David Josiah Brewer

“ The supreme court of Tennessee rightly interpreted this statute as an absolute prohibition of the sale of cigarettes, no matter what the character of the paper wrappers or the condition of the tobacco within them, and it asserted the power of the state to enact the statute on the ground that cigarettes are 'inherently bad, and bad only.' I quote from its opinion:
'Are cigarettes legitimate articles of commerce? We think they are not, because wholly noxious and deleterious to health. Their use is always harmful, never beneficial. They possess no virtue, but are inherently bad, and bad only. ”

“ The attitude of one who affirms the supreme power of the nation over interstate commerce, including therein the right of Congress to regulate the importation and sale in large packages of things whether or not deemed by any state deleterious in their use, and yet holds that that supreme power of Congress is exhausted the moment the importation is in a package of small size, finds something of a parallel in the attitude of the citizen of a state, which has adopted prohibition, who upholds the law, but objects to its enforcement. ”

“ Was each particular parcel of cigarettes an original package within the constitutional import of those words as defined by the previous adjudications of the court?'
I come to the consideration of this question with the conceded fact that Congress has supreme and exclusive control over interstate commerce; that no state in the exercise of its police power can directly restrain such commerce; and inquire why the size of the package or the manner of importation determines the limit of national control? ”

“ The facilities of transportation are increasing rapidly, and with them the cost of such transportation is diminishing, so that more and more will it be true that the smallest packages will be the frequent subject of transportation, even between state and state. But it has often been said that the grants of power in the Constitution to the national government were expressed in such broad and general language that, notwithstanding the many changes in the modes of doing business, in the forms and conditions of social life, the needed control was still found to be vested in Congress. ”

“ All that mode of transportation has grown up in this country within the last sixty years, but the express companies carrying their small packages from state to state are just as certainly engaged in interstate commerce as the old-fashioned lumber wagons carrying commodities between the same places. ”

“ No one can question the sincerity of the legislature of Tennessee in thus enacting what it deemed for the health of its citizens, or the conviction of the members of its supreme court of the validity of such legislation by reason of the greatness of the supposed evil which it was intended to restrain. ”

“ Now, if cigarettes cannot be brought into the state of Tennessee and sold in the packages in which they were manufactured, but must be brought in and sold only in barrels or boxes of large size, the right of importation is practically defeated, for no consumer would buy a barrel or box for his own use, and no importer could sell it to a second party with the idea of a resale, because the moment the first sale is accomplished, the law of the state interposes to prevent the second. ”

“ Another matter which must not be ignored in measuring the control of Congress over interstate commerce is the changes in the modes of transportation. At the time that Chief Justice Marshall wrote the opinion in Brown v. Maryland transportation was carried on by water in sailing vessels and by land largely in lumber wagons. It is not strange that at such time all transportation was of goods packed in large boxes, securely fastened to prevent accidents from the rough and tumble way of transportation. ”

“ 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. ”

“ Justice Strong:
'But whatever may be the nature and reach of the police power of a state, it cannot be exercised over a subject confided exclusively to Congress by the Federal Constitution. It cannot invade the domain of the national government. . . . It may not, under the cover of exerting its police powers, substantially prohibit or burden either foreign or interstate commerce.'
Again, by Mr. ”

“ If, from its nature it does not belong to commerce or if its condition from putrescence or other cause, is such, when it is about to enter the state, that it no longer belongs to commerce, or, in other words, is not a commercial article, then the state power may exclude its introduction. ”

“ No particular proof is required in regard to those facts which by human observation and experience have become well and generally known to be true (Schollenberger v. Pennsylvania, 171 U.S. 1, 43 L. ed. 49, 18 Sup. Ct. Rep. 757; 1 Greenl. Ev. § 6; 1 Wharton, Ev. § 282; 1 Jones, Ev. §§ 129, 134; Lanfear v. Mestier, 18 La. Ann. 497; s. c. 89 Am. Dec. 658, and notes 693; State v. Goyette, 11 R. I. 592; Watson v. State, 55 Ala. 158) ; nor is it essential that they shall have been formally recorded in written history or science to entitle courts to take judicial notice of them. ”