GRAY, J. Mr. Justice Harlan, Mr. Justice Brewer and myself are unable to concur in this judgment. As our dissent is based on the previous decisions of this court, the respect due to our associates, as well as to our predecessors, induces us to state our position, as far as possible, in the words in which the law has been heretofore declared from this bench.

The facts of the case, and the substance of the statutes whose validity is drawn in question, may be briefly stated.

It was an action of replevin of sundry kegs and cases of beer, begun in an inferior court of the State of Iowa against a constable of Lee county in Iowa, who had seized them at Keokuk in that county under a searchwarrant issued by a justice of the peace pursuant to the statutes of Iowa, which prohibit the sale, the keeping for sale, or the manufacture for sale, of any intoxicating liquor (including malt liquor) for any purpose whatever, except for pharmaceutical, medicinal, chemical or sacramental purposes, and under an annual license granted by the District Court of the proper county, upon being satisfied that the applicant is a citizen of the United States and of the State of Iowa, and a resident of the courty, and otherwise qualified.

The plaintiffs were citizens and residents of the State of Illinois, engaged as brewers in manufacturing beer at Peoria in that State, and in selling it in the States of Illinois and Iowa. The beer in question was manufactured by them at Peoria, and there put up by them in said kegs and cases; each keg being sealed, and having upon it, over the plug at the opening, a United States internal revenue stamp; and each case being substantially made of wood, containing two dozen quart bottles of beer, and sealed with a metallic seal which had to be broken in order to open the case. The kegs and cases owned by the plaintiffs, and so sealed, were transported by them from Peoria by railway to Keokuk, and there sold and offered for sale by their agent, in a building owned by one of them, and without breaking or opening the kegs or cases.

The Supreme Court of Iowa having given judgment for the defendant, the question presented by this writ of error is whether the statutes of Iowa, as applied to these facts, contravene section 8 of article 1, or section 2 of article 4 of the Constitution of the United States, or section 1 of article 14 of the amendments to the Constitution.

By section 1 of the fourteenth amendment, State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

By the tenth amendment, "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Among the powers thus reserved to the several States is what is commonly called the police power-that inherent and necessary power, essential to the very existence of civil society, and the safeguard of the inhabitants of the State against disorder, disease, poverty and crime.

"The police power belonging to the States in virtue of their general sovereignty," said Mr. Justice Story,' delivering the judgment of this court, "extends over

all subjects within the territorial limits of the States, and has never been conceded to the United States." Prigg v. Pennsylvania, 16 Pet. 539, 625. This is well illustrated by the recent adjudications that a statute prohibiting the sale of illuminating oils below a certain fire-test is beyond the constitutional power of Congress to enact, except so far as it has effect within the United States (as, for instance, in the District of Columbia) and without the limits of any State; but that it is within the constitutional power of a State to pass such a statute, even as to oils manufactured under letters-patent from the United States. United States v. Dewitt, 9 Wall. 41; Patterson v. Kentucky, 97 U. S. 501.

The police power includes all measures for the protection of the life, the health, the property and the welfare of the inhabitants, and for the promotion of good order and the public morals. It covers the suppression of nuisances, whether injurious to the public health, like unwholesome trades, or to the public morals, like gambling-houses and lottery tickets. Slaughter-house Cases, 16 Wall. 36, 62, 87; Fertilizing Co. v. Hyde Park, 97 U. S. 659; Phalan v. Virginia, 8 How. 163, 168; Stone v. Mississippi, 101 U. S. 814.

This power, being essential to the maintenance of the authority of local government, and to the safety aud welfare of the people, is inalienable. As was said by Chief Justice Waite, referring to earlier decisions to the same effect, "no Legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. The supervision of both these subjects of governmental power is continuing in its nature, and they are to be dealt with as the special exigencies of the moment may require. Government is organized with a view to their preservation, and cannot divest itself of the power to provide for them. For this purpose the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself." Stone v. Mississippi, 101 U. S. 814, 819. See also Butchers' Union Co. v. Crescent City Co., 111 id. 746, 753; New Orleans Gas Co. v. Louisiana Light Co.. 115 id. 650, 672; New Orleans v. Houston, 119 id. 265, 275.

The police power extends not only to things intrinsically dangerous to the public health, such as infected rags or diseased meat, but to things which, when used in a lawful manner, are subjects of property and of commerce, and yet may be used so as to be injurious or dangerous to the life, the health or the morals of the people. Gunpowder, for instance, is a subject of commerce and of lawful use, yet, because of its explosive and dangerous quality, all admit that the State may regulate its keeping and sale. And there is no article, the right of the State to control or to prohibit the sale or manufacture of which within its limits, is better established, than intoxicating liquors. License Cases, 5 How. 504; Downham v. Alexandria Council, 10 Wall. 173; Bartemeyer v. Iowa, 18 id. 129; Beer Co. v. Massachusetts, 97 U. S. 25; Tiernan v. Rinker, 102 id. 123; Foster v. Kansas, 112 id. 201; Mugler v. Kansas and Kunsas v. Ziebold, 123 id. 623; Kidd v. Pearson, 128 id. 1; Eilenbecker v. Plymouth County, 134 id. 31.

In Beer Co. v. Massachusetts, above cited, this court, affirming the judgment of the Supreme Judicial Court of Massachusetts, reported in 115 Massachusetts, 153, held that a statute of the State, prohibiting the manufacture and sale of intoxicating liquors, including malt liquors, except as therein provided, applied to a corporation which the State had long before chartered, and authorized to hold real and personal property, for the purpose of manufacturing malt liquors. Among the reasons assigned by this court for its judgment were the following:

"If the public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the Legislature cannot be stayed from providing for its discontinuance, by any incidental incon

"The act of Assembly, by which the plaintiffs were authorized to construct their dam, shows plainly that this is one of those many creeks, passing through a deep level marsh adjoining the Delaware, up which the tide flows for some distance. The value of the property on its banks must be enhanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce these objects, provided they do not come into colJision with the powers of the general government, are undoubtedly within those which are reserved to the States. But the measure authorized by this act stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgment, unless it comes in conflict with the Constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this court can take no cognizance.

"The counsel for the plaintiffs in error insists that it comes in conflict with the power of the United States 'to regulate commerce with foreign nations and among the several States.'

"If Congress had passed any act which bore upon the case; any act in execution of the power to regulate commerce, the object of which was to control State legislation over those small navigable creeks into which the tide flows, and which abound throughout the lower country of the middle and southern States; we should feel not much difficulty in saying that a State law coming in conflict with such act would be void. But Congress has passed no such act. The repugnancy of the law of Delaware to the Constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several States; a power which has not been so exercised as to affect the question.

"We do not think that the act empowering the Blackbird Creek Marsh Company to place a dam across the creek can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject." 2 Pet. 251, 252.

In Brown v. Maryland, 12 Wheat. 419, the point decided was that an act of the Legislature of Maryland, requiring all importers of foreign goods by the bale or package, or of spirituous liquors, and "other persons selling the same by wholesale, bale or package, hogshead, barrel or tierce," to first take out a license and pay $50 for it, and imposing a penalty for failure to do so, was, as applied to sales by an importer of foreign lìquors in the original packages, unconstitutional, both as laying an impost, and as repugnant to the power of Congress to regulate foreign commerce.

The statute there in question was evidently enacted to raise revenue from importers of foreign goods of every description, and was not an exercise of the police power of the State. And Chief Justice Marshall, in answering an argument of counsel, expressly admitted that the power to direct the removal of gunpowder, or the removal or destruction of infectious or unsound articles which endanger the public health, "is a branch of the police power, which unquestionably remains, and ought to remain, with the States." Pages 443, 444.

Moreover, the question there presented and decided concerned foreign commerce only, and not commerce among the States. Chief Justice Marshall, at the outset of his opinion, so defined it, saying: "The cause depends entirely on the question, whether the Legislature of a State can constitutionally require the importer of foreign articles to take out a license from the State, before he shall be permitted to sell a bale or package so imported." Page 436.

It is true, that, after discussing and deciding that question, he threw out this brief remark: "It may be proper to add, that we suppose the principles laid down

in this case, to apply equally to importations from a sister State." Page 449. But this remark was obiter dictum, wholly aside from the question before the court and having no bearing on its decision, and therefore extra-judicial, as has since been noted by Chief Justice Taney and Mr. Justice McLean in the License Cases, 5 How. 504, 575, 578, 594, and by Mr. Justice Miller in Woodruff v. Parham, 8 Wall. 123, 139.

To a remark made under such circumstances are peculiarly applicable the warning words of Chief Justice Marshall himself in an earlier case, where, having occasion to explain away some dicta of his own in delivering judgment in Marbury v. Madison, 1 Cranch, 137, he said: "It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. question actually before the court, is investigated with care, and considered in its full extent. Other principles, which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated." Cohens v. Virginia, 6 Wheat. 264, 399, 400. Another striking instance in which the maxim has been applied and acted on is to be found in the opinion of the court at the present term in Hans v. Louisiana, 134 U. S. 1, 20.

The

But the unanimous judgment of this court in 1847 in Peirce v. New Hampshire, reported together with Thurlow v. Massachusetts and Fletcher v. Rhode Island as the License Cases, 5 How. 504, is directly in point, and appears to us conclusively to govern the case at bar. Those cases were elaborately argued by eminent counsel, and deliberately considered by the court, and Chief Justice Taney, as well as each of six associate justices, stated his reasons for concurring in the judg

ment.

The cases from Massachusetts and Rhode Island arose under statutes of either State, prohibiting sales of spirituous liquors by any person, in less than certain quantities, without first having obtained an annual license from municipal officers; in the one case, from county commissioners, who by the express terms of the statute were not required to grant any licenses when in their opinion the public good did not require them to be granted; and in the other case, from a town council, who were forbidden to grant licenses whenever the voters of the town in town meeting decided that none should be granted. Mass. Rev. Stat., 1836, chap. 47, §§ 3, 17, 23-25; Stat. 1837, chap. 42, § 2: R. I. Pub. Laws of 1844, p. 496, § 4; Laws of 1845, p. 72; 5 How. 506-510, 540. Those statutes were held to be constitutional, as applied to foreign liquors which had passed out of the hands of the importer; while it was assumed that, under the decision in Brown v. Maryland, those statutes could be allowed no effect as to such liquors while they remained in the hands of the importer in the original packages upon which duties had been paid to the United States. 5 How. 576, 590, 610, 618. The case of Peirce v. New Hampshire directly involved the validity, as applied to liquors brought in from another State, of a statute of New Hampshire, which imposed a penalty on any person selling any wine, rum, gin, brandy or other spirits, in any quantity, without license from the selectmen of the town or place where such person resides." N. H. Laws of 1838, chap. 369; 5 How. 555. The plaintiffs in error, having been indicted under that statute for selling to one Aaron Sias in the town of Dover in the State of New Hampshire one barrel of gin without license from the selectmen of the town, at the trial admitted that they so sold to him a barrel of American gin; and introduced evidence that "the barrel of gin was pur

chased by the defendants in Boston in the Commonwealth of Massachusetts, brought coast wise to the landing at Piscataqua Bridge, and from thence to the defendants' store in Dover, and afterward sold to Sias in the same barrel and in the same condition in which it was purchased in Massachusetts." The defendants contended that the statute was unconstitutional, because it was in violation of certain public treaties of the United States with Holland, France and other countries, containing stipulations for the admission of spirits into the United States," and because it was repugnant to the clauses of the Constitution of the United States restricting the power of the States to lay duties on imports or exports, and granting the power to Congress to regulate commerce with foreign nations and among the several States. Chief Justice Parker instructed the jury "that this State could not regulate commerce between this and other States; that this State could not prohibit the introduction of articles from another State with such a view, nor prohibit a sale of them with such a purpose; but that, although the State could not make such laws with such views and for such purposes, she was not entirely forbidden to legislate in relation to articles introduced from foreign countries, or from other States; that she might tax them the same as other property, and might regulate the sale to some extent; that a State might pass health and police laws, which would, to a certain extent, affect foreign commerce, and commerce between the States; and that this statute was a regulation of that character, and constitutional." After a verdict of guilty, exceptions to this instruction were overruled by the highest court of the State. 5 How. 554-557; 13 N. H. 536.

In that case, as in the case at bar, the statute of the State prohibited sales of intoxicating liquors by any person without a license from municipal authorities, and authorized licenses to be granted only to persons residing within the State; and the liquors were sold within the State by the importer, and in the same barrel, keg or case, unbroken and in the same condition, in which he had brought them from another State. Yet the judgment of the highest court of New Hampshire was unanimously affirmed by this court.

Chief Justice Taney, Mr. Justice Catron and Mr. Justice Nelson were of opinion that the statute of New Hampshire was a regulation of inter-State commerce, but yet valid so long as it was not in conflict with any act of Congress.

Chief Justice Taney, after recognizing that "spirits and distilled liquors are universally admitted to be subjects of ownership and property, and are therefore subjects of exchange, barter and traffic, like any other commodity in which a right of property exists; and Congress, under its general power to regulate commerce with foreign nations, may prescribe what arti cle of merchandise shall be admitted and what excluded, and may therefore admit, or not, as it shall deem best, the importation of ardent spirits; and inasmuch as the laws of Congress authorize their importation, no State has a right to prohibit their introduction;" and yet upholding the validity of the statutes of Massachusetts and Rhode Island, as not interfering with the trade in ardent spirits while they remained a part of foreign commerce, and were in the hands of the importer for sale, in the cask or vessel in which the laws of Congress authorized them to be imported (p. 577); proceeded to state the case from New Hampshire as follows:

"The present case however differs from Brown v. Maryland in this-that the former was one arising out of commerce with foreign nations, which Congress has regulated by law; whereas the present is a case of commerce between two States, in relation to which Congress has not exercised its power. Some acts of Congress have indeed been referred to in relation to

the coasting trade. But they are evidently intended merely to prevent smuggling, and do not regulate im. ports or exports from one State to another. This case differs also from the cases of Massachusetts and Rhode Island; because, in these two cases, the laws of the States operated upon the articles after they had passed beyond the limits of foreign commerce, and consequently were beyond the control and power of Congress. But the law of New Hampshire acts directly upon an import from oue State to another, while in the hands of the importer for sale, and is therefore a regu lation of commerce, acting upon the article while it is within the admitted jurisdiction of the general gov ernment, and subject to its control and regulation." Page 578. And he concluded his opinion thus: "Upon the whole therefore the law of New Hampshire is, in my judgment, a valid one. For, although the gin sold was an import from another State, and Congress have clearly the power to regulate such importations, under the grant of power to regulate commerce among the several States, yet, as Congress has made no regulation on the subject, the traffic in the article may be law. fully regulated by the State as soon as it is landed in its territory, and a tax imposed upon it, or a license required, or the sale altogether prohibited, according to the policy which the State may suppose to be its interest or duty to pursue." Page 586.

Mr. Justice Catron expressed similar views. While he was of opinion that the ultimate right of determining what commodities might be lawful subjects of inter-State commerce belonged to Congress in the exercise of its power to regulate commerce, and not to the States in the exercise of the police power, he was equally clear that the statute of New New Hampshire was a valid regulation, in the absence of any legislation upon the subject by Congress. After pointing out the difficulties standing in the way of any attempt by Congress to make the special and various regulations required at different places at the maritime or inland borders of the States, he said: "I admit that this condition of things does not settle the question of contested power; but it satisfactorily shows that Congress cannot do what the States have done, are doing, and must continue to do, from a con. trolling necessity, even should the exclusive power in Congress be maintained by our decision." Page 606. Congress has stood by for nearly sixty years and seen the States regulate the commerce of the whole country, more or less, at the ports of entry and at all their borders, without objection; and for this court now to decide that the power did not exist in the States, and that all they had done in this respect was void from the beginning, would overthrow and annul entire codes of State legislation on the particular subject. We would by our decision expunge more State laws and city corporate regulations than Congress is likely to make in a century on the same subject; and on no bet ter assumption than that Congress and the State Legislatures had been altogether mistaken as to their respective powers for fifty years and more. If long usage, general acquiescence and the absence of complaint can settle the interpretation of the clause in question, then it should be deemed as settled in conformity to the usage by the courts." Page 607. And finally, in summing up his conclusions, he said: "That the law of New Hampshire was a regulation of commerce among the States in regard to the article for selling of which the defendants were indicted and convicted; but that the State law was constitutionally passed, because of the power of the State thus to regulate; there being no regulation of Congress, special or general, in existence, to which the State law was repugnant." Pages 608, 609.

Mr. Justice Nelson expressed his concurrence in the opinions delivered by the chief justice and Mr. Justice Catron. Page 618.

Justices McLean, Daniel, Woodbury and Grier, on the other hand, were of opinion that the license laws of New Hampshire, as well as those of Massachusetts and Rhode Island, were merely police regulations and not regulations of commerce, although they might incidentally affect commerce.

Mr. Justice McLean, in the course of his opinion in Thurlow v. Massachusetts, said: "The license acts of Massachusetts do not purport to be a regulation of commerce. They are essentially police laws. Enactments similar in principle are common to all the States. Since the adoption of its Constitution they have existed in Massachusetts." Page 588. Mass. Stats. 1786, chap. 68; 1792, chap. 25; 7 Dane Abr. 43, 44. "It is the settled construction of every regulation of commerce, that, under the sanction of its general laws, no person can introduce into a community malignant diseases, or any thing which contaminates its morals, or endangers its safety. And this is an acknowledged principle applicable to all general regulations. Individuals in the enjoyment of their own rights must be careful not to injure the rights of others. From the explosive nature of gunpowder, a city may exclude it. Now this is an article of commerce, and is not known to carry infectious disease; yet, to guard against a contingent injury, a city may prohibit its introduction. These exceptions are always implied in commercial regulations, where the general government is admitted to have the exclusive power. They are not regulations of commerce, but acts of self-preservation. And though they affect commerce to some extent, yet such effect is the result of the exercise of an undoubted power in the State." Pages 589, 590. "A discretion on this subject must be exercised somewhere, and it can be exercised nowhere but under the State authority. The State may regulate the sale of foreign spirits, and such regulation is valid, though it reduce the quantity of spirits consumed. This is admitted. And how can this discretion be controlled? The powers of the general government do not extend to it. It is in every aspect a local regulation, and relates exclusively to the internal police of the State." Page 591. "The police power of a State and the foreign commercial power of Congress must stand together. Neither of them can be so exercised as materially to affect the other. The sources and objects of these powers are exclusive, distinct and independent, and are essential to both governments." Page 592.

In his opinion in Peirce v. New Hampshire, he declared that the same views were equally applicable to that case; and added: "The tax in the form of a license, as here presented, counteracts no policy of the Federal government, is repugnant to no power it can exercise, and is imposed by the exercise of an undoubted power in the State. The license system is a police regulation, and, as modified in the State of New Hampshire, was designed to restrain and prevent immoral indulgence, and to advance the moral and physical welfare of society." "If this tax had been laid on the property as an import into the State, the law would have been repugnant to the Constitution. It would have been a regulation of commerce among the States, which has been exclusively given to Congress.” "But this barrel of gin, like all other property within the State of New Hampshire, was liable to taxation by the State. It comes under the general regulation, and cannot be sold without a license. The right of an importer of ardent spirits to sell in the cask, without a license, does not attach to the plaintiffs in error, ou account of their having transported this property from Massachusetts to New Hampshire." Pages 595, 596.

Mr. Justice Daniel said: The license laws of Massachusetts, Rhode Island and New Hampshire, now under review, impose no exaction on foreign commerce. They are laws simply determining the mode in which a particular commodity may be circulated

within the respective jurisdictions of those States, vesting in their domestic tribunals a discretion in selecting the agents for such circulation, without discriminating between the sources whence commodities may have been derived. They do not restrict importation to any extent; they do not interfere with it, either in appearance or reality; they do not prohibit sales, either by wholesale or retail; they assert only the power of regulating the latter, but this entirely within the sphere of their peculiar authority. These laws are therefore in violation neither of the Constitution of the United States nor of any law or treaty made in pursuance or under authority of the Constitution." Page 617.

Mr. Justice Woodbury repeated and enforced the same views, saying, among other things: "It is manifest, also, whether as an abstract proposition or practical measure, that a prohibition to import is one thing, while a prohibition to sell without license is another and entirely different. The first would operate on foreign commerce, on the voyage. The latter affects only the internal business of the State after the foreign importation is completed and on shore." Page 619. The subject of buying and selling within a State is one as exclusively belonging to the power of the State over its internal trade, as that to regulate foreign commerce is with the general government, under the broadest construction of that power." The idea, too, that a prohibition to sell would be tantamount to a prohibition to import does not seem to me either logical or founded in fact. For, even under a probibition to sell, a persou could import, as he often does, for his own consumption and that of his family and plantatious; and also, if a merchant extensively engaged in commerce, often does import articles with no view of selling them here, but of storing them for a higher and more suitable market in another State or abroad." Page 620. "But this license is a regulation neither of domestic commerce between the States nor of foreign commerce. It does not operate on either, or the imports of either, till they have entered the State and be. come component parts of its property. Then it has by the Constitution the exclusive power to regulate its own internal commerce and business in such articles, and bind all residents, citizens or not, by its regulations, if they ask its protection and privileges; and Congress, instead of being opposed and thwarted by regulations as to this, can no more interfere in it than the States can interfere in regulation of foreign commerce." Page 625. "Whether such laws of the States as to licenses are to be classed as police measures, or as regulations of their internal commerce, or as taxation merely, imposed on local property and local business, and are to be justified by each or by all of them together, is of little consequence, if they are laws which from their nature and object must belong to all sovereign States. Call them by whatever name, if they are necessary to the well-being and independence of all communities, they remain among the reserved rights of the States, no express grant of them to the general government having been either proper or apparently embraced in the Constitution. So, whether they conflict or not, indirectly and slightly, with some regulations of foreign commerce, after the subject matter of that commerce touches the soil or waters within the limits of a State, is not perhaps very material, if they do not really relate to that commerce, or any other topic within the jurisdiction of the general government." Page 627.

Mr. Justice Grier did not consider the question of the exclusiveness of the power of Congress to regulate foreign and inter-State commerce as involved in the decision, but maintained the validity of the statutes in question under "the police power, which is exclusively in the States." Pages 631, 632.

The other members of the court at that time were