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5 How. 504-633

Notes on U. S. Reports.

588

ported, free from all State restrictions, so that a State law obstructing the sale of imported distilled liquors in the original vessel, by the importer, is unconstitutional, per Taney, C. J., pp. 574-576, per Catron, J., pp. 609, 610.

Cited and principle applied in Low v. Austin, 13 Wall. 33, 20 L. 519, holding California revenue law inapplicable to imported goods in importer's possession in original packages; Allen v. Black, 43 Fed. 229, requiring breaking of original package before State prohibition law could operate on liquor from another State; Hinson v. Lott, 40 Ala. 131, 132, denying State's right to tax liquors imported from abroad; State v. Shapleigh, 27 Mo. 349, holding license law inapplicable to importer selling foreign goods in original packages; State v. Amery, 12 R. I. 65, holding State law prohibiting sales of liquor inapplicable to sales by importers in original packages.

Cited, arguendo, in United States v. Gould, 25 Fed. Cas. 1379, reviewing cases, sustaining constitutionality, under power to regulate commerce, of Federal law prohibiting slave-trade; Dorman v. The State, 34 Ala. 247, discussing the opinions of the different justices on this point; Blount v. Monroe, 60 Ga. 65, denying application of tax law to segregated property in foreigner's hands partially shipped and partially awaiting shipment; Pearson v. International Distillery, 72 Iowa, 354, 34 N. W. 4, holding right to keep liquors for purpose of selling without the State, existed under State prohibition law; Crow v. Missouri, 14 Mo. 307, 308, 317, concurring opinion, holding certain State license laws unconstitutional; State v. Delaware, etc., R. R., 30 N. J. L. 495, dissenting opinion, majority holding State tax on business of foreign transportation company constitutional; Wynehamer v. The People, 13 N. Y. 449, concurring opinion, citing and affirming the general doctrine; Scanlan v. Childs, 33 Wis. 667, discussing effect of State excise law on sales of liquor by manufacturers.

Distinguished in Western Union Tel. Co. v. Pendleton, 45 Ind. 13, 48 Am. Rep. 693, sustaining law imposing penalty on telegraph company for failure to transmit message, through another State; King v. McEvoy, 4 Allen, 112, holding mortgagee who foreclosed on cask of imported spirits in United States warehouse, was not importer; State v. Delaware, etc., R. R., 30 N. J. L. 479, sustaining law taxing business of foreign transportation companies.

Taxation.-State may impose taxes on its citizens according to amount of their property, and may include imports of a merchant in estimating his property, per Taney, C. J., p. 576.

Commerce.- Intoxicating liquors are a legitimate subject of commerce, per Taney, C. J., p. 577.

Cited and followed in Ex parte Loeb, 72 Fed. 659, holding provision of South Carolina dispensary act, prohibiting solicitation for orders for liquors in another State unconstitutional.

Constitutional law. The States have no authority under their police powers to prevent the importation of ardent spirits, when permitted by Congress, per Taney, C. J., p. 577.

Cited and principle applied in Crutcher v. Kentucky, 141 U. S. 60, 35 L. 653, 11 S. Ct. 855, holding State law imposing license on foreign corporations engaged in interstate commerce, unconstitutional; United States v. New Bedford Bridge, 1 Wood. & M. 409, F. C. 15,867, sustaining authority of State where not in conflict with Federal powers. Cited, arguendo, in United States v. Bridelman, 7 Sawy. 250, 7 Fed. 901, sustaining Federal power to punish crime on Indian reservation, though within State limits.

Constitutional law.-Law of Massachusetts prohibiting sales of spirituous liquors in less than a named quantity, without a license, and law of Rhode Island forbidding their sale, though imported from abroad, in less than specified quantity, are not repugnant to the Federal Constitution or any law of Congress, even though they tend to discourage such imports, per Taney, C. J., p. 577, per Catron, J., pp. 610, 611.

Cited and principle followed in Pervear v. The Commonwealth, 5 Wall. 479, 18 L. 609, Mugler v. Kansas, 123 U. S. 657, 658, 659, 31 L. 209, 8 S. Ct. 295, reviewing cases, and Kansas v. Bradley, 26 Fed. 290, sustaining State legislation restricting sale of intoxicating liquors; People v. Naglee, 1 Cal. 239, 52 Am. Dec. 319, sustaining State license tax on foreign gold miners, though public lands indirectly affected thereby; Magner v. The People, 97 Ill. 335, sustaining game law, prohibiting ownership or sale of dead game, whether from other States or not; Santo v. The State, 2 Iowa, 193, 194, 202, 63 Am. Dec. 493, 494, 501, and Lincoln v. Smith, 27 Vt. 335, sustaining laws prohibiting sales of intoxicating liquors; McGregor v. Cone, 104 Iowa, 470, 65 Am. St. Rep. 526, 73 N. W. 1043, 39 L. R. A. 486, sustaining law prohibiting sale of cigarettes only as applied to those not in original packages from other States; State v. Burns, 82 Me. 568, 19 Atl. 914, denying to others than importer of foreign liquors, right to sell them; Keller v. The State, 11 Md. 533, 534, 535, 69 Am. Dec. 229, 230, 231, sustaining law requiring license tax from vendors of domestic lager beer; Cohen v. Jarrett, 42 Md. 578, 579, sustaining State law requiring license for sale of liquor; Commonwealth v. Thornley, 6 Allen, 446, and Commonwealth v. Holbrook, 10 Allen, 201, holding United States license to sell spirituous liquors does not except holder from State prohibition laws; Niles v. Rhodes, 7 Mich. 384, holding liquors not exempt from operation of State regulations merely because of foreign manufacture; People v. Walling, 53 Mich. 268, 18 N. W. 809, holding constitutional an act taxing liquor traffic; Rochester v. Upman, 19 Minn. 112, sustaining State law requiring license tax to sell liquors; Territory v. Guyott, 9 Mont. 50, 22 Pac. 135, holding territorial law against

5 How. 504-633

Notes on U. S. Reports.

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selling liquor to Indians constitutional; Dunbar v. Garrity, 58 N. H. 576, holding illegal a sale of imported liquor not in original package; State v. Court, 36 N. J. L. 77, 13 Am. Rep. 427, sustaining constitutionality of a "local option " law; Adler v. Whitbeck, 44 Ohio St. 575, sustaining State tax on liquor traffic; State v. Paul, 5 R. I. 193, and State v. Fitzpatrick, 16 R. I. 57, 58, 11 Atl. 769, 770, sustaining State law, prohibiting sales of intoxicating liquors; Boyd v. The State, 12 Lea, 689, applying State regulation of liquor traffic to steamboat, though licensed to retail spirits under Federal law; Ex parte Lynn, 19 Tex. App. 295, sustaining local option law.

Cited, arguendo, in Passenger Cases, 7 How. 540, 12 L. 810, dissenting opinion, majority holding State laws taxing newly-arrived aliens unconstitutional; Gilman v. Philadelphia, 3 Wall. 730, 18 L. 101, reviewing cases, sustaining Federal authority to regulate bridges over navigable waters; O'Neil v. Vermont, 144 U. S. 367, 36 L. 468, 12 S. Ct. 706, dissenting opinion, majority dismissing writ of error, because no Federal question involved; Koehler v. Hill, 60 Iowa, 587, 14 N. W. 760, dissenting opinion, arguendo, majority holding a certain constitutional amendment never regularly adopted.

Distinguished in Henderson v. Mayor, 92 U. S. 274, 23 L. 550, holding unconstitutional a State law, imposing burdensome conditions on shipowners for landing foreign passengers; Bowman v. Chicago, etc., Ry., 125 U. S. 479, 31 L. 705, 8 S. Ct. 695, holding law prohibiting importation of liquor from another State unconstitutional; Wynehamer v. The People, 13 N. Y. 405, holding a State prohibition law unconstitutional because it destroyed property in intoxicating liquors.

Constitutional law. Power of Congress to regulate commerce, is not exclusive where not exercised, and though including regulation of pilots and pilotage, and health and quarantine regulations, the States are not thereby prohibited from legislating on these subjects provided their statutes do not conflict with those of Congress, per Taney, C. J., pp. 580, 581, 582.

Cited and principle applied in Osborne v. Mobile, 16 Wall. 482, 21 L. 473, sustaining municipal license law, taxing express company doing interstate business; United States v. New Bedford Bridge, 1 Wood. & M. 424, F. C. 15,867, denying Federal jurisdiction to punIsh for obstruction of navigable river authorized by State law; Commissioners, etc., v. Steamboat Cuba, 28 Ala. 197, reversed in Sinnot v. Davenport, 22 How. 243, 16 L. 247, sustaining constitutionality of State law, requiring registry of names of steamboat owners; Cribb v. The State, 9 Fla. 419, sustaining State law regulatIng pilotage so far as not conflicting with Federal legislation. Cited, arguendo, in Passenger Cases, 7 How. 557, 559, 569, 12 L. 817, 818, 822, dissenting opinion, majority holding unconstitutional, State laws taxing newly-arrived aliens; Williams v. The Lizzie Henderson, 29 Fed. Cas. 1374, holding certain State laws regulating pilotage unconstitutional.

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Modified in Mobile Co. v. Kimball, 102 U. S. 701, 26 L. 241, reviewIng cases, confining application of principle to matter not national in character, sustaining State act providing for local river and harbor improvements; Bowman v. Chicago, etc., Ry., 125 U. S. 507, 31 L. 714, 8 S. Ct. 1066, confining application of principle to matters not national in character.

Police powers of a State are the powers of government inherent in every sovereignty to the extent of its dominions, and are exercisable by the States of the Union to regulate commerce, except as such exercise is restricted by the Federal Constitution, per Taney, C. J., p. 583; per McLean, J., p. 592.

Cited and applied in Lake Shore, etc., Ry. v. Smith, 173 U. S. 689, 19 S. Ct. 567, holding certain State laws regulating railway fares, violated the Federal Constitution; Minneapolis, etc., Ry. v. Milner, 57 Fed. 278, holding State quarantine laws are not regulations of commerce and are constitutional; Platt, etc., Co. v. Dowell, 17 Colo. 382, 30 Pac. 71, sustaining State police regulation, requiring ditches and canals to be covered; In re Application of Clark, 65 Conn. 40, 31 Atl. 528, 28 L. R. A. 247, holding imprisonment of witness for refusal to testify before grand jury within police power; Hockett v. The State, 105 Ind. 255, 55 Am. Rep. 204, 5 N. E. 181, sustaining State regulation of telephone company's rates though instruments patented; Rodemacher v. Mil., etc., Ry., 41 Iowa, 307, 20 Am. Rep. 599, holding valid State law rendering railways liable for damages by fire occasioned by operation of their roads; Blair v. Forehand, 100 Mass. 140, 1 Am. Rep. 96, sustaining officers' authority under State law, to kill dogs as prescribed by statute; State v. Cate, 58 N. H. 241, holding law prohibiting unusual traffic near place of worship constitutional; Buffalo, etc., R. R. v. Buffalo Street R. R., 111 N. Y. 141, 19 N. E. 66, 2 L. R. A. 386, sustaining State law regulating fares on street railroad; People v. Budd, 117 N. Y. 8, 15 Am. St. Rep. 464, 22 N. E. 672, 5 L. R. A. 563, and n., holding valid State regulations of prices for elevating grain; State v. Morris, 77 N. C. 514, sustaining State's authority to revoke license to sell lottery tickets; Board of Commissioners v. Willamette Transportation, etc., Co., 6 Or. 229, allowing mandamus to compel transportation company to furnish lists of freight carried, as provided by State law; Craig v. Kline, 65 Pa. St. 408, 409, 3 Am. Rep. 641, 642, collecting cases, holding a State law constitutional, which regulated floating of logs on the Susquehanna; State v. First National Bank, 2 S. Dak. 575, 51 N. W. 589, sustaining State's authority to punish national bank for taking illegal interest; Waters-Pierce Oil Co. v. State, 44 S. W. 940 (Tex. Civ.), reviewing cases, sustaining constitutionality of State anti-trust law as applied to foreign corporations; Laurel Fork, etc., R. R. v. West Virginia Transportation Co., 25 W. Va. 349, holding common carriers subject to legislative control as to fares and freight rates; State v.

5 How. 504-633

Notes on U. S. Reports.

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Peel Splint Coal Co., 36 W. Va. 812, 824, 15 S. E. 1003, 1007, 17 L R. A. 388, 392, sustaining State law compelling payment of employee's wages in lawful money.

Cited also in Smith v. Lake Shore, etc., R. R., 114 Mich. 490, 72 N. W. 338, overruled in Lake Shore, etc., R. R. v. Smith, 173 U. S. 689, 19 S. Ct. 567, dissenting opinion, majority sustaining law requiring railroad to keep one-thousand-mile tickets on sale; State v. Loomis, 115 Mo. 328, 22 S. W. 356, 21 L. R. A. 808, and n., dissenting opinion, majority holding void a law requiring manufac turers and mineowners to pay employees in money; Ex parte Romanes, 1 Utah, 24, denying application for discharge of person held for murder committed in another territory; Justice v. The Commonwealth, 81 Va. 212, sustaining repeal, by implication, of privilege to conduct lotteries. See also elaborate note to 26 Am. Rep. 517.

Distinguished in Council Bluffs v. Kansas City, etc., R. R., 45 Iowa, 354, 24 Am. Rep. 783, holding certain regulations of railroads void because conflicting with Federal powers over interstate commerce; Robinson v. Rice, 3 Mich. 245, holding unconstitutional, so far as it relates to mortgages on enrolled vessels, a law making mortgages void unless filed as therein prescribed; People v. Budd, 117 N. Y. 61, 22 N. E. 692, dissenting opinion, majority sustaining State regulation of charges for elevating grain; Stehmeyer v. City Council, 53 S. C. 277, 31 S. E. 329, holding arrangement for acquisition by city of light and water-works, involving unequal scheme of taxation, unconstitutional.

Constitutional law. Since a constitutional grant of power to the Federal government is not a prohibition of the exercise of such power by the State, when not in conflict with laws of Congress, a license law of New Hampshire, under which a person was punished for selling, without a license, spirituous liquors, brought by hlinself from another State, is constitutional in the absence of conflicting congressional legislation, per Taney, C. J., pp. 579-586; per Catron, J., pp. 605, 608.

The citing cases which affirm and follow this holding, are: Hinson v. Lott, 40 Ala. 131, 132, 138, sustaining State legislature's authority in absence of congressional legislation, to regulate interstate traffic in liquor; Padelford v. Savannah, 14 Ga. 446, 448, 449, 451, sustaining city license tax on all goods sold on commission therein; Santo v. The State, 2 Iowa, 202, 63 Am. Dec. 501, and Collins v. Hills, 77 Iowa, 185, 41 N. W. 572, 3 L. R. A. 113, sustaining State prohibition laws; Kansas v. Fulker, 43 Kan. 244, 248, 22 Pac. 1023, 1024, 7 L. R. A. 186, 188, and n., applying State law regulating liquor traffic to liquor from other States; State v. Robinson, 49 Me. 287, sustaining State law prohibiting sale of imported liquor when applied to persons not importers; State v. Blackwell, 65 Me. 558,

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