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linary, and sacramental purposes, but for no other, not even for the purpose of transportation beyond the limits of the state, was not an undertaking to regulate commerce among the states. And in Eilenbecker v. District Court, 134 U. S. — ante, 424, we affirmed the judgment of the supreme court of Iowa, sustaining the sentence of the district court of Plymouth, in that state, imposing a fine of $500 and costs and imprisonment in jail for three months, if the fine was not paid within 30 days, as a punishment for contempt in refusing to obey a writ of injunction issued by that court, enjoining and restraining the defendant from selling or keeping for sale any intoxicating liquors, including ale, wine, and beer, in Plymouth county. Mr. Justice MILLER there remarked: "If the objection to the statute is that it authorizes a proceeding in the nature of a suit in equity to suppress the manufacture and sale of intoxicating liquors which are by law prohibited, and to abate the nuisance which the statute declares such acts to be, wherever carried on, we respond that, so far as at present advised, it appears to us that all the powers of a court, whether at common law or in chancery, may be called into operation by a legislative body for the purpose of suppressing this objectionable traffic; and we know of no hindrance in the constitution of the United States to the form of proceedings, or to the court in which this remedy shall be had. Certainly it seems to us to be quite as wise to use the processes of the law and the powers of a court to prevent the evil, as to punish the offense as a crime after it has been committed."

These decisions rest upon the undoubted right of the states of the Union to control their purely internal affairs, in doing which they exercise powers not surrendered to the national government; but whenever the law of the state amounts essentially to a regulation of commerce with foreign nations or among the states, as it does when it inhibits, directly or indirectly, the receipt of an imported commodity, or its disposition before it has ceased to become an article of trade between one state and another, or another country and this, it comes in conflict with a power which, in this particular, has been exclusively vested in the general government, and is therefore void.

In Mugler v. Kansas, supra, the court said that it could not "shut out of view the fact, within the knowledge of all, that the public health, the public morals, and the public safety may be endangered by the general use of intoxicating drinks; nor the fact established by statistics accessible to every one, that the idleness, disorder, pauperism, and crime existing in the county are, in some degree at least, traceable to this evil." And that "if in the judgment of the legislature [of a state] the manufacture of intoxicating liquors for the maker's own use, as a beverage, would tend to cripple, if it did not defeat, the effort to guard the community against the evils attending the excessive use of such liquors, it is not for the courts, upon their views as to what is best and safest for the com. munity, to disregard the legislative deterv.10s.c.-44

can it be said that goverment 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." Undoubtedly it is for the legislative branch of the state governments to determine whether the manufacture of particular articles of traffic, or the sale of such articles, will injuriously affect the public, and it is not for congress to determine what measures a state may properly adopt as appropriate or needful for the protection of the public morals, the public health, or the public safety; but, notwithstanding it is not vested with supervisory power over matters of local administra-. tion, the responsibility is upon congress, so far as the regulation of interstate com-* merce is concerned, to remove the restriction upon the state in dealing with imported articles of trade within its limits, which have not been mingled with the common mass of property therein, if in its judgment the end to be secured justifies and requires such action.

Prior to 1888 the statutes of Iowa permitted the sale of foreign liquors imported under the laws of the United States, provided the sale was by the importer in the original casks or packages, and in quantities not less than those in which they were required to be imported; and the provisions of the statute to this effect were declared by the supreme court of Iowa in Pearson v. Distillery, 72 Iowa, 354, 34 N. W. Rep. 1, to be "intended to conform the statute to the doctrine of the United States supreme court, announced in Brown v. Maryland, 12 Wheat. 419, and License Cases, 5 How.504, so that the statute should not conflict with the laws and authority of the United States. But that provision of the statute was repealed in 1888, and the law so far amended that we understand it now to provide that, whether imported or not, wine cannot be sold in Iowa except for sacramental purposes, nor alcohol except for specified chemical purposes, nor intoxicating liquors, including ale and beer, except for pharmaceutical and medicinal purposes, and not at all except by citizens of the state of Iowa, who are registered pharmacists, and have permits obtained as prescribed by the statute, a permit being also grantable to one discreet person in any township where a pharmacist does not obtain it.

The plaintiffs in error are citizens of Illinois, are not pharmacists, and have no permit, but import into Iowa beer which they sell in original packages, as described. Under our decision in Bowman v. Railway Co., supra, they had the right to import this beer into that state, and in the view which we have expressed they had the right to sell it, by which act alone it would become mingled in the common mass of property within the state. Up to that point of time, we hold that, in the absence of congressional permission to do so, the state had no power to interfere by seizure, or any other action, in prohibi

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tion of importation and sale by the foreign or non-resident importer. Whatever our individual views may be as to the deleterious or dangerous qualities of particular articles, we cannot hold that any articles which congress recognizes as subjects of interstate commerce are not such, or that whatever are thus recognized can be controlled by state laws amounting to regulations, while they retain that character; although, at the same time if directly dangerous in themselves, the state may take appropriate measures to guard against injury before it obtains complete jurisdiction over them. To concede to a state the power to exclude, directly or indirectly, articles so situated, without congressional permission, is to concede to a majroity of the people of a state, represented in the state legislature, the power to regulate commercial intercourse between the states, by determining what shall be its subjects, when that power was distinctly granted to be exercised by the people of the United States, represented in congress and its possession by the latter was considered essential to that more perfect Union which the constitution was adopted to create. Undoubtedly there is difficulty in drawing the line between the municipal powers of the one government and the commercial powers of the other, but when that line is determined, in the particular instance, accomodation to it, without serious inconvenience, may readily be found, to use the language of Mr. Justice JOHNSON in Gibbons v. Ogden, 9 Wheat. 1, 238, in "a frank and candid co-operation for the general good." The legislation in question is to the extent indicated repugnant to the third clause of section 8, art. 1, of the constitution of the United States, and therefore the judgment of the supreme court of Iowa is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

GRAY, J. Mr. Justice HARLAN, Mr. Justice BREWER, and myself are unable to concur in this judgment. As our dissent is based on the previous decisions of this court, the respect due to our associates, as well as to our predecessors, induces us to state our position, as far as possible, in the words in which the law has been heretofore declared from this bench. The facts of the case, and the substance of the statutes whose validity is drawn in question, may be briefly stated. It was an action of replevin of sundry kegs and cases of beer, begun in an inferior court of the state of Iowa against a constable of Lee county, in Iowa, who had seized them at Keokuk, in that county, under a search-warrant issued by a justice of the peace pursuant to the statutes of Iowa, which prohibit the sale, the keeping for sale, or the manufacture for sale, of any intoxicating liquor (including malt liquor) for any purpose whatever, except for pharmaceutical, medicinal, chemical, or sacramental purposes, and under an aunual license granted by the district court of the proper county, upon being satisfied that the applicant is a citizen of the United States and of the state of Iowa, and a resident of the county, and other

wise qualified. The plaintiffs were citizens and residents of the state of Illinois, engaged as brewers in manufacturing beer at Peoria, in that state, and in selling it in the states of Illinois and Iowa. The beer in question was manufactured by them at Peoria, and there put up by them in said kegs and cases; each keg being sealed, and having upon it, over the plug at the opening, a United States internal revenue stamp; and each case being substantially made of wood, containing two dozen quart bottles of beer, and sealed with a metallic seal, which had to be broken in order to open the case. The kegs and cases owned by the plaintiffs, and so sealed, were transported by them from Peoria by railway to Keokuk, and there sold and offered for sale by their agent, in a building owned by one of them, and without breaking or opening the kegs or cases. The supreme court of Iowa having given judgment for the defendant, the question presented by this writ of error is whether the statutes of Iowa, as applied to these facts, contravene section 8 of article 1, or section 2 of article 4, of the constitution of the United States, or section 1 of article 14 of the amendments to the constitution. *By section 8 of article 1 of the constitution, "the congress shall have power," among other things, "to regulate commerce with foreign nations, and among the several states," and "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers. By section 2 of article 4, "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." By section 1 of the fourteenth amendment, "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; nor deny to any person within its jurisdiction the equal protection of the laws." By the tenth amendment, "the powers not delegated to the United States by he constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people.' Among the powers thus reserved to the several states is what is commonly called the " police power, "-that inherent and necessary power, essential to the very existence of civil society, and the safeguard of the inhabitants of the state against disorder, disease, poverty, and crime. "The police power belonging to the states in virtue of their general sovereignty," said Mr. Justice STORY, delivering the judgment of this court, "extends over all subjects within the territorial limits of the states, and has never been conceded to the United States. Prigg v. Pennsylvania, 16 Pet. 539, 625. This is well illustrated by the recent adjudications that a statute prohibiting the sale of illuminating oils below a certain fire test is beyond the constitutional power of congress to enact, except so far as it has effect within the United States (as, for instance, in the District of Columbia) and without the limits of any state; but that it is within the constitutional power of a state to pass such a statute, even as to

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by the court in Bartemeyer v. Iowa: "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. 18 Wall. 133. Nor is the case affected by the fourteenth amendment of the constitution. As was said in the unanimous opinion of this court in Barbier v. Connolly, after stating the true Scope of that amendment: "But neither the amendment,-broad and comprehensive as it is,-nor any other amendment, was designed to interfere with the power of the state, sometimes termed its police power,' to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity." 113 U. S. 27, 31, 5 Sup. Ct. Rep. 357. Upon that ground, the amendment has been adjudged not to apply to a state statute prohibiting the sale or manufacture of intoxicating liquors in buildings long before constructed for the purpose, or the sale of oleomargarine lawfully manufactured before the passage of the statute. Mugler v. Kausas, 123 U. S. 623, 663, 8 Sup. Ct. Rep. 273; Powell v. Pennsylvania, 127 U. S. 678, 683, 687, 8 Sup. Ct. Rep. 992, 1257.

The remaining and the principal question is whether the statute of Iowa, as applied to the sale within that state of intoxicating liquors in the same cases or kegs, unbroken and unopened, in which they were brought by the seller from another state, is repugnant to the clause of the constitution granting to congress the power to regulate commerce with foreign nations and among the several states. In the great and leading case of Gibbons v. Ogden, 9 Wheat. 1, the point decided was that acts of the legislature of New York, granting to certain persons for a term of years the exclusive navigation by steamboats of all waters within the jurisdiction of the state, were, so far as they affected such navigation by vessels of other persons licensed under the laws of the United States, repugnant to the clause of the constitution empowering congress to regulate foreign and interstate commerce. Chief Justice MARSHALL, in delivering judgment, after speaking of the inspection laws of the states, and observing that they had a remote and considerable influence on commerce, but that the power to pass them was not derived from a power to regulate commerce, said: "They form a portion of that immense mass of legislation which embraces everything within the territory of a state not surrendered to the general government,-all which can be most advantageously exercised by the states themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state, and those which respect turnpike roads, ferries, etc., are component parts of this mass. No direct general power over these objects is granted to congress; and, consequently, they remain subject to state legislation. If the legis lative power of the Union can reach them, it must be for national purposes; it must be where the power is expressly given for

a special purpose, or is clearly incidental to some power which is expressly given. Pages 203, 204. Again, he said that quarantine and health laws "are considered as flowing from the acknowledged power of a state to provide for the health of its citizens," and that the constitutionality of such laws had never been denied. Page 205. Mr. Justice JOHNSON, in his concurring opinion, said: "It is no objection to the existence of distinct, substantive powers that, in their application, they bear upon the same subject. The same bale of goods, the same cask of provisions, or the same ship that may be the subject of commercial regulation may also be the vehicle of disease. And the health laws that require them to be stopped and ventilated are no more intended as regulations on commerce than the laws which permit their importation are intended to inoculate the community with disease. Their different purposes mark the distinction between the powers brought into action, and, while frankly exercised, they can produce no serious collision." Page 235.

That Chief Justice MARSHALL and his associates did not consider the constitutional grant of power to congress to regulate foreign and interstate commerce as, of its own force, and without national legislation, impairing the police power of each state within its own borders to protect the health and welfare of its inhabitants, is cleary_indicated in the passages above quoted from the opinions in Gibbous v. Ogden, and is conclusively proved by the unanimous judgment of the court delivered by the chief justice five years later in Willson v. Marsh Co., 2 Pet. 245. In that case, the legislature of Delaware had authorized a dam to be erected across a navigable tide-water creek which opened into Delaware bay, thereby obstructing the navigation of the creek by a vessel enrolled and licensed under the navigation laws of the United States. The decision in Gibbons v. Ogden was cited by counsel as conclusive against the validity of the statute of the state. But its validity was upheld by the court, for the following reasons: "The act of assembly, by which the plaintiffs were authorized to construct their dam, shows plainly that this is one of those many creeks, passing through a deep, level marsh adjoining the Delaware, up which the tide flows for some distance. The value of the property on its banks must be enhanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce these objects, provided they do not come into collision with the powers of the general government, are undoubtedly within those which are reserved to the states. But the measure authorized by this act stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgment, unless it comes in conflict with the constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this court can take no cognizance. The counsel for the plaintiffs in error insists that it comes in conflict with the power of the United

States 'to regulate commerce with foreign nations and among the several states.' If congress had passed any act which bore upon the case; any act in execution of the power to regulate commerce, the object of which was to control state legislation over those small navigable creeks into which the tide flows, and which abound throughout the lower country of the middle and southern states,-we should feel not much difficulty in saying that a state law, coming in conflict with such act, would be void. But congress has passed no such act. The repugnancy of the law of Delaware to the constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several states,-a power which has not been so exercised as to affect the question. We do not think that the act empowering the Blackbird Creek Marsh Company to place a dam across the creek can, under all the circumstances of the case, be considered as*repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject." 2 Pet. 251, 252.

In Brown v. Maryland, 12 Wheat. 419, the point decided was that an act of the legislature of Maryland, requiring all importers of foreign goods by the bale or package, or of spirituous liquors, and "other persons selling the same by wholesale, bale or package, hogshead, barrel, or tierce," to first take out a license and pay $50 for it, and imposing a penalty for failure to do so, was, as applied to sales by an importer of foreign liquors in the original packages, unconstitutional, both as laying an impost, and as repugnant to the power of congress to regulate foreign commerce. The statute there in question was evidently enacted to raise revenue from importers of foreign goods of every description, and was not an exercise of the police power of the state. And Chief Justice MARSHALL, in answering an argument of counsel, expressly admitted that the power to direct the removal of gunpowder, or the removal or destruction of infectious or unsound articles which endanger the public health, "is a branch of the police power, which unquestionably remains, and ought to remain, with the states. Pages 443, 444.

Moreover, the question there presented and decided concerned foreign commerce only, and not commerce among the states. Chief Justice MARSHALL, at the outset of his opinion, so defined it, saying: "The cause depends entirely on the question whether the legislature of a state can constitutionally require the importer of foreign articles to take out a license from the state, before he shall be permitted to sell a bale or package so imported." Page 436. It is true that, after discussing and deciding that question, he threw out this brief remark: "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. Page 449. But this remark was obiter dictum, wholly aside from the question before the court, and having no bearing on its decision, and therefore extrajudicial, as has since been

noted by Chief Justice TANEY and Mr. Justice MCLEAN in the License Cases, 5 How. 504, 575, 578, 594, and by Mr. Justice MILLER in Woodruff v. Parham, 8 Wall. 123, 139. To a remark made under such circumstances are peculiarly applicable the warn ing words of Chief Justice MARSHALL himself in an earlier case, where, having occasion to explain away some dicta of his own in delivering judgment in Marbury v. Madison, 1 Cranch, 137, he said: “It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles, which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.' Cohens v. Virginia, 6 Wheat. 264,399, 400. Another striking instance in which that maxim has been applied and acted on is to be found in the opinion of the court at the present term in Hans v. Louisiana, 134 U. S. 1, 20, ante, 504.

But the unanimous judgment of this court in 1847 in Peirce v. New Hampshire, reported together with Thurlow v. Massachusetts and Fletcher v. Rhode Island as the License Cases, 5 How. 504, is directly in point, and appears to us conclusively to govern the case at bar. Those cases were elaborately argued by eminent counsel, and de: Derately considered by the court, and Chief Justice TANEY, as well as each of six associate justices, stated his reasons for concurring in the judgment. The cases from Massachusetts and Rhode Island arose under statutes of either state prohibiting sales of spirituous liquors by any person, in less than certain quantities, without first having obtained an annual license from municipal officers,-in the one case from county commissioners, who by the express terms of the statute were not required to grant any licenses when in their opinion the public good did not require them to be granted; and ing the other case, from a town council, who were forbidden to grant licenses whenever the voters of the town in town-meeting decided that none should be grantd. Rev. St. Mass. 1836, c. 47, §§ 3, 17, 23-25; St. 1837, c. 242, § 2; Pub. Laws R. I. 1844, p. 496, §4; Laws 1845, p. 72; 5 How. 506–510, 540. Those statutes were held to be constitutional, as applied to foreign liquors which had passed out of the hands of the importer; while it was assumed that, under the decision in Brown v. Maryland, those statutes could be allowed no effect as to such liquors while they remained in the hands of the importer in the original packages upon which duties had been paid to the United States. 5 How. 576, 590, 610, 618.

The case of Peirce v. New Hampshire directly involved the validity, as applied to liquors brought in from another state, of a statute of New Hampshire,