1900. | HASTINGS—POLICE POWER OF THE STATE. 451 
pilot dues in ex parte McNiel, that the statute was a valid exercise 
of the police power of the state: 
“It is not in the sense of the constitution in any wise a regulation of 
commerce. It is a police regulation, and as such forms a portion of the 
‘immense mass of legislation which embraces everything within the ter- 
ritory of the state and not surrendered to the general government,’ all 
which can be most advantageously exercised by the states themselves.” 
He goes over the former cases that divides the power of our 
**complex’’ government into: 1st, Those of the states; 2d, those 
of the national government; 3d, the concurrent ones ; and 4th, 
those which the states may exercise till Congress assumes them. 
He includes transportation in commerce, and says: 
‘The authority to regulate commerce lodged by the constitution in Con- 
gress is in part within the last division of those powers.” 
In this way the regulation of interstate railways by state legisla- 
tures was distinctly countenanced and on the ground of aconcurrent 
power, which must, however, always be called ‘‘ police power’’ 
when exercised by the state, and ‘‘ commercial power’’ or ‘‘ power 
to regulate commerce’’ when employed by Congress. 
In the same year of 1873 a controversy which we have seen passed 
upon by the states with somewhat varying results was brought by the 
fourteenth amendment into the federal Supreme Court, to remain 
there in some form even to this day—the, dispute over prohibitory 
liquor laws. 
In ' Bartemeyer vs. Iowa the plaintiff had been acquitted beforea 
justice of the peace in 1870 of selling intoxicating liquors. The 
state appealed the case, and in the circuit court the defendant ad- 
mitted the sale, but said he had committed no crime, because he 
was owner of the liquor prior to the day when the act was adopted 
forbidding the sale, and was a citizen of the United States ; and on 
this plea, without evidence and waiving a jury, the case was sub- 
mitted to the court and he was found guilty and fined twenty dol- 
lars. The Supreme Court of Iowa affirmed the judgment, and the 
case was taken to Washington. : 
Judge Miller remarks in passing upon it that prior to the four- 
teenth amendment there would have been no federal question in 
it to bring before that court. It was presented as a violation of that 
amendment in depriving the plaintiff in error of privileges and im- 
118 Wall, 129 (1873). 
