The position taken by the Supreme Court in the Bowman and succeeding cases very seriously crippled the powers of the States to control the sale of intoxicating liquors within their borders. That their efficiency in this respect might be, at least partially, restored to them, Congress, in 1890, passed the so-called Wilson Act,9 which act. still in force, provides: "That all fermented, distilled or other intoxicating liquors or liquids transported into any State or Territory or remaining therein for use, consumption, sale or storage therein, shall, upon arrival in such State or Territory be subject to the operation and effect of the laws of such State or Territory, enacted in the exercise of its police power to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise."The constitutionality, if not the desirability, of such a measure as this had been suggested by the court by Justice Matthews in the opinion in the Bowman case in which he had said: "So far as these regulations made by Congress extend, they are certainly indications of its intention that the transportation of commodities between the States shall be free, except where it is positively restricted by Congress itself, or by the States in particular cases by the express permission of Congress." And in Leisy v. Hardin, Chief Justice Fuller had said: "Hence inasmuch as interstate commerce ... is national in its character and must be governed by a uniform system, so long as Congress does not pass any law to regulate it, or allowing the States to do so, it thereby indicates its will that such commerce shall be free and untrammeled."

9 26 Stat, at L. 313.

In Re Rahrer10 the Wilson Act was held constitutional, but not, as had been suggested by Justices Matthews and Fuller, as a delegation by Congress to the States of a power to regulate interstate commerce, to the extent provided. This, the court held, Congress might not do, the principle delegatus non potest delegare governing. The law might, however, it was declared, be construed as an express negation by Congress of the conclusion to be presumed from its previous silence that interstate commerce, to the extent covered by the Wilson Act, should be free from state interference or control.11

10 140 U. S. 545; 11 Sup. Ct. Rep. 865; 35 L. ed. 572.

11 "It does not admit of argument that Congress can neither delegate its own powers nor enlarge those of a State. This being so, it is urged that the act of Congress cannot be sustained as a regulation of commerce, because the Constitution, in the matter of interstate commerce, operates ex proprio vigore as resistant upon the power of Congress to so regulate it as to bring any of its subjects within the grasp of the police power of the State. In other words, it is earnestly contended that the Constitution guarantees freedom of commerce among the States in all things, and that not only may intoxicating liquors be imported from one State into another, without being subject to regulation under the laws of the latter, but that Congress is powerless to obviate that result. Thus the grant to the General Government of a power designed to prevent embarrassing restrictions upon interstate commerce by any State would be made to forbid any restraint whatever. We do not concur in this view. In surrendering their own power over external commerce the States did not secure absolute freedom in such commerce, but only the protection from encroachment, afforded by confiding its regulation exclusively to Congress. By the adoption of the Constitution the ability of the several State? to act upon the matter solely in accordance with their own will was extinguished, and the legislative will of the General Government substituted. But thi9 furnishes no support to the position that Congress could not, in the exercise of the discretion reposed in it, concluding that the common interests did not require entire freedom in the traffic in ardent spirits, enact the law in question. In so doing Congress has not attempted to delegate the power to regulate commerce, or to exercise any power reserved to the States, or to grant a power not possessed by the States, or to adopt state laws. It has taken its own course and made its own regulation, applying to these subjects of interstate commerce one common rule, whose uniformity is not affected by variations in state laws in dealing with such property. Congress did not use terms of permission to the State to act, but simply removed an impediment to the enforcement of the state laws in respect to imported packages in their original condition, created by the absence of a specific utterance on its part. It imparted no power to the State not then possessed, but allowed imported property to fall at once upon arrival within the local jurisdiction."

In short, it was held that the state liquor prohibition laws, in their application to interstate commerce, previously declared void, had been so declared not because of the inherent constitutional incompetence on the part of the States to enact them, but because Congress, by its silence, had declared that interstate commerce as to intoxicating liquors should be free from state interference.

The reasoning employed by the court in the Rahrer case has been severely criticized as casuistical, but no disposition has been since exhibited by the court to repudiate it.