U.S. Supreme Court

Mugler v. Kansas,123U.S. 623 (1887)Mugler v. Kansas

Argued April 11, 1887

Decided December 5,1887

123U.S. 623

ON WRITS OF ERROR TO THE SUPREMECOURT OF KANSAS

Syllabus

State legislation which prohibits the manufacture of spirituous,malt, vinous, fermented, or other intoxicating liquors within thelimits of the State, to be there sold or bartered for general useas a beverage, does not necessarily infringe any right, privilege,or immunity secured by the Constitution of the United States, or bythe Amendments thereto.

The prohibition by the State of Kansas, in its Constitution andlaws, of the manufacture or sale within the limits of the State ofintoxicating liquors for general use there as a beverage is fairlyadapted to the end of protecting the community against the evilswhich result from excessive use of ardent spirits, and it is notsubject to the objection that, under the guise of policeregulations, the State is aiming to deprive the citizen of hisconstitutional rights.

Lawful state legislation, in the exercise of the police powersof the State, to prohibit the manufacture and sale within the Stateof spirituous, malt, vinous, fermented, or other intoxicatingliquors to be used as a beverage may be enforced against personswho, at the time, happen to own property whose chief value consistsin its fitness for such manufacturing purposes, withoutcompensating them for the diminution in its value resulting fromsuch prohibitory enactments.

A prohibition upon the use of property for purposes that aredeclared by valid legislation to be injurious to the health,morals, or safety of the community is not an appropriation of theproperty for the public benefit, in the sense in which a taking ofproperty by the exercise of the State's power of eminent domain issuch a taking or appropriation.

The destruction, in the exercise of the police power of theState, of property used, in violation of law, in maintaining apublic nuisance is not a taking of property for public use, anddoes not deprive the owner of it without due process of law.

A State has constitutional power to declare that any place keptand maintained

Page 123 U. S. 624

for the illegal manufacture and sale of intoxicating liquorsshall be deemed a common nuisance, and be abated, and, at the sametime, to provide for the indictment and trial of the offender.

There is nothing in the provisions of § 13 of the statute of theState of Kansas of March 7, 1885, amendatory of the act of February19, 1881, so far as they apply to the proceedings reviewed in thesecases, which is inconsistent with the constitutional guarantees ofliberty and property; and the equity power conferred by it to abatea public nuisance without a trial by jury is in harmony withsettled principles of equity jurisprudence.

If the provision that, in a prosecution by indictment orotherwise, the State need not, in the first instance, prove thatthe defendant has not the permit required by the statute has anyapplication to the proceeding in equity authorized by the statuteof Kansas of 1881, it does not deprive him of the presumption thathe is innocent of any violation of law, and does him no injury, as,if he has such permit, he can produce it.

The record does not present a case which requires the Court todecide whether the statutes of Kansas forbid the manufacture ofintoxicating liquors to be exported or carried to other States, orwhether they are repugnant upon that ground to the clause of theConstitution of the United States giving Congress power to regulatecommerce with foreign nations and among the several States.

The Constitution of the State of Kansas contains the followingarticle, being art. 15 of § 10, which was adopted by the peopleNovember 2, 1880:

"The manufacture and sale of intoxicating liquors shall beforever prohibited in this State except for medical, scientific,and mechanical purposes."

The Legislature of Kansas enacted a statute to carry this intoeffect, the provisions of which are set forth by the Court in itsopinion in this case, to which reference is made. This statute tookeffect on the 1st of May, 1881.

The plaintiff in error, Mugler, the proprietor of a brewery inSaline County, Kansas, was indicted in the District Court in thatCounty in November, 1881, for offences against this statute.

The first indictment against him contained five counts chargingthat he, on five different specified days in November, 1881, in theCounty of Saline, "unlawfully did sell, barter, and give awayspirituous, malt, vinous, fermented, and other intoxicatingliquors," he "not having a permit to sell intoxicating liquors,

Page 123 U. S. 625

as provided by law, contrary to the statutes," &c.; and asixth count charging that, in Saline County, at a time named inthat month, he "did unlawfully keep and maintain a certain commonnuisance, to-wit:" his brewery, then and there

"kept and used for the illegal selling, bartering, and givingaway, and illegal keeping for sale, barter, and use of intoxicatingliquors, in violation of the provisions of an act,"

&c.

The parties made an agreed statement of facts, which was all theevidence introduced in the case, and which was as follows:

"It is hereby stipulated and agreed that the facts in theabove-entitled case are, and that the evidence would prove them tobe, as follows:"

"That the defendant, Peter Mugler, has been a resident of theState of Kansas continually since the year 1872; that, beingforeign born, he in that year declared his intention to become acitizen of the United States, and always since that time intendingto become such citizen, he did, in the month of June, 1881, by thejudgment of the District Court of Wyandotte County, Kansas, becomea full citizen of the United States, and since that time has been acitizen of the United States and of the State of Kansas."

"That, in the year 1877, said defendant erected and furnished abrewery on lots Nos. 152 and 154 on Third Street, in the City ofSalina, Saline County, Kansas, for use in the manufacture of suchmalt liquor, at an actual cost and expense to said defendant of tenthousand dollars, and was used by him for the purposes for which itwas designed and intended after its completion in 1877 and up toMay 1, 1881."

"That, of the beer so manufactures and on hand prior to February19, 1881, said defendant made one sale since May 1, 1881, which isthe sale charged in the first count of the indictment, said salebeing made on the above-described premises; that the beer so soldwas in the original packages in which it was placed after itsmanufacture, and was not sold for use nor used on said premises,and that, at the time of such sale, said

Page 123 U. S. 626

defendant had no permit to sell intoxicating liquors, asprovided by chapter 125 of Laws of 1881."

Mugler was adjudged to be guilty, and was sentenced to pay afine of one hundred dollars and costs, and motions for a new trialand in arrest of judgment were overruled. This judgment beingaffirmed by the Supreme Court of the State on appeal, the cause wasbrought here by writ of error on his motion.

The indictment in the second case charged that, on the first dayof November, 1881, in Saline County, he

"did unlawfully manufacture, and aid, assist, and abet in themanufacture of vinous, spirituous, malt, fermented, and otherintoxicating liquors in violation of the provisions of an act,"

&c.

The parties made the following agreed statement of facts, whichwas all the evidence introduced in the case.

"It is hereby stipulated and agreed that the facts in theabove-entitled case are, and that the evidence would prove them tobe, as follows:"

"That the defendant, Peter Mugler, has been a resident of theState of Kansas continually since the year 1782; that, beingforeign born, he in that year declared his intention to become acitizen of the United States, and always since that time intendingto become such citizen, he did, in the month of June, 1881, by thejudgment of the District Court of Wyandotte County, Kansas, becomea full citizen of the United States and of the State ofKansas."

"That, in the year 1877, said defendant erected and furnished abrewery on lots Nos. 152 and 154 on Third Street in the City ofSalina, Saline County, Kansas, for use in the manufacture of anintoxicating malt liquor commonly known as beer."

"That such building was specially constructed and adapted forthe manufacture of such malt liquor, at an actual cost and expenseto said defendant of ten thousand dollars, and was used by him forthe purposes for which it was designed and

Page 123 U. S. 627

intended after its completion in 1877 and up to May 1st, 1881.That said brewery was at all times after its completion and on May1, 1881, worth the sum of ten thousand dollars for use in themanufacture of said beer, and is not worth to exceed the sum oftwenty-five hundred dollars for any other purpose. That saiddefendant, since October 1, 1881, has used said brewery in themanner and for the purpose for which it was constructed and adaptedby the manufacturing therein of such intoxicating malt liquors,and, at the time of such manufacture of said malt liquors, saiddefendant had no permit to manufacture the same for medical,scientific, or mechanical purposes, as provided by chapter 128 ofLaws of 1881."

The defendant was adjudged to be guilty, and was fined onehundred dollars and costs, and, as in the other case, motions for anew trial and in arrest of judgment were overruled, and thejudgment being affirmed by the Supreme Court of the State of Kansason appeal, the defendant sued out a writ of error to review it.

The assignment of errors in the first of these cases was asfollows:

"First. Said court erred in affirming the judgment ofthe District Court of Saline County, Kansas, that the defendantMugler pay a fine of one hundred dollars for the alleged violationof a statute of said State prohibiting the sale or barter ofspirituous or malt liquors except for medical, scientific, andmechanical purposes, said statute being in violation of Article 14of the Constitution of the United States, which provides that"

"no State shall make or enforce any law which shall abridge theprivileges or immunities of citizens of the United States; norshall any State deprive any person of life, liberty, or propertywithout due process of law; nor deny any person within itsjurisdiction the equal protection of the laws."

"Second. Said court erred in affirming the judgment ofthe District Court of Saline County, Kansas, overruling the motionsof defendant Mugler for a new trial, and in arrest of judgment,which motions should have been sustained."

In the second case, the assignment was as follows:

"First. Said court erred in affirming the judgment ofthe

Page 123 U. S. 628

District Court of Saline County, Kansas, that defendant Muglerpay a fine of one hundred dollars for the alleged violation of astatute of Kansas prohibiting the manufacture of spirituous or maltliquors by any person without having a permit to manufacture suchliquors for medical, scientific, and mechanical purposes, saidstatute being in violation of Article 14 of the Constitution of theUnited States, which provides that"

"no State shall make or enforce any law which shall abridge theprivileges or immunities of citizens of the United States; norshall any State deprive any person of life, liberty or propertywithout due process of law; nor deny any person within itsjurisdiction the equal protection of the laws."

"Second. Said court erred in affirming the judgment ofthe District Court of Saline County, Kansas, overruling the motionsof defendant Mugler for a new trial and in arrest of judgment,which motions should have been sustained, the statute under whichsaid defendant was convicted being unconstitutional in that itattempts to deprive said defendant of the right to manufacture beereven for his own use, or for storage or transportation out of theState of Kansas, and also deprives defendant of his right to usehis property for the manufacture of beer without due process oflaw."

The causes were argued and submitted together at October Term,1886.

Page 123 U. S. 653

MR. JUSTICE HARLAN, after stating the facts in the foregoinglanguage, delivered the opinion of the court.

These cases involve an inquiry into the validity of certainstatutes of Kansas relating to the manufacture and sale ofintoxicating liquors.

The first two are indictments, charging Mugler, the plaintiff inerror, in one case, with having sold, and in the other, with havingmanufactured, spirituous, vinous, malt, fermented, and otherintoxicating liquors, in Saline County, Kansas, without having thelicense or permit required by the statute. The defendant, havingbeen found guilty, was fined in each case one hundred dollars andordered to be committed to the county jail until the fine was paid.Each judgment was affirmed by the Supreme Court of Kansas, andthereby, it is contended, the defendant was denied rights,privileges, and immunities guaranteed by the Constitution of theUnited States.

Page 123 U. S. 654

The third case --Kansas v. Ziebold & Hagelin --was commenced by petition filed in one of the courts of the Sate.The relief sought is: 1. That the group of buildings in AtchisonCounty, Kansas, constituting the brewery of the defendants,partners as Ziebold & Hagelin, be adjudged a common nuisance,and the sheriff or other proper officer directed to shut up andabate the same. 2. That the defendants be enjoined from using, orpermitting to be used, the said premises as a place whereintoxicating liquors may be sold, bartered, or given away, or keptfor barter, sale, or gift, otherwise than by authority of law.

The defendants answered, denying the allegations of thepetition, and averring:First. That said buildings wereerected by them prior to the adoption, by the people of Kansas, ofthe constitutional amendment prohibiting the manufacture and saleof intoxicating liquors for other than medicinal, scientific, andmechanical purposes, and before the passage of the prohibitoryliquor statute of that State.Second. That they wereerected for the purpose of manufacturing beer, and cannot be put toany other use; and, if not so used, they will be of little value.Third. That the statute under which said suit is broughtis void under the Fourteenth Amendment of the Constitution of theUnited States.

Upon the petition and bond of the defendants, the cause wasremoved into the Circuit Court of the United States for theDistrict of Kansas upon the ground that the suit was one arisingunder the Constitution of the United States. A motion to remand itto the state court was denied. The pleadings were recast so as toconform to the equity practice in the courts of the United States;and, the cause having been heard upon bill and answer, the suit wasdismissed. From that decree, the State prosecutes an appeal.

By a statute of Kansas, approved March 3, 1868, it was made amisdemeanor, punishable by fine and imprisonment, for anyone,directly or indirectly, to sell spirituous, vinous, fermented, orother intoxicating liquors, without having a dram-shop, tavern, orgrocery license. It was also enacted, among other things, thatevery place where intoxicating liquors

Page 123 U. S. 655

were sold in violation of the statute should be taken, held, anddeemed to be a common nuisance; and it was required that all rooms,taverns, eating-houses, bazaars, restaurants, groceries,coffee-houses, cellars, or other places of public resort whereintoxicating liquors were sold, in violation of law, should beabated as public nuisances. Gen. Stat. Kansas, 1868, c. 35, §6.

But, in 1880, the people of Kansas adopted a more stringentpolicy. On the 2d of November of that year, they ratified anamendment to the state constitution, which declared that themanufacture and sale of intoxicating liquors should be foreverprohibited in that State, except for medical, scientific, andmechanical purposes.

In order to give effect to that amendment, the legislaturerepealed the act of 1868, and passed an act, approved February 19,1881, to take effect May 1, 1881, entitled

"An act to prohibit the manufacture and sale of intoxicatingliquors, except for medical, scientific, and mechanical purposes,and to regulate the manufacture and sale thereof for such exceptedpurposes."

Its first section provides

"that any person or persons who shall manufacture, sell, orbarter any spirituous, malt, vinous, fermented, or otherintoxicating liquors shall be guilty of a misdemeanor:Provided, however, That such liquors may be sold formedical, scientific, and mechanical purposes, as provided in thisact."

The second section makes it unlawful for any person to sell orbarter for either of such excepted purposes any malt, vinous,spirituous, fermented, or other intoxicating liquors without havingprocured a druggist's permit therefor, and prescribes theconditions upon which such a permit may be granted. The thirdsection relates to the giving by physicians of prescriptions forintoxicating liquors to be used by their patients, and the fourth,to the sale of such liquors by druggists. The fifth section forbidsany person from manufacturing or assisting in the manufacture ofintoxicating liquors in the State, except for medical, scientific,and mechanical purposes, and makes provision for the granting oflicenses to engage in the business of manufacturing liquors forsuch excepted purposes. The seventh section declares it to be a

Page 123 U. S. 656

misdemeanor for any person, not having the required permit, tosell or barter, directly or indirectly, spirituous, malt, vinous,fermented, or other intoxicating liquors; the punishment prescribedbeing, for the first offence, a fine not less than one hundred normore than five hundred dollars, or imprisonment in the county jailnot less than twenty nor more than ninety days; for the secondoffence, a fine of not less than two hundred nor more than fivehundred dollars, or imprisonment in the county jail not less thansixty days nor more than six months; and for every subsequentoffence, a fine not less than five hundred nor more than onethousand dollars, or imprisonment in the county jail not less thanthree months nor more than one year, or both such fine andimprisonment, in the discretion of the court. The eighth sectionprovides for similar fines and punishments against persons whomanufacture, or aid, assist, or abet the manufacture of anyintoxicating liquors without having the required permit. Thethirteenth section declares, among other things, all places whereintoxicating liquors are manufactured, sold, bartered, or givenaway, or are kept for sale, barter, or use, in violation of theact, to be common nuisances, and provides that, upon the judgmentof any court having jurisdiction finding such place to be anuisance, the proper officer shall be directed to shut up and abatethe same.

Under that statute, the prosecutions against Mugler wereinstituted. It contains other sections in addition to those abovereferred to, but, as they embody merely the details of the generalscheme adopted by the State for the prohibition of the manufactureand sale of intoxicating liquors, except for the purposesspecified, it is unnecessary to set them out.

On the 7th of March, 1885, the legislature passed an actamendatory and supplementary to that of 1881. The thirteenthsection of the former act, being the one upon which the suitagainst Ziebold & Hagelin is founded, will be given in full ina subsequent part of this opinion.

The facts necessary to a clear understanding of the questionscommon to these cases are the following: Mugler and Ziebold &Hagelin were engaged in manufacturing beer at

Page 123 U. S. 657

their respective establishments (constructed specially for thatpurpose) for several years prior to the adoption of theconstitutional amendment of 1880. They continued in such businessin defiance of the statute of 1881, and without having the requiredpermit. Nor did Mugler have a license or permit to sell beer. Thesingle sale of which he was found guilty occurred in the State, andafter May 1, 1881, that is, after the act of February 19, 1881,took effect, and was of beer manufactured before its passage.

The buildings and machinery constituting these breweries are oflittle value if not used for the purpose of manufacturing beer;that is to say, if the statutes are enforced against thedefendants, the value of their property will be very materiallydiminished.

The general question in each case is whether the foregoingstatutes of Kansas are in conflict with that clause of theFourteenth Amendment, which provides that

"no State shall make or enforce any law which shall abridge theprivileges or immunities of citizens of the United States; norshall any State deprive any person of life, liberty, or propertywithout due process of law."

That legislation by a State prohibiting the manufacture withinher limits of intoxicating liquors, to be there sold or barteredfor general use as a beverage, does not necessarily infringe anyright, privilege, or immunity secured by the Constitution of theUnited States is made clear by the decisions of this Court,rendered before and since the adoption of the Fourteenth Amendment,to some of which, in view of questions to be presently considered,it will be well to refer.

In theLicense Cases,5 How. 504, the question was whether certain statutes ofMassachusetts, Rhode Island, and New Hampshire relating to the saleof spirituous liquors were repugnant to the Constitution of theUnited States. In determining that question, it became necessary toinquire whether there was any conflict between the exercise byCongress of its power to regulate commerce with foreign countriesor among the several States and the exercise by a State of what arecalled police powers. Although the members of the Court did

Page 123 U. S. 658

not fully agree as to the grounds upon which the decision shouldbe placed, they were unanimous in holding that the statutes thenunder examination were not inconsistent with the Constitution ofthe United States, or with any act of Congress. Chief Justice Taneysaid:

"If any State deems the retail and internal traffic in ardentspirits injurious to its citizens, and calculated to produceidleness, vice, or debauchery, I see nothing in the Constitution ofthe United States to prevent it from regulating and restraining thetraffic, or from prohibiting it altogether, if it thinksproper."

Mr. Justice McLean, among other things, said:

"A State regulates its domestic commerce, contracts, thetransmission of estates, real and personal, and acts upon internalmatters which relate to its moral and political welfare. Over thesesubjects, the Federal Government has no power. . . . Theacknowledged police power of a State extends often to thedestruction of property. A nuisance may be abated. Everythingprejudicial to the health or morals of a city may be removed."

Mr. Justice Woodbury observed:

"How can they [the States] be sovereign within their respectivespheres without power to regulate all their internal commerce, aswell as police, and direct how, when, and where it shall beconducted in articles intimately connected either with publicmorals or public safety or public prosperity?"

Mr. Justice Grier, in still more empathic language, said:

"The true question presented by these cases, and one which I amnot disposed to evade, is whether the States have a right toprohibit the sale and consumption of an article of commerce whichthey believe to be pernicious in its effects, and the cause ofdisease, pauperism, and crime. . . . Without attempting to definewhat are the peculiar subjects or limits of this power, it maysafely be affirmed that every law for the restraint or punishmentof crime, for the preservation of the public peace, health, andmorals must come within this category. . . . It is not necessary,for the sake of justifying the state legislation now underconsideration, to array the appalling statistics of misery,pauperism, and crime which have their origin in the use or abuse ofardent spirits. The

Page 123 U. S. 659

police power, which is exclusively in the States, is alonecompetent to the correction of these great evils, and all measuresof restraint or prohibition necessary to effect the purpose arewithin the scope of that authority."

InBartemeyer v.Iowa, 18 Wall. 129, it was said that, prior to theadoption of the Fourteenth Amendment, state enactments regulatingor prohibiting the traffic in intoxicating liquors raised noquestion under the Constitution of the United States, and that suchlegislation was left to the discretion of the respective States,subject to no other limitations than those imposed by their ownConstitutions or by the general principles supposed to limit alllegislative power. Referring to the contention that the right tosell intoxicating liquors was secured by the Fourteenth Amendment,the Court said that, "so far as such a right exists, it is not oneof the rights growing out of citizenship of the United States." InBeer Co. v. Massachusetts,97 U.S. 33, it was said that,

"as a measure of police regulation looking to the preservationof public morals, a state law prohibiting the manufacture and saleof intoxicating liquors is not repugnant to any clause of theConstitution of the United States."

Finally, inFoster v. Kansas, 112 U.S. 206, the Courtsaid that the question as to the constitutional power of a State toprohibit the manufacture and sale of intoxicating liquors was nolonger an open one in this Court. These cases rest upon theacknowledged right of the States of the Union to control theirpurely internal affairs, and, in so doing, to protect the health,morals, and safety of their people by regulations that do notinterfere with the execution of the powers of the GeneralGovernment or violate rights secured by the Constitution of theUnited States. The power to establish such regulations, as was saidinGibbons v.Ogden, 9 Wheat. 203, reaches everything within theterritory of a State not surrendered to the NationalGovernment.

It is, however, contended that, although the State may prohibitthe manufacture of intoxicating liquors for sale or barter withinher limits for general use as a beverage,

"no convention or legislature has the right, under our form ofgovernment,

Page 123 U. S. 660

to prohibit any citizen from manufacturing, for his own use orfor export or storage, any article of food or drink not endangeringor affecting the rights of others."

The argument made in support of the first branch of thisproposition, briefly stated, is that, in the implied compactbetween the State and the citizen, certain rights are reserved bythe latter which are guarantied by the constitutional provisionprotecting persons against being deprived of life, liberty, orproperty, without due process of law, and with which the Statecannot interfere; that among those rights is that of manufacturingfor one's use either food or drink; and that, while, according tothe doctrines of the commune, the State may control the tastes,appetites, habits, dress, food, and drink of the people, our systemof government, based upon the individuality and intelligence of thecitizen, does not claim to control him except as to his conduct toothers, leaving him the sole judge as to all that only affectshimself. It will be observed that the proposition, and the argumentmade in support of it, equally concede that the right tomanufacture drink for one's personal use is subject to thecondition that such manufacture does not endanger or affect therights of others. If such manufacture does prejudicially affect therights and interests of the community, it follows from the verypremises stated that society has the power to protect itself bylegislation against the injurious consequences of that business. Aswas said inMunn v. Illinois,94 U.S. 124, while power does not exist with the whole peopleto control rights that are purely and exclusively private,Government may require "each citizen to so conduct himself, and souse his own property, as not unnecessarily to injure another." Butby whom, or by what authority, is it to be determined whether themanufacture of particular articles of drink, either for general useor for the personal use of the maker, will injuriously affect thepublic? Power to determine such questions, so as to bind all, mustexist somewhere, else society will be at the mercy of the few, who,regarding only their own appetites or passions, may be willing toimperil the peace and security of the many, provided only they arepermitted to do as they

Page 123 U. S. 661

please. Under our system, that power is lodged with thelegislative branch of the Government. It belongs to that departmentto exert what are known as the police powers of the State, and todetermine, primarily, what measures are appropriate or needful forthe protection of the public morals, the public health, or thepublic safety.

It does not at all follow that every statute enacted ostensiblyfor the promotion of these ends is to be accepted as a legitimateexertion of the police powers of the State. There are, ofnecessity, limits beyond which legislation cannot rightfully go.While every possible presumption is to be indulged in favor of thevalidity of a statute (Sinking Fund Cases,99 U.S. 718), the courts must obey the Constitution, ratherthan the lawmaking department of Government, and must, upon theirown responsibility, determine whether, in any particular case,these limits have been passed. "To what purpose," it was said inMarbury v.Madison, 1 Cranch 137,5 U. S. 167,

"are powers limited, and to what purpose is that limitationcommitted to writing if these limits may, at any time, be passed bythose intended to be restrained? The distinction between aGovernment with limited and unlimited powers is abolished if thoselimits do not confine the persons on whom they are imposed and ifacts prohibited and acts allowed are of equal obligation."

The courts are not bound by mere forms, nor are they to bemisled by mere pretenses. They are at liberty, indeed, are under asolemn duty, to look at the substance of things whenever they enterupon the inquiry whether the legislature has transcended the limitsof its authority. If, therefore, a statute purporting to have beenenacted to protect the public health, the public morals, or thepublic safety has no real or substantial relation to those objects,or is a palpable invasion of rights secured by the fundamental law,it is the duty of the courts to so adjudge, and thereby give effectto the Constitution.

Keeping in view these principles as governing the relations ofthe judicial and legislative departments of Government with eachother, it is difficult to perceive any ground for the judiciary todeclare that the prohibition by Kansas of the

Page 123 U. S. 662

manufacture or sale within her limits of intoxicating liquorsfor general use there as a beverage is not fairly adapted to theend of protecting the community against the evils which confessedlyresult from the excessive use of ardent spirits. There is nojustification for holding that the State, under the guise merely ofpolice regulations, is here aiming to deprive the citizen of hisconstitutional rights, for we cannot shut out of view the fact,within the knowledge of all, that the public health, the publicmorals, and the public safety, may be endangered by the general useof intoxicating drinks; nor the fact, established by statisticsaccessible to every one, that the idleness, disorder, pauperism,and crime existing in the country are, in some degree at least,traceable to this evil. If, therefore, a State deems the absoluteprohibition of the manufacture and sale within her limits ofintoxicating liquors for other than medical, scientific, andmechanical purposes to be necessary to the peace and security ofsociety, the courts cannot, without usurping legislative functions,override the will of the people as thus expressed by their chosenrepresentatives. They have nothing to do with the mere policy oflegislation. Indeed, it is a fundamental principle in ourinstitutions, indispensable to the preservation of public liberty,that one of the separate departments of Government shall not usurppowers committed by the Constitution to another department. And soif, in the judgment of the legislature, the manufacture ofintoxicating liquors for the maker's own use as a beverage wouldtend to cripple, if it did not defeat, the efforts to guard thecommunity against the evils attending the excessive use of suchliquors, it is not for the courts, upon their views as to what isbest and safest for the community, to disregard the legislativedetermination of that question. So far from such a regulation'shaving no relation to the general end sought to be accomplished,the entire scheme of prohibition, as embodied in the Constitutionand laws of Kansas, might fail if the right of each citizen tomanufacture intoxicating liquors for his own use as a beverage wererecognized. Such a right does not inhere in citizenship. Nor can itbe said that Government interferes with or impairs

Page 123 U. S. 663

anyone's constitutional rights of liberty or of property when itdetermines that the manufacture and sale of intoxicating drinks forgeneral or individual use as a beverage are or may become hurtfulto society, and constitute, therefore, a business in which no onemay lawfully engage. Those rights are best secured in ourGovernment by the observance upon the part of all of suchregulations as are established by competent authority to promotethe common good. No one may rightfully do that which the lawmakingpower, upon reasonable grounds, declares to be prejudicial to thegeneral welfare.

This conclusion is unavoidable unless the Fourteenth Amendmentof the Constitution takes from the States of the Union those powersof police that were reserved at the time the original Constitutionwas adopted. But this Court has declared, upon full consideration,Barbier v. Connolly,113 U. S. 31,that the Fourteenth Amendment had no such effect. After observing,among other things, that that amendment forbade the arbitrarydeprivation of life or liberty and the arbitrary spoliation ofproperty, and secured equal protection to all under likecircumstances in respect as well to their personal and civil rightsas to their acquisition and enjoyment of property, the Courtsaid:

"But neither the Amendment, broad and comprehensive as it is,nor any other amendment, was designed to interfere with the powerof the State, sometimes termed 'its police power,' to prescriberegulations to promote the health, peace, morals, education, andgood order of the people, and to legislate so as to increase theindustries of the State, develop its resources, and add to itswealth and prosperity."

Undoubtedly the State, when providing by legislation for theprotection of the public health, the public morals, or the publicsafety, is subject to the paramount authority of the Constitutionof the United States, and may not violate rights secured orguarantied by that instrument or interfere with the execution ofthe powers confided to the General Government.Henderson v.Mayor of New York,92 U. S. 259;Railroad v. Husen,95 U. S. 465;Gas-Light Co. v. Light Co.,115 U.S. 650;Walling v.Michigan,

Page 123 U. S. 664

116 U. S. 446;Yick Wo v. Hopkins,118 U. S. 356;Steamship Co. v. Board of Health,118 U.S. 455.

Upon this ground -- if we do not misapprehend the position ofdefendants -- it is contended that, as the primary and principaluse of beer is as a beverage; as their respective breweries wereerected when it was lawful to engage in the manufacture of beer forevery purpose; as such establishments will become of no value asproperty, or, at least, will be materially diminished in value, ifnot employed in the manufacture of beer for every purpose -- theprohibition upon their being so employed is, in effect, a taking ofproperty for public use without compensation, and depriving thecitizen of his property without due process of law. In other words,although the State, in the exercise of her police powers, maylawfully prohibit the manufacture and sale, within her limits, ofintoxicating liquors to be used as a beverage, legislation havingthat object in view cannot be enforced against those who, at thetime, happen to own property, the chief value of which consists inits fitness for such manufacturing purposes, unless compensation isfirst made for the diminution in the value of their property,resulting from such prohibitory enactments.

This interpretation of the Fourteenth Amendment is inadmissible.It cannot be supposed that the States intended, by adopting thatamendment, to impose restraints upon the exercise of their powersfor the protection of the safety, health, or morals of thecommunity. In respect to contracts the obligations of which areprotected against hostile state legislation, this Court, inUnion Co. v. Landing Co.,111U. S. 751, said that the State could not, by anycontract, limit the exercise of her power to the prejudice of thepublic health and the public morals. So, inStone v.Mississippi,101 U. S. 816,where the Constitution was invoked against the repeal by the Stateof a charter, granted to a private corporation, to conduct alottery, and for which that corporation paid to the State avaluable consideration in money, the Court said:

"No legislature can bargain away the public health or the publicmorals. The people themselves cannot do it, much less theirservants. . . . Government is organized

Page 123 U. S. 665

with a view to their preservation, and cannot divest itself ofthe power to provide for them."

Again, inGas-Light Co. v. Light Co.,115 U.S. 650,115 U. S.672:

"The constitutional prohibition upon state laws impairing theobligation of contracts does not restrict the power of the State toprotect the public health, the public morals, or the public safety,as the one or the other may be involved in the execution of suchcontracts. Rights and privileges arising from contracts with aState are subject to regulations for the protection of the publichealth, the public morals, and the public safety in the same sense,and to the same extent, as are all contracts and all property,whether owned by natural persons or corporations."

The principle that no person shall be deprived of life, liberty,or property without due process of law was embodied, in substance,in the constitutions of nearly all, if not all, of the States atthe time of the adoption of the Fourteenth Amendment, and it hasnever been regarded as incompatible with the principle, equallyvital because essential to the peace and safety of society, thatall property in this country is held under the implied obligationthat the owner's use of it shall not be injurious to the community.Beer Co. v. Massachusetts,97 U.S. 32;Commonwealth v. Alger, 7 Cush. 53. Anillustration of this doctrine is afforded byPatterson v.Kentucky,97 U. S. 501. Thequestion there was as to the validity of a statute of Kentucky,enacted in 1874, imposing a penalty upon anyone selling or offeringfor sale oils and fluids, the product of coal, petroleum, or otherbituminous substances, which would burn or ignite at a temperaturebelow 1300 Fahrenheit. Patterson having sold within thatCommonwealth a certain oil for which letters patent were issued in1867, but which did not come up to the standard required by saidstatute, and having been indicted therefor, disputed the State'sauthority to prevent or obstruct the exercise of that right. ThisCourt upheld the legislation of Kentucky upon the ground that,while the State could not impair the exclusive right of thepatentee or of his assignee in the discovery described in theletters patent, the tangible property, the fruit of the discovery,was not beyond control in the exercise of her

Page 123 U. S. 666

police powers. It was said:

"By the settled doctrines of this Court, the police powerextends at least to the protection of the lives, the health, andthe property of the community against the injurious exercise by anycitizen of his own rights. State legislation, strictly andlegitimately for police purposes, does not, in the sense of theConstitution, necessarily intrench upon any authority which hasbeen confided, expressly or by implication, to the NationalGovernment. The Kentucky statute under examination manifestlybelongs to that class of legislation. It is, in the best sense, amere police regulation, deemed essential to the protection of thelives and property of citizens."

Referring to the numerous decisions of this Court guarding thepower of Congress to regulate commerce against encroachment, underthe guise of State regulations, established for the purpose andwith the effect of destroying or impairing rights secured by theConstitution, it was further said:

"It has, nevertheless, with marked distinctness and uniformity,recognized the necessity, growing out of the fundamental conditionsof civil society, of upholding state police regulations which wereenacted in good faith, and had appropriate and direct connectionwith that protection to life, health, and property which each Stateowes to her citizens."

See alsoUnited States v.Dewitt, 9 Wall. 41;LicenseTax Cases, 5 Wall. 462;Pervear v.Commonwealth, 5 Wall. 475.

Another decision very much in point upon this branch of the caseisFertilizing Co. v. Hyde Park,97 U. S.659,97 U. S. 667,also decided after the adoption of the Fourteenth Amendment. TheCourt there sustained the validity of an ordinance of the villageof Hyde Park, in Cook County, Illinois, passed under legislativeauthority, forbidding any person from transporting through thatvillage offal or other offensive or unwholesome matter or frommaintaining or carrying on an offensive or unwholesome business orestablishment within its limits. The fertilizing company, had, atlarge expense and under authority expressly conferred by itscharter, located its works at a particular point in the county.Besides, the charter of the village at that time provided that itshould not interfere with parties engaged in transporting animalmatter from Chicago,

Page 123 U. S. 667

or from manufacturing it into a fertilizer or other chemicalproduct. The enforcement of the ordinance in question operated todestroy the business of the company, and seriously to impair thevalue of its property. As, however, its business had become anuisance to the community in which it was conducted, producingdiscomfort and often sickness among large masses of people, theCourt maintained the authority of the village, acting underlegislative sanction, to protect the public health against suchnuisance. It said:

"We cannot doubt that the police power of the State wasapplicable and adequate to give an effectual remedy. That powerbelonged to the States when the federal Constitution was adopted.They did not surrender it, and they all have it now. It extends tothe entire property and business within their local jurisdiction.Both are subject to it in all proper cases. It rests upon thefundamental principle that everyone shall so use his own as not towrong and injure another. To regulate and abate nuisances is one ofits ordinary functions."

It is supposed by the defendants that the doctrine for whichthey contend is sustained byPumpelly v. Green BayCo., 13 Wall. 168. But in that view we do notconcur. This was an action for the recovery of damages for theoverflowing of the plaintiff's land by water, resulting from theconstruction of a dam across a river. The defense was that the damconstituted a part of the system adopted by the State for improvingthe navigation of Fox and Wisconsin Rivers, and it was contendedthat, as the damages of which the plaintiff complained were onlythe result of the improvement, under legislative sanction, of anavigable stream, he was not entitled to compensation from theState or its agents. The case, therefore, involved the questionwhether the overflowing of the plaintiff's land, to such an extentthat it became practically unfit to be used, was a taking ofproperty within the meaning of the Constitution of Wisconsin,providing that "the property of no person shall be taken for publicuse without just compensation therefor." This court said it wouldbe a very curious and unsatisfactory result were it held that,

"if the government refrains from the absolute conversion ofreal

Page 123 U. S. 668

property to the uses of the public, it can destroy its valueentirely, can inflict irreparable and permanent injury to anyextent, can, in effect, subject it to total destruction withoutmaking any compensation because, in the narrowest sense of thatword, it is not taken for the public use. Such a construction wouldpervert the constitutional provision into a restriction upon therights of the citizen, as those rights stood at the common law,instead of the government, and make it an authority for theinvasion of private rights under the pretext of the public goodwhich had no warrant in the laws or practices of ourancestors."

These principles have no application to the case underconsideration. The question inPumpelly v. Green Bay Co.arose under the State's power of eminent domain, while the questionnow before us arises under what are, strictly, the police powers ofthe State, exerted for the protection of the health, morals, andsafety of the people. That case, as this Court said inTransportation Co. v. Chicago,99 U.S. 642, was an extreme qualification of the doctrine,universally held, that

"acts done in the proper exercise of governmental powers, andnot directly encroaching upon private property, though theseconsequences may impair its use,"

do not constitute a taking within the meaning of theconstitutional provision, or entitle the owner of such property tocompensation from the State or its agents, or give him any right ofaction. It was a case in which there was a "permanent flooding ofprivate property," a "physical invasion of the real estate of theprivate owner, and a practical ouster of his possession." Hisproperty was, in effect, required to be devoted to the use of thepublic, and, consequently, he was entitled to compensation.

As already stated, the present case must be governed byprinciples that do not involve the power of eminent domain, in theexercise of which property may not be taken for public use withoutcompensation. A prohibition simply upon the use of property forpurposes that are declared, by valid legislation, to be injuriousto the health, morals, or safety of the community cannot in anyjust sense be deemed a taking or

Page 123 U. S. 669

an appropriation of property for the public benefit. Suchlegislation does not disturb the owner in the control or use of hisproperty for lawful purposes, nor restrict his right to dispose ofit, but is only a declaration by the State that its use by anyonefor certain forbidden purposes is prejudicial to the publicinterests. Nor can legislation of that character come within theFourteenth Amendment, in any case, unless it is apparent that itsreal object is not to protect the community, or to promote thegeneral wellbeing, but, under the guise of police regulation, todeprive the owner of his liberty and property without due processof law. The power which the States have of prohibiting such use byindividuals of their property as will be prejudicial to the health,the morals, or the safety of the public is not, and, consistentlywith the existence and safety of organized society, cannot be,burdened with the condition that the State must compensate suchindividual owners for pecuniary losses they may sustain by reasonof their not being permitted, by a noxious use of their property,to inflict injury upon the community. The exercise of the policepower by the destruction of property which is itself a publicnuisance, or the prohibition of its use in a particular way,whereby its value becomes depreciated, is very different fromtaking property for public use or from depriving a person of hisproperty without due process of law. In the one case, a nuisanceonly is abated; in the other, unoffending property is taken awayfrom an innocent owner. It is true, when the defendants in thesecases purchased or erected their breweries, the laws of the Statedid not forbid the manufacture of intoxicating liquors. But theState did not thereby give any assurance, or come under anobligation, that its legislation upon that subject would remainunchanged. Indeed, as was said inStone v. Mississippi,101 U. S. 814, thesupervision of the public health and the public morals is agovernmental power, "continuing in its nature," and "to be dealtwith as the special exigencies of the moment may require;" andthat, "for this purpose, the largest legislative discretion isallowed, and the discretion cannot be parted with any more than thepower itself." So, inBeer Co. v.Massachusetts,

Page 123 U. S. 670

97 U. S. 32:

"If the public safety or the public morals require thediscontinuance of any manufacture or traffic, the hand of thelegislature cannot be stayed from providing for its discontinuanceby any incidental inconvenience which individuals or corporationsmay suffer."

It now remains to consider certain questions relatingparticularly to the thirteenth section of the act of 1885. Thatsection, which takes the place of § 13 of the act of 1881, is asfollows:

"SEC. 13. All places where intoxicating liquors aremanufactured, sold, bartered, or given away in violation of any ofthe provisions of this act, or where intoxicating liquors are keptfor sale, barter, or delivery in violation of this act, are herebydeclared to be common nuisances, and upon the judgment of any courthaving jurisdiction finding such place to be a nuisance under thissection, the sheriff, his deputy, or under-sheriff, or anyconstable of the proper county, or marshal of any city where thesame is located, shall be directed to shut up and abate such placeby taking possession thereof and destroying all intoxicatingliquors found therein, together with all signs, screens, bars,bottles, glasses, and other property used in keeping andmaintaining said nuisance, and the owner or keeper thereof shall,upon conviction, be adjudged guilty of maintaining a commonnuisance, and shall be punished by a fine of not less than onehundred dollars nor more than five hundred dollars, and byimprisonment in the county jail not less than thirty days nor morethan ninety days. The attorney general, county attorney, or anycitizen of the county where such nuisance exists, or is kept, or ismaintained may maintain an action in the name of the State to abateand perpetually enjoin the same. The injunction shall be granted atthe commencement of the action, and no bond shall be required. Anyperson violating the terms of any injunction granted in suchproceeding shall be punished as for contempt by a fine of not lessthan one hundred nor more than five hundred dollars, or byimprisonment in the county jail not less than thirty days nor morethan six months, or by both such fine and imprisonment, in thediscretion of the court. "

Page 123 U. S. 671

It is contended by counsel in the case ofKansas v. Ziebold& Hagelin that the entire scheme of this section is anattempt to deprive persons who come within its provisions of theirproperty and of their liberty without due process of law,especially when taken in connection with that clause of § 14,(amendatory of § 21 of the act of 1881) which provides that,

"in prosecutions under this act, by indictment or otherwise, . .. it shall not be necessary in the first instance for the State toprove that the party charged did not have a permit to sellintoxicating liquors for the excepted purposes."

We are unable to perceive anything in these regulationsinconsistent with the constitutional guaranties of liberty andproperty. The State having authority to prohibit the manufactureand sale of intoxicating liquors for other than medical,scientific, and mechanical purposes, we do not doubt her power todeclare that any place kept and maintained for the illegalmanufacture and sale of such liquors shall be deemed a commonnuisance, and be abated, and, at the same time, to provide for theindictment and trial of the offender. One is a proceeding againstthe property used for forbidden purposes, while the other is forthe punishment of the offender.

It is said that by the thirteenth section of the act of 1885,the legislature, finding a brewery within the State in actualoperation, without notice, trial, or hearing, by the mere exerciseof its arbitrary caprice, declares it to be a common nuisance, andthen prescribes the consequences which are to follow inevitably byjudicial mandate required by the statute, and involving andpermitting the exercise of no judicial discretion or judgment; thatthe brewery being found in operation, the court is not to determinewhether it is a common nuisance, but, under the command of thestatute, is to find it to be one; that it is not the liquor made,or the making of it, which is thus enacted to be a common nuisance,but the place itself, including all the property used in keepingand maintaining the common nuisance; that the judge having thussigned without inquiry, and, it may be, contrary to the fact andagainst his own judgment, the edict of the legislature, the courtis commanded to take possession by its officers of the

Page 123 U. S. 672

peace and shut it up; nor is all this destruction of property,by legislative edict, to be made as a forfeiture consequent uponconviction of any offense, but merely because the legislature socommands; and it is done by a court of equity, without any previousconviction first had, or any trial known to the law. This certainlyis a formidable arraignment of the legislation of Kansas, and if itwere founded upon a just interpretation of her statutes, the Courtwould have no difficulty in declaring that they could not beenforced without infringing the constitutional rights of thecitizen. But those statutes have no such scope, and are attendedwith no such results as the defendants suppose. The court is notrequired to give effect to a legislative "decree" or "edict,"unless every enactment by the lawmaking power of a State is to beso characterized. It is not declared that every establishment is tobe deemed a common nuisance because it may have been maintainedprior to the passage of the statute as a place for manufacturingintoxicating liquors. The statute is prospective in its operation;that is, it does not put the brand of a common nuisance upon anyplace unless, after its passage, that place is kept and maintainedfor purposes declared by the legislature to be injurious to thecommunity. Nor is the court required to adjudge any place to be acommon nuisance simply because it is charged by the State to besuch. It must first find it to be of that character; that is, mustascertain, in some legal mode, whether, since the statute waspassed, the place in question has been, or is being, so used as tomake it a common nuisance.

Equally untenable is the proposition that proceedings in equityfor the purposes indicated in the thirteenth section of the statuteare inconsistent with due process of law. "In regard to publicnuisances," Mr. Justice Story says,

"the jurisdiction of courts of equity seems to be of a veryancient date, and has been distinctly traced back to the reign ofQueen Elizabeth. The jurisdiction is applicable not only to publicnuisances, strictly so called, but also to purprestures upon publicrights and property. . . . In case of public nuisances, properly socalled, an indictment lies to abate them, and to punish the

Page 123 U. S. 673

offenders. But an information also lies in equity to redress thegrievance by way of injunction."

2 Stroy, Eq.Jur. §§ 921, 922. The ground of this jurisdiction incases of purpresture, as well as of public nuisances, is theability of courts of equity to give a more speedy, effectual, andpermanent remedy than can be had at law. They cannot only preventnuisances that are threatened, and before irreparable mischiefensues, but arrest or abate those in progress, and, by perpetualinjunction, protect the public against them in the future, whereascourts of law can only reach existing nuisances, leaving futureacts to be the subject of new prosecutions or proceedings. This isa salutary jurisdiction, especially where a nuisance affects thehealth, morals, or safety of the community. Though not frequentlyexercised, the power undoubtedly exists in courts of equity thus toprotect the public against injury.District Attorney v.Railroad Co., 16 Gray, 245;Attorney General v.Railroad, 3 N. J. Eq. 139;Attorney General v. IceCo., 104 Mass. 244;State v. Mayor, 5 Port. (Ala.)279, 294;Hoole v. Attorney General, 22 Ala. 194;Attorney General v. Hunter, 1 Dev.Eq. 13;AttorneyGeneral v. Forbes, 2 Mylne & C. 123, 129, 133;Attorney General v. Railway Co., 1 Drew. & S. 161;Eden, Inj. 259; Kerr, Inj. (2d Ed.) 168.

As to the objection that the statute makes no provision for ajury trial in cases like this one, it is sufficient to say thatsuch a mode of trial is not required in suits in equity brought toabate a public nuisance. The statutory direction that an injunctionissue at the commencement of the action is not to be construed asdispensing with such preliminary proof as is necessary to authorizean injunction pending the suit.

The court is not to issue an injunction simply because one isasked, or because the charge is made that a common nuisance ismaintained in violation of law. The statute leaves the court atliberty to give effect to the principle that an injunction will notbe granted to restrain a nuisance, except upon clear andsatisfactory evidence that one exists. Here, the fact to beascertained was not whether a place, kept and maintained for

Page 123 U. S. 674

purposes forbidden by the statute, wasper se anuisance, that fact being conclusively determined by the statuteitself, but whether the place in question was so kept andmaintained. If the proof upon that point is not full or sufficient,the court can refuse an injunction, or postpone action until theState first obtains the verdict of a jury in her favor. In thiscase, it cannot be denied that the defendants kept and maintained aplace that is within the statutory definition of a common nuisance.Their petition for the removal of the cause from the State court,and their answer to the bill, admitted every fact necessary tomaintain this suit, if the statute under which it was brought wasconstitutional.

Touching the provision that in prosecutions, by indictment orotherwise, the State need not, in the first instance, prove thatthe defendant has not the permit required by the statute, we mayremark that, if it has any application to a proceeding like this,it does not deprive him of the presumption that he is innocent ofany violation of law. It is only a declaration that, when the Statehas proven that the place described is kept and maintained for themanufacture or sale of intoxicating liquors, such manufacture orsale being unlawful except for specified purposes, and then onlyunder a permit, the prosecution need not prove a negative, namely,that the defendant has not the required license or permit. If thedefendant has such license or permit, he can easily produce it, andthus overthrow theprima facie case established by theState.

A portion of the argument in behalf of the defendants is to theeffect that the statutes of Kansas forbid the manufacture ofintoxicating liquors to be exported, or to be carried to otherStates, and, upon that ground, are repugnant to the clause of theConstitution of the United States giving Congress power to regulatecommerce with foreign nations and among the several States. We needonly say upon this point that there is no intimation in the recordthat the beer which the respective defendants manufactured wasintended to be carried out of the State or to foreign countries.And, without expressing an opinion as to whether such facts wouldhave constituted a good defense, we observe that it will be timeenough to decide a case of that character when it shall come beforeus.

Page 123 U. S. 675

For the reasons Stated, we are of opinion that the judgments ofthe supreme court of Kansas have not denied to Mugler, theplaintiff in error, any right, privilege, or immunity secured tohim by the Constitution of the United States, and its judgment ineach case is accordingly affirmed. We are also of opinion that theCircuit Court of the United States erred in dismissing the bill ofthe State against Ziebold & Hagelin. The decree in that case isreversed, and the cause remanded, with directions to enter a decreegranting to the State such relief as the act of March 7, 1885,authorizes.

MR. JUSTICE FIELD delivered the following separate opinion.

I dissent from the judgment in the last case, the one comingfrom the Circuit Court of the United States.

I agree to so much of the opinion as asserts that there isnothing in the Constitution or laws of the United States affectingthe validity of the act of Kansas prohibiting the sale ofintoxicating liquors manufactured in the State, except for thepurposes mentioned. But I am not prepared to say that the State canprohibit the manufacture of such liquors within its limits if theyare intended for exportation, or forbid their sale within itslimits, under proper regulations for the protection of the healthand morals of the people, if Congress has authorized theirimportation, though the act of Kansas is broad enough to includeboth such manufacture and sale. The right to import an article ofmerchandise, recognized as such by the commercial world, whetherthe right be given by act of Congress or by treaty with a foreigncountry, would seem necessarily to carry the right to sell thearticle when imported. InBrown v.Maryland, 12 Wheat. 447, Chief Justice Marshall, indelivering the opinion of this Court, said as follows:

"Sale is the object of importation, and is an essentialingredient of that intercourse of which importation constitutes apart. It is as essential an ingredient, as indispensable to theexistence of the entire thing,

Page 123 U. S. 676

then, as importation itself. It must be considered as acomponent part of the power to regulate commerce. Congress has aright not only to authorize importation, but to authorize theimporter to sell."

If one State can forbid the sale within its limits of animported article, so may all the States, each selecting a differentarticle. There would then be little uniformity of regulations withrespect to articles of foreign commerce imported into differentStates, and the same may be also said of regulations with respectto articles of interstate commerce. And we know it was one of theobjects of the formation of the federal Constitution to secureuniformity of commercial regulations against discriminating Statelegislation. The construction of the commercial clause of theConstitution, upon which theLicense Cases in the 7th ofHoward were decided, appears to me to have been substantiallyabandoned in later decisions.Hall v. De Cuir,95 U. S. 485;Welton v. State of Missouri,91 U. S.275;County of Mobile v. Kimball,102 U.S. 691;Transportation Co. v. Parkersburgh,107 U. S. 691;Ferry Co. v. Pennsylvania,114 U.S. 196. I make this reservation that I may not hereafterbe deemed concluded by a general concurrence in the opinion of themajority.

I do not agree to what is said with reference to the case fromthe United States Circuit Court. That was a suit in equity broughtfor the abatement of the brewery owned by the defendants. It isbased upon clauses in the thirteenth section of the act of Kansas,which are as follows:

"All places where intoxicating liquors are manufactured, sold,bartered, or given away in violation of any of the provisions ofthis act, or where intoxicating liquors are kept for sale, barter,or delivery in violation of this act, are hereby declared to becommon nuisances, and, upon the judgment of any court havingjurisdiction finding such place to be a nuisance under thissection, the sheriff, his deputy, or under-sheriff, or anyconstable of the proper county, or marshal of any city where thesame is located, shall be directed to shut

Page 123 U. S. 677

up and abate such place by taking possession thereof anddestroying all intoxicating liquors found therein, together withall signs, screens, bars, bottles, glasses, and other property usedin keeping and maintaining said nuisance, and the owner or keeperthereof shall, upon conviction, be adjudged guilty of maintaining acommon nuisance, and shall be punished by a fine of not less thanone hundred dollars, nor more than five hundred dollars, and byimprisonment in the county jail not less than thirty days, nor morethan ninety days. The attorney general, county attorney, or anycitizen of the county where such nuisance exists, or is kept, or ismaintained may maintain an action in the name of the State to abateand perpetually enjoin the same. The injunction shall be granted atthe commencement of the action, and no bond shall be required."

By a previous section, all malt, vinous, and fermented liquorsare classed as intoxicating liquors, and their manufacture, barter,and sale are equally prohibited. By the thirteenth section, as iswell said by counsel, the legislature, without notice to the owneror hearing of any kind, declares every place where such liquors aresold, bartered, or given away, or kept for sale, barter, ordelivery (in this case a brewery, where beer was manufactured andsold, which, up to the passage of the act, was a lawful industry)to be a common nuisance, and then prescribes what shall follow upona court having jurisdiction finding one of such places to be whatthe legislature has already pronounced it. The court is not todetermine whether the place is a common nuisance in fact, but is tofind it to be so if it comes within the definition of the statute,and, having thus found it, the executive officers of the court areto be directed to shut up and abate the place by taking possessionof it; and, as though this were not sufficient security against thecontinuance of the business, they are to be required to destroy allthe liquor found therein, and all other property used in keepingand maintaining the nuisance. It matters not whether they are ofsuch a character as could be used in any other business, or be ofvalue for any other purposes. No discretion is left in the judge orin the officer.

Page 123 U. S. 678

These clauses appear to me to deprive one who owns a brewery andmanufactures beer for sale, like the defendants, of propertywithout due process of law. The destruction to be ordered is not asa forfeiture upon conviction of any offense, but merely because thelegislature has so commanded. Assuming, which is not conceded, thatthe legislature, in the exercise of that undefined power of theState called its "police power," may, without compensation to theowner, deprive him of the use of his brewery for the purposes forwhich it was constructed under the sanction of the law, and forwhich alone it is valuable, I cannot see upon what principle, afterclosing the brewery, and thus putting an end to its use in thefuture for manufacturing spirits, it can order the destruction ofthe liquor already manufactured, which it admits by its legislationmay be valuable for some purposes, and allows it to be sold forthose purposes. Nor can I see how the protection of the health andmorals of the people of the State can require the destruction ofproperty like bottles, glasses, and other utensils which may beused for many lawful purposes. It has heretofore been supposed tobe an established principle that where there is a power to abate anuisance, the abatement must be limited by its necessity, and nowanton or unnecessary injury can be committed to the property orrights of individuals. Thus, if the nuisance consists in the use towhich a building is put, the remedy is to stop such use, not totear down or to demolish the building itself or to destroy propertyfound within it.Babcock v. City of Buffalo, 56 N.Y. 268;Bridge Co. v. Paige, 83 N.Y. 189. The decision of theCourt, as it seems to me, reverses this principle.

It is plain that great wrong will often be done to manufacturersof liquors if legislation like that embodied in this thirteenthsection can be upheld. The Supreme Court of Kansas admits that thelegislature of the State, in destroying the values of such kinds ofproperty, may have gone to the utmost verge of constitutionalauthority. In my opinion, it has passed beyond that verge, andcrossed the line which separates regulation from confiscation.