Scott v. Donald (165 U.S. 58)/Opinion of the Court

The 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.

A 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 sufficiently disposed of by referring to the late case of In re Tyler, 149 U.S. 164, 13 Sup. Ct. 785, where the conclusion of numerous previous cases was stated to be that, where a suit is brought against defendants, who claim to act as officers of a state, and, under color of an unconstitutional statute, commit acts of wrong and injury to the property of the plaintiff, to recover money 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.

It 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 the 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 United States, under another clause of that statute, we have jurisdiction of the entire case, and of all questions involved in it. Horner v. U.S., 143 U.S. 570, 12 Sup. Ct. 522; Carey v. Railway, 150 U.S. 181, 14 Sup. Ct. 63; Chappell v. U.S., 160 U.S. 499, 16 Sup. Ct. 397.

Our inspection of these records does not satisfy us that this objection is well founded. The declaration or complaint alleges, in each case, that the plaintiff has been injured and damaged in the sum of $6,000, 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 comparatively a few dollars, and as the recovery in each case was only in the sum of $300, we are obliged to infer that the damages alleged and demanded were without just foundation, and in the nature of a fraud upon the jurisdiction of the court.

The declarations contain allegations which, if true, bring the 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 mentioned, was in the exercise of his legal rights guarantied by the constitution of the United States, it is averred, in the several declarations, that the defendants were notified that any seizure of said goods, under any pretense of authority, would be a grievous trespass, and in disregard of constitutional rights, for which they would be held responsible; that the defendants, notwithstanding such notice, and claiming to act as constables of the state of South Carolina, forcibly seized and carried away the sald packages; and that, in committing the said unlawful acts, the said defendants acted knowingly, willfully, and maliciously, and with intent to oppress and humiliate and intimidate the plaintiff, and make him afraid to 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 constitution 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, and forbidden by the 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 state of South Carolina; and that they made such seizures and committed such trespasses willfully and maliclously, with the purpose and intent to trample on the plaintiff's rights under the law, and to do him all the injury in the power of the defendants.

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

Damages have been defined to be the compensation which the 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.

In 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 demages nominal or merely compensatory were all that could be allowed, said: 'Notwithstanding what the solicitor general 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 such proceeding for the future, and as a proof of the detestation of the jury to the action itself.' The jury found a verdict with 1,000 damages.

In the case of Huckle v. Money, 2 Wils. 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 libelous 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 300 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.'

In Day v. Woodworth, 13 How. 371, which was an action of trespass charging the defendants with tearing down and destroying the plaintiff's milldam, this court, through Mr. Justice Grier, said: 'It is a well-established principle 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 offense rather than the measure of compensation 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. By the common, as well as by the 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, &c., 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 further 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 on the particular circumstances of each case.'

Railroad Co. v. Quigley, 21 How. 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 actions 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.

This was likewise recognized as well-settled doctrine in the case of Railway Co. v. Prentice, 147 U.S. 107, 13 Sup. Ct. 261.

The 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.

That the amount of the recovery in each case fell short of the sum of $2,000 did not withdraw the cases from the jurisdiction of the court. As the declarations alleged damages in the sum of $6,000, and as a jury would be at liberty to find any amount not in excess of that sum, the jurisdiction, having once validity attached, would not be defeated by the fact that the recoveries were for sums less than $2,000. 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.'

Barry v. Edmunds, 116 U.S. 550, 6 Sup. Ct. 501, 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 a 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 exemplary 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.

Our 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?

In 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.

The 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 upon 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 oleomargarine; the prohibition of Sunday labor, even by railroad companies partly engaged in interstate commerce, etc.

But the 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, manufacture, and sale of in toxicating liquors; and the law whose validity we are now to consider is one of that class.

The 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.

We cheerfully concede that the law in question was passed in the bona fide exercise of the police power. We disclaim any imputation to the lawmakers 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.

But, 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 cantrol 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. 661, 8 Sup. Ct. 273: 'If a statute purporting to 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.'

It is important to observe that the statute before us does not purport to prohibit either the importation, the manufacture, 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 absolut, 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.

Thus section 3 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.

The 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 a 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 commissioners and to parties outside the state, and the state commissioner shall purchase his supplies from the brewere an 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 contracts 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, labeling, freighting, &c., 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 case 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.'

In 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.

It 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.

The 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 been several times considered by this court in cases where similar attempts were made to sustain state statutes as legitimate inspection laws.

In Railroad Co. v. Husen, 95 U.S. 465, the validity of an act of the state of Missouri, which forbade the introduction into the state of any Texan or Mexican cattle between the months of March and December of each and every year, was considered.

It was contended on behalf of the law that it was valid as a 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.

Walling v. Michigan, 116 U.S. 446, 6 Sup. Ct. 454, 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 firstmentioned 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.' In 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 is to be transported or is consigned for transportation, certifying that the consignee or person to whom said liquor is to be transported, conveyed, or delivered is authorized to sell intoxicating liquor in said county. This statute was declared invalid in the case of Bowman v. Railway Co., 125 U.S. 465, 8 Sup. Ct. 689, 1062, 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 all importations of intoxicating liquors produced abroad, no one would doubt the nature of the provision as 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.'

In Leisy v. Hardin, 135 U.S. 100, 10 Sup. Ct. 681, it was recognized that ardent spirits, distilled liquors, ale, and beer are subjects of exchange, barter, and traffic like any other commodity in which a right of traffic 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 of 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 those shown by the record now under consideration, 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.

In Minnesota v. Barber, 136 U.S. 313, 10 Sup. Ct. 862, 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.

A 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.

This 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 necessary 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 people 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 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, sheep, 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 all owners of such animals, whether citizens of Minnesota or citizens of other states. To this we answer that a statute 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 state enacting such statute. Robbins v. Taxing Dist., 120 U.S. 497, 7 Sup. Ct. 592; 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 it was taken.'

The same reasoning prevailed in Brimmer v. Rebman, 138 U.S. 78, 11 Sup. Ct. 213, 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, or mutton from animals slaughtered 100 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.'

After 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), enacting 'that all fermented, distilled or other intoxicating liquors, or liquors transported into any state or territory, or remaining therein for use, 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 of 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, 11 Sup. Ct. 865, 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 simiar nature.

In Plumley v. Massachusetts, 155 U.S. 471, 15 Sup. Ct. 154, and in Emert v. Missouri, 156 U.S. 296, 15 Sup. Ct. 367, 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 peddlers 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.

In 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.

It 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 impurity 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 state 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.

It is not a law purporting to forbid the importation, manufacture, sale, and use of intoxicating liquors as articles detrimentfal 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 discriminate injuriously against the products of other states in articles whose manufacture and use are not forbidden, and 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 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 should not be exempt therefrom by reason of being introduced therein in original packages or otherwise,' evidently equality or uniformity of treatiment 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.

Whether 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, depot 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 citinzens of the other states.

This 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 manufacture, sale, and use of intoxicating 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, and an unjust preference of the products of the enacting state as against similar products of the other states.

There 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 more recent act.

So 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 we express no opinion.

The judgments of the circuit court are affirmed.

Mr. Justice BREWER did not hear the argument, and took no part in the decision of these cases.