Argument for Defendant in Error.

199 U.S.

is not a privilege of United States citizenship under the “privileges and immunities" clause of the Fourteenth Amendment. Bartemeyer v. Iowa, 18 Wall. 133; Giozza v. Tiernan, 148 U. S. 661.

The regulation of the liquor traffic is peculiarly within the police power of the States. That power embraces all such legislation as will preserve and promote the public welfare by prohibiting all things hurtful to the comfort, safety, and welfare of society; it extends over a wide range of subjects; the public health, the public morals and the public welfare, under any one of which the regulation and restriction of the sale of intoxicating liquors would readily fall. Theilan v. Porter, 14 Lea (Tenn.), 626; Webster v. State, 110 Tennessee, 491, 504, 505; Bartemeyer v. Iowa, 18 Wall. 133; Boston Beer Co. v. Massachusetts, 97 U. S. 25; Eilenbacker v. Plymouth Co., 134 U. S. 31.

A State may regulate fishing in the soil below low-water mark. Smith v. Maryland, 18 How. 76. A State may protect fish in a bay within its borders. Manchester v. Massachusetts, 139 U. S. 261.

Plaintiff in error's business is not protected by the commerce clause of the Federal Constitution.

The sale of liquors at retail, within the territorial limits of a State, is not interstate commerce, and within the protection of the Federal Constitution. Nor are sales thereof at retail under the protection of the Federal Government. The regulation of the manufacture and sale of intoxicating liquors is peculiarly under the control of the States and within their police power, which has not been surrendered to the Federal Government. Cases supra and Foster v. Kansas, 112 U. S. 201; Kidd v. Pearson, 128 U. S. 1.

As to the original package cases, where goods are imported into a State and become intermingled with the general mass of property therein and exposed for sale, they are no longer to be considered the subjects or objects of interstate commerce. Emert v. Missouri, 156 U. S. 296; May v. New Orleans, 178 U. S. 496. And as to intoxicating liquors the Wilson Act,

199 U. S.

Argument for Defendant in Error.

26 Stat. 728, removes all impediments to the enforcement of the state laws in respect of their sale and taxation even when imported in original packages, and withdraws from the protection of the commerce clause of the Federal Constitution persons and corporations bringing liquor into a State for the purpose of sale without regard to the condition or means by which such liquors were held or sold. In re Rahrer, 140 U. S. 545; Vance v. Vandercook Co., 170 U. S. 446; Rhodes v. Iowa, 170 U. S. 412. Even if it be conceded that the liquors were sold and dispensed by plaintiff in error on a steamboat either while it was in transit or fast at its wharf in Memphis, they were, under the Wilson Act, within the operation of the laws of Tennessee and subject both to its police and taxing power.

The fact that these liquors were retailed upon a boat engaged in interstate commerce, does not make the retailing itself interstate commerce. Many agencies employed in interstate commerce are subject to the proper police power of the State. A state statute prohibiting the running of trains within the State on Sunday is not void as an interference with interstate. commerce. Hennington v. Georgia, 163 U. S. 299. So as to a statute requiring railroads to stop their trains each way daily, Sundays excepted. Lake Shore Ry. Co. v. Ohio, 173 U. S. 285, and as to one requiring engineers and other persons engaged in the driving and management of railroad trains passing through the State to submit to examinations by local boards. Smith v. Alabama, 124 U. S. 465; Richmond R. R. Co. v. Patterson, 169 U. S. 311; Missouri &c. R. R. Co. v. Haber, 169 U. S. 633; Nashville &c. R. R. Co. v. Alabama, 128 U. S. 96. Also as to one requiring the heating of passengers cars. New York &c. R. R. Co. v. New York, 165 U. S. 628. A regulation by a city of the speed of railroad trains within the city limits is not, as to interstate trains, unconstitutional. Erb v. Morasch 177 U. S. 584. It is entirely within the power of a State to provide separate coaches for the accommodation of the white and colored races. L. & N. R. R. Co. v. Mississippi, 136 U. S. 589; Plessy v. Ferguson, 163 U. S. 537; Smith v. State,

100 Tennessee, 494. See also Pittsburgh &c. Coal Co. v. Louisiana, 156 U. S. 590, 600.

As to State v. Frappart, 31 La. Ann. 340, see Selectmen v. Spalding, 3 La. Ann. 87; Cessill v. State, 40 Arkansas, 501; State v. Blands, 101 Mo. App. 618; La Norris v. State, 13 Tex. App. 33, 42.

The State is not estopped to exercise the power vested in her to regulate and control the liquor traffic upon that part of the Mississippi River within her territory, because for a long number of years she did not attempt to exercise any authority over the liquor traffic upon said river, or because that under the express provision of sec. 16, of ch. 257, of the Acts of 1903, the State declared that the taxes upon privileges imposed by said act, "shall not apply to any person, firm or corporation engaged in interstate commerce."

MR. JUSTICE PECKHAM, after making the foregoing statement, delivered the opinion of the court.

The plaintiff in error contends that he rented the bar privilege from the company owning the ferryboat, and that he conducted the business of selling liquors over the bar on the boat pursuant to his lease, and while doing so was engaged in interstate commerce, and therefore was not liable in any manner to be taxed on account of conducting his business in the way he did, while within the boundaries of the State of Tennessee.

There is a distinction to be observed between the business of the plaintiff in error in selling intoxicating liquors and any other business which might have been conducted by him on the ferryboat under the same circumstances. The general right of the States to regulate or prohibit the sale of intoxicating liquors within their borders is not denied, but how far they could prohibit the entrance of the liquors, or their sale, after having been brought into the State, has been a subject of examination and decision within late years by this court. Bowman v. Chicago & Northwestern Railway Co., 125 U. S. 465; Leisy v. Hardin,

135 U. S. 100; In re Rahrer, 140 U. S. 545; Rhodes v. Iowa, 170 U. S. 412; Vance v. W. A. Vandercook Company, No. 1, 170 U. S. 438. The result of the Bowman case and Leisy case together was to uphold the right of a party to send intoxicating liquors into another State and sell the same in such State in their original packages. The decisions in those cases were followed by the passage of an act of Congress, commonly known as the Wilson Act, approved August 8, 1890, 26 Stat. 313, which provided that intoxicating liquors, when transported into another State or Territory, should, upon arrival therein, be subject to the operation and effect of the laws of such State or Territory, enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquors had been produced in said State or Territory. This act was held to be constitutional in the case of In re Rahrer, 140 U. S. 545, and that by virtue of said act, state statutes might operate upon the original packages of intoxicating liquors before sale in the State. Rhodes v. Iowa, 170 U. S. 412, and Vance v. W. A. Vandercook Company, No. 1, 170 U. S. 438, held that the state statute must permit the delivery of the liquors to the party to whom they were consigned within the State, but that, after such delivery, the State had power to prevent the sale of the liquors, even in the original package.

If the liquors kept for sale at the bar on the ferryboat had been consigned to the plaintiff in error from Arkansas, addressed to him at Memphis, although the plaintiff in error would have had the right to a delivery of the liquors to him at the wharf in Memphis, yet, under the act of Congress, as construed by this court, the State could then at once have prohibited absolutely the sale thereof, even in original packages. Of course, if it could totally prohibit such sale, it could permit the sale conditionally. In this case there is no consignment to any one, but we do not see that the distinction is material. The liquors were owned by the plaintiff in error while on the boat, and carried along from port to port, and to be used on the boat as the demand at the bar made necessary. The thing which

the plaintiff in error did was to sell the intoxicating liquors on this ferryboat when temporarily at the wharf in Memphis, or within the boundaries of the State, to persons then on the boat, and it was on account of these sales that he was compelled to take out a license and pay the tax therefor. Although there was no consignment of the liquor, yet it was in the possession of the plaintiff in error on the boat, within the State, the same as if he had received it therein on a consignment to him from outside the State, and had taken portions of it while in the State, sold it to different persons then on the boat, and those persons had then and there taken and drank the liquor, and then and thus the transaction had been commenced and ended. The law provided no tax on any liquor in any way, but it made it necessary for the plaintiff in error to get a license for this sale of liquor within the State. There was no tax levied upon the boat or crew, nor upon any of the passengers, nor on any portion of the property of the company, nor on the freight carried by it on the boat. Neither the boat nor its officers nor crew were subjected to the payment of any fees for navigating the waters of the river. The Supreme Court of the State observed that the case did not show that the charter permitted the company to maintain a bar on board its boat, nor that the liquors sold in Tennessee came from any other State; and it may be stated here that there was no proof that the liquors were sold in original packages, but as they were sold over the bar there might, perhaps, be a presumption that they were not so sold. Without deciding the case on these grounds, the state court, interpreting the above-mentioned act of Congress, and believing that it was following the decisions of this court, held that, by virtue of that act, the State had the right to exact a license as a condition precedent to the exercise of the right on the part of the plaintiff in error to sell intoxicating liquors over the bar on board the boat, while within the boundaries of the State of Tennessee. We think the Supreme Court was right in that view of the case.

The counsel for plaintiff in error, in a most elaborate brief,