Prohibition

page 832.

Case of Kidd v. Pearson, argued before the Supreme Court April 4, and decided October 22, 1888. The code of Iowa (ch. 0, tit. 11), as amended in 1884 (Laws, ch. 143), provides: That no person shall manufacture or sell intoxicating liquors, except for mechanical, medicinal, culinary, and sacramental purposes; keeping liquors with intent to sell them within the State contrary to law is prohibited, and liquor so kept *'is a nuisance," and shall be forfeited (sees. 1523, 1526), " Nothing in this chapter shall be construed to forbid the sale by the importer thereof of foreign intoxicating liquor imported under the authority of the laws of the United States regarding the importation of such liquors and in accordance with such laws: Provided, That said liquor at the time of said sale by said importer remains in the original casks or packages in which it was by him imported, and in quantities not less than the quantities in which the laws of the United States require such liquors to be imported, and is sold by him in said original casks or packages and in said quantities only.." (Sec. 15-24.) Permission to manufacture or buy and sell for "mechanical, medicinal, culinary, or sacramental purposes " is to be obtions prescribed as to moral character, the wants of the Ipcalitj', etc.

December 24, 1885, 1.

E. Pearson and S. J. Loughran filed a petition in equity against J. S. Kidd, praying that a certain distillery used by him for the unlawful manufacture and sale of intoxicating liquors be abated as a nuisance, and that he be perpetually enjoined from manufacturing such liquors therein. The concluding averment was that Kidd manufactures and keeps for sale, and sells within the State, intoxicating liquors to be taken out of the State for use as a beverage, and for other than mechanical, medical, culinary, or sacramental purposes, contrary to the statute. Kidd, in his answer, pleaded that he had at all times complied with the requirements of the law. Upon the trial it was proven that all the liquors he manufactured were for exportation and wore sold outside of Iowa. 4. decree was rendered against him, ordering that his distillery be abated as a nuisance, etc., as prayed for. This decree being affirmed by the supreme court of the State, the case was carried to the Supreme Court of the United States, by which the constitutionality of the law and proceedings was upheld. Mr. Justice Lamar, delivering the unanimous opinion of the court, said in substance: That the State of Iowa could abate the distillery without depriving the owner of his property " without due process of law," within the meaning of the Fourteenth Amendment to the Constitution, was settled by the opinion in the case of Mugler v. Kansas, The only question to be decided is then as to whether the legislation of Iowa undertakes to " regulate commerce." That i Dower, conferred upon Congress, is absolute and complete in itself, with no limitation other than prescribed in the Constitution; is to a certain extent exclusively vested in Congress, so far free from State action; is co-extensivfl with the subject on which it acts, and cannot stop at the external boundary of a State, but must enter into the interior of every State whenever required by the interests of commerce with foreign nations, or among the States. This power, however, does not comprehend the purely internal domestic commerce of a State which is carried on between man and man within a State or between different parts of the same State. Whenever power reserved ■ to one of the States is so exercised as to conflict with the free course of a power vested in Congress, the law of the State must yield to the supremacy of the Federal authority, though the law may have been enacted In tiie exercise of a power indisputably reserved to the States. It is a mistake to say, as in this case, that the act of transporting alcohol from the State in the course of lawful commerce with other States not being a crime, to perform that act was not a criminal intent, whether formed before or after the manufacture. It is not the ciiminality of the intent to export that is in question, but the innocence or criminality, under the statute, of the manufacture, in the absence of the specific exceptions to the prohibition, the actual and controlling and bona. fide presence of at least one of which excep- The construction contended for by Kidd would extend the words of the grant to Congress beyond their obvious import... ' " Manufacture " is transformation—fashioning raw materials into a change of form for use. The functions of " commerce " are different. The buying and selling and the transportation incidental thereto constitute commerce; and the regulation of commerce in the constitutional sense embraces the regulation at least of such transportation. If it be held that the term " commerce " includes the regulation of all such manufactures as are intended to be the subject of commercial transactions in the future, it is impossible to deny that it would also include all productive industries that contemplate the same thing. The result would be that Congress would be invested, to the exclusion of the States, with the power to regulate, not only manufactures, but also agriculture, horticulture, stock-raising, domestic fisheries, mining, — every branch of industry; for there is not one of these that does not contemplate, more or less clearly, an iuter-State or foreign market. The power being vested in Congress and denied to.the States, it would follow that the duty would devolve on Congress to regulate all those delicate, multiform, and vital interests, — interests which are and must be local in all the details of their successful management. We find in the statute no provision the piu'pose of which is to exert the jurisdiction of the State over persons or property or transactions within the limits of other States; or to act iipon intoxicating liquors as exports, or while in process of exportation or importation. Its avowed object is to prevent, not the carrying of liquors out of the State, but their manufacture, except for specified purposes, within the State. Because the products of a domestic manufacture may ultimately become the subjects of inter-State commerce, it does not follow that State legislation respecting such manufacture is an attempted exercise of the power to regulate commerce exclusively conferred upon Congress. The right of a State wholly to prohibit the manufacture of intoxicating liquors is not to be overthrown omitting to except from its operation liquors manu factured for export, does not interfere with the power vested in Congress. In License Tax Cases, 5 Wall. 471 (1866), it was said: " No interference by Congress with the business of citizens transacted within a State is warranted by the Constitution, except such as ifi strictly incidental to the exercise of powers clearly granted to the legislature [Congress]. The power to authorize a business within a State is plainly repugnant to the exclusive power uf the State over the same subject." The manufacture of intoxicating liquors in a State is none the less a business within that State because the manufacturer intends, at his convenience, to export the liquors to other States. It has already been decided that the fact that an article was manufactured for export to another State does not of itself make it an article of inter-State commerce, and that the intent'of the manufacturer does not determine the time when the article or product passes from the control of the State and belongs to commerce. In the case of Coe v. Errdl, 316 U. S. 517, ~ 5S4 (1886), logs, which had been cut in New Hampshire and hauled to Errol on the Androscoggin river, in -the same State, to be floated down that river to Lewiston, Maine, while being held at Errol for a convenient opportunity for the transportation were assessed for local and State taxes. This court held that the logs were liable for taxes like other property in New Hampshire; that "goods do not cease to be part of the general mass of property in a State, subject, as such, to its jurisdiction, and to taxation in the usual way, until they have been shipped or entered with a common carrier for transportation to another State, or have been started upon such transportation in a continuous route or journey." The police power of a State is as broad and p^enaiy as its taxing power; and property within a State is subject to the operations of the, former as long as it is within the regulating restrictions of the latter. (The ease is reported 'in 128 U. S. 1, 15-36. Fuller, C. J., not being a member of the Court when it was argued, took no part in the decision. With Coe v. Errol