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itable subterfuge, to which this court ought not to lend its countenance. If there be any original package at all in this case we think it is the basket, and not the paper box.

Practically the only argument relied upon in support of the theory that these packages of ten cigarettes are original packages is derivable from the Revised Statutes, § 3392, which requires that manufacturers shall put up all cigarettes made by or for them, and sold or removed for consumption or use, in packages containing ten, twenty, fifty, or one hundred cigarettes each. This, however, is solely for the purpose of taxation-a precaution taken for the better enforcement of the internal revenue law, and to be read in connection with section 3243, which provides that "the payment of any tax imposed by the internal revenue laws for carrying on any trade or business shall not be held to exempt any person from any penalty or punishment provided by the laws of any state for carrying on the same within such state, or in any manner to authorize the commencement or continuance of such trade or business contrary to the laws of such state."

Judgment affirmed.

[WHITE, J., gave a brief concurring opinion. BREWER, J., with whom concurred FULLER, C. J., and SHIRAS and PECKHAM, JJ., gave a dissenting opinion.]

See, also, the cases ante, pp. 18-34, under The Three Departments of Government.

THE POLICE POWER

I. In General 1

MUTUAL LOAN CO. v. MARTELL (1911) 222 U. S. 225, 232, 233, 32 Sup. Ct. 74, 56 L. Ed. 175, Mr. Justice MCKENNA (affirming a Massachusetts judgment which upheld a statute invalidating the assignment of future wages without the consent of the wage-earner's wife and employer):

"The contention of plaintiff is (1) that the provisions of sections 7 and 8 deprive it of due process of law.

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"(1) To sustain this contention it is urged that the statute being an exercise of the police power of the state, its purpose must have 'some clear, real, and substantial connection' with the preservation of the public health, safety, morals, or general welfare; and it is insisted that the statute of Massachusetts has not such connection and is therefore invalid.

"This court has had many occasions to define, in general terms, the police power, and to give particularity to the definitions by special applications. In Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 561, 592, 26 Sup. Ct. 341, 50 L. Ed. 596, 609, 4 Ann. Cas. 1175, it was said that 'the police power of a state embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals, or the public safety,' and that the validity of a police regulation 'must depend upon the circumstances of each case and the character of the regulation, whether arbitrary or reasonable, and whether really designed to accomplish a legitimate public purpose.'

"In Bacon v. Walker, 204 U. S. 311, 318, 27 Sup. Ct. 289, 51 L. Ed. 499, 502, it was decided that the police power is not confined 'to the suppression of what is offensive, disorderly, or unsanitary,' but 'extends to so dealing with the conditions which exist in the state as to bring out of them the greatest welfare of its people.'

"In a sense, the police power is but another name for the power of government; 2 and a contention that a particular exercise of it

1 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 150-154. 2 "In its broadest sense, as sometimes defined, it [the police power] includes all legislation and almost every function of government."-New Orleans Gas Light Co. v. Louisiana Light & Heat Producing Co., 115 U. S. 650, 661, 6 Sup. Ct. 252, 258, 29 L. Ed. 516 (1885), by Harlan, J.

"It may be said in a general way that the police power extends to all the HALL CASES CONST.L.-14

offends the due process clause of the Constitution is apt to be very intangible to a precise consideration and answer. Certain general principles, however, must be taken for granted. It is certainly the province of the state, by its legislature, to adopt such policy as to it seems best. There are constitutional limitations, of course, but these allow a very comprehensive range of judgment. And within that range the Massachusetts statute can be justified. Legislation cannot be judged by theoretical standards. It must be tested by the concrete conditions which induced it; and this test was applied by the supreme judicial court of Massachusetts in passing on the validity of the statute under review."

LICENSE CASES (1847) 5 How. 504, 582, 583, 12 L. Ed. 256, Mr. Chief Justice TANEY (affirming a New Hampshire judgment which upheld a state statute regulating the sale of liquor):

"It has been said, indeed, that quarantine and health laws are passed by the states, not by virtue of a power to regulate commerce, but by virtue of their police powers, and in order to guard the lives and health of their citizens. This, however, cannot be said of the pilot laws, which are yet admitted to be equally valid. But what are the police powers of a state? They are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions. And whether a state passes a quarantine law, or a law to punish offences, or to establish courts. of justice, or requiring certain instruments to be recorded, or to regulate commerce within its own limits, in every case it exercises the same power; that is to say, the power of sovereignty, the power to govern men and things within the limits of its dominion. It is by virtue of this power that it legislates; and its authority to make regulations of commerce is as absolute as its power to pass health laws, except in so far as it has been restricted by the Constitution of the United States. And when the validity of a state law making regulations of commerce is drawn into question in a judicial tribunal, the authority to pass it cannot be made to depend upon the motives that may be supposed to have influenced the legislature, nor can the court inquire whether it was intended to guard the citizens of the state from pestilence and disease, or to make regulations of commerce for the interests and convenience of trade. "Upon this question, the object and motive of the state are of no importance, and cannot influence the decision. It is a question great public needs. Camfield v. United States, 167 U. S. 518, 17 Sup. Ct. 864, 42 L. Ed. 260. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare."-Noble State Bank v. Haskell, 219 U. S. 104, 111, 31 Sup. Ct. 186, 188, 55 L. Ed. 112, 32 L. R. A. (N. S.) 1062, Ann. Cas. 1912A, 487 (1911), by Holmes, J.

of power. Are the states absolutely prohibited by the Constitution from making any regulations of foreign commerce? If they are, then such regulations are null and void, whatever may have been the motive of the state, or whatever the real object of the law; and it requires no law of Congress to control or annul them."

LAKE SHORE & M. S. RY. CO. v. OHIO ex rel. LAWRENCE (1899) 173 U. S. 285, 289, 290-292, 296-298, 19 Sup. Ct. 465, 43 L. Ed. 702, Mr. Justice HARLAN (upholding a state statute requiring railways to stop certain trains at places of 3,000 inhabitants):

"In the argument at the bar, as well as in the printed brief of counsel, reference was made to the numerous cases in this court adjudging that what are called the police powers of the states were not surrendered to the general government when the Constitution was ordained, but remained with the several states of the Union. And it was asserted with much confidence that, while regulations adopted by competent local authority in order to protect or promote the public health, the public morals, or the public safety have been sustained where such regulations only incidentally affected commerce among the states, the principles announced in former adjudications condemn, as repugnant to the Constitution of the United States, all local regulations that affect interstate commerce in any degree if established merely to subserve the public convenience.

"One of the cases cited in support of this position is Hennington v. Georgia, 163 U. S. 299, 303, 308, 317, 16 Sup. Ct. 1086, which involved the validity of a statute of Georgia [forbidding the running of freight trains on Sunday save in certain cases of necessity]. * *

*

"After observing that the argument in behalf of the defendant rested upon the erroneous assumption that the statute of Georgia was such a regulation of interstate commerce as was forbidden by the Constitution without reference to affirmative action by Congress, and not merely a statute enacted by the state under its police power, and which, although in some degree affecting interstate commerce, did not go beyond the necessities of the case, and therefore was valid, at least until Congress intervened, this court, upon a review of the adjudged cases, said: "These authorities make it clear that the legislative enactments of the states, passed under their admitted police powers, and having a real relation to the domestic peace, order, health, and safety of their people, but which, by their necessary operation, affect to some extent or for a limited time the conduct of commerce among the states, are yet not invalid by force alone of the grant of power to Congress to regulate such commerce, and, if not obnoxious to some other constitutional pro

vision or destructive of some right secured by the fundamental law, are to be respected in the courts of the Union until they are superseded and displaced by some act of Congress passed in execution of the power granted to it by the Constitution. Local laws of the character mentioned have their source in the powers which the states reserved, and never surrendered to Congress, of providing for the public health, the public morals, and the public safety; and are not, within the meaning of the Constitution, and considered in their own nature, regulations of interstate commerce simply because, for a limited time or to a limited extent, they cover the field occupied by those engaged in such commerce.'

"It is insisted by counsel that these and observations to the same effect in different cases show that the police powers of the states, when exerted with reference to matters more or less connected with interstate commerce, are restricted in their exercise, so far as the national Constitution is concerned, to regulations pertaining to the health, morals, or safety of the public, and do not embrace regulations designed merely to promote the public convenience.

"This is an erroneous view of the adjudications of this court. While cases to which counsel refer involved the validity of state laws having reference directly to the public health, the public morals, or the public safety, in no one of them was there any occasion to determine whether the police powers of the states extended to regulations incidentally affecting interstate commerce, but which were designed only to promote the public convenience or the general welfare. There are, however, numerous decisions by this court to the effect that the states may legislate with reference simply to the public convenience, subject, of course, to the condition that such legislation be not inconsistent with the national Constitution, nor with any act of Congress passed in pursuance of that instrument, nor in derogation of any right granted or secured by it. As the question now presented is one of great importance, it will be well to refer to some cases of the latter class. [Here are discussed various cases upholding state laws regulating the use of bridges and rivers and the obligations of carriers.]

* *

"Now, it is evident that these cases had no reference to the health, morals, or safety of the people of the state, but only to the public convenience. They recognized the fundamental principle that, outside of the field directly occupied by the general government under the powers granted to it by the Constitution, all questions arising within a state that relate to its internal order, or that involve the public convenience or the general good, are primarily for the determination of the state, and that its legislative enactments relating to those subjects, and which are not inconsistent with the state Constitution, are to be respected and enforced in the courts of the Union if they do not by their operation direct

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