193 U. S.

Argument for Defendant in Error.

shall have the effect of abrogating the previous election held in the entire county. Constitution U. S., art. 14, sec. 1; Railway Co. v. Ellis, 165 U. S. 150; Connolly v. Pipe Line Co., 184 U. S. 540; Penbina Mining Co. v. Pennsylvania, 125 U. S. 188, 189; Duncan v. Missouri, 152 U. S. 382; Missouri v. Lewis, 101 U. S. 22; Marchant v. Pennsylvania, 153 U. S. 389; Barbier v. Connoly, 113 U. S. 27; Hayes v. Missouri, 120 U. S. 68; Magoun v. Trust Co., 170 U. S. 293; Kentucky Tax Cases, 115 U. S. 337; Railroad v. Pennsylvania, 134 U. S. 237; McPherson v. Blacker, 146 U. S. 39; In re Kemmler, 136 U. S. 436; Ex parte Jones, 38 Cr. App. 428; Ex parte McCarver, 46 S. W. Rep. 939; Fraser v. McConway, 82 Fed. Rep. 860; Juanita Limestone Co. v. Fagley, 187 Pa. St. 197; In re Day, 181 Illinois, 80; Luman v. Hitchens Bros. Co., 90 Maryland, 27; Wansel v. Hoos, 60 N. J. L. 526; People v. Hawkins, 157 N. Y. 526; State v. Hoyt, 71 Vermont, 64.

Mr. C. K. Bell, Attorney General of the State of Texas, with whom Mr. T. S. Reese was on the brief, for defendant in

error:

I. The right to engage in the business of selling intoxicating liquors is not a "privilege or immunity of citizens of the United States" within the meaning of section 1 of the Fourteenth Amendment to the Constitution of the United States. Bartemeyer v. Iowa, 18 Wall. 129, 133; Giozza v. Tiernan, 148 U. S. 657, 661; Vance v. W. A. Vandercook Co., 170 U. S. 438, 444; Crowley v. Christenson, 137 U. S. 86, 91.

The "privileges and immunities" protected are only those flowing from Federal citizenship. Slaughter House Cases, 16 Wall. 37.

II. The laws in question do not deprive any person of “liberty or property" within the meaning of the Fifth and Fourteenth Amendments to the Constitution. Mugler v. Kansas, 123 U. S. 623; Kid v. Pearson, 128 U. S. 1; Beer Co. v. Massachusetts, 97 U. S. 25, 33.

III. The laws in question do not deny to any person within

the jurisdiction of the State of Texas the equal protection of the law. Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, 293; Barbier v. Connolly, 113 U. S. 27, 31; Powell v. Pennsylvania, 127 U. S. 678, 683; Busch v. Webb, 122 Fed. Rep. 655, 669; Ex parte Fields, 39 Tex. Crim. App. Rep. 50; Rippey v. State, 68 S. W. Rep. 687; 73 S. W. Rep. 15; Kimberly v. Morris, 10 Tex. Civ. App. Rep. 592, 596.

MR. JUSTICE HOLMES delivered the opinion of the court.

The plaintiff in error was convicted of selling intoxicating liquors contrary to vote of his precinct prohibiting such sale. This vote was in pursuance of a statute which the plaintiff in error alleges to be contrary to the Fourteenth Amendment of the Constitution of the United States. The question was raised at the outset by a motion to quash, which was overruled subject to exception, the exception was overruled on appeal, and the case was brought here by writ of error.

The Constitution of Texas, art. 16, sec. 20, required the legislature to enact a law by which the majority of qualified voters of any county, justice's precinct, town or city, from time to time might determine whether the sale of intoxicating liquors should be prohibited. The Legislature thereupon enacted what now are articles 3384-3399 of the Revised Statutes, and articles 402-407 of the Penal Code. These all are assailed, but the particular object of attack is art. 3395. Article 3395 is as follows:

"Art. 3395 [3238]. The failure to carry prohibition in a county shall not prevent an election for the same being immediately thereafter held in a justice's precinct or subdivision of such county as designated by the commissioners' court, or of any town or city in such county; nor shall the failure to carry prohibition in a town or city prevent an election from being immediately thereafter held for the entire justice's precinct or county in which said town or city is situated; nor shall the holding of an election in a justice's precinct in any way prevent the holding

of an election immediately thereafter for the entire county in which the justice's precinct is situated; but when prohibition has been carried at an election ordered for the entire county, no election on the question of prohibition shall be thereafter ordered in any justice's precinct, town or city of said county until after prohibition has been defeated at a subsequent election for the same purpose, ordered and held for the entire county, in accordance with the provisions of this title; nor in any case where prohibition has been carried in any justice's precinct shall an election on the question of prohibition be ordered thereafter in any town or city of such precinct until after prohibition has been defeated at a subsequent election ordered and held for such entire precinct.'

It will be seen that this section discriminates in favor of those who vote for prohibition; and the argument is that since the Legislature was not authorized to pass a prohibitory law, Dawson v. State, 25 Texas Cr. App. 670, 674, 675, but was required to leave the question to a local vote, it necessarily created a pure democracy to that extent, and therefore could not interfere with the equality of the voters in their right to propose or carry a law. Many questions would have to be answered before so speculative a piece of ratiocination could be followed. But we think it may be dealt with in short space, so far as is necessary to decide this case.

We follow the state court of course, as to the state constitution, and assume that the law is not invalid under that. The question for us is whether, if the state constitution undertakes to authorize such a law, it encounters the Constitution of the United States. It is a question of the power of the State as a whole. Missouri v. Dockery, 191 U. S. 165, 171. But the State has power to prohibit the sale of intoxicating liquors altogether, if it sees fit, Mugler v. Kansas, 123 U. S. 623, and that being so it has power to prohibit it conditionally. It does not infringe the Constitution by giving those in favor of the sale a chance which it might have denied. It is true that the greater does not always include the less. A man may give his

property away, yet he may not contract with a carrier to take the risk of the latter's negligently injuring it, or part with it on the valuable consideration of a wager. But in general the rule holds good. It does here. The State has absolute power over the subject. It does not abridge that power by adopting the form of reference to a local vote. It may favor prohibition to just such degree as it chooses, and to that end may let in a local vote upon the subject as much or as little as it may please. There is no such overmastering consideration of expediency attaching everywhere and always to the form of voting, still less is there any such principle to be drawn from the Fourteenth Amendment, as requires the two sides of a vote on prohibition to be treated with equal favor by the State, the subject matter of the vote being wholly within the State's control. The only chance for the plaintiff in error to prevail was under the state constitution. He has no case under the Constitution of the United States.

Judgment affirmed.

ADAMS v. CHURCH.

· ERROR TO THE CIRCUIT COURT OF MALHEUR COUNTY, State of

OREGON.

No. 169. Argued March 3, 1904.-Decided March 21, 1904.

On writ of error the finding of facts made in the Supreme Court of the State is binding upon, and will be the basis of, the decision of this court. There is no prohibition in the Timber Culture Act of June 14, 1878, 20 Stat. 113, as there is in the Homestead Act, against an entryman who has in good faith acquired a holding under the act, alienating an interest in the lands prior to the issuing of the final certificate.

THIS is an appeal from a decree of the Circuit Court of Malheur County, State of Oregon, entered by direction of the Supreme Court of Oregon,

193 U. S.

Argument for Plaintiff in Error.

The action originated in a suit by Steel against Adams to settle the affairs of a copartnership theretofore carried on by the parties, and so far as a Federal question is concerned, involves the right of the plaintiff below to have conveyed to him an interest in a certain tract of land, acquired by Adams under the Timber Culture Act, before the formation of the partnership. 20 Stat. 113. The defendant denies that this tract of land was included in the partnership property. Upon appea! to the Supreme Court of Oregon, upon whose direction the decree was entered, it was found that at the time of the formation of the partnership Adams was the owner of a timber culture claim covering the land in controversy, and the contention of the plaintiff, that it was agreed and understood at the time of forming the partnership that such claim should be conveyed to and become a part of the assets of the firm as soon as Adams should acquire title from the government, was sustained.

The Federal question made is that such agreement is void as against the statutes and policy of the United States.

Mr. R. J. Slater, with whom Mr. Will R. King was on the brief, for plaintiff in error:

The necessary rules and regulations under the law which govern this case are contained in the general circular of January 1, 1889, Copp's Land Law, 1890, vol. 2, p. 85, in which § 5 provides for the affidavit required by the act itself, and § 24 provides where, when and before whom the final proofs and affidavits may be made. Section 26 provides what character of proof shall be made and the form thereof, viz., forms 4-093 and 4-385 and 4-386.

The Timber Culture Act and the rules and regulations promulgated by the Commissioner of the General Land Office for the purpose of carrying that law into effect must be read and construed together and the affidavit required by the regulation is as binding as that required by the act. Such rules have the force of law, United States v. Eaton, 144 U. S. 688,

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