In re Lebolt

• Decision Date: 09 November 1896
• Citation: 77 F. 587
• Parties: In re LEBOLT.
• Court: U.S. District Court — Northern District of Illinois

77 F. 587

In re LEBOLT.

United States Circuit Court, N.D. Illinois.

November 9, 1896

Moses Pam & Kennedy, for Lebolt.

Wm. G Beale, corporation counsel of Chicago.

GROSSCUP District Judge (orally).

In the matter of the petition of Lazarus E. Lebolt for a writ of habeas corpus. The petitioner in this case is the representative of the California Wine Association, and his avocation is to sell the wines of these houses to dealers in the city of Chicago. There exists an ordinance in this city which makes it incumbent upon all dealers in distilled or fermented liquors to take out a license, paying into the city treasury a certain sum of money for such license, and creating penalties for any attempt to sell any of these goods in the city without taking out such license. The ordinance is as follows:

'Section 1. No person, firm or corporation shall sell, or offer for sale, any vinous liquors in quantities of one gallon or more at a time, within the city of Chicago, without first having obtained, as hereinafter provided, a license so to do for each place of business where vinous liquors are so sold or offered for sale. * * * ' The petitioner was arrested, tried, and convicted under this ordinance, and now petitions this court for a writ of habeas corpus upon the ground that the ordinance itself is invalid as being against the exclusive power of congress to regulate commerce. The sole question is whether this ordinance is an attempted regulation of interstate commerce.

The supreme court of the United States, in an unbroken line of decisions, has held that any attempt to put any burden or restriction upon interstate commerce, either by the way of taxing it, or requiring a license from its agents or drummers, or a discriminating license or tax upon any of its goods or products, is outside the power of a state, and an infringement upon the powers of the national government. The line of distinction, it seems to me, is very clear. The government of the United States has control and exclusive power to regulate interstate commerce. The government of the state has the power to look after police regulations, such as affect the life, health, or morals of the citizens. Now, the sole question in this case is whether this is a regulation of commerce, or whether it is mere police regulation, calculated to affect the life, health, or morals of the citizens of the state. Police regulations may incidentally affect commerce and yet remain police regulations. For instance, there is unquestionable power in the state to prohibit the importation of infected articles such as rags from yellow fever countries, or other products from countries where contagion exists, or any products that might carry the germs of smallpox or other infectious diseases. The supreme court has repeatedly held that regulations of that character, although incidentally affecting commerce, were essential to protecting the life, health, and morals of the citizens, and therefore were police in their origin. In that way, those things are taken out of commerce. The state, too, unquestionably has the right to regulate the manner in which certain articles are sold that are the subject-matter of state commerce. Gunpowder, nitroglycerin, poison, and all those things which come...