its satisfaction, and the States can not legislate. Hence the power of Congress is paramount and exclusivea complete and absolute reversal of the license cases.
If the doctrine of this Cooley case had been adopted in the license cases four years before, the judgment in the New Hampshire case would have been reversed. It is both necessary and proper to consider this feature of the subject, because it is generally understood that the doctrine of the license cases prevailed for forty-one years, and, in the interest of the liquor traffic, was overruled at the end of that time; when the fact is articles of commerce were not involved, but the nature of the power of Congress was in question. Liquor was not the subject of controversy in the Cooley case, but local pilotage; and articles of commerce had no influence on the question of power in any case. Now, when the subject of power is national the doctrine of Brown v. Maryland applies. The power of Congress is paramount and exclusive. The right of importation of interstate commerce exists, and as incident thereof sale of the product in original packages is permitted and protected.
Permit me to say the Cooley case weakened the doctrine of exclusive power. The reasoning of the court and conclusions reached
are not at all satisfactory to my line of thought, although conceding, as I have, that at the time of its adoption the rule was a settlement of a vexed question. While disagreeing with the court in its reasoning and conclusions reached, I concede that the court had the power to make the rule and that it is binding and should be respected.
In 1888 Bowman v. C. and N. W. Ry. Co., reported in 125 U. S., 465, was decided. It has often been said this case was an unwarranted interference with the right and power of the States, reversing the license cases. But not so, for the case made no change in the law or doctrine of the license cases as far as this question is concerned. The license cases held that in the absence of legislation by Congress the States could prevent the sale of interstate liquor in original packages, leaving open the question of the right of the importer to take the liquor into a State; but as far as anything was said upon the subject, especially recognizing the right of importation while denying that the right of importation gave the right to sell.
Mr. Justice Woodbury said, in the license cases, page 620:
The idea, too, that a prohibition to sell would be tantamount to a prohibition to import does not seem to me either logical or founded in fact. For even under a prohibition to sell a person could import, as he often does, for his own consumption and that of his family and plantations, and, also, if a merchant extensively engaged in commerce often does import articles with no view of selling them here, but of storing them for a higher and more suitable market in another State or abroad.
Mr. Justice Matthews, speaking for the court in the Bowman case, page 479, says:
From this analysis it is apparent that the question presented in this case was not decided in the license cases. The point in judgment in them was strictiy 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 admitted, by implication, the right to introduce intoxicating liquor, as merchandise, from foreign countries, or from other States of the Union, free from the control of the several States, and subject to the exclusive power of Congress over commerce.
So far the law is the same and the two cases stand together. The right of importation is recognized in this case. The defendant railway company refused to accept beer in Illinois for delivery in Iowa, because the Iowa statute forbade transportation. These were the facts, and the law of the case can be as briefly stated. The court held that interstate commerce required delivery to the consignee, but did not decide that the consignee had a right to sell, as the right to sell was not involved, and, as said, this case is in absolute harmony with the license cases on this point.
Two years later Leisy v. Harden (135 U. S., 100) appeared. Plaintiff's shipped beer into Iowa for sale in violation of the laws of the State of Iowa. The same was seized by the defendant, an officer of that State. The plaintiffs, contending that the legislation of Iowa was unconstitutional and void, brought replevin for their property in the State court. The trial court held with the plaintiff's. The supreme court of Iowa on appeal reversed the judgment, holding the legislation valid. The Supreme Court of the United States reversed the supreme court of Iowa, holding that the plaintiff's had a right to ship their beer into Iowa, and, as importers of interstate commerce, had