Rep. 493; Spreckels Sugar Ref. Co. v. McClain, 192 U. S. 397, 48 L. ed. 496, 24 Sup. Ct. Rep. 376. The Federal excise is levied pursuant to express constitutional grant of power. It is superior to the reserved police power of the states, which cannot control the powers created, or prohibitions imposed, by the Constitution. This power of taxation is especially broad, absolute, and untrammeled; it is in no wise affected by the fact that states, under their like sovereign power, do or may tax the same object, activities, or rights; it includes liquor excises and license fees. upon in the cases of Re Rahrer (Wilkerson v. Rahrer) and Rhodes v. Iowa, supra, which held that the act was a valid exercise of the power to regulate commerce. a In Vance v. W. A. Vandercook Co. supra, case coming from South Carolina, the Wilson act was again before the court, and it was held that since the passage of the act, while the right existed to receive intoxicating liquors sent from another state without regard to the state laws to the contrary, there was no right to their sale in the original packages in defiance of state law. A state may, by contract, restrict the exercise of its powers beyond the right of revocation, where exclusive grants have been made, or exemptions from taxation have been conferred. M'Calloch v. Maryland, 4 Wheat. 316, 4 L. ed. 579; Gibbons v. Ogden, 9 Wheat. 1, 6 L. ed. 23; License Tax Case, 5 Wall. 462, 18 L. ed. 497; Pacific Ins. Co. v. Soule, Proprietors of Bridges v. Hoboken Land supra; Austin v. Boston, 7 Wall. 694, 19 L. | & Improv. Co. 1 Wall. 116, 17 L. ed. 571; ed. 224; Veazie Bank v. Fenno, and Knowl- The Binghamton Bridge (Chenango Bridge ton v. Moore, supra; McCray v. United States, 195 U. S. 27, 49 L. ed. 78, 24 Sup. Ct. Rep. 769. It is well settled that state laws of police and public welfare become inoperative so far as they interfere with the Federal power over interstate commerce. Bowman v. Chicago & N. W. R. Co. 125 U. S. 465, 507, 31 L. ed. 700, 714, 1 Inters. Com. Rep. 823, 8 Sup. Ct. Rep. 689, 1062; Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 473, 474, 24 L. ed. 527, 530, 531. Before the passage of the so-called Wilson act, it was thoroughly established that it was not within the power of a state to forbid the importation of liquors from foreign countries or other states, nor their sale in original packages, nor to subject the sale to discriminatory taxes or regulations. Walling v. Michigan, 116 U. S. 446, 29 L. ed. 691, 6 Sup. Ct. Rep. 454; Leisy v. Hardin, 135 U. S. 100, 34 L. ed. 128, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681; Lyng v. Michigan, 135 U. S. 161, 34 L. ed. 150, 3 Inters. Com. Rep. 143, 10 Sup. Ct. Rep. 725; Re Rahrer (Wilkerson v. Rahrer) 140 U. S. 545, 35 L. ed. 572, 11 Sup. Ct. Rep. 865; Rhodes v. Iowa, 170 U. S. 412, 42 L. ed. 1988, 18 Sup. Ct. Rep. 664; Vance v. W. A. Vandercook Co. 170 U. S. 438, 42 L. ed. 1100, 18 Sup. Ct. Rep. 674; American Exp. Co. v. Iowa, 196 U. S. 133, 49 L. ed. 417, 25 Sup. Ct. Rep. 182. Under the Wilson act, however, Congress consented, to a certain degree, that the states should regulate the introduction of liquors into their confines by providing that intoxicating liquors, when transported from one state to another, should lose their character as interstate commerce, and be subject to the operation of state laws, upon completion by delivery and before sale in the original packages; and this act was passed Co. v. Binghamton Bridge Co.) 3 Wall. 51, 18 L. ed. 137; IIome of the Friendless v. Rouse, 8 Wall. 430, 19 L. ed. 495; Humphrey v. Pegues, 16 Wall. 244, 248, 249, 21 L. ed. 326, 327; Farrington v. Tennessee, 95 U. S. 679, 689, 24 L. ed. 558, 561; St. Anna's Asylum v. New Orleans, 105 U. S. 362, 368, 26 L. ed. 1128, 1130. State statutes dealing with undesirable immigrants are unconstitutional whenever they conflict by their necessary operation and effect with the paramount authority of Congress. Henderson v. New York (Henderson v Wickham) 92 U. S. 259, 271, 23 L. ed. 543 548. See also Chy Lung v. Freeman, 92 U S. 275, 23 L. ed. 550. The police power is, from its nature, it capable of exact definition or limitation. Slaughter-House Cases, 16 Wall. 36, 6 21 L. ed. 394, 404; Stone v. Mississippi, 10 U. S. 814, 818, 25 L. ed. 1079, 1080; Ele ridge v. Trezevant, 160 U. S. 452, 40 L. ec 490, 16 Sup. Ct. Rep. 345. But all definitions of the power must b taken subject to the condition that the state cannot, in its exercise, for any pur pose whatever, encroacn upon the powers of the general government, or rights granted or secured by the supreme law of the land. New Orleans Gaslight Co. v. Louisiano Light & H. P. & Mfg. Co. 115 U. S. 650, 2o L. ed. 516, 6 Sup. Ct. Rep. 252. In Veazie Bank v. Fenno, 8 Wall. 533, 547, 549, 19 L. ed. 482, 487, 488, a Federal statute enacted under the power to coin money and the power to lay and collect taxes was attacked upon the ground that it was a tax upon a state instrumentality exercised by the state under its police power; but the court held that, since the Constitution granted the power expressly, any appropriate legislation was superior to the 263 state police power, and that the particular | statute reaches them because they were the If the state delegates authority to her citizens to sell liquor, and exacts a license tax, the Federal excise must be paid before that authority or privilege may be exercised. Merchants' Nat. Bank v. United States, 101 U. S. 1, 25 L. ed. 979. Since the taxing power conferred by the Constitution knows no limits except those expressly stated in that instrument, it must follow, if a tax be within the lawful power, the exertion of that power may not be judicially restrained because of the results to arise from its exercise. McCray v. United States, 195 U. S. 27, 49 L. ed. 78, 24 Sup. Ct. Rep. 769. We pass, therefore, to the vital question in the case, and it is one of far-reaching significance. We have in this republic a dual system of government,-national and state,-each operating within the same territory and upon the same persons, and yet working without collision, because their functions are different. There are certain matters over which the national government has absolute control, and no action of the state can interfere therewith, and there are others in which the state is supreme, and in respect to them the national government is powerless. To preserve the even talance between these two governments, and hold The word "dealer" is not confined to one each in its separate sphere, is the peculiar who sells his own property only. United States v. Allen, 38 Fed. 736. Mr. Justice Brewer delivered the opinion of the court: The important question in this case is whether persons who are selling liquor are relieved from liability for the internal revenue tax by the fact that they have no interest in the profits of the business, and are simply the agents of a state which, in the exercise of its sovereign power, has taken charge of the business of selling intoxicating liquors. It is true a further question is made whether the act of Congress is broad enough to include such persons. But upon this we have little doubt. Section 3232, Rev. Stat., U. S. Comp. Stat. 1901, p. 2091, provides: "No person shall be engaged in or carry on any trade or business hereinafter mentioned until he has paid a special tax therefor in the manner hereinafter provided." Section 3244 (U. S. Comp. Stat. 1901, p. 2097) contains these words of description: "Every person who sells or offers for sale foreign or domestic distilled spirits or wines, in less quantities than five wine gallons at the same time, shall be regarded as a retail dealer in liquors." "Person" is also defined: [448] *"Sec. 3140 (U. S. Comp. Stat. 1901, p. 2040). .. Where not otherwise distinctly expressed or manifestly incompatible with the intent thereof, the word 'person,' as used in this title, shall be construed to mean and include a partnership, association, company, or corporation, as well as a natural person." Now, the dispensers were persons who sold liquors. They applied for and received the licenses. True, they were acting simply as agents of the state; but if the fact that the state was the principal creates no exemption from Federal taxation, then the duty of all courts; pre-eminently of this,- Two propositions in our constitutional The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now. Being a grant of powers to a government, its language is general; and, as changes come in social and political life, it embraces in its grasp all new conditions which are within the scope of the powers in terms conferred. In other words, while the pow-[449] ers granted do not change, they apply from generation to generation to all things to which they are in their nature applicable. This in no manner abridges the fact of its Those changeless nature and meaning. things which are within its grants of power, as those grants were understood when made, are still within them; and those things not As said within them remain still excluded. by Mr. Chief Justice Taney in Scott v. Sandford, 19 How. 393, 426, 15 L. ed. 691, 709: "It is not only the same in words, but the same in meaning, and delegates the same powers to the government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day." 199 U. S. [450] It must also be remembered that the framers of the Constitution were not mere visionaries, toying with speculations or the ories, but practical men, dealing with the facts of political life as they understood them; putting into form the government they were creating, and prescribing, in language clear and intelligible, the powers that government was to take. Mr. Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 1, 188, 6 L. ed. 23, 68, well declared: "As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said." One other fact must be borne in mind, and that is that in interpreting the Constitution we must have recourse to the common law. As said by Mr. Justice Matthews in Smith v. Alabama, 124 U. S. 465, 478, 31 L. ed. 508, 512, 1 Inters. Com. Rep. 804, 809, 8 Sup. Ct. Rep. 564, 569: The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history." And by Mr. Justice Gray in United States v. Wong Kim Ark, 169 U. S. 649, 654, 42 L. ed. 890, 892, 18 Sup. Ct. Rep. 456, 459: "In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. Minor V. Happersett, 21 Wall. 162, 22 L. ed. 627; Ex parte Wilson, 114 U. S. 417, 422, 29 L. ed. 89, 91, Sup. Ct. Rep. 935; Boyd v. United States, 116 C. S. 616, 624, 625, 29 L. ed. 746, 748, 749, 6 Sup. Ct. Rep. 524; Smith v. Alabama, 124 U. S. 465, 31 L. ed. 508, 1 Inters. Com. Rep. 804, 8 Sup. Ct. Rep. 564. The language of the Constitution, as has been well said, could not be understood without reference to the common law. 1 Kent, Com. 336; Bradley, J., in Moore v. United States, 91 U. S. 270, 274, 23 L. ed. 346, 347." To determine the extent of the grants of power, we must, therefore, place ourselves in the position of the men who framed and adopted the Constitution, and inquire what they must have understood to be the meaning and scope of those grants. By the 1st clause of § 8 of article 1 of the Constitution, Congress is given the "power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States." By this clause the grant is limited in two ways: The revenue must be collected for public purposes, and all duties, imposts, and excises must be uniform throughout the United States. The 4th, 5th, and 6th clauses of § 9 of article 1 are: "4. No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken. "5. No tax or duty shall be laid on articles exported from any state. "6. No preference shall be given by any regulation of commerce *or revenue to the [451] ports of one state over those of another; nor shall vessels bound to, or from, one state, be obliged to enter, clear, or pay duties in another." Article 5 of the amendments provides that no one shall be deprived of "life, liberty, or property without due process of law." These are all the constitutional provisions that bear directly upon the subject. It will be seen that the only qualifications of the absolute, untrammeled power to lay and collect excises are that they shall be for public purposes, and that they shall be uniform throughout the United States. All other limitations named in the Constitution relate to taxes, duties, and imposts. If, therefore, we confine our inquiry to the express provisions of the Constitution, there is disclosed no limitation on the power of the general government to collect license taxes. But it is undoubtedly true that that which is implied is as much a part of the Constitution as that which is expressed. As said by Mr. Justice Miller in Ex Parte Yarbrough, 110 U. S. 651, 658, 28 L. ed. 274, 276, 4 Sup. Ct. Rep. 152, 155: "The proposition that it has no such power is supported by the old argument, often heard, often repeated, and in this court never assented to, that when a question of the power of Congress arises, the advocate of the power must be able to place his finger on words which expressly grant it. The brief of counsel before us, though directed to the authority of that body to pass criminal laws, uses the same language. Because there is no express power to provide for preventing violence exercised on the voter as a means of controlling his vote, no such law can be enacted. It destroys at one blow, in construing the Constitution of the United States, the doctrine universally applied to all instruments of writing, that what is implied is as much a part of the instrument as what is expressed." Among those matters which are implied, though not expressed, is that the nation may not, in the exercise of its powers, prevent a state from discharging the ordinary functions of government, just as it follows from [452]the 2d clause of article *6 of the Constitution, that no state can interfere with the free and unembarrassed exercise by the national government of all the powers conferred upon it. "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding." In other words, the two governments-national and state-are each to exercise their powers so as not to interfere with the free and full exercise by the other of its powers. This proposition, so far as the nation is concerned, was affirmed at an early day in the great case of M'Culloch v. Maryland, 4 Wheat. 316, 4 L. ed. .579, in which it was held that the state had no power to pass a law imposing a tax upon the operations of a national bank. The case is familiar and needs not to be quoted from. No answer has ever been made to the argument of Mr. Chief Justice Marshall, and the propositions there laid down have become fundamental in our constitutional jurisprudence. Osborn v. Bank of United States, 9 Wheat. 738, 6 L. ed. 204; Weston v. Charleston, 2 Pet. 449, 7 L. ed. 481; New York. ex rel. Bank of Commerce v. Tax Comrs. 2 Black, 620, 17 L. ed. 451; Bank Tax Case (New York ex rel. Bank of Commonwealth v. Tax & A. Comrs.) 2 Wall. 200, 17 L. ed. 793; The Banks v. New York (People ex rel. Bank of N. Y. Nat. Bkg. Asso. v. Connelly) 7 Wall. 16, 19 L. ed. 57. *The converse of this proposition has also[453] been declared by the decisions of this court. In Texas v. White, 7 Wall. 700, 725, 19 L. ed. 227, 237, Mr. Chief Justice Chase, speaking for the court, declared: "Not only, therefore, can there be no loss of separate and independent autonomy to the states, through their union under the Constitution, but it may be not unreasonably said that the preservation of the states, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the national government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible states." In The Collector v. Day (Buffington v. Day) 11 Wall. 113, 20 L. ed. 122, it was held that it was not competent for Congress to impose a tax upon the salary of a judicial officer of a state. In the opinion of the court, delivered by Mr. Justice Nelson, it was said (p. 127, L. ed. p. 126): "It is admitted that there is no express provision in the Constitution that prohibits the general government from taxing the means and instrumentalities of the states, nor is there any prohibiting the states from taxing the means and instrumentalities of that government. In both cases the exemption rests upon necessary implication, and is upheld by the great law of selfpreservation; as any government, whose means employed in conducting its operations, if subject to the control of another and distinct government, can exist only at the mercy of that government. Of what avail are these means if another power may tax them at discretion?" See also United States v. Baltimore & O. R. Co. 17 Wall. 322, 21 L. ed. 597; Pollock v. Farmers' Loan & T. Co. 157 U. S. 429584, 39 L. ed. 759-820, 15 Sup. Ct. Rep. 673. The limitations on the powers of the states to tax national banks are founded upon the doctrines laid down in that case. So also the immunity of national property from state taxation. It is true that in most of the enabling acts for the admission of new states there is express provision that the property of the nation shall be free from state taxation; but, as shown by Mr. Justice Gray, delivering the opinion of the court in Van Brocklin v. Tennessee (Van Brocklin v. Anderson) 117 U. S. 151, 29 L. ed. 845, 6 Sup. Ct. Rep. 670, this provision is merely declaratory and unnecessary to establish the exemption of national prop-cretion, and is not subject to national supererty from state taxation. See also Dobbins v. Erie County, 16 Pet. 435, 10 L. ed. 1022, as to taxation by a state of an officer of the United States for his office or its emoluments. Upon this proposition counsel for appellant rely. There being no constitutional limit as to the amount of a license tax, and the power to tax being the power to destroy, if Congress can enforce such a tax against a state, it may destroy this effort of the state, in the exercise of its police power, to control the sale of liquor. It cannot be doubted that the regulation of the sale of liquor comes within the scope of the police power, and equally true that the po-[454] lice power is, in its fullest and broadest sense, reserved to the states; that the mode of exercising that power is left to their dis vision. But, if Congress may tax the agents attempt of the state to carry on this mode, sell all individuals, and so monopolize the of regulation. importation and sale of foreign goods. We are not insensible to the force of this Obviously, if the power of the state is argument, and appreciate the difficulties carried to the extent suggested, and with which it presents; but let us see to what it it is relief from all Federal taxation, leads. Each state is subject only to the the national government would be largelimitations prescribed by the Constitution, ly crippled in its revenues. Indeed, if all the and within its own territory is otherwise states should concur in exercising their powsupreme. Its internal affairs are matters of ers to the full extent, it would be almost its own discretion. The Constitution pro- impossible for the nation to collect any revvides that "the United States shall guaran-enues. In other words, in this indirect tee to every state in this Union a republican way it would be within the competency of form of government." Art. 4, § 4. That the states to practically destroy the effiexpresses the full limit of national control cincy of the national government. If it be over the internal affairs of a state. Isaid that the states can be trusted not to resort to any such extreme measures, be- may turn to the opinion of Mr. Chief Jus- answer: The right of South Carolina to control the sale of liquor by the dispensary system has been sustained. Vance v. W. A. Vander-efficiency of the national government, we cook Co. 170 U. S. 438, 42 L. ed. 1100, 18 Sup. Ct. Rep. 674. The profits from the business in the year 1901, as appears from the findings of fact were over half a million of dollars. Mingling the thought of profit with the necessity of regulation may induce the state to take possession, in like manner, of tobacco, oleomargarine, and all other objects of internal revenue tax. If one state finds it thus profitable, other states may follow, and the whole body of internal revenue tax be thus stricken down. More than this. There is a large and growing movement in the country in favor of the acquisition and management by the public of what are termed "public utilities," including not merely therein the supply of gas and water, but also the entire railroad system. Would the state, by taking into possession these public utilities, lose its republican form of government? Would "But is this a case of confidence? the people of any one state trust those of another with a power to control the most insignificant operations of their state government? We know they would not. Why, then, should we suppose that the people of any one state should be willing to trust those of another with the power to control the operations of a government to which they have confided their most important and most valuable interests? In the legislature[456] of the Union alone are all represented. The legislature of the Union alone, therefore, can be trusted by the people with the power of controlling measures which concern all, in the confidence that it will not be abused." In other words, we are to find in the Constitution itself the full protection to the nation, and not to rest its sufficiency on either the generosity or the neglect of any state. We may go even a step further. There are some insisting that the state shall become the owner of all property and the manager of all business. Of course, this is [455] an extreme view, *but its advocates are earn- There is something of a conflict between estly contending that thereby the best in- the full power of the nation in respect to terests of all citizens will be subserved. If taxation and the exemption of the state this change should be made in any state, from Federal taxation in respect to its prophow much would that state contribute to erty and a discharge of all its functions. the revenue of the nation? If this extreme Where and how shall the line between them be drawn? We have seen that the full powaction is not to be counted among the probabilities, consider the result of one much less er of collecting license taxes is in terms so. Suppose a state assumes, under its po- only the limitations of uniformity and the granted to the national government, with lice power, the control of all those matters subject to the internal revenue tax, and also public benefit. The exemption of the state's property and its functions from Federal taxengages in the business of importing all ation is implied from the dual character of foreign goods. The same argument which our Federal system and the necessity of prewould exempt the sale by a state of liquor, serving the state in all its efficiency. In ortobacco, etc., from a license tax, would ex- der to determine to what extent that impliempt the importation of merchandise by a cation will go we must turn to the condition state from import duty. While the state of things at the time the Constitution was might not prohibit importations, as it can framed. What, in the light of that cond the sale of liquor, by private individuals, tion, did the framers of the convention o yet, paying no import duty, it could under- tend should be exempt? Certain is it tha |