HOLMES, J., dissenting.

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ton, 158 Massachusetts, 299. The matter of grade crossings had been referred by the Legislature of Massachusetts to the courts, and a petition was pending for the abolition of certain grade crossings in Northampton. The case had been sent to commissioners, and they had reported. Pending a motion to confirm their report the Legislature passed an act forbidding a change in that case without the consent of the city council. It was held that, as the whole subject was originally within the control of the Legislature, it did not cease to be so by being referred to the courts, and the act was sustained.

A further illustration, and one in which substance has prevailed over form, is to be found in the case of suits by citizens of another State against officers of a State. In form such suits are controversies between citizens of different States and within the jurisdiction of the United States Courts. But if, in substance, they have the effect of suits against a State, the jurisdiction is denied... And the decisions do not stop there, but when the State has waived its immunity, as it may, and has given permission to a suit against the officer in a state court, it still is held that, although there is a controversy between citizens of different States which thus has become subject to litigation, that litigation must be confined to the courts which the State has named. Yet there is no doubt that, with the State's consent, its officers, or the State itself, could be sued in the courts of the United States. Smith v. Reeves, 178 U. S. 436; Chandler v. Dix, 194 U. S. 590.

It seems to me that, if a State authorizes a taking to be acccomplished by certain machinery, the United States has no constitutional right to intervene and to substitute other machinery because the State has chosen to use its law courts rather than a legislative committee and thus to give to the exercise of its sovereign power the external form of a suit at law. It seems to me plain that the exercise of that power depends wholly on the State, may be limited as the State chooses, and cannot be carried further than the State has authorized in terms. Suppose that a proceeding for taking land is removed

to the United States Court contrary to the legislation of the State, by whose authority, I ask myself, is a subsequent taking to be decreed? It is open to any one who can think it to say that the attempt to use the state courts to the exclusion of the United States courts makes the taking void, but I cannot understand how a taking unauthorized by the State can be good. If I am right in supposing that the State has an absolute right to limit the exercise of eminent domain as it sees fit, then, so far as the construction of the Kentucky statute is concerned, I need only invoke the cases last cited, to show that the statute imports that the State meant to confine the proceedings to its own courts. Certainly it does not purport to authorize them elsewhere, and that is enough. Smith v. Reeves, 178 U. S. 436, 445; Chandler v. Dix, 194 U. S. 590, 592. The difference between myself and the majority is not merely on the construction of the Kentucky statutes. If that were all I should not express my dissent. But the difference as to construction is a consequence and incident of a difference on the far more important question of power. Of course, what I have said is without prejudice to the possibility that in case a question of rights under the Constitution of the United States should arise and be carried to the highest court of the State, it might be brought here by writ of error, as was said by Mr. Justice Harlan in Smith v. Reeves. I do not go into that, as it is immaterial

now.

It is said that the question which I am discussing has been settled by the adjudications of this court. I do not think so. The only cases that have any bearing are Boom Co. v. Patterson, 98 U. S. 403, and Searl v. School District No. 2, 124 U. S. 197. In the former of these cases Mr. Justice Field states in the most explicit way that at the stage the case had reached when it was removed from the state court the compensation to be paid the owner of the land was the only question open. I have no criticism to make on that case. It seems to me to favor my views throughout. I think it very possible that after the title to property has been taken, if the question of com

pensation still is unsettled, that may be a controversy within the meaning of the Constitution. The sovereign power of the State is at an end, and the former owner has a right under the Fourteenth Amendment of the Constitution of the United States to get his pay.

Boom Co. v. Patterson was followed by Searl v. School District No. 2, seemingly without noticing the distinction that in the latter case the property had not yet been appropriated. There was no serious reasoning in the case, and I should think it a most inadequate justification for trenching upon the powers of the States, even if it were strictly in point. It arose, however, under the former statute as to removals, which did not limit them to cases which could have been begun in the United States courts. Whether I should think that a sufficient distinction if that case were before me now I shall not considerbut I feel warranted in believing that no one who took part in that decision imagined that he was establishing the doctrine now laid down or any principle broad enough to cover the present case. I cannot think that even Mr. Justice Matthews would have denied that the day after removal the State could have withdrawn the power to condemn the land and left the court in the air, or could have condemned the land pending the proceedings without paying them the slightest regard. If the State did retain those powers, I think it no less retained the delectus personarum and the right to confine its authority, while it left it outstanding, to the persons of its choice.

I wish to add only that I am not aware of any limitations in the Constitution of the United States upon a State's power to condemn land within its borders, except the requirements as to compensation. All that was decided in Loan Association v. Topeka, 20 Wall. 655, and Cole v. La Grange, 113 U. S. 1, was that the constitutions of certain States did not authorize the taking of private property for a private use. But if those decisions had been rested on the Fourteenth Amendment, which they were not, and in my opinion could not have been,

196 U.S.

Statement of the Case.

I do not perceive that they have any bearing upon what I have said or upon the case at bar.

I am authorized to say that the CHIEF JUSTICE, MR. JUSTICE BREWER and MR. JUSTICE PECKHAM concur in this dissent.

COOK. MARSHALL COUNTY, IOWA.

ERROR TO THE SUPREME COURT OF THE STATE OF IOWA.

No. 98. Argued December 9, 12, 1904.-Decided Jauuary 16, 1905.

The term original package is not defined by statute and while it may be impossible to judicially determine its size or shape, under the principle upon which its exemption while an article of interstate commerce is founded, the term does not include packages which cannot be commercially transported from one State to another.

While a perfectly lawful act may not be impugned by the fact that the person doing it was impelled thereto by a bad motive, where the lawfulness or unlawfulness of the act is made an issue, the intent of the actor may be material in characterizing the transaction, and where a party, in transporting goods from one State to another, selects an unusual method for the express purpose of evading or defying the police laws of the latter State the commerce clause of the Federal Constitution cannot be invoked as a cover for fraudulent dealing.

This court adheres to its decision in Austin v. Tennessee, 179 U. S. 343, that small pasteboard boxes each containing ten cigarettes, and sealed and stamped with the revenue stamp, whether shipped in a basket or loosely, not boxed, baled or attached together, and not separately or otherwise addressed but for which the express company has given a receipt and agreement to deliver them to a person named therein in another State, are not original packages and are not protected under the commerce clause of the Federal Constitution from regulation by the police power of the State.

A classification in a state taxation statute in which a distinction is made between retail and wholesale dealers is not unreasonable and § 5007, Iowa Code, imposing a tax on cigarette dealers is not invalid as denying equal protection of the laws to retail dealers, because it does not apply to jobbers and wholesalers doing an interstate business with customers outside of the State.

THIS was a petition by the owner and the tenant of a certain

Argument for Plaintiffs in Error.

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room in the city of Marshalltown, Iowa, addressed to the board of supervisors, for the remission of a tax of $300, imposed upon the business of selling cigarettes, which business was carried on by Charles P. Cook, one of the plaintiffs in error. The petition being denied, an appeal was taken to the District Court, where a demurrer was interposed, which was sustained by that court, and an appeal taken to the Supreme Court, where the judgment of the District Court was affirmed. 119 Iowa, 384.

Mr. Junius Parker, with whom Mr. W. W. Fuller and Mr. Frank S. Dunshee were on the brief, for plaintiffs in error:

There is a distinguishing difference between Austin v. Tennessee, 179 U. S. 343, and this case in that in the Austin case many parcels were aggregated, and thrown into an open basket and so carried. Thus associated in their carriage they could not be segregated after arrival so to make each an original package. Immunity is given to original packages alike to the retailer and wholesaler. Nor will immunity given to a large package be denied to a small one on account of its size. Cigarette packages vary as to size. The ordinary original package of cigarettes is frequently of the size of the packages in this case. The fact that the manufacturer hoped to be able to introduce cigarettes in these packages into Iowa without violating the state statute does not deprive him of the protection of the interstate commerce provisions of the Federal Constitution.

Under Austin v. Tennessee, supra; Brown v. Maryland, 12 Wheat. 419; Bowman v. Railroad Co., 125 U. S. 465; Leisy v. Hardin, 135 U. S. 100; Vance v. Vandercook, 170 U. S. 438; Rhodes v. Iowa, 170 U. S. 412, and Schollenberger v. Pennsylvania, 171 U. S. 1, cigarettes that are manufactured without the State of Iowa are, from the time they are put in transit until the importer in Iowa breaks the original package, or after he has himself disposed of such original package, under the exclusive regulation of Congress. This power of regulation