Melville Fuller

“ The power of congress to regulate commerce among the several states, when the subjects of that power are national in their nature, is also exclusive. The constitution does not provide that interestate commerce shall be free, but, by the grant of this exclusive power to regulate it, it was left free except as congress might impose restraint. Therefore it has been determined that the failure of congress to exercise this exclusive power in any case is an expression of its will that the subject shall be free from restrictions or impositions upon it by the several states. ”

“ The power of the state to impose restraints and burdens upon persons and property in conservation and promotion of the public health, good order, and prosperity is a power originally and always belonging to the states, not surrendered to them by the general government, nor directly restrained by the constitution of the United States, and essentially exclusive. ”

“ 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 oprat ion, 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. ”

“ Congress has now spoken, and declared that imported liquors or liquids shall, upon arrival in a state, fall within the category of domestic articles of a similar nature. Is the law open to constitutional objection?
By the first clause of section 10 of article 1 of the constitution, certain powers are enumerated which the states are forbidden to exercise in any event; and by clauses 2 and 3, certain others, which may be exercised with the consent of congress. As to those in the first class, congress cannot relieve from the positive restriction imposed. ”

“ It is upon the theory of such repugnancy that the case before us arises, and involves the distinction which exists between the commercial power and the police power, which, 'though quite distinguishable when they do not approach each other, may yet, like the intervening colors between white and black, approach so nearly as to perplex the understanding, as colors perplex the vision in marking the distinction between them.' 12 Wheat. ”

“ Hence it was held that inasmuch as interstate commerce, consisting in the transportation, purchase, sale, and exchange of commodities, is national in its character, and must be governed by a uniform system, so long as congress did not pass any law to regulate it specifically, or in such way as to allow that laws of the state to operate upon it, congress thereby indicated its will that such commerce should be free and untrammeled ”

“ The differences of opinion which have existed in this tribunal in many leading cases upon this subject have arisen, not from a denial of the power of congress, when exercised, but upon the question whether the inaction of congress was in itself equivalent to the affirmative interposition of a bar to the operation of an undisputed power possessed by the states. ”

“ If, from its nature, it does not belong to commerce, or of 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 ”

“ In the case at bar, petitioner was arrested by the state authorities for selling imported liquor on the 9th of August, 1890, contrary to the laws of the state. The act of congress had gone into effect on the 8th of August, 1890, providing that imported liquors should be subject to the operation and effect of the state laws to the same extent and in the same manner as though the liquors had been produced in the state; and the law of Kansas forbade the sale. ”

“ As to those in the second, their exercise may be authorized; and they include the collection of the revenue from imposts and duties on imports and exports by state enactments, subject to the revision and control of congress; and a tonnage duty, to the exaction of which only the consent of congress is required. Beyond this, congress is not empowered to enable the state to go in this direction. ”

“ And if a law passed by a state, in the exercise of its acknowledged powers, comes into conflict with that will, the congress and the state cannot occupy the position of equal opposing sovereignties, because the constitution declares its supremacy, and that of the laws passed in pursuance thereof. Gibbons v. Ogden, 9 Wheat. 210. That which is not supreme must yield to that which is supreme. Brown v. Maryland, 12 Wheat. 448.
'Commerce, undoubtedly, is traffic,' said Chief Justice MARSHALL, 'but it is something more; it is intercourse. ”