as was never dreamed of by the framers of the Constitution. While the acts of Congress are to be liberally construed in order to enable it to carry into effect the powers conferred, it is equally true that prohibitions and limitations upon those powers should also be fairly and reasonably enforced. Fairbank v. United States, 181 U. S. 283. To exaggerate in the one direction and restrict in the other will tend to substitute one consolidated government for the present Federal system. We should never forget the declaration in Texas v. White, 7 Wall. 700, 725, that "the Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States."

The judgments are reversed, and the cases remanded to the District Court of the United States for the Norther. District of Illinois with instructions to quash the indictment.

MR. JUSTICE HOLMES, dissenting.

For the purpose of excluding those who unlawfully enter this country Congress has power to retain control over aliens long enough to make sure of the facts. Yamataya v. Fisher (Japanese Immigrant Case), 189 U. S. 86. To this end it may make their admission conditional for three years. Pearson v. Williams, 202 U. S. 281. If the ground of exclusion is their calling, practice of it within a short time after arrival is or may be made evidence of what it was when they came in. Such retrospective presumptions are not always contrary to experience or unknown to the law. Bailey v. Alabama, 211 U. S. 452, 454. If a woman were found living in a house of prostitution within a week of her arrival, no one, I suppose, would doubt that it tended to show that she was in the business when she arrived. But how far back such an inference shall reach is a question of degree like most of the questions of life. And, while a period of three years seems to be long, I am not prepared to say, against the judgment of Congress, that it is too long.

The statute does not state the legal theory upon which it was enacted. If the ground is that which I have suggested, it is fair

HOLMES, J., dissenting.

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to observe that the presumption that it creates is not open to rebuttal. I should be prepared to accept even that, however, in view of the difficulty of proof in such cases. Statutes of which the justification must be the same are familiar in the States. For instance, one creating the offense of being present when gaming implements are found, Commonwealth v. Smith, 166 Massachusetts, 370, 375, 376, or punishing the sale of intoxicating liquors without regard to knowledge of their intoxicating quality, Commonwealth v. Hallett, 103 Massachusetts, 452, or throwing upon a seducer the risk of the woman turning out to be married or under a certain age. Commonwealth v. Elwell, 2 Met. 190; Reg. v. Prince, L. R. 2 C. C. 154. It is true that in such instances the legislature has power to change the substantive law of crimes, and it has been thought that when it is said to create a conclusive presumption as to a really disputable fact, the proper mode of stating what it does, at least as a general rule, is to say that it has changed the substantive law. 2.Wigmore, Ev., §§ 1353 et seq. This may be admitted without denying that considerations of evidence .are what lead to the change. And if it should be thought more philosophical to express this law in substantive terms, I think that Congress may require, as a condition of the right to remain, good behavior for a certain time, in matters deemed by it important to the public welfare and of a kind that indicates a preëxisting habit that would have excluded the party if it had been known. Therefore I am of opinion that it is within the power of Congress to order the deportation of a woman found practicing prostitution within three years.

If Congress can forbid the entry and order the subsequent deportation of professional prostitutes, it can punish those who coöperate in their fraudulent entry. "If Congress has power to exclude such laborers it has the power to punish

any who assist in their introduction." That was a point decided in Lees v. United States, 150-U. S. 476, 480 The same power must exist as to coöperation in an equally unlawful stay. The indictment sets forth the facts that constitute such coöperation

and need not allege the conclusion of law. On the principle of the cases last cited, in order to make its prohibition effective the law can throw the burden of finding out the fact and date of a prostitute's arrival from another country upon those who harbor her for a purpose that presumably they know in any event to be contrary to law. Therefore, while I have admitted that the time fixed seems to me to be long, I can see no other constitutional objection to the act, and, as I have said, I think that that one ought not to prevail

MR. JUSTICE HARLAN and MR. JUSTICE MOODY concur in this dissent.

MURRAY, MCSWEEN, AND PATTON, CONSTITUTING THE STATE DISPENSARY COMMISSION OF SOUTH CAROLINA, v. WILSON DISTILLING COMPANY.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT.

No. 625. Argued February 26, March 1, 1909.—Decided April 5, 1909.

Purchases made by state officers of supplies for business carried on by the State are made by the State, and suits by the vendors against the state officers carrying on or winding up the business are suits against the State and, under the Eleventh Amendment, beyond the jurisdiction of the Federal courts; and so held as to suits against commissioners to wind up the State Liquor Dispensary of South Carolina. A bill in equity to compel specific performance of a contract between an individual and a State cannot, against the objection of the State, be maintained in the Federal courts. Christian v. Atlantic & N. C. R. R., 133 U. S. 233.

A state statute will not, by strained implication, be construed as a divestiture of rights of property, or as authorizing administration of the assets of a governmental agency, without the presence of the State, and so held as to the statute of South Carolina providing for winding up the State Liquor Dispensary.

The consent of a State to be sued in its own courts by a creditor does not give that creditor the right to sue in a Federal court. Chandler v. Dix, 194 U. S. 590.

Argument for Petitioners.

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Even though state legislation and decisions as to the construction of state statutes may not be controlling upon this court, yet they may be persuasive.

Although by engaging in business a State may not avoid a preexisting right of the Federal Government to tax that business, the State does not thereby lose the exemption from suit under the Eleventh Amendment. South Carolina v. United States, 199 U. S. 437, distinguished. The legal history of the constitutional provisions and legislative enactments of South Carolina in regard to the State Liquor Dispensary, reviewed.

161 Fed. Rep. 152, reversed.

THE facts are stated in the opinion

Mr. B. L. Abney, with whom Mr. J. Fraser Lyon was on the brief, and Mr. W. F. Stevenson, for petitioners:

The commission, as individuals, have no interest in the fund. They are mere agents holding a fund, with the power, after they shall have determined what is a just liability, to pay the same over out of the fund. The assets are still the assets of the State. Being officers of the State, with the funds of the State in their possession belonging to the State, and these suits being brought by alleged creditors of the State, the State is the real party in interest, and the suit is virtually against the State. See opinion below; McHose v. Dutton, 55 Iowa, 728; Brown University Case, 56 Fed. Rep. 55; Yale College Case, 52 Fed. Rep. 177; Lowery v. Thompson, 25 S. Car. 416; Board &c. v. Gantt, 76 Virginia, 455; Louisiana v. Jumel, 107 U. S. 711; Hagood v. Southern, 177 U. S. 52.

The state dispensary commission are not defending any case of trespass or of wrongs they may have committed towards the persons or property of the complainants under an unconstitutional statute; nor are they affirmatively, through and by means of an unconstitutional statute, injuring the complainants or invading any of their property rights; nor are they attempting to enforce an unconstitutional statute. Consequently, this case does not fall within any class of cases-mentioned by the court below, nor is it similar to any of the cases

213 U.S.

Argument for Petitioners.

cited by that court. The action of the court if plaintiff succeeds will have the effect of depriving the State of funds or property in its possession. This conflicts with the Eleventh Amendment. Louisiana v. Jumel, 107 U. S. 711; Farmers' National Bank v. Jones, 105 Fed. Rep. 459; Christian v. Atlantic &c. R. Co., 133 U. S. 233; Brown University v. R. I. College, 56 Fed. Rep. 55; Lowery v. Commissioners of Sinking Fund, 25 S. Car. 416; Board of Public Works v. Gantt, 76 Virginia, 455.

The act of 1907 did not create a trust nor divest the State of all control or disposal of the state dispensary property. It simply authorizes claimants to sue or to have their claims established against it, and to be paid out of a certain fund. Allowing such claims to be established and sued on could not be construed as admitting the validity of the claim. Bank v. State, 60 S. Car. 465.

The statute books of the State contain instances where the legislature has seen fit, instead of making the investigation through its own committees, to devolve this duty upon certain persons as commissioners or upon regularly appointed tribunals. But no state decision has ever held that by such act a contract was created between the State and the claimants, which disabled the legislature from either modifying or repealing such statute. Campbell v. Sanders, 43 S. Car. 577.

If the act of 1907 is nothing more than the creation of a commission before which the State authorizes its creditors to sue and to have their claims established and adjusted, then it cannot amount to a contract irrevocable, and this court has repeatedly so decided: Beers v. Arkansas, 20 How. 527; Railroad Co. v. Tennessee, 101 U. S. 337; Railroad Co. v. Alabama, 101 U. S. 832; Hans v. Louisiana, 134 U. S. 17; Baltzer v. North Carolina, 161 U. S. 245; Ex parte Alabama, 23 Am. Rep. 567; In re Ayers, 123 U. S. 507; De Saussure v. Gaillard, 127 U. S. 216.

The State by this act expressly devolves the right and duty upon the commission to investigate, determine and ascertain the just liabilities against it held by these claimants, and does