ence. For if they belong to one State they belong to all, and can not be exercised severally and independently. It is enough to say that the power to regulate or forbid the sale of a commodity after it has been brought into the State does not carry with it the right and power to prevent its introduction by transportation from another State. It is not gainsaid that the effect of the act of Congress was to deprive the receiver of goods shipped from another State of all power to sell the same in the State of Iowa in violation of its laws, but while it is thus conceded that the act of Congress has allowed the Iowa law to attach to the property when brought into the State before sale, when it otherwise would not have done so until after sale, on the other hand it is contended that the act of Congress in no way provides that the laws of Iowa should apply before the consummation by delivery of the interstate commerce transaction. To otherwise construe the act of Congress, it is claimed, would cause it to give to the statutes of Iowa extraterritorial operation, and would render the act of Congress repugnant to the Constitution of the United States. It has been settled that the effect of the act of Congress is to allow the statutes of the several States to operate upon packages of imported liquor before sale. erson v. Rohrer, 140 U. S., 545.) (Wilk If the act of Congress be construed as reaching the contract for interstate shipment made in another State, the necessary effect must be to give to the laws of the several States extraterritorial operation, for, as held in the Bowman case, the inevitable consequence of allowing a State law to forbid interstate shipments of merchandise would be to destroy the right to contract beyond the limits of the State for such shipments. If the construction claimed be upheld it would be in the power of each State to compel every interstate commerce train to stop before crossing its borders and discharge its freight, lest by crossing the line it might carry within the State merchandise of the character named covered by the inhibitions of a State statute. (Ibid.) The proposed bill certainly will enable States to pass laws having an extraterritorial effect, with the inevitable result that the very strife, discord, and irreconcilable conflict which led to the insertion of the commerce clause would again ensue. Has the law of Iowa any extraterritorial force which does not belong to the law of the State of Illinois? If the law of Iowa forbids the delivery and the law of Illinois requires the transportation, which of the two shall prevail? How can the former make void the latter? In view of this necessary operation of the law of Iowa, if it be valid, the language of this court in the case of Hall v. De Cuir (95 U. S., 485, 488) is exactly in point. It was there said: "But we think it may safely be said that State legislation which seeks to impose a direct burden upon interstate commerce or to interfere directly with its freedom does encroach upon the exclusive power of Congress. The statute now under consideration, in our opinion, occupies that position." (Ib.) Not only would the present law be unconstitutional for its extraterritorial effect and because it extends the State police power beyond its constitutional limits, but it would clearly amount to a delegation of its powers by Congress to the States. It does not admit of argument that Congress can neither delegate its own powers nor enlarge those of a State. (Rohrer, 140 U. S., 560.) The rule is fundamental that the power to make laws can not be delegated. (Ib.) One of the settled maxims in constitutional law is that the power conferred upon the legislature to make laws can not be delegated. (Cooley Const. Law, p. 117.) It is true this bill on its face delegates no power; but this bill in itself ex proprio vigore does not affect commerce; it only takes effect where a State has or passes the necessary legislation supplementing it. The minute any State passes the necessary law, if it does not already have it, that minute the control of interstate traffic in liquor so far as that State is concerned passes to such State; and as different States will have different laws, one legal effect will be that chaos and inequality must prevail. The control of interstate commerce was placed in Congress to prevent conflict and effect equality and uniformity. This bill at once destroys this. Rights guaranteed to a citizen of the United States and recognized by one State are denied by another. Interstate commerce in liquor will be lawful under certain restrictions or to a certain extent in one State and under different restrictions and to a different extent in another State. That uniformity and equality which the law of the land guarantees will be destroyed, and those rights, privileges, and immunities as to personal liberty and property guaranteed to the citizens of the United States by the law of the land will be at the mercy of the States. If Congress can delegate to a State this power to regulate commerce by prohibiting it, of what use is the provision of the Federal Constitution as to interstate commerce? Does not Congress override the Constitution? Does not such action amount to a practical nullification of this provision of the Constitution, or at least an abdication of power under it? The Wilson bill was specifically held not to be a delegation of power, because it did none of those things; it merely removed one of the nonessential elements of interstate commerce, to wit, the right of sale free from State interference after delivery in the State. It took away this incident so that the police power could act; it didn't enlarge the police power so that it could reach interstate commerce or intercourse; it merely enabled it to reach or affect one of the subjects of commerce after the contract that constituted commerce had been completed. It is true the court in the Rhodes case says it expresses no opinion on the right of Congress to delegate to the States this power. But in the light of the decisions can there be much question as to what its opinion on this subject would be? But regardless of what the Supreme Court might say technically or juridically as to this right, has Congress the moral right to do this? The sovereign people of the sovereign States have placed in the hands of Congress the control of interstate commerce; they have a right to ask it not to abdicate nor delegate this power at the request of any one or more States. Iowa says she can not enforce her public laws against intoxicating liquors unless given the power to stop interstate shipment of liquor at her boundaries. If she asked authority from you to build a Chinese wall around her boundaries so that commerce with other States could be shut out, no one would hesitate as to its unconstitutionality. This law will build such a wall effectively as to liquor. It will stop interstate commerce in this commodity so far as she is concerned. Pass this bill and the liquor trade is at the mercy of the States. Iowa, under her State law, would seize goods at the boundary; Kansas, let us say by way of illustration, would require a certificate or a special package or special label or what not before it could enter; Maine might require drastic inspection; Vermont a special tax; every State a different law, with confusion worse confounded as a result to the interstate shipper. Or suppose every State passed the present Iowa law; you would then have, as Justice White said, absolute national prohibition-prohibition by delegated act of Congress. This act does not regulate commerce; it delegates to the States the power to regulate and with it the power to destroy. It is worth noting also that the fact that a State law is in itself valid, as an exercise of the police power does not place it in any more favorable position than any other law when the question arises as to whether it is in conflict with the power of Congress over commerce. Such a doctrine seems to have prevailed for a time (see opinions of Grier, J., and McLean, J., in License cases, 5 How., 588) on the principle of salus populi suprema lex. The advocates of this bill seem to have the same idea, that there must ex necessitate be something about the police power of a State which gives it the right to call upon Congress for assistance if its operations are affected by any silence on the part of that body. Fortunately, this theory is thoroughly exploded by the recent decisions. The fact that a State law deals with health or the most unquestionable of police measures gives it no greater supremacy nor sanctity than any other law if it regulates or comes in conflict with interstate commerce. Railroad v. Hosen, 95 U. S., 465. Minn v. Barber, 136 U. S., 313. The proposed bill in terms subjects goods in any State " for use, consumption, or sale" to the operation of a State law. Under its practical workings it would, or at least could, therefore, effectively prevent importations for personal use. This alone would be a fatal defect. No State can prohibit the importation of liquor for personal use. The Rhodes case did not pass on that question, as there was no necessity to do so, but the case of Vance v. Vandercook (170 U. S., 438) does; and both cases, passed at the same term of court, taken together, settled this question. The rulings of the court in this case have also other important bearings on the questions here discussed. It held (1) that the proposition is well established— That the right to send liquors from one State into another, and the act of sending the same, is interstate commerce, the regulation whereof has been committed by the Constitution of the United States to Congress, and hence that a State law which denies such a right, or substantially interferes or hampers the same, is in conflict with the Constitution of the United States. (2) That the interstate-commerce clause of the Constitution guarantees the right to ship merchandise from one State into another, and protects it until the termination of the shipment by delivery at the place of consignment, and this right is wholly unaffected by the act of Congress which allows State authority to attach to the original package before sale, but only after delivery. (3) [That] the right of persons in one State to ship liquor into another State to a resident for his own use is derived from the Constitution of the United States, and does not rest on the grant of the State law. Either the conditions attached by the State law unlawfully restrain the right or they do not. If they do and we shall hereafter examine their contention-then they are void. If they do not, then there is no lawful ground of complaint on the subject. (4) [That] the right of the citizen of another State to avail himself of interstate commerce can not be held to be subject to the issuing of a certificate by an officer of the State of South Carolina, without admitting the power of that officer to control the exercise of the right. But the right arises from the Constitution of the United States; it exists wholly independent of the will of either the lawmaking or the executive power of the State. It takes its origin outside of the State of South Carolina and finds its support in the Constitution of the United States. Whether or not it may be exercised depends solely upon the will of the person making the shipment, and can not be in advance controlled or limited by the action of the State in any department of its government. In short, if the dispensary law had not been so construed as to preserve the right to make interstate shipments for personal use- -a right"derived from the Constitution of the United States "-it is clear the entire act would have been held unconstitutional. Therefore it follows that this proposed bill must be unconstitutional if it enables any State either to interfere with interstate shipments or with the right to import liquor for personal use. It assur edly does both. If this act becomes a valid law, there can be absolutely no question. that if a citizen of the State of Iowa orders a case of beer from the State of New York the seller in New York could not ship that case of beer to the citizen of Iowa for the simple reason that immediately upon its arrival at the boundaries of the State of Iowa, "before and after delivery," the police power of Iowa would attach, and the temperance inquisitors of that State could seize the package, and if the State law permitted it they could destroy it, or sit in judgment on it as to whether it should go to the consignee or whether it is good for his health, his morals, or his hereafter. So that, although no State can " forbid shipment to an individual resident for his own use," and although Congress itself also can not do this, yet by this specious legislation it accomplishes indirectly what it can not do directly. As soon as the liquor reaches the consignee, whether for his own use or not, it is subject to the laws of the State. The police problem is then between the consumer and the State. That is where it ought to be. That is where the present law, as interpreted, puts it. And that is where it ought to stay. If a State can not enforce its own laws, if it can not legislate total abstinence into the hearts of its citizens, Congress ought not and can not help it by delegating superior power. In the several hearings before the committees of the last Congress the question was repeatedly asked by members whether the opponents of this bill contended that Congress had not the constitutional power to prohibit the transportation of intoxicating liquors from one State to another. So far as this proposed bill is involved, the precise issue raised by that question is purely academic, as our objection to this bill is that it delegates to the States the power to make such prohibition; that it is in fact and in purport nothing more than a prohibition measure in disguise. Indeed, the Supreme Court, in the Lottery cases (188 U. S., 362) so pronounced it, for it says, speaking of the Wilson bill, if under it "all the States had enacted liquor laws prohibiting the sale of intoxicating liquors within their respective limits, then the act would have had the necessary effect to exclude ardent spirits altogether from commerce among the States." A sufficient answer, therefore, to this question would be to say that if Congress wishes to try to prohibit interstate shipments of intoxi cating liquors it should say so frankly by an appropriate bill, and do it by a general regulation applicable to all the States, and not try to do it by delegating the power to the States. However, as a full answer to this question will expose the viciousness of this present bill it is worth considering. In the first place Congress would not pass such a bill even if it has the power, and in the second place it does not have the power. Let us consider the latter proposition first. This idea that Congress might prohibit interstate shipments of liquor received its impetus from the supposed sweeping character of Justice Harlan's opinion in the Lottery cases. Instead of reviewing at length rulings of the courts bearing on this question, it will be sufficient to confine ourselves to a study of this opinion. On close examination it does not go near so far as at first blush appears. One object in the first part of this brief in tracing the drift of the commerce decisions was to show the wavering and uncertain attitude of the courts as to the power of Congress and the power of the States in the premises, and to lead up to the recent pronouncements on the subject. The lottery decision certainly clears the atmosphere. Even Marshall's theory of the exclusive character of the power of Congress over commerce did not go nearly so far as to assume that it was so exclusive that the police power which the Constitution expressly reserved to the States could also be appropriated by Congress. It is true this decision seems to hold that Congress has a general police power as wide as the States, from which it might be inferred, and by the advocates of this bill has been inferred, that if a State under its police powers can prohibit traffic in liquors, then Congress under this newly discovered police power can also do it. But this decision gives no encouragement to such views the actual basis of the dicision being the same as that in cases like Reed v. Colorado (187 U. S., 137), where regulations of Congress for the prevention of disease by transportation were upheld. There is was held, for example, that Congress can regulate, and therefore prohibit the transportation of diseased cattle, because by virtue of their diseased character they have lost their commercial qualities. Trading in diseased meat; in crime; in lottery tickets, is not commerce; it is a perversion of the right of interstate commerce to permit it. It is a kind of traffic which no one can be entitled to pursue as of right. * * * It has become offensive to the entire people of the nation. The whole intent of the act upheld by this opinion was the suppression of a crime which was being carried on through the transportation of lottery tickets by means of interstate commerce. The opinion at page 501 cites the case of Phalen. Virginia (8 How., 163), which held- that the suppression of nuisances injurious to the public health or morality is among the most important duties of government, and experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with the widespread pestilence of lotteries. The former are confined to a few persons and places, but the latter infests the whole community. The justice further says that— in other cases we have adjudged that authority given by legislative enactment to carry on a lottery, although based upon a consideration in money, was not protected by the contract clause of the Constitution; this, for the reason that no State may bargain away its power to protect the public morals nor excuse |