Page:The Green Bag (1889–1914), Volume 22.pdf/21

 Congress and State Liquor Legislation to prohibit the sale and transportation of game, a subject of common owner ship, and such power includes the power to prohibit the transportation thereof

into the state.’ Now, if we had merely these decisions

11

said: “Whatever our individual views may be as to the deleterious or danger

ous qualities of particular articles we cannot hold that any articles which Congress recognizes as subjects of inter state commerce are not such, or that

to take into consideration, I ﬁnd it diffi cult to avoid the conclusion that we should be justified in stating, as a gen

controlled by state laws amounting to

eral proposition, that the power of a

ter.”

state to prohibit the sale, manufacture

vania,’ a like result was reached as to oleomargarine, which Congress had recognized “as a proper subject of tax ation and as one which was the subject of traffic and of exportation to foreign countries and of importation'from such countries." The above language in

and transportation of a given article in cludes the power to prohibit the trans portation thereof into the state. But we know that in Bowman v. Chicago, &c. Ry. Co., and Leisy v. Hardin it was very distinctly held that such power was not

included. I do not propose to argue, as I think

it plausibly might be, that Bowman v. Chicago &c. Ry. Co. and Leisy v. Har din have been overruled by these later decisions. Nor do I propose to deny that language was employed in the opinions in those two cases that is not to be harmonized with the proposition just formulated. What I do propose to show is that, on the facts, those

decisions are not out of harmony with such

proposition,

so

that,

speaking

whatever

are

thus

recognized

can

be

regulations, while they retain that charac

In Schollenberger v.

Pennsyl

Leisy v. Hardin was repeated, it being also said: "We think that what Con gress thus taxes and recognizes as a

proper subject of commerce cannot be totally excluded from any particular state.” Not without signiﬁcance seems the following language in Austin v. Tennessee.“ “Whatever product has from time immemorial been recognized by custom or law as a ﬁt subject for barter or sale, particularly if its manu

facture has been made the subject of federal regulation and taxation, must,

generally, it is as applicable to intoxi

we think, be recognized as a legitimate

cating liquors as to other articles.

article of commerce."

That is to say, in view of the particu lar situation presented in those cases, it failed to apply to intoxicating liquors,

because Congress had so legislated as to intoxicating liquors as to make them a subject of interstate commerce, thus putting it beyond the power of the states

to exclude them from interstate com merce.

So far as I can see, Congress

might with like eﬁect, make any other article, say of food or clothing, a “subject of interstate commerce."

In this view, it seems obvious what legislation by Congress is most likely to give scope to the power of a state to prohibit the transportation of in toxicating liquors into its territory, Congress might repeal all legislation,

having the effect cating liquors as commerce. But if impracticable, it

to recognize intoxi subjects of interstate this be regarded as seems to me that

the same result might well be attained by an explicit declaration by Congress

Thus in Leisy v. Hardin,B it was ' 171 U. s. 1, 9. 1a, 19 (1898). 7 See Silz v. Hesterberg, 211 U. S. 31 (1908). ' P. 125.

1'' 179 U. S. 343,345 (1900). Here, however, as to cigarettes, the prohibitory power of the state was sustained.