228 HARVARD LAW REVIEW. toxicating liquors from all other States, it may also include to- bacco or any other article, the use or abuse of which it may deem deleterious. It may not choose even to be governed by consid- erations growing out of the peace, comfort, or health of the com- munity. Its policy may be directed to other ends. It may choose to establish a system directed to the promotion and benefit of its own agriculture, manufacture, or arts of any description, and prevent the introduction or sale within its Hmits of any or of all articles that it may select as coming into competition with those it seeks to protect. The police power of the State would extend to such cases as well as to those in which it sought to legislate in be- half of the health, peace, and morals of the people."^ From which reasoning the conclusion is apparently drawn that the police power does not apply to inter-state commerce at all. With all due respect, however, to Mr. Justice Matthews, the police power would not extend to the cases named. The police power, properly so called, extends only to the protection of the health, morals, and safety of the people, and it seems perfectly reasonable to suppose that Congress by failing to act has intentionally left to each State to exclude any article which it may fairly deem inimical to the health, morals, and safety of its citizens. If a State does not act fairly, or, if ostensibly acting under its police power, its legis- lation discriminates against the citizens of other States, or affects objects and persons not within the scope of its purpose, there is ample authority to show that such acts are invalid, and not a le- gitimate exercise of the police power.^ In Leisy v. Hardin, the court, although relying greatly on Bow- man V. Chicago & N. W. Railway, apparently do not misconceive in this way the extent of the police power of a State ; but their opinion, at its very beginning, contains this proposition: "A subject-matter which has been confided exclusively to Congress by the Constitution [referring, as the context shows, to inter-state commerce], is not within the jurisdiction of the police power of the State unless placed there by congressional action."^ No reasons are given other than those alluded to above, but the court cite, in support of this proposition, four cases, which it is desirable to examine. 1 125 U.S. 465,493. ^ Henderson v. Mayor of New York, infra ; Walling v. Michigan, infra, ^ 135 U. S. 100, 108.
