Mr. Justice White, with whom concur Mr. Justice Peckham and Mr. Justice McKenna, dissenting:
The delicacy of the question, the suggestion that, apart from constitutional limitations, the ruling made is, from an economic point of view, a just one, and the long and painstaking consideration which the court has given the case, cause me to be reluctant to announce a dissent. This, however, is overborne by the conviction that it is my duty to dissent and state my reasons. And this because the decision now made, as it is by me understood, overrules many cases, departs from a principle which has been recognized from the beginning, and, under the assumed necessity of protecting the taxing power of the government of the United States, establishes a doctrine which, in its potentiality, strips the states of their lawful authority. It does more than this, since the theory upon which the case is decided also endows the states with a like power to devest the government of the United States of its lawful attributes. In other words, by the ruling and the reasoning sustaining it, the ancient landmarks are obliterated, and the distinct powers belonging to both the national and state governments are reciprocally placed the one at the mercy of the other, so as to give to each the potency of destroying the other.
The case is this: South Carolina has adopted a law by which no liquor is allowed to be brought into the state for sale or to be sold therein, except such liquor as may be bought by a board of officers appointed by state authority, which liquor is sold by state agents, appointed for that purpose under regulations prescribed by the statute. The question is whether these agents of the state, for the act of selling liquor belonging to the state, as agents of the state, under the authority of the state, can be subjected to a license for carrying on the liquor business, levied by the internal revenue laws of the United States.
That the state, under its police authority, had the right to absolutely prohibit the sale of liquor, or to subject it to such regulations as it deemed proper, is elementary. So far-reaching is that authority that a state may direct the destruction of liquor held contrary to law, without paying the value thereof, and without thereby violating the constitutional safeguards as to the taking of property. Mugler v. Kansas, 123 U.S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. 273. True, by the operation of the commerce clause of the Constitution, the absolute authority of the state does not extend to prohibiting the sale in original packages of liquor brought in from other states. Leisy v. Hardin, 135 U.S. 100, 34 L. ed. 128, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681. But that limitation no longer applies, since Congress has, by express legislation, permitted the power of the states to attach to all liquor shipped into one state from another, at once on its arrival, before sale in the original packages, as fully as if it had been manufactured within the state. And the validity of the statute referred to has been upheld by the court in reiterated rulings. Re Rahrer (Wilkerson v. Rahrer) 140 U.S. 562, 35 L. ed. 576, 11 Sup. Ct. Rep. 865; Rhodes v. Iowa, 170 U.S. 412, 42 L. ed. 1088, 18 Sup. Ct. Rep. 664; Vance v. W. A. Vandercook Co. 170 U.S. 468, 42 L. ed. 1111, 18 Sup. Ct. Rep. 645; American Exp. Co. v. Iowa, 196 U.S. 133, 49 L. ed. 417, 25 Sup. Ct. Rep. 182; Adams Exp. Co. v. Iowa, 196 U.S. 147, 49 L. ed. 424, 25 Sup. Ct. Rep. 185; Pabst Brewing Co. v. Crenshaw, 198 U.S. 17, 49 L. ed. 925, 25 Sup. Ct. Rep. 552. Indeed, one of these cases-the W. A. Vandercook Co.'s Case-involved the question whether the act of South Carolina, providing for the purchase and sale of liquor belonging to the state, as above stated, was repugnant to the Constitution of the United States, and the validity of the act in this particular was upheld by the court because of the police power of the state, and because of the provisions of the act of Congress limiting the effect of the interstate commerce clause as to liquor, as already mentioned.
It is not necessary to trace the want of authority of the United States to impose a license exaction on the agents of the state to an express provision of the Constitution, since the court has constantly held that the absence of authority in the government of the United States to tax or burden the agencies or instrumentalities of a state government, and the like want of authority on the part of the states to tax the agencies or instrumentalities of the national government, results from the dual system of government which the Constitution created, and that the continuance in force of such a prohibition is absolutely essential to the preservation of both governments.