Concurring Opinion: Field, J. tions upon which certain liquors may be imported into that State is, therefore, a regulation of interstate commerce. Such regulation, where the subject, like the transportation of goods, is national in its character, can be made only by Congress, the power which can act for the whole country. Action by the States upon such commerce is not, therefore, permissible. Mobile v. Kimball, 102 U. S. 691, 697. What is an article of commerce is determinable by the usages of the commercial world, and does not depend upon the declaration of any State. The State possesses the power to prescribe all such regulations with respect to the possession, use, and sale of property within its limits as may be necessary to protect the health, lives, and morals of its people; and that power may be applied to all kinds of property, even that which in its nature is harmless. But the power of regulation for that purpose is one thing, and the power to exclude an article from commerce by a declaration that it shall not thenceforth be the subject of use and sale, is another and very different thing. If the State could thus take an article from commerce, its power over interstate commerce would be superior to that of Congress, where the Constitution has vested it. The language of Mr. Justice Catron on this subject in The License Cases, quoted in the opinion of the court, is instructive. 5 How. 504, 600. Speaking of the assumption by the State of power to declare what shall and what shall not be deemed an article of commerce within its limits, and thus to permit the sale of one and prohibit the sale of the other, without reference to Congressional power of regulation, the learned justice said: "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 Concurring Opinion: Field, J. 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.” In Mugler v. Kansas, recently decided, (123 U. S. 623,) this court held a statute of that State to be valid which prohibited the manufacture and sale within its limits of intoxicating liquors except for medical, scientific, or mechanical purposes, and made a violation of its provisions a misdemeanor punishable by fine or imprisonment. I agreed to so much of the opinion of the court in that case as asserted that there was nothing in the Constitution or laws of the United States which affected the validity of the statute prohibiting the sale of such liquors manufactured in the State, except under proper regulations for the protection of the health and morals of the people. But, at the same time, I stated, without expressing any opinion on the subject, that I was not prepared to say that the State could prohibit the sale of such liquors within its limits under like regulations, if Congress should authorize their importation; observing that the right to import an article of merchandise, recognized as such by the commercial world, whether the right be given by act of Congress or by treaty with a foreign nation, would seem necessarily to carry the right to sell the article when imported. Where the importation is authorized from one State to another a similar right of sale of the article imported would seem to follow. The question upon which I was then unwilling to express an opinion is presented in this case, not in a direct way, it is true, Concurring Opinion: Field, J but in such a form as, it seems to me to require consideration. A statute of Iowa contains a prohibition, similar to that of the Kansas statute, upon the manufacture and sale of intoxicating liquors within its limits, with the additional exception of permission to use them for culinary purposes, and to sell foreign liquors imported under a law of Congress, in the original casks or packages in which they are imported. The law under consideration in this case, prohibiting the importation into Iowa of such liquors from other States, without a license for that purpose, was passed to carry out the policy of the State to suppress the sale of such liquors within its limits. And the argument is pressed with much force that if the State cannot prohibit the importation its policy to suppress the sale will be defeated, and if legislation establishing such policy is not in conflict with the Constitution of the United States, this additional measure to carry the legislation into successful operation must be permissible. The argument assumes that the right of importation carries with it the right to sell the article imported, a position hereafter considered. The reserved powers of the States in the regulation of their internal affairs must be exercised consistently with the exercise of the powers delegated to the United States. If there be a conflict, the powers delegated must prevail, being so much authority taken from the States by the express sanction of their people; for the Constitution itself declares that laws made in pursuance of it shall be the supreme law of the land. But those powers which authorize legislation touching the health, morals, good order, and peace of their people were not delegated, and are so essential to the existence and prosperity of the States that it is not to be presumed that they will be encroached upon so as to impair their reasonable exercise. How can these reserved powers be reconciled with the conceded power of Congress to regulate interstate commerce? As said above, the State cannot exclude an article from commerce, and consequently from importation, simply by declaring that its policy requires such exclusion; and yet its regulations respecting the possession, use, and sale of any article of com Concurring Opinion: Field, J. merce may be as minute and strict as required by the nature of the article, and the liability of injury from it, for the safety, health and morals of its people. In the opinion of the court it is stated that the effect of the right of importation upon the asserted right, as a consequence thereof, to sell the article imported is not involved in this case, and therefore it is not necessary to express any opinion on the subject. The case, it is true, can be decided, and has been decided, without expressing an opinion on that subject; but with great deference to my associates, I must say that I think its consideration is presented, and to some extent required, to meet the argument that the right of importation, because carrying the right to sell the article imported, is inconsistent with the right of the State to prohibit the sale of the article absolutely, as held in the Kansas case. With respect to most subjects of commerce, regulations may be adopted touching their use and sale when imported, which will afford all the protection and security desired, without going to the extent of absolute prohibition. It is not found difficult, even with the most dangerous articles, to provide such minute and stringent regulations as will guard the public from all harm from them. Arsenic, dynamite powder, and nitro-glycerine are imported into every State under such restrictions, as to their transportation and sale, as to render it safe to deal in them. There may be greater difficulty in regulating the use and sale of intoxicating liquors; and I admit that whenever the use of an article cannot be regulated and controlled so as to insure the health and safety of society, it may be prohibited and the article destroyed. That the right of importation carries with it the right to sell the article imported does not appear to me doubtful. Of course I am speaking of an article that is in a healthy condition, for when it has become putrescent or diseased it has ceased to be an article of commerce, and it may be destroyed or its use prohibited. To assert that, under the Constitution of the United States, the importation of an article of commerce cannot be prohibited by the States, and yet to hold that when imported its use and sale can be prohibited, is to declare Concurring Opinion: Field, J. that the right which the Constitution gives is a barren one, to be used only so far as the burden of transportation is concerned, and to be denied so far as any benefits from such transportation are sought. The framers of the Constitution never intended that a right given should not be fully enjoyed. In Brown v. Maryland, 12 Wheat. 419, 446, Chief Justice Marshall, in delivering the opinion of the court, speaking of the commercial power of Congress, and after observing that it is co-extensive with the subject on which it acts, and cannot be stopped at the exterior boundary of a State, but must enter its interior, said: "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. The power claimed by the State is, in its nature, in conflict with that given to Congress; and the greater or less extent in which it may be exercised does not enter into the inquiry concerning its existence. We think, then, that if the power to authorize a sale exists in Congress, the conclusion that the right to sell is connected with the law permitting importation, as an inseparable incident, is inevitable." And the Chief Justice added: "We suppose the principles laid down in this case to apply equally to importations from a sister State." p. 449. Assuming, therefore, as correct doctrine that the right of importation carries the right to sell the article imported, the |