1900.] HASTINGS—POLICE POWER OF THE STATE. 513 
by Congress, either as expressed by positive laws or implied from the 
absence of legislation, such legislation on the part of the state to the 
extent of such conflict must be regarded as annulled.” 
He cites ‘Sherlock vs. Alling to the effect that the general test is 
whether the state law acts and is intended to act directly on inter- 
state or foreign commerce or only indirectly in the accomplishment 
of some other genuine and proper purpose of local government. 
He finds that contracts and liabilities of the carrier, though 
made in the actual process of interstate commerce, are governed 
by the law of the state where they are made, and if the state could 
secure civil remedies for a failure to provide a competent engineer 
and for damages resulting, it surely ought to be able, by way of 
provision in advance for the safety of its citizens, to apply reason- 
able penalties for the same purpose. 
Perhaps Judge Miller’s argument as to the need of a uniform 
regulation, advanced in the case of Wabash, St. L. and P. Ry. Co. 
vs. Illinois, would be available here also. There might, conceiv- 
ably, be as much difficulty in getting a direct passage through 
different states, each exacting a different qualification to enable the 
engineer to make up his run, as there would be in getting through 
states prescribing different rates of transportation. Justice Bradley 
dissented without filing an opinion. It is impossible not to regret 
that he did not show the close resemblance in principle between 
this and the Wabash case and the difficulty of distinguishing them. 
The sequel to Mugler vs. Kansas now appeared. The court in that 
case had refused to say whether a state could prohibit the manu- 
facture of intoxicating liquors within its borders for purposes of 
exportation. J. S. Kidd was the owner of a distillery in Polk 
county, Iowa. In December, 1885, Pearson and Loughran made 
complaint against him that his distillery was used for the unlawful 
manufacture and sale of intoxicating liquors and should be abated 
and such use forever enjoined. 
The Iowa law was substantially the same as that of Kansas under 
consideration in Mugler’s case. The petition for injunction 
alleged, after reciting manufacture and sale for unlawful purposes 
in the distillery, that Kidd there 
‘‘manufactures, keeps for sale, and sells within this state and at the 
place aforesaid intoxicating liquors to be taken out of the state and 
193 U.S., 99. 2 Kidd vs, Pearson, 728 U. S., 1. 
