214
The G; en Bag
Court quoted with approval its lan guage used in the prior case of Gibbons v. Ogden* and in which it said: "But we do not place our opinion on this ground. We choose rather to plant ourselves on what we consider impreg nable positions. They are these: that a state has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits, as any foreign nation, where that juris diction is not surrendered or restrained by the Constitution of the United States. That, by virtue of this, it is not only the right, but the bounden and solemn duty of a state, to advance the safety, hap piness and prosperity of its people, and to provide for its general welfare, by any and every act of legislation which it may deem to be conducive to these ends; where the power over the partic ular subject, or the manner of its exer cise is not surrendered or restrained, in the manner just stated. That all those powers which relate to merely municipal legislation, or what may, per haps, more properly be called internal police, are not thus surrendered or re strained; and that, consequently, in relation to these, the authority of a state is complete, unqualified and ex clusive." It also unqualifiedly granted the proposition that the state might exclude "pestilence, either to the body or mind, shut out infectious diseases, obscene painting, lottery tickets, con victs and other criminals, as well as paupers and vagabonds." It made a clear distinction between an act which was a regulation of commerce and one which was of police, and asserted the doctrine that if any law passed by the state in the exercise of its police power came in conflict with a commercial reg ulation of Congress the latter must • 9 Wheaton 1.
yield. "All those powers," said Mr. Justice Barbour, "which relate to merely municipal regulations, or what may per haps more properly be called internal police, are not thus surrendered or re strained; and consequently in relation to these the authority of a state is com plete, unqualified and exclusive." This holding was affirmed in the so-called License Cases* and to all intents and • "The true question presented by these cases, and one which I am not disposed to evade, is whether the states have a right to prohibit the sale and consumption of an article of commerce which they believe to be pernicious in its effect, and the cause of disease, pauperism, and crime. I do not consider the question of the exclusiveness of the power of Congress to regulate commerce as neces sarily connected with the decision of this point. It has been frequently decided by this court 'that the powers which relate to merely municipal regu lations, or what may more properly be called "internal police," are not surrendered by the states, or restrained by the Constitution of the United States; and that, consequently, in relation to these, the authority of a state is complete, unqualified, and exclusive.' Without attempting to define what are the peculiar subjects or limits of this power, it may safely be affirmed that every law for the restraint and punishment of crime, for the preservation of the public peace, health, and morals, must come within this category. As subjects of legislation, they are from their very nature of primary importance; they lie at the foundation of social existence; they are for the protection of life and liberty, and necessarily compel all laws on subjects of secondary importance, which relate only to property, convenience, or luxury, to recede, when they come in conflict or collision; salus populi suprtma lex. If the right to control these subjects be 'complete, unqualified, and exclusive' in the state legislatures, no regulations of secondary importance can supersede or restrain their opera tions, on any ground of prerogative or supremacy. The exigencies of the social compact require that such laws be executed before and above all others. It is for this reason that quarantine laws, which protect the public health, compel mere commercial regulations to submit to their control. They re strain the liberty of the passengers, they operate on the ship which is the instrument of commerce, and its officers and crew, the agents of navigation. They seize the infected cargo, and cast it over board. The soldier and the sailor, though in the service of the government, are arrested, imprisoned, and punished for their offenses against society. Paupers and the convicts are refused admission into the country. All these things are done, not from any power which the states assume to regulate commerce or to interfere with the regulations of Congress, but because police laws for the preserva tion of health, prevention of crime, and protection of the public welfare must of necessity have full and free operation, according to the exigency which requires their interference. It is not necessary, for the sake of justifying the state legislation now under consideration, to array the appalling statis tics of misery, pauperism, and crime which have their origin in the use or abuse of ardent spirits. The police power, which is exclusively in the states, is alone competent to the correction of these great evils, and all measures of restraint or prohibition
