Scott v. Donald

¶48Mr. Justice Shiras

¶49delivered the opinion of the court.

¶50The records in these cases present the question of the validity, under the Constitution of the United States/ of the act of the general assembly of the State of South. Carolina, approved January 2, 1895, generally known as the state dispensary law, and a copy of which is in the margin.1

¶51*67A preliminary question is raised by the proposition that these are in fact suits against.the.State of South Carolina, and forbidden by the Eleventh Amendment. This question is *68sufficiently disposed of by referring to the late case of In re-Tyler, 149 U. S. 164, where the conclusion of numerous previous cases was stated to be that where a suit is brought *69against defendants who claim to act as officers of a Staté, and," under color of an unconstitutional statute, commit acts of wrong and injury to the property of the plaintiff, to recover *70money or property in their hands unlawfully taken by them in behalf of the State, or for compensation for damages, such suit is not, within the meaning, of the amendment, an action against the State.

¶52*71It is also argued that the amounts involved in the respective suits were not sufficient to give jurisdiction to the Circuit Court. Although the question of the jurisdiction of the court below has not been certified to us in the manner provided by *72the fifth’section, of the judiciary act of March 3, 1891, yet, as the case is before us, in a case in which the law of a State is claimed to be in contravention of the ^Constitution of the *73United States, under another clause of that statute, we have jurisdiction of the entire case and of. all questions involved in it. Horner v. United States, 143 U. S. 570 ; Carey v. Houston *74& Texas Central Railway, 150 U. S. 170, 181; Chappell v. United States, 160 U. S. 499.

¶53Our inspection of these records does not satisfy us that this objection is well founded. The declaration- or complaint *75alleges in each case that the plaintiff has been injured and damaged in the sum of six thousand dollars and demands judgment for that amount. It is urged that, as the value of the goods and chattels taken was alleged and shown to be but *76comparatively a few dollars, and as the recovery in each case was only in the sum of three hundred dollars, we are obliged to infer that the damages alleged and demanded were without *77just foundation, and in the nature of a fraud upon the juris- ■ diction of the court.

¶54The declarations contain allegations which, if true, bring *78thé cases within the well-settled doctrine that exemplary damages may in certain cases be assessed. After alleging that the plaintiff, in importing for his own use the articles men*79tioned, were in the exercise of his legal rights guaranteed by the Constitution of the United States, it is averred, in the several declarations, that the defendants were notified that *80any seizure of said goods, under any pretence of authority, would be a grievous trespass and in disregard of constitutional rights, for which they would be held responsible; that the *81defendants, notwithstanding such notice, and claiming to act as constables of the State "of. South Carolina, forcibly seized and carried away the said packages; and that, in committing *82the said unlawful acts, the said defendants acted knowingly, wilfully and maliciously, and' with intent to oppress and humiliate and intimidate the plaintiff, and make him afraid *83to rely upon the Constitution and laws of the United’States, and the judicial power thereof for his protection in the rights, privileges and immunities secured to him by the. Oon-*84sti'tution and laws of the United States; and that the defendants well knew when they made said seizures and committed said, trespasses that said acts were unlawful ánd forbidden by *85the laws and Constitution of the United States, but that they so acted, trusting and believing that they would be shielded and protected from all harm by their official superiors in the *86State of South Carolina; and that they made such seizures and committed- such trespasses wilfully and maliciously, with the purpose and intent to trample on the- plaintiff’s rights under the law and to do him all the injury in the pother of the defendants.' .

¶55These allegations must, for the purpose of disposing of the present, question, be accepted by us as true or, at least, as susceptible of proof.

¶56' Damages have been defined to be the compensation whic.h tbd law will, award for an injury done, and are said to be ".exemplary and allowable in excess of the actual loss, where a. tort is- aggravated by evil motive, actual malice, deliberate •violence or oppression. While some courts and text-writers, have questioned the soundness of this doctrine, it has been accepted in.England, in most of the States of this Union, and has received the sanction of this court.

¶57In the case of Wilkes v. Wood, Lofft, 19, which was an action'of trespass for breaking into the plaintiff’s house and seizing his papers, under color of a general 'warrant by a secretary of State, Chief Justice Pratt, in charging-the jury, and in replying to the contention of the solicitor general that, damages nominal or merely compensatory were all that could be allowed, said: “Notwithstanding what the solicitor gen*87eral has. said, I have formerly delivered it as my opinion' on another occasion, and I still continue of the same mind, that a jury have it in their power to give damages for more than the injury received. Damages are designed not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, to deter from any guch proceeding for the future, and as a proof of the detestation of the jury to the action-itself.” The jury found, a verdict with a thousand pounds damages..

¶58In the case of Huckle v. Money, 2 Wilson, 205, there was a motion for a new trial on the ground that the jury had allowed excessive damages. It was proved on the trial that the plaintiff was a journeyman printer, and was taken in custody by the defendant, under the general warrant of a secretary of State, upon suspicion of .having printed a certain libellous paper; that, the defendant kept him in custody about six hours, but used him very civilly by treating him with beefsteaks and beer, so that he suffered very little or no damages. The jury gave him a verdict in three hundred pounds damages. In disposing of the motion, the Lord Chief Justice Pratt said: “ That if the jury had been confined by their oath to consider the mere personal injury only, perhaps twenty pounds damages would have been thought sufficient; but the small injury done to the plaintiff, or the inconsiderableness of his station and rank in life, did not appear to the jury in that Striking light, in which the great point of law touching the liberty of the subject appeared to them at the trial. ... I cannot say what'damages I should have given if I had been upon the jury, but I directed and told them they were not bound to any certain damages. Upon the whole I am of opinion the damages are not excessive, and that it is very dangerous for the judges to intermeddle in damages for torts; it must be.a glaring case indeed of outrageous damages in a tort, and which all mankind at first blush must think so, to induce .a court to grant a new trial for excessive damages.”

¶59In Day v. Woodworth, 13 How. 371, which.was an action of trespass charging the defendants with tearing down and destroying the plaintiff’s mill dam, this court, through Mr. Justice Grier, said: ,

*88“ It is a well-established principié of the common law that, in actions of trespass and all actions on the case for torts, a' jury may inflict what are called exemplary, punitive or vindictive damages upon a defendant, having in view the enormity of his offence rather than the measure of compeifsation to the plaintiff. . We are aware that the propriety of this doctrine has been questioned by some writers, but if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument.. T>y the common, as well as by-statute law, men are often punished for aggravated misconduct or lawless acts, by means of a civil action, and the damages- inflicted by way of penalty or punishment given to the party injured. In many civil actions, such as libel, slander, seduction, etc., the wrong done to the plaintiff is incapable of being measured by a’money standard, and the damages assessed depend on the circumstances, showing the degree of moral turpitude or atrocity of the defendant’s conduct, and may properly be termed exemplary or vindictive rather than compensatory.

“In actions of trespass, where the injury has been wanton and • malicious, or gross and outrageous, courts permit juries to add to the ’measured compensation, of the plaintiff which he would have been entitled to recover, had the injury been inflicted without design or intention, something farther by way of punishment or example, which has sometimes been called‘smart money,’ This has always been left to the discretion of the jury, as the degree of punishment to be thus inflicted must depend oh the particular circumstances of each case.”

¶60Philadelphia, Wilmington & Baltimore Railroad v. Quigley, 21 How. 202, 213, was a case wherein a railroad company was responsible in an action for the publication of a libel; and although this court reversed the Circuit Court for allowing the jury to give exemplary damages, because there was no evidence that the injury was inflicted" maliciously or wantonly, yet the case of Day v. Woodworth, 13 How. 363, was cited with approval as recognizing the power of a jury in certain *89actions of tort to assess against, the tort-feasor punitive or exemplary damages, and as laying down the law that whenever the injury complained of has been inflicted maliciously or -wantonly, and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person.

¶61This was likewise recognized as well-settled doctrine in the case of Lake Shore Railway v. Prentice, 147 U. S. 107.

¶62The intentional; malicious and repeated interference by the defendants with the exercise of personal rights and privileges secured to .the plaintiff by the Constitution of the United States, as. alleged in the complaint, constitutes, as we think,' a.wrong and injury not the'subject of compensation by a mere money standard, but fairly within the doctrine of the cases wherein .exemplary damages have been allowed. Those allegations of the complaints,, though denied in the answers, have been sustained by the tribunal — in these cases the court, a jury having - been waived — which had to pass upon the issues of fact.

¶63' That the amount of the recovery in. each case fell short of the sum of two thousand dollars did not withdraw the cases from the jurisdiction of the court. As the declarations alleged damages in the. sum of- six thousand dollars, and' as a jury would be at liberty to find any amount not in excess of .that sum, the jurisdiction, having once validly attached, would not be defeated by the fact that the recoveries were for sums less than two thousand dollars. As said in the case of Day v. Woodworth, above cited, “The amount has always been left to the discretion of the jury, as the degree of the punishment to be then inflicted must. depend, on the particular circumstances of «each case.”

¶64Barry v. Edmunds, 116 U. S. 550, was a fully considered case, and it 'was there held that a suit cannot properly be dismissed by a Circuit. Court of the United- States as not substantially involving £t controversy within the jurisdiction of the court, Unless the facts, where made to appear on the record, create a legal certainty of that conclusion; that where *90exemplary damages beyond the sum • necessary to give a Circuit Court of the United States jurisdiction are claimed in an action for a malicious trespass, the court should not dismiss the case for want of jurisdiction simply because the record shows that the actual injury caused to the plaintiff by the trespass was less than the jurisdictional amount, and that it is settled in this court that in an action for a trespass accompanied with malice the plaintiff may recover exemplary damages in excess of the amount of his injuries, if the ad damnum is properly laid.

¶65Our inquiries thus far have proceeded on the assumption that the injuries complained of were inflicted in the enforcement of an unconstitutional law of the State. Sustaining the jurisdiction of the Circuit Court on that-Assumption, we are now brought to the more important and difficult question whether the so called dispensary law of the State of South Carolina is, indeed, as to some or all of its parts, invalid, as being in conflict with the Constitution of the United States and acts of Congress made thereunder? Is that statute a lawful exercise of the police power of the State?

¶66In the .present discussion we do not deem it necessary or desirable to review the numerous cases in which this court has had occasion to consider similar questions. We shall find it sufficient to apply to the case before.us. the conclusions announced in several very recent cases.'

¶67The difficulty of the subject is shown in the frequent and elaborate dissents in many of the cases. Still, it can be safely said that the differences of opinion thus manifested have not been so much upón fundamental principles, as upon questions of the construction and meaning of the various state statutes that have been under consideration.' Those statutes have covered almost innumerable subjects; such as the exclusion from the State of contagious or infectious diseases, or of criminals, paupers and others likely to become a burden or public charge; regulations requiring railroad companies to fence their roads; forbidding the manufacture and sale of oleomar•garine; the prohibition of Sunday labor, even by railroad companies partly engaged in interstate commerce, etc.

¶68*91But tbe particular state laws that have been most frequently considered, and have occasioned the most discussion, have been those that have sought to regulate or forbid the importation, manufacturó and sale of intoxicating 'liquors. And the law, whose validity we are now; to consider, is. one of that class.

¶69The evils attending the vice of intemperance in the use of spirituous liquors are so great, that a natural reluctance is felt-in appearing to interfere, even on constitutional grounds, with any law whose avowed purpose is to restrict or prevent the mischief. So long, however/ as state legislation continues to recognize wines, beer and spirituous liquors as articles of lawful consumption and commerce, so long must continue the duty of the Federal courts to afford to such use and commerce the same measure of protection, under the Constitution and laws of the United, States, as is given to other articles.

¶70¥e cheerfully concede that the law in question was passed in the bona fide exercise of the police power. We disclaim any imputation to the law-makers of South Carolina of a design, under the guise of a domestic regulation, to interfere with the rights and privileges of either her own citizens or those of her sister States, which are secured to them by the Constitution and laws of the United States.

¶71But, as we have had more than one occasion to observe, our willingness to believe that this statute was enacted in good faith, and to protect the people of the State from the evils of unrestricted importation, manufacture and sale of ardent spirits, cannot control the final determination whether the statute, in some of its provisions, is not repugnant to the Constitution of the United States. As was said in Mugler v. Kansas, 123 U. S. 623, 661: “If a statute purporting te have been enacted to protect the public health, the public morals or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.”

¶72It is important to- observe that the statute. before us does not purport to prohibit either the importation, the manufac*92ture, the sale or the use. of intoxicating liquors. The first section does, indeed, make it penal to manufacture, sell, barter, deliver, store or keep in possession any spirituous, malt, vinous, fermented, brewed or other liquors, which contain alcohol, and are used as a beverage, and declares all such liquors to be contraband and against the morals, good health and safety of the State, and authorizes them, to be seized wherever found, without warrant, and turned over to the state commissioner; yet those enactments are not absolute, but are made subject to the subsequent provisions of the act.' When those subsequent provisions are examined, we find that, so far from the importation, manufacture and sale of such liquors being prohibited, those operations are turned over to state functionaries, by whom alone, or under whose direction, they are to be carried on.

¶73Thus section three provides for the appointment of a state commissioner, who is required to purchase all intoxicating liquors for lawful sale in the State, and to furnish the same to such persons as may be designated as dispensers thereof, to be sold as thereafter provided in the act. Such commissioner is directed, before shipping the liquor to county dispensaries, to cause the same to be put up in sealed packages of not less than one half pint nor more than five gallons, in which packages they shall be sold by county dispensers.

¶74The fifteenth section enacts that “ any person, firm, association or corporation desiring or intending to manufacture or distill any liquors containing alcohol within the State, shall first obtain from the state board á permit or license to do-so,” and said section further provides “that manufacturers of distilled, malt or vinous liquors who are doing business' within this State shall be allowed to sell to no person in this State except the state commissioner and to parties outside the State, and the state commissioner shall 'purchase his supplies from the brewers and distillers in this State when their product reaches the standard required by this act: Provided, Such supplies can be purchased as cheaply from such brewers and distillers in this State as elsewhere.” So, too, the twenty-third section provides that “ the state commissioner may enter- into *93contracts with responsible grape-growers in this State for the sale of domestic wines through the dispensary, so as to encourage grape-growing in this State, and in furtherance of this subject not more than ten per cent profit to the 'dispensary over the expense of bottling, labelling, freighting, etc., shall be charged for the handling of such wines.” But there' is no such limitation of charge in the case of imported wines. And in cases of seizure of contraband liquors, the thirty-first section provides that “ the state commissioner shall have the same tested by the state chemist, and if pure shall sell the •same through the state dispensary as though purchased by him ; and if not pure he shall sell the same beyond the State; and deposit the proceeds to the credit of the state commissioner.”

¶75In view of these and similar provisions, it is indisputable that whatever else may be said of this' act, it was not intended to prohibit the manufacture, sale and use of intoxicating liquors. On the contrary, liquors and wines are recognized as commodities which may be lawfully made, bought and sold, and must therefore be deemed to be the subject of foreign and interstate commerce.

¶76It is sought to defend the act, as an inspection act, within the meaning, of that provision of the Constitution of the United States which permits the States to impose excise duties as far as they may be absolutely necessary for executing their inspection laws.

¶77The act does, indeed, contain provisions looking to the ascertainment of the purity of liquors, and to that extent may be said to be in the nature of an inspection law. But -those provisions, such as.they are, do not redeem the act from the charge- of being .an obstruction and interference . with foreign and interstate commerce. This aspect of the question has bb.en several times considered by ihis court in cases where similar attempts Tygye made to sustain state statutes as legitimate inspection laws.

¶78In Railroad Co. v. Husen, 95 U. S. 465, the validity of an act of the State of Missouri, which forbade the introduction into the Stá>é of any Texan or Mexican cattle between the *94months of March arid December of each and every year, was ■considered.

¶79It was contended on behalf of the law that it was valid as á quarantine or inspection law, as its purpose was to prevent '.the introduction of cattle afflicted with contagious diseases. But the court pointed out that no provision was made for the actual inspection’of the cattle, so as to secure the rejection ■of those that were diseased, but that all importation of •cattle, whether sound or diseased, was forbidden for long periods; and .it was held that the statute was void as a plain -intrusion upon the exclusive domain of Congress.

¶80Walling v. Michigan, 116 U. S. 446, 459, 460, was a case wherein was brought into question the validity of a statute of the State of Michigan, which imposed a tax or duty on -persons who, not having their principal place of business within the State, engage in the business of selling liquors, to be shipped into the State; and it was' held that a discriminating tax imposed by a State, operating "to the disadvantage of the products of other States when introduced into the first mentioned State, is, in effect, a regulation- in restraint of commerce among the States, and as such is a usurpation of the power confirmed by the Constitution upon the Congress of the United States. Answering the argument upon which the law had .been sustained by the Supreme Court of the State, this court, through Mr. Justice Bradley, said: “It is--suggested by the learned judge who delivered .the opinion of' the Supreme Court of Michigan in this case, that the tax 'imposed -by the act of 1875 is an exercise by .the legislature of Michigan of the police power of the State for the discouragement of the use of intoxicating liquors, and the preservation of the health and .morals of the people. This would be a perfect justification of the act if it' did not discriminate against the citizens and products of other States in a matter of commerce between the States, and thus usurp one of the prerogatives of the national legislature. The police power cannot be set up to. control the. inhibitions of the Federal' Constitution, or the powers of the United States .government Created thereby.”

¶81*95In 1886 the legislature of the State of Iowa passed an act forbidding, any common carrier from bringing within that State, for any person or corporation, any intoxicating liquors from any other State or Territory of the United States, without first having been furnished with a certificate, under the seal of the county auditor of the county to which said liquor was to be transported or was consigned for transportation, certifying that the consignee or person to whom .said liquor was to be transported, conveyed or delivered, was authorized to sell intoxicating liquor in said county. This statute was declared invalid in the case of Bowman v. Chicago & Northwestern Railway, 125 U. S. 465, 493, this court saying, through Mr. Justice Matthews: “ The statute of Iowa under consideration falls within this prohibition. It is not an inspection law; it is not a quarantine or sanitary law. It is essentially a regulation of commerce among the States within any definition heretofore given to that term, or which can be given; and although its motive and purpose are to perfect the policy of the State of Iowa in protecting its citizens against the evils of intemperance, it is none the less on that account a regulation of commerce. If it had extended its provisions so as to prohibit the introduction into the State from foreign countries of alb importations of intoxicating liquors produced abroad, no one would doubt the nature of the provision ás a regulation of foreign commerce. Its nature is not changed by its application to .commerce among the States. . . . 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. . . . The same process of’ legislation and. reasoning adopted by the State -and its courts would bring within the police power any article of consumption that' a State might wish to exclude, whether to that which was drank or to food and clothing.”

¶82In Leisy v. Hardin, 135 U. S. 100, it was recognized that ardent spirits, distilled liquors, ale and beer are subjects' of exchange, barter and traffic lite any other commodity in *96which a right of traflic exists, and that being thus articles- of commerce, a State cannot, in the absence of legislation on the part of Congress, prohibit their importation from abroad or from a sister State, nor when imported prohibit their sale by the importer; and, accordingly, it was held that a statute o.f the. State of Iowa, prohibiting the sale of any intoxicating liquors, except for pharmaceutical, medicinal, chemical or sacramental purposes, and under a license from a county court of the State, was, as applied to a sale by the importer, and in the original packages or kegs, unbroken and unopened, of such liquors manufactured and brought from another State, unconstitutional and void, as repugnant to the clause of the Constitution granting to Congress the power to regulate commerce with foreign nations and among the several States.

¶83In Minnesota v. Barber, 136 U. S. 313, 326, 328, the facts so closely resemble those shown by the record now under consideration, and the principles stated in the opinion are so applicable, that we, shall'state them with some particularity.

¶84A statute of the State of Minnesota, entitled “ An act for the protection of the public health by providing for inspection, before slaughter, of cattle, sheep and swine designed for slaughter for human food,” in its first section prohibited the sale of any fresh beef, veal, mutton, lamb or- pork for human food in the State, except as subsequently provided in the act. Boards of inspectors were there provided for, whose duty it should be to inspect all cattle, sheep and swine slaughtered for human food. It was made a matter of fine or imprisonment for any one to sell or expose for sale for human food any fresh beef, mutton, lamb or pork which had not been so inspected.

¶85This court, in an opinion delivered by Mr. Justice Harlan, while conceding that the statute was enacted in good faith, for'the purpose expressed.in'the' title, namely, to protect the health of the people of Minnesota, held that, as the necessaiy effect of the act was to deny altogether to the citizens of other ' States the privilege of selling, within the limits of Minnesota, for human food, any fresh beef, mutton, veal or pork, from animals slaughtered outside of the State, and to compel the *97people of Minnesota, wishing to buy such meats, either to purchase those taken from animals inspected and slaughtered in the State, or to incur the cost of purchasing them, when desired for their own domestic use, at points beyond the State, such legislation was void as constituting a discrimination against the products and business of • other States in favor of the products and business of Minnesota, and as depriving the people of Minnesota of the right to bring into that State, for the purposes of sale and use, sound and healthy meat, wherever such meat may have come into existence. It was said:

“ A law providing for the inspection of animals whose meats are designed for human food cannot be regarded as a rightful exertion of the police powers of the State, if the inspection prescribed is of such a character, or is burdened with such conditions, as will prevent altogether' the introduction into the State of sound meats, the products of animals slaughtered in other States. It is one thing for a State to exclude from its limits cattle, shéep or swine, actually diseased, or meats that, by reason of their condition, or the condition of the animals from which they are taken, are unfit for human food, and punish all sales of such animals or of such meats within its limits. ' It is quite a different thing for a State to declare, as does Minnesota by the necessary operation of its statute, that fresh beef, veal, mutton, lamb or pork — articles that are used in every part of this country to support human life — shall not be sold at all for human food within its limits, unless the animal from which such meat is taken is inspected in that State, or, as is practically said, unless the animal is slaughtered in that State. ... It is, however, .contended, in. behalf of the State, that there is in fact no interference by this statute, with the bringing of. cattle, sheep and swine into Minnesota from other States, nor any discrimination against the products and business of other States for the reason — such is the argument — that the statute requiring an inspection of animals on the hoof, as a condition of the privilege of selling, or offering for sale, in the State, the meats taken from them, is applicable alike to aH owners of such animals, whether citizens of Minnesota or citizens of other States. To this we answer, that a *98statute may, upon its face, apply equally to the people of.;all the States, and yet be a regulation of interstate commerce which a State may not establish. A burden imposed by a State upon interstate commerce is not to be sustained simply because the statute imposing it applies alike to the people of all the States including the people of the St^te enacting such statute. Robbins v. Shelby Taxing District, 120 U. S. 489, 497; Case of the State Freight Tax, 15 Wall. 232. The people' of Minnesota have as much right to protection against the enactments of .that State, interfering with the freedom of commerce among the States, as have the people of other States.. Although this statute is not avowedly, or in terms, directed against the bringing into Minnesota of the products of other States, its necessary effect is to burden or affect commerce with other States, -'as involved in the transportation into that State, for the purposes of sale there, of' all fresh beef, veal, mutton, lamb or pork, however free from disease may have been the animals from- which i.t was taken.”

¶86The same reasoning prevailed in Brimmer v. Rebman, 138 U. S. 78, wherein an act of the State of Virginia, which declared it to be unlawful to offer for sale, within. the limits of that State, any beef, veal of mutton from animals slaughtered one hundred miles or more from the place at which it is offered for sale, unless it has been previously inspected and approved' by local inspectors, was held void, as being in restraint of commerce between the States, and as imposing' a discriminating tax upon the products and industries of some States in favor of the products and industries of Virginia; and wherein it was said'“that the statute of Virginia, although avowedly enacted -to protect its people against the sale 'of unwholesome ■ meats, has no real or substantial relation to such- an object, but, by its necessary, operation, is a regulation of commerce, beyond the power of the State to establish.”

¶87After the decision in Leisy v. Hardin, and, perhaps, in pursuance of some observations contained therein, Congress passed the act of August 8, 1890, 26 Stat. 313, c. 728, enacting “ that all fermented, distilled or other intoxicating liquors, or liquids transported.into-any State or Territory, or remaining therein *99for usé; consumption, sale or storage therein, shall upon arrival in. such State or Territory be subject to the operation and, effect of the laws of such State or Territory enacted in the exercise of its police powers to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory, and shall not be exempt therefrom by reason pf being introduced therein in original packages ‘or otherwise.” This law was approved as valid, in the case of In re Rahrer, 140 U. S. 545, and a provision of the constitution of Kansas^ which provided that the manufacture and sale of .intoxicating liquors shall be forever prohibited in that State, except for medicinal, scientific and mechanical purposes, and an act passed in enforcement thereof, making penal the manufacture, sale or barter of any spirituous, malt, vinous, fermented -or other intoxicating, liquors, were held to be efficacious, and that imported liquors or liquids shall, upon arrival in a State, fall within the category of domestic articles of a similar nature.

¶88In Plumley v. Massachusetts, 155 U. S. 461, 471, and in Emmert v. Missouri, 156 U. S. 296, in the .first of which the validity of a state law forbidding the manufacture and sale of imitation butter, .and in the second the validity of an act compelling itinerant pedlers to take out licenses, were sustained, the scope and effect of the case of Leisy v. Hardin and of the act of Congress of August 8, 1890, were considered >.and-a full review of the cases heretofore cited was gone into and their principles elaborately discussed.

¶89In the light of these cases the act of South Carolina. of January 2, 1895, must, as to those of its provisions which affect 'the plaintiff in the present suits, stand condemned.

¶90It is not an inspection law. The prohibition of the importation of the wines and liquors of other States by citizens of South Carolina for their own use is made absolute, and does not depend on the purity or impu.ity of the articles. Only the state functionaries are permitted to import into the State, and .thus those citizens who wish to use foreign wines and liquors are deprived of the exercise of their own judgment and taste in the selection of commodities. To empower a *100state chemist to pass upon what the law calls the.“'alcoholic purity” of such importations by chemical analysis can scarcely come .within any definition of a reasonable inspection law.

¶91It is not a law purporting to forbid the importation, manufacture, sale and use of intoxicating liquors, as articles detrimental to the welfare of the State and to the health of the inhabitants, and hence it is not within the scope and operation of the act of Congress of August,. 1890. That law was not. intended to confer upon any State the power to discrimináte injuriously against the products of other States in articles whose manufacture and-use are not forbidden, arid'which are therefore the subjects of legitimate commerce. "When- that law provided that “ all fermented, distilled or intoxicating liquors transported into any State*or Territory, remaining therein for use, consumption, sale or storage therein, should, upon arrival in sucli State or Territory, be subject to the operation and effect-of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory, and should- not be exempt therefrom by reason of being introduced therein in original packages or otherwise,” evidently equality or uniformity of treatment under state laws was intended. The question whether a given state law is a lawful exercise of the police power is still open, and must remain open, to -this court. Such a law may forbid entirely the manufacture and sale of intoxicating liquors and be valid. Or it may provide equal regulations for the inspection and sale of all domestic and imported liquors and be valid. But the State cannot, under the Congressional legislation referred to, establish a system which, in effect, discriminates between interstate and domestic commerce in commodities to make and use which, are admitted to be •lawful.

¶92Whether those provisions of the act which direct that so called contraband liquors may be seized without warrant by any state constable, sheriff or policeman, while in transit or after arrival, whether in possession of a common carrier, *101depot agent, express agent or private person, and which subject common carriers to fine and imprisonment for carrying liquors in any package, cask, jug, box or other package., under' any other than 'the proper 'name or brand known to the trade, and which forbid the bringing of any suit for damages alleged to arise by seizing and detention of liquors under the act, would be lawful in an inspection law otherwise valid, we do not find it necessary to now consider. It was pressed on us, in the argument, that it is not competent for a State, in the exercise of its police power, to monopolize the traffic in intoxicating liquors, and thus put itself in competition with the citizens of the other States.

¶93This phase of the. subject is novel and interesting, but we do not think it necessary for us now to consider it. It is sufficient for the present cases to hold, as we do, that when a State recognizes the iiíánufacture, sale and use of ihtoxicating liquors as lawful, it cannot discriminate against the bringing •of such articles in, and importing them from other States; that such legislation is void as a hindrance to interstate commerce arid an unjust preference of the products of the enacting State as against similar products of the other States.

¶94There has been filed in the record a suggestion by the-•attorney general of the State of South Carolina that, since the trials- of these-, cases in the court below, there has been passed by the general assembly of that State a further act approved by the governor on March 6, 1896,* which act it is ■submitted,-supersedes and repeals parts of the act which has been under consideration in these cases; and we are asked to consider the provisions of the moré recent act.

¶95So far as these actions at law are concerned, it is, of course, -obvious that the-damages recovered were for acts committed under the alleged authority of the act of 1895, and cannot be ■affected by the provisions of the act of 1896, even if the invalidities of the former act were thereby remedied — a matter on which jve express no .opinion.

¶96The judgments of the Circuit Court.are

¶97Affirmed.'

¶148*102Mr. Justice Brown

¶149dissenting.

¶150Í' am unable to concur in the opinion of the court holding the South Carolina dispensary law to be unconstitutional,, as applied to the facts of this case. While I see no reason to question the propriety of our rulipgs in the cases analyzed in the opinion, of Railroad Co. v. Husen, 95 U. S. 465; Minnesota v. Barber, 136 U. S. 313; and Brimmer v. Rebman, 138 U. S. 78, they do not seem to me to have any considerable bearing upon the question in controversy, in view of the recent legislation by Congress upon the' subject of intoxicating liquors.

¶151In Leisy v. Hardin, 135 U. S. 100, this court in April, 1890, overruling the prior case of Peirce v. New Hampshire, 5 How.-504, held that a state statute prohibiting the sale of. intoxicating liquors, except for certain purposes, and under license from a county court, was, when applied to a sale by-^n importer of liquors brought from another State in the original packages, unconstitutional and void, as repugnant to the power of Congress to regulate commerce. Following closely upon this decision, and probably in consequence of it, Congress, upon. August 8 of the same year, enacted what is popularly known as the “'Wilson bill,” and declared that all such liquors transported into any State, or remaining there for use, consumption, sale or storage, .should, upon arrival be “ subject to the operation and effect of the laws of such State, enacted in the exercise of its police powers,” to the samé extent as if they had been- produced in such State.

¶152The effect of this enactment seems to me to withdraw intoxicating liquors from the operation of the commerce clause of the Constitution, and to permit the traffic in them to be regulated in such manner as the several States, in the exercise of their police powers, shall deem best for the general interests of the public. The act is not limited in its operation, .as the' majority opinion seems to assume, to state laws forbidding the importation, manufacture and sale of such liquors; but declares that they shall be subject, upon their arrival within the State, to the operation of all its laws enacted in the exercise *103.of its police powers. Adopting the very language of the act of Congress, section 32 of the dispensary law provides : That all fermented, distilled or other liquors or liquids containing alcohol, transported into this State or remaining herein for use, sale, consumption, storage or other disposition, shall, upon introduction and arrival in this State, be subject to the .operation and' effect of this law, to the same extent and in the same manner as though such liquors or liquids had been produced in the State.”

¶153¥e cannot fail to recognize the growing sentiment in this ' country in favor .of some restrictions upon the sale of ardent spirits, and whether such restrictions shall take the form of a license tax upon dealers, a total prohibition of all manufacture or sale whatever, or the assumption by the state government of the power to supply all liquors to its inhabitants, is a matter exclusively for the States to decide.

¶154The first section of the dispensary law;' of South Carolina declares. that, the .manufacture, sale, receipt, acceptance or keeping in possession of alcoholic liquors, exceptfwhen bought from a state officer authorized to sell the samé, aré declared to be contraband, and against the morals, good health and safety of the State, and may be. seized' wherever found without warrant. Now, as Congress has expressly declared that such articles shall, upon their arrival in the State, become subject to its laws to the same extent'as if they had been, originally produced there, and, as the dispensary act does not declare them contraband as imported liquors, or because they were imported, but. because they were not bought from a state officer authorized to sell the same, and as the law makes no discrimination in that particular between imported and domestic liquors, it is impossible for me to see why Congress has not directly authorized the action that was taken by the state officers in seizing these liquors. The power to declare intoxicating'..liquors to be contraband and to prohibit their manufacture and sale m toto was affirmed by this court in Mugler v. Kansas, 123 U. S. 623, and if the provision requiring them to be bought of .the- state dispensary be- valid, it applies as well to imported as to domestic liquors.

¶155*104But, as I understand, the court bases to a certain extent its opinion of the unconstitutionality of this act upon the fact .that the traffic in intoxicating liquors is not absolutely prohibited, but is monopolized by the State itself through the agency of a state commissioner, who is required (§ 3) to “purchase all intoxicating liquors for lawful sale” in the State, and to “furnish the same to such persons as may be designated as dispensers thereof,” to be sold as thereafter provided i.in .the act. Conceding this to be so, I' am unable to see that any provision 'of the Federal Constitution is thereby infringed. The Constitution, does, indeed, require of each State, a republican form of government, and, in the .tenth section of the first article, imposes certain limitations upon sta£e action, none of which have any relevancy to the subject under consideration.. Except as restricted'by the provisions of this section, thé several state legislatures possess, so far as any interference by the Federal government is concerned, full legislative powers, and, with respect to the subject of intoxicating liquors, are, since the passage of the “Wilson bill,” untrammelled by the Federal Constitution.

¶156Granting that the* act gives the State itself a monopoly of all traffic in' such liquors, it is not a monopoly in the ordinary or odious -sense of the term, where one individual or corporation is given- the right to manufacture or -trade which is not open to others, but- a monopoly for the benefit of the whole people of-' the State, the profits of' which, if any, are enjoyed by the whole peoplein short, a monopoly in the same. sense in which -.the Post Office Department, and the right to carry the mails, is a monopoly of the Federal government. Lowenstein v. Evans, 69 Fed. Rep, 908.

¶157The only objections to the dispensary law which strike meas being of any force ate the^ provisions of the fifteenth and twenty-third, sections, requiring the state commissioner to 'purchase his supplies from the brewprs and distillers in the Sftate; but even this - provision, though perhaps unwise, is subject to two conditions : first,- that their product shall reach the standard required by the act; and, second, that such supplies.'"can ,be purchased as cheaply from such brewers rand *105distillers in this State as elsewhere. As this restriction is practically no restriction at all, and' only incorporates in the statute exactly what the law would imply -without it, I see no valid objection to it.

¶158But even if it were conceded that this particular provision of the law were inoperative, and might be so declared in a case properly raising that question, it is not of the essence of the law, but a mere incident to the power of the commissioner, and surely should not have the sweeping effect of rendering the whole law unconstitutional and void. The main object of the act is to preserve the health and morals of the people by securing to them pure liquors, prohibiting .individual dealings in such liquors, and requiring all such traffic to be carried on through the agencies of the State. Such methods o'f dealing with this traffic are by no means unknown abroad. Indeed, I understand the act to be but the reproduction in this country of what is known as the Grothenberg system.

¶159It is entirely well settled that the unconstitutionality of a particular provision will not hivalidate an entire statute, unless such provision embodies the main purpose of the statute, or is so connected with such purpose that it is inseparable from it, or, unless the court can see that the legislature would not have passed the act .without such provision. This doctrine has been repeatedly affirmed by this court. Bank of Hamilton v. Dudley, 2 Pet. 492; Austin v. The Aldermen, 7 Wall. 694; Packet Co. v. Keokuk, 95 U. S. 80. Indeed, in Tiernan v. Rinker, 102 U. S. 123, this court held' an act of the legislature of Texas, taxirfg intoxicating liquors, to be inoperative only so far as it discriminated against imported wines or beers ; and that as defendant was also engaged in selling other liquors, an injunction was properly refused. That the provision that the commissioner in purchasing the liquors shall give preference to those of domestic manufacture is separable from the main purpose of the act seems to me too clear for argument. That the legislature would have passed the act without this provision is conclusively shown by the fact that, in a general amendment and reenactment of this law, made in 1896, this provision was omitted.

¶160*106While the power of courts to declare an act of legislation to be unconstitutional undoubtedly exists, it is one of great delicacy,-particularly when brought to bear... upon the legislative acts of another sovereignty. In one of the early cases decided by this court, Fletcher v. Peck, 6 Cranch, 87, 128, it was said by Chief Justice Marshall: “But'it is not on slight implication and vague conjecture that the legislature jis to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their, incompatibility with each other.” Still more explicit is the language of Chief Justice Waite in the Sinking Fund cases, 99 U. S. 700, 718: “It is our duty, when required in the regular course of judicial proceedings, to declare an act of Congress void if not within the legislative power of the' United States; but this declaration should never be made except in a clear case. Every possible -presumption is in favor of the-validity of a statute, and this continues until the contrary is shown beyond a rational doubt. OrTe branch of the government cannot encroach on the domain of another without' danger. The safety of our institutions depend^ in no small degree on a strict observance of this salutary rule.”- .

¶161I regard these words as' particularly applicable to the dealings by this court with the .proceedings of a state legislature, and that their, right to determine what-is for the best interests of their people should be carefully respected, except where it comes in manifest conflict, witfr the dominant law. Especially should everything be avoided-which carries the suggestion of a vexatious interference .with state action. . The manifest danger's to the future of. the country, which lurk in the inflexibility of. the Federal Constitution, can only be averted by carefully distinguishing- between such laws as practically concern the inhabitants of a particular. State only, and are intended bona fide for their* welfare, and such as are a mere subterfuge for" ah unlawful discrimination, and cannot be carried into effect without doing palpable injustice to citizenof other States. It shouldnot be overlooked in.this connec*107tion that the complaints in this case emanate from .a citizen of South Carolina, who seeks to defy the law of his own State, and puts forward as his excuse the injustice done the citizens of other States who make no complaint of her action in this particular. If a State cannot prohibit her own citizens from importing liquors, as well as buying them at home, the “Wilson bill” is set. at nought, and the prohibitory laws of the several States rendered inoperative in a vital particular. The fact that these liquors were imported for complainant’s own use and consumption, instead of for sale, raises no question under the Federal Constitution. Both are under the ban of the statute. .

¶162I am unable to see wherein that section of the dispensary act of South Carolina, which authorized the seizure made in this case, conflicts in any particular with the Federal Constitution.

¶163Me. Justice Beewee did not hear the argument and took no part in the decision of these cases.