LAW, CONSTITUTIONAL. (POLICE POWER OF STATES.) 



429 



the aid of the statute for their enforcement. 

 The sum demanded of him is not, therefore, 

 strictly speaking, a tax or duty within the 

 meaning of the Constitution. The money thus 

 raised, though paid into the Treasury, is appro- 

 priated in advance to the uses of the statute, 

 and does not go to the general support of the 

 Government. It constitutes a fund raised from 

 those who are engaged in the transportation of 

 these passengers, and who make profit out of 

 it, for the temporary care of the passengers 

 whom they bring among us and for the pro- 

 tection of the citizens among whom they are 

 landed. If this is an expedient regulation of 

 commerce by Congress, and the end to be at- 

 tained is one falling within that power, the act 

 is not void, because, within a loose and more 

 extended sense than was used in the Constitu- 

 tion, it is called a tax." 



On the third point, the Court remarked that 

 it was not satisfied that the act was in conflict 

 with any treaty provisions, but that, if it had 

 such effect, it must be held to supersede such 

 provisions. (The views of the Court on this 

 question are given in the article on the TREATY- 

 MAKING POWER OF THE UNITED STATES, in this 

 volume.) 



Police Power of the States. I. Prohibition 

 Legislation. The right of a State to prohibit 

 the manufacture and sale of intoxicating 

 liquors was affirmed by the Supreme Court of 

 the United States in an opinion handed down 

 November 10. The statute in question was 

 one passed by the Legislature of Kansas in 

 1881. The first section was: 



Any person or persons who shall manufacture, sell, 

 or barter any spirituous, malt, vinous, fermented, or 

 other intoxicating liquors, shall be guilty of a misde- 

 meanor, and punished as hereinafter provided : Pro- 

 vided, however. That such liquors may be sold for 

 medical, scientific, and mechanical purposes, as pro- 

 vided in this act. 



It was contended, on one side, that this stat- 

 ute was repugnant to the Constitution of the 

 United States. The Supreme Court held that 

 the question had been decided by it in Barte- 

 meyer vs. Iowa (18 Wallace's Reports, 129), 

 and Beer Company vs. Massachusetts (97 U. S. 

 Reports, 25), and it reaffirmed its decisions in 

 these cases. In its opinion in the former case 

 the Court said that there was nothing in the 

 Federal Constitution, prior to the fourteenth 

 amendment, limiting the right of a State to 

 regulate, or even prohibit, the liquor-traffic. 

 " Up to that time the adoption of the amend- 

 mentit had been considered as falling within 

 the_ police regulations of the States, left to 

 their judgment, and subject to no other limita- 

 tions than such as were imposed by the State 

 Constitution, or by the general principles sup- 

 posed to limit all legislative power. It has 

 never been seriously contended that such laws 

 raised any question growing out of the Consti- 

 tution of the United States. But the case before 

 us is supposed, by counsel of the plaintiff in 

 error, to present a violation of the fourteenth 



amendment of the Constitution, on the ground 

 that the act of the Iowa Legislature is a viola- 

 tion of the privileges and immunities of citizens 

 of the United States, which that amendment 

 declares shall not be abridged by the States ; 

 and that, in this case, it deprives him of his 

 property without due process of law." 



On the point whether making or selling of 

 liquor is a privilege or immunity of citizenship, 

 the Court said: "The weight of authority is 

 overwhelming that no such immunity has here- 

 tofore existed as would prevent State legisla- 

 tures from regulating and even prohibiting the 

 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 Wyne- 

 hamer vs. The People (3 Kernan, 486), 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 privileges 

 or immunities of citizens of a State, or of the 

 United States. If, however, such a proposition 

 is seriously 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 re- 

 gard the case falls within the principles IsM 

 down by this court in the Slaughter- House 

 Cases, 16 Wallace's Reports, 36." 



Whether a liquor law deprives a person of 

 his property, is a question which depends on 

 the terms and effect of the statute. Whether a 

 statute that deprives a person of his property 

 does so " without due process of law," in viola- 

 tion of the fourteenth amendment, is a question 

 that was not presented to, or decided by, the 

 court in this case. On this point, the same 

 Court, in the later case of Beer Company vs. 

 Massachusetts (97 U. S. Reports, 32), said: 



If the public safety, or the public morals, require 

 the discontinuance of : any manufacture or traffic, the 

 hand of the Legislature can not be stayed from provid- 

 ing for its discontinuance, by any incidental incon- 

 venience which individuals or corporations may suf- 

 fer. All rights are held subject to the police power of 

 the State. We do not mean to say that property actu- 

 ally in existence, and in which the right of the owner 

 has become vested, may^ be taken for the public good 

 without due compensation. But we infer that the 

 liquor in this case, as in the case of Bartemeyer vs. 

 Iowa (18 Wallace, 129), was not in existence when 

 the liquor law of Massachusetts was passed. Had the 

 plaintiff in error relied on the existence of the proper- 

 ty prior to the law, it behooved it to show that fact. 

 But no such fact is shown, and no such point is taken. 

 The plaintiff in error boldly takes the ground that, 

 being a corporation, it has a right, by contract, to 

 manufacture and sell beer forever, notwithstanding 

 and in spite of any exigencies which may occur in the 

 morals or the health of the community, requiring such 

 manufacture to cease. We do not so understand the 

 rights of the plaintiff. The Legislature had no power 

 to confer any such rights. Whatever differences of 

 opinion may exist as to the extent and boundaries of 

 the police power, and however difficult it may be to 

 render a satisfactory definition of it, there seems to be 

 no doubt that it does extend to the protection of the 

 lives, health, and property of the citizens, and to the 



