"On a judgment of the Supreme Court, begun and holden at Providence, within and for the County of Providence and State of Rhode Island and Providence Plantations, on the third Monday of September, in the year of our Lord "It is admitted, in the above case, that the one thousand eight hundred and forty-five, liquors alleged in said indictment to have been wherein the said State of Rhode Island and sold by the defendant, in violation of the Act Providence Plantations, by Joseph M. Blake, of this State, entitled, An Act enabling town | Attorney-General of said State, is prosecutor, councils to grant licenses for the retailing and the said Joel Fletcher is defendant, the strong liquors, and for other purposes,' was said Joel Fletcher, upon a writ of error upon brandy, the growth, produce, and manufacture said judgment, returnable to the next term of of the kingdom of France; which said brandy the Supreme Court for the United States, to be was duly imported into the United States at the begun and holden at the city of Washington, in

the District of Columbia, on the first Monday of December, in the year of our Lord one thousand eight hundred and forty five, assigns for error in the records of process and judg ment aforesaid, founded on certain statutes of the said State of Rhode Island and Providence Plantations, and the construction thereof by the said Supreme Court, the following, to wit: That the judgment rendered in the Supreme Court of said State in this case, it being the highest court of law and equity of the said State in which a decision could be had in said case, should be reversed, for the reasons following, viz. That the Act of the General Assembly of said State of Rhode Island and Providence Plantations, entitled, 'An Act enabling town councils to grant licenses for retailing strong liquors, and for other purposes,' and the Act entitled, 'An Act in addition to an Act, entitled, An Act enabling town councils to grant licenses for retailing strong liquors, and for other purposes,' and appended hereto and set out as a part of the record in the said cause upon which said judgment was founded, and also the opinion and judgment of said Supreme Court of said State of Rhode Island and Providence Plantations, in the application and construction of said acts to the proofs sub mitted in said cause, are void, the same being repugnant to that clause of the eighth section of the Constitution of the United States which provides, That the Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the 542*] common defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States'; and are also repugnant to that clause of the said eighth section of said Constitution which provides as follows: 'The Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes'; and are also repugnant to that clause of the tenth sec tion of said Constitution of the United States which provides as follows: No State shall, without the consent of Congress, lay any imposts or duties on imports and exports except what may be absolutely necessary for executing inspection laws,' and the acts of Congress. in pursuance of the aforesaid several clauses They then showed, that, under the influence of said Constitution of the United States now of what is called the temperance reform, a new existing in full force which objections were, principle had been introduced into the legislaat the trial of said cause before said court, tion of Rhode Island on this subject, which, taken by the said Fletcher in his defense, and after numerous fluctuations had, in January, were overruled by said court. There is error 1845, settled the law, if indeed it was settled, also in this, to wit, that, by the record afore in the shape of the Act of January, 1845, which said, it appears that the judgment afore- in substance forbids in any town the sale of said, in form aforesaid given, was given for all strong liquors in less quantities than ten the said State of Rhode Island and Providence gallons, without license first had from the Plantations against the said Joel Fletcher; town council of the town, and provides, that whereas, by the law of the land, the said judgif, on the day appointed for the election of ment ought to have been given for the said Fletcher against the said State; and the said Joel Fletcher prays that the judgment aforesaid, for the errors aforesaid, and other errors in the record and proceedings, and the matters herein set forth, may be reversed, annulled, and held for nothing, and that he may be restored to all things which he has lost by occa sion of said judgment JOEL FLETCHER, "By JOHN WHIPPLE, and SAMUEL AMES, "His Attorneys."

The cause was argued by Mr. Ames and Mr. Whipple for the plaintiff in error, and Mr. R. W. Greene for the State.

Messrs. Ames and Whipple, for the plaintiff in error, read and commented on the various acts of the General Assemby of the State of Rhode Island, in relation to the licensing of taverns, ale houses, and the like, and the sale of spirituous liquors therein, commencing in the year 1647, and coming down to the year 1824, for the purpose of showing, that, from the earliest period in the history of the colony to the last named period in the history of the State of Rhode Island, her policy had been uniform on this subject, and similar to that of most Christian and civilized countries, and of all the colonies and States of the Union-that is, to license and regulate the sale of spirituous liquors, that it might be consistent with the preservation of good order, and with the Christian virtue of temperance, and not to inhibit it, in enforcement of the Mahometan rule of abstinence. They showed that the licenses granted by the municipal authorities of the various towns of Rhode Island for the [*543 keeping of taverns and the retailing of strong liquors had been a source of revenue to the towns and to the State, to aid in the maintenance of the police of the State; and insisted, that, in the fair construction of the acts empowering the town officers to grant them, the words may grant" were legally construed "must or shall grant," according to the well known general rule of so construing the word "may," when used in a public act or municipal charter to impart an authority to public officers, in the exercise of which the public interest or private rights were concerned; and that the practice of the authorities of the towns of Rhode Island had always concurred with this well known rule of legal construction. To this point they cited, Blackwell's case (1 Vernon, 152); Rex v. Barlow (2 Salk., 609); S. C. (Carthew, 293, 294); King v. Inhabitants of Derby (Skinner, 370); Magdalen College case (3 Atk., 166); King v. Mayor and Jurats of Hastings (1 Dowl. & Ryl., 149); Newburgh Turnp. Co. v. Miller (5 Johns. C. R., 101, 113, 114); Ex parte Simonton (9 Porter's Ala. R., 390).

town officers, a majority of the electors of a town voting on the subject shall vote to grant, or not to grant, licenses for the ensuing municipal year, the town council of the town were irrevocably bound during the year to obey the instruction.

They admitted that a law regulating the sale of strong liquors under a license for the sale, even though a bonus was required for the license, was valid; but that a law like the present, in its purpose, end, and operation, as well 18 273

as in its form, substantially and practically prohibitory of the sale, was, in its application to the case at bar-in which the liquor sold was brandy imported from France, upon which, under the Act of Congress of 1842, entitled, "An Act to provide revenue from imports, and to change and modify existing laws imposing duties on imports, and for other purposes," the duties had been regularly levied and paid-void, as repugnant to that act, both as a revenue measure upon which the expenditures of the government of the United States were based, and as a regulation of the commerce of the United States with France.

Though they maintained the exclusive power of Congress, under the Constitution, to regulate commerce with foreign nations, as well as among the States and with the Indian tribes -as required by the necessities of the country at the time of its formation and adoption as 544*] *new-to preserve proper commercial relations abroad, and for the prosperity and peace of the several States, as well as that an adequate revenue might be derived from duties on imports, they waived the discussion of the exclusiveness of this power as an abstract power in Congress, in the present case, for a double reason: because Congress had exercised it in the subsisting Act of 1842, and because the act of Rhode Island could in no proper sense be said to be an exercise of the power to regulate foreign commerce.

exclusive dominions, under a Constitution which declared, without limitation or reserve, that its just power should be supreme, not only over the laws, but even the constitutions, of the States. Upon this question they appealed from conservative Massachusetts to democratic Virginia, and cited the 44th Paper of the Federalist, p. 183, Gideon's edition, in which Mr. Madison, in commenting upon the clause of the Constitution in question, concludes his defense against the only objection that was made to it-that it rendered the Constitution, laws, and treaties of the United States supreme over the constitutions of the States-with this statement of the result *if this supremacy [*545 had not been given: "In fine, the world would have seen, for the first time, a system of gov. ernment founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society everywhere subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members." In this case, a supremacy over the Constitution, laws, and treaties of the United States was claimed for every, even the most petty, police law of a State, or even a town or city, when that Constitution and those laws and treaties were made supreme over the constitution of the State by which, or under the authority of which, the police law was passed. They commented upon the case of New York They admitted that an act of a State, to come v. Min, for the purpose of showing that the in conflict with the exclusive power of Con- general language there used by Mr. Justice Bargress to regulate foreign commerce, when not bour in delivering the opinion of the court, exercised, must of itself be an exercise of that from which the strange doctrine in question power; but maintained, that any law pertain had been inferred, should, according to the rule ing to the mere police of a State might come in in this respect laid down by Mr. Chief Justice conflict with a commercial regulation of Con- Marshall in Cohens v. Virginia (6 Wheat., 399), gress; and, if it did, must, so far as it did, yield be restrained to the case before the court, to the law of Congress, as the supreme law of which, by the decision of the court, involved the land, when passed in pursuance of the Con- no conflict of the powers of the government of stitution. They were not aware, until the doc- the State of New York with those of the gov trine had been boldly advanced by the counsel ernment of the United States, and, by the ilfor Massachusetts, in the preceding case-tried lustrations given of the meaning of the lanwith this by order of the court-that it had guage, could be fairly applied only to cases been "a growing opinion," and still less, that where no conflict existed. Upon this point, by the decision of this court in New York v. they cited also the opinions of Mr. Chief Jus Miln (11 Peters, 139, 141), it had become the tice Taney, and of Mr. Justice McLean, in the settled law" of this court and of the land, that subsequent case of Groves et al. v. Slaughter in all such cases of conflict the rule of the Con- (15 Peters, 505, 509), members of the court at stitution was reversed, and that the law of Con- the time the opinion in New York v. Miln was gress became subject to the law of the State, delivered, and concurring in that opinion, for as to the supreme law of the land, and that the the purpose of showing that they could not clause of the Constitution asserting the su- have understood the language in question in premacy of the Constitution, and of the laws the sense contended for. and treaties of the United States made under it, applied only to the case of concurrent powers; nor did they so understand that case. They maintained that the doctrine thus announced was little short of absurdity, since it admitted the supremacy of the law of Congress in the case of concurrent powers-in the exercise of which the governments of the States and the government of the United States enjoyed, as it were, a joint empire, and where, from the very fact that the powers were concurrent, they could never, in a constitutional sense, be said to conflict, and so there was no room for the supremacy in question-and denied the supremacy of the United States in the legitimate exercise of its exclusive powers, making the United States the slave of the States in its own

66

[Mr. Justice Wayne here declared his entire dissent from the general opinions expressed in the language in question, and even declared that he had no recollection that such language was in the opinion of the court in that case at the time it received his concurrence.]

They concluded upon this point, that if any persons really held the doctrine in question, upon the supposition that it was necessary for the maintenance of certain peculiar institutions of some of the States, which, though guaranteed by the Constitution, were at war with its whole spirit, as well as with the principles of the Declaration of Independence, which the Constitution carried out as far as it could consistently with the existing condition of the country, they were guilty of "a blunder "—in

the opinion of a great but unprincipled poli- | It cuts off, strikes out, one link between the tician, in such matters, always worse than "a *importer and consumer, and might as [*547 crime." The clauses in the Constitution guar- well destroy, and does thus practically destroy, anteeing these institutions were an anomaly in the whole chain; for there can be no importait. It was better, then, to treat those institu- tion without sale, no wholesale without retailtions and everything fairly relating to them as and these are arbitrary terms-no retail without anomalous-to be governed by peculiar rules-consumption. than, by converting an anomaly into a general 546*] rule, to *pervert the whole spirit, and invert the whole order, of the Constitution, and, by thus stripping the general government of all its powers, deprive the States, and especially the smaller States, of all the rights and protection guaranteed by the United States. They who were willing, and all sensible people were, to stand by the compromises of the Constitution, would do much to redeem the pledge thus given for them; but it was both unjust and impolitic to require this of them.

nant power. (Providence Bank v. Billings, 4 Peters, 514; Groves v. Slaughter, 15 Peters, 505.) When exerted by the State over personal property in general, including imports, it cannot affect foreign commerce, or the revenues of the United States, since it bears equally upon all articles, and thus keeps their relative value the same. To become mischievous, either constitutionally or practically, to foreign commerce, a tax law must discriminate as to the subjects of it.

This, however, is not true of prohibitory laws, like the law in question. If practically such a law forbids the sale, destroys the vendible character of an imported article, which constitutionally it cannot do, it does not help the law in relation to such articles, that it also destroys the vendible character of the like article manufactured in the State, which constitutionally it may do. It is void pro tanto imports, in any form or shape.

There is also this plain distinction between such a law and an ordinary license law: that the latter does not, like the former, destroy the vendible character of the article, but, admitting this, restricts the power of sale to certain selected persons licensed to sell the article; and prac tically the difference is just as great as the dif ferent terms "license" and "prohibition " im port.

the question; the notion suggested obiter, not | never in its nature or effect treated as a repug adopted, by Mr. Chief Justice Marshall, in Brown v. Maryland, that the importation licenses the sale only in the original package, being false in theory, and destructive to the constitutional powers of Congress in practice. As the governments of the United States and of the States operate upon the same men and things, within the same territory, at the same time, it is ob vious that all material barriers between them are broken down, and that in general we must look for the boundary line of the two jurisdictions in the relation and condition of the men and things upon which they operate. This is certainly true of the power to tax imports, or things which have been imported, and of the prohibition to tax exports, or things to be exported. It is obvious, that the States may and do every day tax residents for their personal property, whether in the form in which it has been imported, and even lying in the customhouse, or in which it is to be exported, on the wharf, or in the vessel, just as if the import or export was confused with the mass of property in the State; and no one deems such a tax as a tax upon imports or exports, in the sense of the prohibition of the Constitution, or in any proper sense whatever. Nor would such a general exercise of the taxing power by the United States upon all personal property of its citizens, including imports and exports, be a tax or duty upon imports or exports, but merely a tax upon No one denies the right of the States to regupersonal property, and upon the import or ex-late the sale or punish the improper use of any port as such property. Any discriminating tax, article, domestic or imported, within their ter however, upon a thing imported, as such, at ritories, under such customary and proper any time, in any form, either of the law or the restrictions as substantially leaves to the article import, would certainly be a tax or duty upon its vendible character. It is the taking away imports forbidden to the States; and any dis- of this character from imported brandy, upon criminating tax or duty upon a thing to be ex- which the duties have been levied and paid, of ported, as such, would be a duty upon exports which we complain in this case. forbidden to the United States, and to the States, except under the control of Congress, for the purpose of executing their inspection laws. There is nothing in the nature or form of an article which makes it an import, only something in its history; there is nothing in the nature or form of an article which makes it an export, only something in its destination; and if anything be specifically taxed as imported, or to be exported, it is a tax upon an import, or upon an export, within the letter and spirit of the Constitution. Once allow that the States may levy discriminating duties upon things imported from foreign countries, or other States, the moment they have lost their original form, or have been taken out, as they must be for sale and use, of the package or cask, and the commercial power of Congress, and the revenues of the United States from this source, are lost to gether. Once allow that the United States may levy discriminating duties upon things to be ex549*] ported *from the States, as such, in any form or package, or in the process of growth or manufacture, and it is obvious that the agricul ture and manufactures of the States are directly at the mercy of the general government. This "package notion," as it is called, is one of those vain but natural efforts of the mind to attach itself to something material to rest upon, even in matters which do not admit of such helps and rests. The point where regulation ends and proThe taxing power is a sovereign power, nec-hibition commences may in some cases be difliessary for the support of government, and cult to determine, as many practical questions

Thus, the States may and do prohibit sales of all articles on the Lord's day, in enforce ment of a divine command; of liquor to drunkards, children, &c., to prevent riot and intemperance; and they tax and license hawkers and peddlers, and auctioneers of all articles, and retailers of things dangerous in their use, to prevent fraud, regulate domestic trade, raise revenue, and insure public safety and social order. All this, so far from injuriously affect ing the sale of things, aids and assists it, by making it safe, regular, profitable, and consist ent with the well-being of the community. The same remark applies to quarantine laws, and sanitary regulations *in general. [*550 They may delay the infected ship, or stop the infected person, or even destroy the infected article; yet who does not see that in this very way they aid foreign commerce; by making it safe to the community which carries it on, and promote traffic in imports, by preventing all danger in handling, using, or consuming them? Even these, however, may be so needlessly re strictive, or, still worse, totally prohibitory in their character, as obnoxiously to interfere with foreign commerce, and in such case would merit no more favor, on account of the professed purpose of the law, than if avowedly passed to prevent foreign commerce in certain articles, or to prevent it altogether.