Austin v. Tennessee/Dissent Brewer

by David Josiah Brewer

United States Supreme Court

179 U.S. 343

Austin  v.  Tennessee

 Argued: November 9, 10, 1899. --- Decided: November 19, 1900

Mr. Justice Brewer with whom concurred the Chief Justice, Mr. Justice Shiras and Mr. Justice Peckham, dissenting:

I dissent from the opinions and judgment in this case. The plaintiff in error was convicted of a violation of the following act of the general assembly of Tennessee:

'Be it enacted by the general assembly of the state of Tennessee, That it shall be a misdemeanor for any person, firm, or corporation to sell, offer to sell, or to bring into the state for the purpose of selling, giving away, or otherwise disposing of any cigarettes, cigarette paper, or substitute for the same; and a violation of any of the provisions of this act shall be a misdemeanor punishable by a fine of not less than $50.'

The facts shown by the testimony, as appears from the record, are as follows:

'This defendant was on the 1st day of November, 1897, a resident of and merchant in the town of Madisonville, said Monroe county, Tennessee, and in no way connected with the American Tobacco Company, as agent or otherwise; that just prior to said November, 1897, the defendant purchased, in the state of North Carolina, from the American Tobacco Company, a corporation of the state of New Jersey, and having a factory for the manufacture of cigarettes in Durham, N. C., and similar factories at other points in the United States, but having no factory, office, nor warehouse in the state of Tennessee, a number of packages, each containing ten Duke of Durham cigarettes; that these cigarettes were manufactured by the American Tobacco Company at its factory in said town of Durham, etc., and these packed by it in quantities of ten in pasteboard slideboxes, upon each of which such boxes or packages were printed the names of the manufacturers of the cigarettes therein contained, the name or brand of the cigarettes therein contained, the number of the factory and internal revenue collections or manufacturing district in which said factory was located, the number of cigarettes contained in the box or package, the caution notice required by the laws of the United States, the internal revenue stamp for ten cigarettes pasted across the end of such box or package, so as to act as a seal thereon and thereof, and which had to be broken and destroyed to open said box or package, and all the other requirements of the laws and regulations of the United States governing the packing and sale of cigarettes. A package in all respects similar to those bought by defendant at Durham, N. C., is hereto attached, marked 'Exhibit A.' These packages were packed and manufactured by said American Tobacco Company at Durham, N. C., and were by it shipped from said town of Durham, N. C., to defendant by the Southern Express Company, without case, covering, or inclosure of any kind around or about any of said packages, but were by said American Tobacco Company piled upon the floor of its warehouse in Durham, N. C., and said Southern Express Company notified to come and get them, and said express company, by its agent, took them, the said inclosed packages, and placed them in an open basket, already and heretofore in the possession of said Southern Express Company; that these packages were brought to the place of business of defendant by an agent of said express company in the same open basket in which they had been placed by said express company at Durham, N. C., and by said agent lifted from said basket on to the counter in the place of business of defendant, and so delivered to and receipted for by the defendant; that said basket was not left with defendant at all, but was carried away from defendant's business by said agent of said express company immediately upon the delivery of said packages of cigarettes; that defendant immediately upon his receipt of said packages, as aforesaid, put them on sale, without breaking, and sold one of them on said November 1, 1897, to W. G. Brown, an adult resident of said Monroe county, Tennessee, said sale being in Monroe county, Tennessee, and within one year before the finding of this indictment.'

Upon these facts the supreme court of Tennessee sustained the conviction, and thereupon the defendant sued out this writ of error. His contention is that the act is, as applied to the importation of cigarettes and subsequent sale thereof in the packages in which they were imported, in conflict with the Constitution of the United States.

It will be perceived that the statute in terms expressly prohibits the sale of cigarettes, or the bringing them into the state for the purpose of sale. If valid, it not only prohibits an individual within the state from selling cigarettes manufactured therein, but also prohibits anyone bringing cigarettes from another state into Tennessee for the purpose of sale. It will therefore stop all importations of cigarettes for sale, and the only permissible importations will be those for personal use. The power of the state, therefore, to put an end to commerce between other states and itself, except so far as the importation is for the use of the importer, is broadly and distinctly asserted by this statute. Claiming the right to determine absolutely what shall be sold within its limits, Tennessee attempts to prohibit the sale, or the importation for sale, of cigarettes. As said by its supreme court: 'The statute under which the conviction was had unconditionally prohibits all sales of cigarettes, whether manufactured in this state or elsewhere.' It may be well to consider what this statute is not. It has none of the elements of inspection. It does not attempt to distinguish between cigarettes made of tobacco free from any drug, wrapped in paper untouched by any poison, from those (of which we are assured by counsel in their argument there are many) whose tobacco has been mixed with opium or some other drug, and whose wrapper has been saturated in a solution of arsenic. There is no attempt to distinguish between the pure and impure; no attempt to protect a purchaser from the purchase of an adulterated article. On the contrary, it stamps tobacco wrapped up in the form of a cigarette as in and of itself noxious, and to be wholly forbidden. The supreme court of Tennessee rightly interpreted this statute as an absolute prohibition of the sale of cigarettes, no matter what the character of the paper wrappers or the condition of the tobacco within them, and it asserted the power of the state to enact the statute on the ground that cigarettes are 'inherently bad, and bad only.' I quote from its opinion:

'Are cigarettes legitimate articles of commerce? We think they are not, because wholly noxious and deleterious to health. Their use is always harmful, never beneficial. They possess no virtue, but are inherently bad, and bad only. They find no true commendation for merit or usefulness in any sphere. On the contrary, they are widely condemned as pernicious altogether. Beyond question, their every tendency is toward the impairment of physical health and mental vigor.

'There is no proof in the record as to the character of cigarettes, yet their character is so well and so generally known to be that stated above, that the courts are authorized to take judicial cognizance of the fact. No particular proof is required in regard to those facts which by human observation and experience have become well and generally known to be true (Schollenberger v. Pennsylvania, 171 U.S. 1, 43 L. ed. 49, 18 Sup. Ct. Rep. 757; 1 Greenl. Ev. § 6; 1 Wharton, Ev. § 282; 1 Jones, Ev. §§ 129, 134; Lanfear v. Mestier, 18 La. Ann. 497; s. c. 89 Am. Dec. 658, and notes 693; State v. Goyette, 11 R. I. 592; Watson v. State, 55 Ala. 158); nor is it essential that they shall have been formally recorded in written history or science to entitle courts to take judicial notice of them. Boullemet v. State, 28 Ala. 83; 12 Am. & Eng. Enc. Law, p. 199.

'It is a part of the history of the organization of the volunteer army in the United States during the present year that large numbers of men, otherwise capable, had rendered themselves unfit for service by the use of cigarettes, and that among the applicants who were addicted to the use of cigarettes more were rejected by examining physicians on account of disabilities thus caused than for any other, and perhaps every other, reason.

'It is also a part of the unwritten history of the legislation in question that it was based upon and brought to passage by the firm conviction in the minds of legislators and of the public that cigarettes are wholly noxious and deleterious. The enactment was made upon this idea and alone for the protection of the people of the state from an unmitigated evil.'

No one can question the sincerity of the legislature of Tennessee in thus enacting what it deemed for the health of its citizens, or the conviction of the members of its supreme court of the validity of such legislation by reason of the greatness of the supposed evil which it was intended to restrain. And yet there is no consensus of opinion as to the fact of such evil. As illustrative of which statement see the articles in the Medico-Legal Journal of March and September, 1898, and the large collection therein of the opinions of medical and other scientific gentlemen in respect to the matter. Further, the report for 1899 of the Commissioner of Internal Revenue (p. 436) shows that the number of cigarettes manufactured in the United States during the year 1899 were two billion eight hundred and five million one hundred and thirty thousand seven hundred and thirty-seven (2,805,130,737), on which the government collected a tax of four million two hundred and thirteen thousand two hundred and fifteen dollars and twenty-five cents ($4,213,215.25). These figures are enormous, and in addition this fact may be noted, a fact obvious to all who have had occasion to travel in other countries (particularly those occupied by different branches of the Latin race), that the use of cigarettes is there far more common than in this country.

In view of these and other facts it is perhaps not surprising to find Mr. Justice Brown, speaking for himself and three associates, stating 'we are not prepared to fully indorse the opinion of that court' (supreme court of Tennessee) 'that cigarettes are not legitimate articles of commerce,' or that 'they are inherently bad, and bad only.' The truth is that, whatever differences of opinion may exist as to whether cigarettes are or are not hurtful, they are confessedly a common and well-recognized article of commerce, and as such when the subject of interstate commerce are under the control of that body to which by the Constitution of the United States is given the power to regulate commerce between the states.

It will be seen by an inspection of the opinion of the supreme court of Tennessee that that court sustained the conviction on two grounds: First. That cigarettes were not a legitimate article of commerce, and therefore the state of Tennessee by virtue of its police power had a right to prohibit absolutely their importation and sale, no matter in what form they were so imported and sold; and, secondly, that if it had no such general power it could prohibit the importation and sale of cigarettes in packages of the size in which these were imported and sold. In view of the adherence by Mr. Justice White to the opinions heretofore announced by this court in Leisy v. Hardin, 135 U.S. 100, 34 L. ed. 128, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681, and other cases in respect to the inability of the state by virtue of its police power to prohibit the importation and sale in original packages of articles, which are recognized articles of commerce although the subjects of conflicting opinions as to the deleteriousness of their use, it would seem unnecessary to enter into any lengthy consideration of the first ground. Especially is this so inasmuch as there is no expressed attempt to overrule Schollenberger v. Pennsylvania, 171 U.S. 1, 43 L. ed. 49, 18 Sup. Ct. Rep. 757, decided two years ago last May, in which decision three of the justices concurring in the affirmance of the judgment herein concurred, and in which it was distinctly ruled (p. 23, L. ed. p. 57, Sup. Ct. Rep. 765): 'In the absence of congressional legislation, therefore, the right to import a lawful article of commerce from one state to another continues until a sale in the original package in which the article was introduced into the state.' Although it may be noticed in passing that this case, as decided by the supreme court of Pennsylvania, where it is reported under the title, Com. v. Paul, 170 Pa. 284, 30 L. R. A. 396, 33 Atl. 82 (see 171 U.S. 5, 43 L. ed. 51, 18 Sup. Ct. Rep. 757), is both cited and quoted from in support of this decision. A ruling we have reversed is the authority now relied upon. Inasmuch, however, as Mr. Justice Brown, in his opinion, has, in addition to this citation, quoted some expressions which may seem to tend towards giving an enlarged scope to the police power of the state, it may not be a waste of time to show concisely what this court has decided, and what may therefore now be considered settled law.

In the first place, Congress has supreme and exclusive control over interstate commerce. I shall not attempt to restate the oft-repeated historical argument that one of the chief reasons leading to the formation of the Federal Constitution was the necessity, disclosed by the experience of the colonies under the confederation of preventing any discriminating or retaliatory legislation by any state in respect to the commodities produced or manufactured in another, and the consequent importance of having commerce between the states placed absolutely within the control of a legislative body representing all the states. And yet it may not be out of place to quote these words from the concurring opinion of Mr. Justice Johnson, in Gibbons v. Ogden, 9 Wheat. 1, 224, 6 L. ed. 23, 77:

'For a century the states had submitted, with murmurs, to the commercial restrictions imposed by the parent state; and, now, finding themselves in the unlimited possession of those powers over their own commerce, which they had so long been deprived of and so earnestly coveted, that selfish principle which, well controlled, is so salutary, and which, unrestricted, is so unjust and tyrannical, guided by inexperience and jealousy, began to show itself in iniquitous laws and impolitic measures, from which grew up a conflict of commercial regulations, destructive to the harmony of the states, and fatal to their commercial interests abroad. This was the immediate cause that led to the forming of a convention.'

And these from Chief Justice Marshall, in Brown v. Maryland, 12 Wheat. 419, 446, 6 L. ed. 678, 688:

'It may be doubted whether any of the evils proceeding from the feebleness of the Federal government contributed more to that great revolution which introduced the present system than the deep and general conviction that commerce ought to be regulated by Congress. It is not, therefore, matter of surprise that the grant should be as extensive as the mischief, and should comprehend all foreign commerce and all commerce among the states.'

The plain language of the Constitution affirms this. Second only to the power 'to collect taxes' and 'to borrow money' is the power given to Congress by § 8, article 1, of the Constitution 'to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.' Thus next in order, as though next in importance to the power of maintaining itself by taxation and borrowing money, is the power to regulate commerce between the states as well as between the United States and foreign nations.

While this nation is as between it and the states one of enumerated powers, it is within the scope of those enumerated powers supreme, and, as the power to regulate commerce between the states is expressly given to Congress, and no division provided for, it follows that it is wholly withdrawn from state control; and such has been the uniform ruling of this court. In the case just quoted from, Gibbons v. Ogden, Chief Justice Marshall, delivering the opinion of the court, on page 196, L. ed. p. 70, thus declared the scope and limit of that power:

'It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several states, is vested in Congress as absolutely as it would be in a single government, having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States.'

And in the other case referred to, Brown v. Maryland, on page 446, L. ed. p. 688, the Chief Justice put this question and gave this answer:

'What, then, is the just extent of a power to regulate commerce with foreign nations, and among the several states?

'This question was considered in the case of Gibbons v. Ogden, 9 Wheat. 1, 6 L. ed. 23, in which it was declared to be complete in itself, and to acknowledge no limitations other than are prescribed by the Constitution. The power is coextensive with the subject on which it acts, and cannot be stopped at the external boundary of a state, but must enter its interior.'

In The Passenger Cases, 7 How. 283, 12 L. ed. 702, Mr. Justice McLean, after referring to many prior cases, to the discussions in the convention which formed the Constitution, and the language, among others, of Mr. Madison in that discussion, that 'he was more and more convinced that the regulation of commerce was in its nature indivisible, and ought to be wholly under one authority,' summed up his conclusion in these words (p. 400, L. ed. p. 751):

'Whether I¢consider the nature and object of the commercial power, the class of powers with which it is placed, the decision of this court in the case of Gibbons v. Ogden, 9 Wheat. 1, 6 L. ed. 23, reiterated in Brown v. Maryland, 12 Wheat. 419, 6 L. ed. 678, and often reasserted by Mr. Justice Story, who participated in those decisions, I am brought to the conclusion that the power 'to regulate commerce with foreign nations, and among the several states,' by the Constitution, is exclusively vested in Congress.'

In the Head Money Cases, 112 U.S. 580, 590, sub nom. Edye v. Robertson, 28 L. ed. 798, 801, 5 Sup. Ct. Rep. 247, Mr. Justice Miller, considering a statute passed by Congress requiring the master or owner of every vessel bringing immigrants into the United States to pay a tax of 50 cents for each immigrant, to create a fund for the expense of regulating immigration, the care of immigrants, and for the relief of such as were in distress, and holding that it constituted a regulation of commerce, said in reference to it and other like statutes:

'That the purpose of these statutes is humane, is highly beneficial to the poor and helpless immigrant, and is essential to the protection of the people in whose midst they are deposited by the steamships, is beyond dispute. That the power to pass such laws should exist in some legislative body in this country is equally clear. This court has decided distinctly and frequently, and always after a full hearing from able counsel, that it does not belong to the states. That decision did not rest in any case on the ground that the state and its people were not deeply interested in the existence and enforcement of such laws, and were not capable of enforcing them if they had the power to enact them; but on the ground that the Constitution, in the division of powers which it declares between the states and the general government, has conferred this power on the latter to the exclusion of the former.'

In Leisy v. Hardin, 135 U.S. 100, 108, 34 L. ed. 128, 132, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681, Chief Justice Fuller thus stated the rule:

'The power vested in Congress 'to regulate commerce with foreign nations, and among the several states, and with the Indian tribes,' is the power to prescribe the rule by which that commerce is to be governed, and is a power complete in itself, acknowledging no limitations other than those prescribed in the Constitution. It is coextensive with the subject on which it acts, and cannot be stopped at the external boundary of a state, but must enter its interior, and must be capable of authorizing the disposition of those articles which it introduces, so that they may become mingled with the common mass of property within the territory entered.'

I might multiply quotations like these, but it is unnecessary. See the following among other cases for like affirmations: United States v. Coombs, 12 Pet. 72, 78, 9 L. ed. 1004, 1006; State Freight Tax Case, 15 Wall. 232, 279, 281, sub nom. Philadelphia & R. R. Co. v. Pennsylvania, 21 L. ed. 146, 162, 163; Pensacola Teleg. Co. v. Western U. Teleg. Co. 96 U.S. 1, 9, 10, 24 L. ed. 708, 710; Mobile County v. Kimball, 102 U.S. 691, 696, 697, 699, 700, 702, 26 L. ed. 238, 239, 240, 241; Webber v. Virginia, 103 U.S. 344, 351, 26 L. ed. 565, 567; Western U. Teleg. Co. v. Texas, 105 U.S. 460, 466, 26 L. ed. 1067, 1069; New York v. Compagnie Generale Transatlantique, 107 U.S. 59, 60, 27 L. ed. 383, 384, 2 Sup. Ct. Rep. 87; Moran v. New Orleans, 112 U.S. 69, 72, 73, 28 L. ed. 653, 655, 5 Sup. Ct. Rep. 38; Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 204, 211, 29 L. ed. 158, 162, 164, 1 Inters. Com. Rep. 382, 5 Sup. Ct. Rep. 826; Brown v. Houston, 114 U.S. 622, 630, 631, 632, 29 L. ed. 257, 260, 5 Sup. Ct. Rep. 1091; Philadelphia& S. Mail S. S.C.o. v. Pennsylvania, 122 U.S. 326, 336, 30 L. ed. 1200, 1201, 1 Inters. Com. Rep. 308, 7 Sup. Ct. Rep. 1118; Re Rahrer, 140 U.S. 545, 554, 555, sub nom. Wilkerson v. Rahrer, 35 L. ed. 572, 574, 11 Sup. Ct. Rep. 865.

The power of Congress to regulate commerce between the states being, as we have seen, supreme, its failure to impose any restrictions or regulations is to be taken as a declaration that, in its judgment, such commerce shall be free. There is no necessity of an affirmative declaration on its part, for, as it alone has power to restrict or prescribe regulations, its failure to do so leaves the commerce unburdened. This, too, is a proposition which has been so often declared by this court as to be one of the settled rules of constitutional law. Thus, in Welton v. Missouri, 91 U.S. 275, 282, 23 L. ed. 347, 350, it was said:

'The fact that Congress has not seen fit to prescribe any specific rules to govern interstate commerce does not affect the question. Its inaction on this subject, when considered with reference to its legislation with respect to foreign commerce, is equivalent to a declaration that interstate commerce shall be free and untrammeled.'

In Robbins v. Shelby County Taxing Dist. 120 U.S. 489, 493, 30 L. ed. 694, 696, 1 Inters. Com. Rep. 45, 7 Sup. Ct. Rep. 592, Mr. Justice Bradley summed up the matter in these words and with these citations:

'Another established doctrine of this court is, that where the power of Congress to regulate is exclusive the failure of Congress to make express regulations indicates its will that the subject shall be left free from any restrictions or impositions; and any regulation of the subject by the states, except in matters of local concern only, as hereafter mentioned, is repugnant to such freedom. This was held by Mr. Justice Johnson in Gibbons v. Ogden, 9 Wheat. 1, 222, 6 L. ed. 23, 52, by Mr. Justice Grier in The Passenger Cases, 7 How. 283, 462, 12 L. ed. 702, 777, and has been affirmed in subsequent cases. State Freight Tax Case, 15 Wall. 232, 279, sub nom. Philadelphia & R. R. Co. v. Pennsylvania, 21 L. ed. 146, 162; Hannibal & St. J. R. Co. v. Husen, 95 U.S. 465, 469, 24 L. ed. 527, 529; Welton v. Missouri, 91 U.S. 275, 282, 23 L. ed. 347; Mobile County v. Kimball, 102 U.S. 691, 697, 26 L. ed. 238, 240; Brown v. Houston, 114 U.S. 622, 631, 29 L. ed. 257, 260, 5 Sup. Ct. Rep. 1091; Walling v. Michigan, 116 U.S. 446, 455, 29 L. ed. 691, 694, 6 Sup. Ct. Rep. 454; Pickard v. Pullman Southern Car. Co. 117 U.S. 34, 29 L. ed. 785, 6 Sup. Ct. Rep. 635; Wabash, St. L. & P. R. Co. v. Illinois, 118 U.S. 557, 30 L. ed. 244, 1 Inters. Com. Rep. 31, 7 Sup. Ct. Rep. 4.'

See also Bowman v. Chicago & N. W. R. Co. 125 U.S. 465, 31 L. ed. 700, 1 Inters. Com. Rep. 823, 8 Sup. Ct. Rep. 689, 1062; Leisy v. Hardin, 135 U.S. 100, 34 L. ed. 128, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681; Covington & C. Bridge Co. v. Kentucky, 154 U.S. 204, 38 L. ed. 962, 4 Inters. Com. Rep. 649, 14 Sup. Ct. Rep. 1087.

In this case the words of Mr. Justice Brown were, page 212, L. ed. p. 966, Inters. Com. Rep. p. 655, Sup. Ct. Rep. p. 1090;

'But wherever such laws, instead of being of a local nature and not affecting interstate commerce but incidentally, are national in their character, the nonaction of Congress indicates its will that such commerce shall be free and untrammeled.'

It is true there are many cases in this court in which have been sustained acts of a state which do in a measure affect interstate commerce, but the thought underlying those cases has been that the acts complained of were not direct regulations of interstate commerce, not in restriction, but in furtherance, of it, and being purely local in character might rightfully be upheld until Congress should by its legislation direct the contrary.

That the transportation from one state of its products into another state for purposes of sale is not a matter of purely local interest to the latter state is evident. It concerns the right of the producer or manufacturer in the former state to his market. We are told by the learned attorney general of Tennessee, as an evidence of the good faith of the state in this legislation, that it has many areas of territory especially valuable for the growth of tobacco, and that it is one of the large tobacco producing states in the nation. That is, therefore, a valuable industry in Tennessee. Suppose the legislatures of all the other states should become possessed of the idea that the use of tobacco was injurious, and prohibit the importation and sale thereof. Could it fairly be said that such legislation was in respect to a matter of only local interest in the separate states passing such legislation? Could not Tennessee rightfully contend that it was a matter affecting one of its large industries, and which was likely to be destroyed by such adverse legislation?

It is undoubtedly true that the police power is not by the Constitution delegated to Congress. It may, therefore, under article 10 of the Amendments, be regarded as reserved to the states respectively, or to the people, but it is equally clear that no power which is impliedly reserved to the states can limit or detract from the full scope of any power expressly delegated to the nation, to be exercised by Congress. In other words, the state cannot, in the exercise of the police power, interfere with the supreme control by Congress over interstate commerce. This has been repeatedly affirmed by this court. In Henderson v. New York, 92 U.S. 259, 271, sub nom. Henderson v. Wickham, 23 L. ed. 543, 549, it was said by Mr. Justice Miller:

'This power, frequently referred to in the decisions of this court, has been, in general terms, somewhat loosely called the police power. It is not necessary for the course of this discussion to attempt to define it more accurately than it has been defined already. It is not necessary, because whatever may be the nature and extent of that power, where not otherwise restricted, no definition of it, and no urgency for its use, can authorize a state to exercise it in regard to a subject-matter which has been confided exclusively to the discretion of Congress by the Constitution.'

In Hannibal & St. J. R. Co. v. Husen, 95 U.S. 465, 471, 472, 24 L. ed. 527, 530, 531, it was said by Mr. Justice Strong:

'But whatever may be the nature and reach of the police power of a state, it cannot be exercised over a subject confided exclusively to Congress by the Federal Constitution. It cannot invade the domain of the national government. . . . It may not, under the cover of exerting its police powers, substantially prohibit or burden either foreign or interstate commerce.'

Again, by Mr. Justice Harlan, in New Orleans Gaslight Co. v. Louisiana Light & H. P. & Mfg. Co. 115 U.S. 650, 661, 29 L. ed. 516, 521, 6 Sup. Ct. Rep. 252:

'Definitions of the police power must, however, be taken, subject to the condition that the state cannot, in its exercise, for any purpose whatever, encroach upon the powers of the general government, or rights granted or secured by the supreme law of the land.'

Again, in reference to quarantine laws, by Mr. Justice Miller, in Morgan's L. & T. R. & S. S.C.o. v. Louisiana Bd. of Health, 118 U.S. 455, 464, 30 L. ed. 237, 241, 6 Sup. Ct. Rep. 1118:

'For, while it may be a police power in the sense that all provisions for the health, comfort, and security of the citizens are police regulations, and an exercise of the police power, it has been said more than once in this court that, even where such powers are so exercised as to come within the domain of Federal authority as defined by the Constitution, the latter must prevail. Gibbons v. Ogden, 9 Wheat. 1, 210, 6 L. ed. 23, 73; Henderson v. New York, 92 U.S. 259, 272, sub nom. Henderson v. Wickham, 23 L. ed. 543, 549; New Orleans Gaslight Co. v. Louisiana Light & H. P. & Mfg. Co. 115 U.S. 650, 661, 29 L. ed. 516, 520, 6 Sup. Ct. Rep. 252.'

Further may well be quoted the words of Mr. Justice Catron in the License Cases, 5 How. 504, 599, 12 L. ed. 256, 299, quoted with approval in Bowman v. Chicago & N. W. R. Co. 125 U.S. 465, 489, 31 L. ed. 700, 708, 1 Inters. Com. Rep. 823, 8 Sup. Ct. Rep. 689, 1062, and again referred to with like approval in Leisy v. Hardin, 135 U.S. 100, 113, 34 L. ed. 128, 134, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681, and also in Re Rahrer, 140 U.S. 545, 557, sub nom. Wilkerson v. Rahrer, 35 L. ed. 572, 575, 11 Sup. Ct. Rep. 865:

'The assumption is that the police power was not touched by the Constitution, but left to the states, as the Constitution found it. This is admitted; and whenever a thing, from character or condition, is of a description to be regulated by that power in the state, then the regulation may be made by the state, and Congress cannot interfere. But this must always depend on facts subject to legal ascertainment, so that the injured may have redress. And the fact must find its support in this, whether the prohibited article belongs to and is subject to be regulated as part of foreign commerce, or of commerce among the states. If, from its nature it does not belong to commerce or if its condition from putrescence or other cause, is such, when it is about to enter the state, that it no longer belongs to commerce, or, in other words, is not a commercial article, then the state power may exclude its introduction. And as an incident to this power, a state may use means to ascertain the fact. And here is the limit between the sovereign power of the state and the Federal power; that is to say, that which does not belong to commerce is within the jurisdiction of the police power of the state; and that which does belong to commerce is within the jurisdiction of the United States. And to this limit must all the general views come, as I suppose, that were suggested in the reasoning of this court in the cases of Gibbons v. Ogden, Brown v. Maryland, and New York v. Miln. What, then, is the assumption of the state court? Undoubtedly, in effect, that the state had the power to declare what should be an article of lawful commerce in the particular state; and having declared that ardent spirits and wines were deleterious to morals and health, they ceased to be commercial commodities there, and that then the police power attached, and consequently the powers of Congress could not interfere. The exclusive state power is made to rest, not on the fact of the state or condition of the article, nor that it is property usually passing by sale from hand to hand, but on the declaration found in the state laws, and asserted as the state policy, that it shall be excluded from commerce. And by this means the sovereign jurisdiction in the state is attempted to be created in a case where it did not previously exist. If this be the true construction of the constitutional provision, then the paramount power of Congress to regulate commerce is subject to a very material limitation; for it takes from Congress, and leaves with the states, the power to determine the commodities, or articles of property, which are the subjects of lawful commerce. Congress may regulate, but the states determine what shall or shall not be regulated. Upon this theory the power to regulate commerce, instead of being paramount over the subject, would become subordinate to the state police power; for it is obvious that the power to determine the articles which may be the subjects of commerce, and thus to circumscribe its scope and operation, is, in effect, the controlling one. The police power would not only be a formidable rival, but, in a struggle, must necessarily triumph over the commercial power, as the power to regulate is dependent upon the power to fix and determine upon the subjects to be regulated.'

See also Minnesota v. Barber, 136 U.S. 313, 34 L. ed. 455, 3 Inters. Com. Rep. 185, 10 Sup. Ct. Rep. 862; Brimmer v. Rebman, 138 U.S. 78, 34 L. ed. 862, 3 Inters. Com. Rep. 485, 11 Sup. Ct. Rep. 213; Crutcher v. Kentucky, 141 U.S. 47, 35 L. ed. 649, 11 Sup. Ct. Rep. 851; Voight v. Wright, 141 U.S. 62, 35 L. ed. 638, 11 Sup. Ct. Rep. 855; Gulf, C. & S. F. R. Co. v. Hefley, 158 U.S. 98, 39 L. ed. 910, 15 Sup. Ct. Rep. 641.

We have thus, first, the express language of the Constitution delegating to Congress the power 'to regulate commerce . . . among the several states;' second, the repeated rulings of this court that the power is supreme and exclusive; third, an equal volume of decision that the failure of Congress to prescribe any limitations to interstate commerce in respect to any particular article is equivalent to a declaration by that body that it intends that such commerce shall be free; and, fourth, the equally often repeated ruling that the reserved police power of the states is subordinate to and does not limit or take from the supreme control by Congress over matters of interstate commerce.

It would seem from this concurrence of rulings that the decision in Leisy v. Hardin, 135 U.S. 100, 34 L. ed. 128, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681, had now become the settled law, and that henceforth it is not to be questioned; that no state can, under the guise of a police regulation, directly restrain the importation and sale of articles brought in from other countries and other states, which are recognized articles of commerce, no matter what may be the local opinion as to the injurious effects of the use of such articles. The opinion of the supreme court of Tennessee on the first proposition suggested must, therefore, be considered as definitely overruled.

I pass now to the second proposition, which is that the packages in which these cigarettes were imported are so small, or the manner of their importation so peculiar, that the power of Congress over interstate commerce is as to them lost, and the power of the state has become controlling. That this is the question upon which also the reversal is ordered is evident, for it is said by Mr. Justice Brown, in his opinion, after referring to the matter of the police power:

'We are remitted to the inquiry whether a paper package of 3 inches in length and 1 1/2 inches in width, containing ten cigarettes, is an original package protected by the Constitution of the United States against any interference by the state while in the hands of the importer? This we regard as the vital question in the case.'

And by Mr. Justice White, in his concurring opinion:

'Indeed, as I understand the case as now decided, all the questions adverted to are merged in the solution of the one decisive issue, which is: Was each particular parcel of cigarettes an original package within the constitutional import of those words as defined by the previous adjudications of the court?'

I come to the consideration of this question with the conceded fact that Congress has supreme and exclusive control over interstate commerce; that no state in the exercise of its police power can directly restrain such commerce; and inquire why the size of the package or the manner of importation determines the limit of national control?

And first as to the matter of size, we are told that the cigarette package is 3 inches in length and 1 1/2 inches in width, and contains ten cigarettes. I have no doubt of the accuracy of this measurement, but I in vain search the Constitution of the United States for any intimation that the power of Congress over interstate commerce ceases when the packages in which that commerce is carried on are of any particular size. Mr. Justice Brown quotes this language of Chief Justice Marshall, in Brown v. Maryland, 12 Wheat. 419, 6 L. ed. 678, wherein, having adverted to the fact that the importer might after the importation so break up the packages, or so handle the goods, as to show an intent to incorporate them into the mass of the general property of the state, he says:

'It is sufficient for the present to say, generally, that when the importer has so acted upon the thing imported that it has become incorporated and mixed up with the mass of property in the country, it has perhaps lost its distinctive character as an import, and has become subject to the taxing power of the state; but while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the Constitution.'

And upon this quotation this observation is made:

'This sentence contains in a nutshell the whole doctrine upon the subject of original packages, upon which so formidable a structure has been attempted to be erected in subsequent cases.'

And yet, curiously enough, after this declaration, although the cigarettes sold by the defendant were 'in the original form or package in which they were imported,' although there had been no breaking of any package, it is held that the power of the nation does not protect him in that sale. Necessarily, there is impliedly added to the language of the Chief Justice words like these, 'provided such package be of considerable size, at least larger than 3 inches in length and 1 1/2 inches in width.' Of all the justices of this court, Chief Justice Marshall has hitherto been credited with marvelous accuracy of statement, but it would seem from the construction now given that he omitted a most important particular in defining the relative powers of the nation and the state. Even now there is a singular failure to give the size of the package which takes the importation out of the power of Congress and intrusts it to the control of the state. Recently, in Schollenberger v. Pennsylvania, 171 U.S. 1, 43 L. ed. 49, 18 Sup. Ct. Rep. 757, we held that an importer had a right to import oleomargarine in 10-pound packages, and sell it in such a package at retail to a consumer. Apparently, the dividing line as to the size of packages must be somewhere between that of a 10-pound package of oleomargarine and that of a package of ten cigarettes; but where? Must diamonds, in order to be within the protecting power of the nation, be carried from state to state in 10-pound packages?

If it be said that diamonds are not a subject of police regulation, and that a different rule obtains in reference to them than to matters of police regulation (as might be implied from the scope of the opinion) I can only say that the conclusion seems to me strange. Concretely, it amounts to this: The police power of the state, the power exercised to preserve the health and morals of its citizens, may prevent the importation and sale of a pint of whisky, but cannot prevent the importation and sale of a barrel; or, in other words, the greater the wrong which is supposed to be done to the morals and health of the community, the less the power of the state to prevent it. That may be constitutional law, but to my mind it lacks the saving element of common sense. I see no logical half way place between a recognition of the power of the nation to regulate commerce between the states in all things which are the subjects of commerce (in whatever form or manner they may be imported) and a concession of the power of the state to prevent absolutely the importation and sale of articles deemed by it prejudicial to the health or morals of its citizens. Either the state has, in the exercise of its police power, the right to prohibit the importation and sale of articles deemed by it injurious to the health and morals of the community-no matter in what size or form of package the importation is made-or else it has no such power, and the determination of the question of importation and sale is one to be left to Congress. The attitude of one who affirms the supreme power of the nation over interstate commerce, including therein the right of Congress to regulate the importation and sale in large packages of things whether or not deemed by any state deleterious in their use, and yet holds that that supreme power of Congress is exhausted the moment the importation is in a package of small size, finds something of a parallel in the attitude of the citizen of a state, which has adopted prohibition, who upholds the law, but objects to its enforcement.

The size of the package seems to be the troublesome matter in the minds of some of my brethren. Let me put that question of size to this test. Suppose Congress, assuming that it had power over interstate commerce, should enact that all transportation of cigarettes between states should be in packages of ten cigarettes each, would that be a regulation of interstate commerce? Or would my brethren say that that was beyond the power of Congress? The power of Congress over commerce between the states is given in the same section and in the same language as its power over commerce between this nation and foreign nations. Is this court prepared to say that, if Congress should enact that no importations of cigarettes from abroad should be otherwise than in packages of ten cigarettes each, such legislation was beyond its power because it affected a package of a small size? Mr. Justice White, evidently appreciating the logic of these suggestions, escapes their force by this declaration, and I quote from his opinion that which succeeds that quotation heretofore made:

'I am constrained to conclude that this question is correctly answered in the negative, not only from the size of each particular parcel, but from all the other surrounding facts and circumstances, among which may be mentioned the trifling value of each parcel, the absence of an address on each, and the fact that many parcels, for the purpose of commercial shipment, were aggregated, thrown into and carried in an open basket. Thus associated in their shipment, they could not, under all the facts and circumstances of the case, after arrival be segregated so as to cause each to become an original package.'

I regret that the decision of a great constitutional question like that here presented turns on the shifting opinions of individual judges as to the peculiar facts of a particular case. No one can tell from this annunciation where is the dividing line between the power of the state and the power of the nation. Obviously the mere size of the package does not in this view determine. It would seem that constitutional limitations should be stated by the courts with precision. I think, and I say it with all respect, that no case involving a constitutional question should be turned off on the simple declaration that upon its peculiar facts it falls on one side or the other of some undisclosed line of demarcation. It seems to me, and yet I speak hesitatingly, in view of the indefiniteness of his declarations, that Mr. Justice White thinks there was something in the conduct of this importer in evasion of the state statute. But can any statute be deemed to be evaded which has no application to the particular matter? If the regulation of interstate commerce is a matter within the sole jurisdiction of Congress, surely no act of the state restraining an importation and sale can have any application thereto. If the state may not say whether the importation shall be in large or small packages, if that is a regulation of interstate commerce within the sole power of the United States, then no act of the importer in fixing the size of the package can be adjudged either in conflict with or an evasion of any state statute. There is but one of two alternatives. Either the state may regulate the size of the package or Congress has the power. If a state has the right, then of course it may prevent the importation of packages other than those of a large size; but if Congress alone can regulate it, then the state has nothing to do with the question of the size of the package, and no act of the importer in fixing the size of the package can be adjudged in conflict with its statute.

Congress has prescribed the sizes of the packages in which cigarettes are to be put up, and while it is true, as indicated in Plumley v. Massachusetts, 155 U.S. 461, 39 L. ed. 223, 5 Inters. Com. Rep. 590, 15 Sup. Ct. Rep. 154, that the primary purpose of such legislation is the collection of internal revenue taxes, and not the regulation of commerce between the states, yet it is also true that it is not within the power of the states to declare that the use of packages of the size prescribed by Congress is illegitimate. There cannot be imputed to Congress the purpose to in any way interfere with the full power of the states over matters committed to their care, nor can the use by an individual of packages such as Congress has authorized be condemned as an evasion of state laws. The use of such a package legitimate for one purpose is legitimate for others, and a state by its statutes cannot in any way nullify or weaken the effect of congressional enactment. So although these packages are small in size, they have the approbation of Congress, and must be considered as legal, and their use cannot be made illegal by state laws.

And here it is well to refer to the language of Chief Justice Marshall, quoted, supra. It is: 'In the original form or package in which it was imported.' Not in which 'it might have been' or 'ought to have been imported.' Obviously, it did not occur to him that the form or package which the importer might adopt in any way affected the power of Congress over the importation. One will search the opinion of the Chief Justice in vain to ascertain the size or form of the package then before the court. If Congress should see fit to describe a form or package, it was within its power. If it did not do so, it left the matter to the determination of the importer. There seems to be in the minds of those of my brethren with whom I differ the thought that, because this importer did not import in a customary way, the control of Congress in the matter ceased. The cost of transporting a single package of cigarettes from the manufactory in Durham, N. C., to any part of Tennessee may be great, and therefore such transportation is not ordinarily undertaken. It may be true, and undoubtedly is true, that a manufacturer of yeast cakes in the city of New York would not feel warranted in going to the expense of shipping a single yeast cake, or, for that matter, a hundred, to Covington, Ky., and yet that same individual, if he had a manufactory in Cincinnati, might find that the most convenient and inexpensive way of filling orders from Covington was to send them in separate packages in his delivery wagons across the bridge from the one city to the other. In each case the transportation would be one of interstate commerce, and it cannot be possible that Congress has the power to regulate the transportation from New York to Covington, and not that from Cincinnati to Covington.

Another matter which must not be ignored in measuring the control of Congress over interstate commerce is the changes in the modes of transportation. At the time that Chief Justice Marshall wrote the opinion in Brown v. Maryland transportation was carried on by water in sailing vessels and by land largely in lumber wagons. It is not strange that at such time all transportation was of goods packed in large boxes, securely fastened to prevent accidents from the rough and tumble way of transportation. There were then no express companies for carrying small packages. All that mode of transportation has grown up in this country within the last sixty years, but the express companies carrying their small packages from state to state are just as certainly engaged in interstate commerce as the old-fashioned lumber wagons carrying commodities between the same places. The facilities of transportation are increasing rapidly, and with them the cost of such transportation is diminishing, so that more and more will it be true that the smallest packages will be the frequent subject of transportation, even between state and state. But it has often been said that the grants of power in the Constitution to the national government were expressed in such broad and general language that, notwithstanding the many changes in the modes of doing business, in the forms and conditions of social life, the needed control was still found to be vested in Congress. Can it be that an exception to this rule is now to arise in the matter of the full and complete power given by that instrument to Congress over interstate commerce?

Again, let me go back to the opinion of Chief Justice Marshall, and quote pages 439-446, L. ed. pp. 685-688:

'There is no difference, in effect, between a power to prohibit the sale of an article, and a power to prohibit its introduction into the country. The one would be a necessary consequence of the other. No goods would be imported if none could be sold.

* * * * *

'If this power reaches the interior of a state, and may be there exercised, it must be capable of authorizing the sale of those articles which it introduces. Commerce is intercourse; one of its most ordinary ingredients is traffic. It is inconceivable that the power to authorize this traffic, when given in the most comprehensive terms, with the intent that its efficacy should be complete, should cease at the point when its continuance is indispensable to its value. To what purpose should the power to allow importation be given, unaccompanied with the power to authorize a sale of the thing imported? Sale is the object of importation, and is an essential ingredient of that intercourse, of which importation constitutes a part. It is as essential an ingredient, as indispensable to the existence of the entire thing, then, as importation itself. It must be considered as a component part of the power to regulate commerce. Congress has a right, not only to authorize importation, but to authorize the importer to sell.'

Now, if cigarettes cannot be brought into the state of Tennessee and sold in the packages in which they were manufactured, but must be brought in and sold only in barrels or boxes of large size, the right of importation is practically defeated, for no consumer would buy a barrel or box for his own use, and no importer could sell it to a second party with the idea of a resale, because the moment the first sale is accomplished, the law of the state interposes to prevent the second. In other words, this contention that an imported package must be of a large size in order to secure the right of sale is simply a convenient way of declaring that the right of importation for purposes of sale may be denied. Not such was the thought of this court, as expressed in the opinion of Chief Justice Marshall. The idea then was that the right of sale was an incident to the right to import; that the state could neither directly forbid the importation, nor indirectly prevent it by embarrassing the right of sale with restrictions which, in fact, stop all importation for purposes of sale.

I do not doubt that the importation and sale of many things may wisely be restrained, but the question is as to the body by which such regulations shall be made. We may all agree that the importation and sale of liquors should be restrained or prohibited. We may doubt as to whether a like rule obtains as to the importation and sale of oleomargarine. Believing that the settled ruling of this court has been that that question is one to be determined by Congress, I think that this decision is a plain departure therefrom.

Nor is there reason to apprehend that any unfortunate results will flow from the supreme power of Congress in the matter. Take the case of intoxicating liquors. When it was found by the decision in Leisy v. Hardin, 135 U.S. 100, 34 L. ed. 128, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681, that interstate commerce in such liquors (they being recognized articles of commerce) could not be regulated by the states, Congress promptly passed an act providing that liquors imported into any state should upon arrival therein be subject to the local laws (26 U.S. Stat. at L. 313, chap. 728), the validity of which legislation was sustained in Re Rahrer, 140 U.S. 545, sub nom. Wilkerson v. Rahrer, 35 L. ed. 572, 11 Sup. Ct. Rep. 865. So it cannot be doubted that if that body which represents all the states shall be of opinion that the use of any particular article is freighted with injury to public health, morals, or safety, it will absolutely prohibit interstate commerce therein, or if in its judgment (as in the case of intoxicating liquors) there is in certain localities such a feeling in reference to any article that commerce therein may wisely be regulated by the state, it will provide therefor. Although some temporary disadvantage or inconvenience may result from this assertion of the supremacy of Congress, it is not fitting, in view of the constitutional provisions, to ignore or limit the full scope of that supremacy; and, it may properly be added, it is better that in certain instances one state should be subjected to temporary annoyance rather than that the whole framework of commercial unity created by the Constitution should be destroyed by relegating to each state the determination of what particular articles it will permit to be imported into its borders.

'The power cannot be conceded to a state to exclude, directly or indirectly, the subjects of interstate commerce, or, by the imposition of burdens thereon, to regulate such commerce, without congressional permission. The same rule that applies to the sugar of Louisiana, the cotton of South Carolina, the wines of California, the hops of Washington, the tobacco of Maryland and Connecticut, or the products, natural or manufactured, of any state, applies to all commodities in which a right of traffic exists, recognized by the laws of Congress, the decisions of courts, and the usages of the commercial world. It devolves on Congress to indicate such exceptions as in its judgment a wise discretion may demand under particular circumstances.' Lyng v. Michigan, 135 U.S. 161, 166, 34 L. ed. 150, 153, 3 Inters. Com. Rep. 143, 10 Sup. Ct. Rep. 725.

For these reasons I dissent from the opinions and judgment in this case.

I am authorized to say that the Chief Justice, Mr. Justice Shiras and Mr. Justice Peckham concur in this dissent.