I9I2.] ' OF THE UNITED STATES. 369 



our Constitution foresaw this state of things, and provided for it, by declar- 

 ing the supremacy not only of itself, but of the laws made in pursuance of it. 

 " The nullity of any act, inconsistent with the Constitution, is produced 

 by the declaration, that the Constitution is the supreme law. The appropriate 

 application of that part of the clause which confers the same supremacy on 

 laws and treaties, is to such acts of the State legislatures as do not transcend 

 their powers, but though enacted in the execution of acknowledged State 

 powers, interfere with, or are contrary to, the laws of Congress, made in 

 pursuance of the Constitution, or some treaty made under the authority of 

 the United States. In every such case, the act of Congress, or the treaty, is 

 supreme; and the law of the State, though enacted in the exercise of powers 

 not controverted, must yield to it."^* 



The language of three of the members of the Court in the License 

 Cases has already been quoted.-"^ These cases require examination. 

 In them were involved statutes of Massachusetts, Rhode Island, and 

 New Hampshire, which were in the nature of prohibition acts. In 

 the Rhode Island case the brandy purchased by the indicted defen- 

 dant was in the original package in which it had been imported from 

 France. All were held to be the constitutional exercise by the States 

 of their police powers. These same constitutional questions came 

 again before the Supreme Court in a series of cases culminating in 

 that of Leisy I's. Hardin,-'" and therein this New Hampshire case 

 was specifically disapproved and overruled. The decision was that 

 a prohibition statute, as applied to sales by an importer from another 

 State of liquors in the original packages, was unconstitutional. It is 

 based upon the reasoning of j\Ir. Chief Justice Marshall in Gibbons 

 c's. Ogden and Brown z's. Maryland, and concludes thus: 



" As the grant of the power to regulate commerce among the States, so 

 far as one system is required, is exclusive, the States cannot exercise that 

 power without the assent of Congress, and, in the absence of legislation, it 

 is left for the Courts to determine when State action does or does not 

 amount to such exercise, or, in other words, what is or is not a regulation of 

 such commerce. When that is determined, controversy is at an end."''^ 



The decision is emphasized by the dissenting reasoning of Mr. 

 Justice Gray, with whom concurred Mr. Justice Harlan and Mr. 

 Justice Brewer. He argued that the State statute was an exercise of 

 the police power, and that, while it might afifect commerce, yet there 



"-"' 9 Wheat, pp. 210-1. ='" 135 U. S., 100 (1890). 



■''^ Supra, pp. 170-172. -"Ibid., p. 119. 



