was held to be a valid exercise of the police power, he says: "The decision in the Kansas case may perhaps be reconciled with the one in this case by distinguishing the power of the State over property created within it and its power over property imported—its power in one case extending for the protection of the health, morals, and safety of its people to the absolute prohibition of the sale or use of the article, and in the other extending only to such regulations as may be necessary for the safety of the community until it has been incorporated into and become a part of the general property of the State. However much this distinction may be open to criticism, it furnishes, as it seems to me, the only way in which the two decisions can be reconciled."[1]
The distinction is, indeed, open to criticism, for the difference between prohibition and regulation is one of degree, not of kind. Whether the law amounts to a prohibition or not, it affects commerce in some degree, but being designed to secure the public health and safety, it is in either case a police regulation; and, therefore, as has been previously shown, even in the case of interstate commerce it is a proper case for a State to act, so far as its legislation does not conflict with any act of Congress.
The decision in Leisy v. Hardin and Bowman v. Chicago & N. W. Railway Co. must be considered erroneous; but if they are to stand, they will undoubtedly be sustained on the ground stated by Mr. Justice Field, rather than on the ground that the police power does not apply to inter-state commerce. It is hardly possible to believe that the court would have decided that a mere regulation by a State of the sale of intoxicating liquors—for example, forbidding sales to minors, or to adults between eleven o'clock in the evening and six o'clock in the morning—would not be valid as applied to sales of liquor in the original package. But it is to be hoped that these decisions are not final, and that the opinion of the minority of the court will ultimately be adopted.
Undoubtedly it is oftentimes difficult to draw the line between State and National powers; but the line should be drawn so far as possible, so as to give full play to the powers of each. In these decisions the line is not so drawn. Concerning a portion of the property and transactions within its borders, a State may not legislate as it desires, in order to protect the health and morals of its citizens; and the exercise of its police power over other property
- ↑ 125 U.S. 465, 506.
