U.S. Supreme Court Inwood Laboratories v. Ives
Laboratories, 456
U.S. 844 (1982) Inwood Laboratories, Inc. v. Ives
Laboratories, Inc. No. 80-2182 Argued February 22,
1982 Decided June 1, 1982 456
U.S. 844 ast|>* 456
U.S. 844 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus Respondent manufactured and marketed the patented prescription
drug cyclandelate to wholesalers, retail pharmacists, and hospitals
in colored capsules under the registered trademark CYCLOSPASMOL.
After respondent's patent expired, several generic drug
manufacturers, including petitioner manufacturers, began marketing
the drug, intentionally copying the appearance of the CYCLOSPASMOL
capsules. Respondent then brought an action against petitioner
manufacturers and wholesalers in Federal District Court under, inter alia, § 32 of the Trademark Act of 1946, alleging
that some pharmacists had dispensed generic drugs mislabeled as
CYCLOSPASMOL and that petitioners' use of look-alike capsules and
catalog entries comparing prices and revealing the colors of
generic capsules contributed to the pharmacists' mislabeling.
Respondent sought injunctive relief and damages. The District Court
entered judgment for petitioners, finding that, although the
pharmacists had violated § 32, respondent had not made the
necessary factual showing that petitioners had intentionally
induced the pharmacists to mislabel generic drugs or continued to
supply cyclandelate to pharmacists who the petitioners knew or
should have known were mislabeling generic drugs. The Court of
Appeals reversed, rejecting the District Court's findings and
holding that the District Court failed to give sufficient weight to
the evidence respondent offered to show a pattern of illegal
substitution and mislabeling. After completing its own review of
the evidence, the Court of Appeals further held that the evidence
was "clearly sufficient to establish a § 32 violation." Held: The Court of Appeals erred in setting aside the
District Court's findings of fact. Pp. 456 U. S.
853 -858.

															(a) In reviewing such findings, the Court of Appeals was bound
by the "clearly erroneous" standard of Federal Rule of Civil
Procedure 52(a). P. 456 U. S.
855 .

															(b) By rejecting the findings simply because it would have given
more weight to evidence of mislabeling than did the trial court,
the Court of Page 456 U. S. 845 Appeals clearly erred. Determining the weight and credibility of
the evidence is the special province of the trier of fact. Because
the District Court's findings concerning the significance of the
instances of mislabeling were not clearly erroneous, they should
not have been disturbed. Pp. 456 U. S.
855 -856.

															(c) Moreover, each of the conclusions that the Court of Appeals
made in holding that the evidence established a § 32 violation was
contrary to the District Court's findings. An appellate court
cannot substitute its interpretation of the evidence for that of
the trial court simply because the reviewing court

															"might give the facts another construction, resolve the
ambiguities differently, and find a more sinister cast to actions
which the District Court apparently deemed innocent." United States v. Real Estate Boards, 339 U.
S. 485 , 339 U. S. 495 .
Pp. 456 U. S.
856 -85.

															638 F.2d 538, reversed and remanded.

															O'CONNOR, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, BLACKMUN, POWELL, and STEVENS, JJ.,
joined. WHITE, J., filed an opinion concurring in the result, in
which MARSHALL, J., joined, post, p. 456 U. S. 859 .
REHNQUIST, J., filed an opinion concurring in the result, post, p. 456 U. S.
864 . Page 456 U. S. 846 JUSTICE O'CONNOR delivered the opinion of the Court.

															This action requires us to consider the circumstances under
which a manufacturer of a generic drug, designed to duplicate the
appearance of a similar drug marketed by a competitor under a
registered trademark, can be held vicariously liable for
infringement of that trademark by pharmacists who dispense the
generic drug. I In 1955, respondent Ives Laboratories, Inc. (Ives), received a
patent on the drug cyclandelate, a vasodilator used in long-term
therapy for peripheral and cerebral vascular diseases. Until its
patent expired in 1972, Ives retained the exclusive right to make
and sell the drug, which it did under the registered trademark
CYCLOSPASMOL. [ Footnote 1 ] Ives
marketed the drug, a white powder, to wholesalers, retail
pharmacists, and hospitals in colored gelatin capsules. Ives
arbitrarily selected Page 456 U. S. 847 a blue capsule, imprinted with "Ives 4124," for its 200 mg
dosage and a combination blue-red capsule, imprinted with "Ives
4148," for its 400 mg dosage.

															After Ives' patent expired, several generic drug manufacturers,
including petitioners Premo Pharmaceutical Laboratories, Inc.,
Inwood Laboratories, Inc., and MD Pharmaceutical Co., Inc.
(collectively the generic manufacturers), began marketing
cyclandelate. [ Footnote 2 ] They
intentionally copied the appearance of the CYCLOSPASMOL capsules,
selling cyclandelate in 200 mg and 400 mg capsules in colors
identical to those selected by Ives. [ Footnote 3 ]

															The marketing methods used by Ives reflect normal industry
practice. Because cyclandelate can be obtained only by
prescription, Ives does not direct its advertising to the ultimate
consumer. Instead, Ives' representatives pay personal visits to
physicians, to whom they distribute product literature and "starter
samples." Ives initially directed these efforts toward convincing
physicians that CYCLOSPASMOL is superior to other vasodilators. Now
that its patent has expired and generic manufacturers have entered
the market, Ives concentrates on convincing physicians to indicate
on prescriptions that a generic drug cannot be substituted for
CYCLOSPASMOL. [ Footnote 4 ]

															The generic manufacturers also follow a normal industry practice
by promoting their products primarily by distribution Page 456 U. S. 848 of catalogs to wholesalers, hospitals, and retail pharmacies,
rather than by contacting physicians directly. The catalogs
truthfully describe generic cyclandelate as "equivalent" or
"comparable" to CYCLOSPASMOL. [ Footnote 5 ] In addition, some of the catalogs include
price comparisons of the generic drug and CYCLOSPASMOL, and some
refer to the color of the generic capsules. The generic products
reach wholesalers, hospitals, and pharmacists in bulk containers
which correctly indicate the manufacturer of the product contained
therein. A pharmacist, regardless of whether he is dispensing
CYCLOSPASMOL or a generic drug, removes the capsules from the
container in which he receives them and dispenses them to the
consumer in the pharmacist's own bottle with his Page 456 U. S. 849 own label attached. Hence, the final consumer sees no
identifying marks other than those on the capsules themselves. II A Ives instituted this action in the United States District Court
for the Eastern District of New York under §§ 32 and 43(a) of the
Trademark Act of 1946 (Lanham Act), 60 Stat. 427, as amended, 15
U.S.C. § 1051 et seq., and under New York's unfair
competition law, N.Y.Gen.Bus.Law § 368-d (McKinney 1968). [ Footnote 6 ]

															Ives' claim under § 32, 60 Stat. 437, as amended, 15 U.S.C. §
1114, [ Footnote 7 ] derived from
its allegation that some pharmacists had dispensed generic drugs
mislabeled as CYCLOSPASMOL. [ Footnote 8 ] Page 456 U. S. 850 Ives contended that the generic manufacturers' use of look-alike
capsules and of catalog entries comparing prices and revealing the
colors of the generic capsules induced pharmacists illegally to
substitute a generic drug for CYCLOSPASMOL and to mislabel the
substitute drug CYCLOSPASMOL. Although Ives did not allege that the
petitioners themselves applied the Ives trademark to the drug
products they produced and distributed, it did allege that the
petitioners contributed to the infringing activities of pharmacists
who mislabeled generic cyclandelate.

															Ives' claim under § 43(a), 60 Stat. 441, 15 U.S.C. § 1125(a),
[ Footnote 9 ] alleged that the
petitioners falsely designated the origin of their products by
copying the capsule colors used by Ives and by promoting the
generic products as equivalent to CYCLOSPASMOL. In support of its
claim, Ives argued that the colors of its capsules were not
functional, [ Footnote 10 ]
and that Page 456 U. S. 851 they had developed a secondary meaning for the consumers.
[ Footnote 11 ] Contending
that pharmacists would continue to mislabel generic drugs as
CYCLOSPASMOL so long as imitative products were available, Ives
asked that the court enjoin the petitioners from marketing
cyclandelate capsules in the same colors and form as Ives uses for
CYCLOSPASMOL. In addition, Ives sought damages pursuant to § 35 of
the Lanham Act, 60 Stat. 439, as amended, 15 U.S.C. § 1117. B The District Court denied Ives' request for an order
preliminarily enjoining the petitioners from selling generic drugs
identical in appearance to those produced by Ives. 455 F.
Supp. 939 (1978). Referring to the claim based upon § 32, the
District Court stated that, while the "knowing and deliberate
instigation" by the petitioners of mislabeling by pharmacists would
justify holding the petitioners as well as the pharmacists liable
for trademark infringement, Ives had made no showing sufficiently
to justify preliminary relief. Id. at 945. Ives had not
established that the petitioners conspired with the pharmacists or
suggested that they disregard physicians' prescriptions.

															The Court of Appeals for the Second Circuit affirmed. 601 F.2d
631 (1979). To assist the District Court in the upcoming trial on
the merits, the appellate court defined the elements of a claim
based upon § 32 in some detail. Relying primarily upon Coca-Cola Co. v. Snow Crest Beverage, Inc., 64 F. Supp.
980 (Mass.1946), aff'd, 162 F.2d 280 (CA1), cert.
denied, 332 U.S. 809 (1947), the court stated that the
petitioners would be liable under § 32 either if they suggested,
even by implication, that retailers fill bottles with generic
cyclandelate and label the bottle with Ives' trademark, or if Page 456 U. S. 852 the petitioners continued to sell cyclandelate to retailers whom
they knew or had reason to know were engaging in infringing
practices. 601 F.2d at 636. C After a bench trial on remand, the District Court entered
judgment for the petitioners. 488 F.
Supp. 394 (1980). Applying the test approved by the Court of
Appeals to the claim based upon § 32, the District Court found that
the petitioners had not suggested, even by implication, that
pharmacists should dispense generic drugs incorrectly identified as
CYCLOSPASMOL. [ Footnote
12 ]

															In reaching that conclusion, the court first looked for direct
evidence that the petitioners intentionally induced trademark
infringement. Since the petitioners' representatives do not make
personal visits to physicians and pharmacists, the petitioners were
not in a position directly to suggest improper drug substitutions. Cf. William R. Warner & Co. v. Eli Lilly & Co., 265 U. S. 526 , 265 U. S.
530 -531 (1924); Smith, Kline & French
Laboratories v. Clark & Clark, 157 F.2d 725, 731 (CA3), cert. denied, 329 U.S. 796 (1946). Therefore, the court
concluded, improper suggestions, if any, must have come from
catalogs and promotional materials. The court determined, however,
that those materials could not "fairly be read" to suggest
trademark infringement. 488 F. Supp. at 397.

															The trial court next considered evidence of actual instances of
mislabeling by pharmacists, since frequent improper substitutions
of a generic drug for CYCLOSPASMOL could provide circumstantial
evidence that the petitioners, merely by making available imitative
drugs in conjunction with comparative price advertising, implicitly
had suggested that pharmacists substitute improperly. After
reviewing the evidence Page 456 U. S. 853 of incidents of mislabeling, the District Court concluded that
such incidents occurred too infrequently to justify the inference
that the petitioners' catalogs and use of imitative colors had
"impliedly invited" druggists to mislabel. Ibid. Moreover,
to the extent mislabeling had occurred, the court found it resulted
from pharmacists' misunderstanding of the requirements of the New
York Drug Substitution Law, rather than from deliberate attempts to
pass off generic cyclandelate as CYCLOSPASMOL. Ibid. The District Court also found that Ives failed to establish its
claim based upon § 43(a). In reaching its conclusion, the court
found that the blue and blue-red colors were functional to
patients, as well as to doctors and hospitals: many elderly
patients associate color with therapeutic effect; some patients
commingle medications in a container and rely on color to
differentiate one from another; colors are of some, if limited,
help in identifying drugs in emergency situations; and use of the
same color for brand name drugs and their generic equivalents helps
avoid confusion on the part of those responsible for dispensing
drugs. Id. at 398-399. In addition, because Ives had
failed to show that the colors indicated the drug's origin, the
court found that the colors had not acquired a secondary meaning. Id. at 399.

															Without expressly stating that the District Court's findings
were clearly erroneous, and for reasons which we discuss below, the
Court of Appeals concluded that the petitioners violated § 32. 638
F.2d 538 (1981). The Court of Appeals did not reach Ives' other
claims. We granted certiorari, 454 U.S. 891 (1981), and now reverse
the judgment of the Court of Appeals. III A As the lower courts correctly discerned, liability for trademark
infringement can extend beyond those who actually mislabel goods
with the mark of another. Even if a manufacturer does not directly
control others in the chain of distribution, Page 456 U. S. 854 it can be held responsible for their infringing activities under
certain circumstances. Thus, if a manufacturer or distributor
intentionally induces another to infringe a trademark, or if it
continues to supply its product to one whom it knows or has reason
to know is engaging in trademark infringement, the manufacturer or
distributor is contributorily responsible for any harm done as a
result of the deceit. [ Footnote
13 ] See William R. Warner & Co. v. Eli Lilly & Co.,
supra; Coca-Cola Co. v. Snow Crest Beverages, Inc., supra. It is undisputed that those pharmacists who mislabeled generic
drugs with Ives' registered trademark violated § 32. [ Footnote 14 ] Page 456 U. S. 855 However, whether these petitioners were liable for the
pharmacists' infringing acts depended upon whether, in fact, the
petitioners intentionally induced the pharmacists to mislabel
generic drugs or, in fact, continued to supply cyclandelate to
pharmacists whom the petitioners knew were mislabeling generic
drugs. The District Court concluded that Ives made neither of those
factual showings. B In reviewing the factual findings of the District Court, the
Court of Appeals was bound by the "clearly erroneous" standard of
Rule 52(a), Federal Rules of Civil Procedure. Pullman-Standard
v. Swint, ante p. 456 U. S. 273 .
That Rule recognizes and rests upon the unique opportunity afforded
the trial court judge to evaluate the credibility of witnesses and
to weigh the evidence. Zenith Radio Corp. v. Hazeltine
Research, Inc., 395 U. S. 100 , 395 U. S. 123 (1969). Because of the deference due the trial judge, unless an
appellate court is left with the "definite and firm conviction that
a mistake has been committed," United States v. United States
Gypsum Co., 333 U. S. 364 , 333 U. S. 395 (1948), it must accept the trial court's findings. [ Footnote 15 ] IV In reversing the District Court's judgment, the Court of Appeals
initially held that the trial court failed to give sufficient
weight to the evidence Ives offered to show a "pattern of illegal
substitution and mislabeling in New York. . . ." [ Footnote 16 ] Page 456 U. S. 856 638 F.2d at 543. By rejecting the District Court's findings
simply because it would have given more weight to evidence of
mislabeling than did the trial court, the Court of Appeals clearly
erred. Determining the weight and credibility of the evidence is
the special province of the trier of fact. Because the trial
court's findings concerning the significance of the instances of
mislabeling were not clearly erroneous, they should not have been
disturbed.

															Next, after completing its own review of the evidence, the Court
of Appeals concluded that the evidence was "clearly sufficient to
establish a § 32 violation." Ibid. In reaching its
conclusion, the Court of Appeals was influenced by several factors.
First, it thought the petitioners reasonably could have anticipated
misconduct by a substantial number of the pharmacists who were
provided imitative, lower priced products which, if substituted for
the higher priced brand name without passing on savings to
consumers, could provide an economic advantage to the pharmacists. Ibid. [ Footnote 17 ]
Second, it Page 456 U. S. 857 disagreed with the trial court's finding that the mislabeling
which did occur reflected confusion about state law requirements. Id. at 44. [ Footnote
18 ] Third, it concluded that illegal substitution and
mislabeling in New York are neither de minimis nor
inadvertent. Ibid. [ Footnote 19 ] Finally, the Court of Appeals indicated it
was further influenced by the fact that the petitioners did not
offer "any persuasive evidence of a legitimate reason unrelated to
CYCLOSPASMOL" for producing an imitative product. Ibid. [ Footnote 20 ]

															Each of those conclusions is contrary to the findings of the
District Court. An appellate court cannot substitute its
interpretation of the evidence for that of the trial court simply
because the reviewing court

															"might give the facts another construction, resolve the
ambiguities differently, and find a Page 456 U. S. 858 more sinister cast to actions which the District Court
apparently deemed innocent." United States v. Real Estate Boards, 339 U.
S. 485 , 339 U. S. 495 (1950). V The Court of Appeals erred in setting aside findings of fact
that were not clearly erroneous. Accordingly, the judgment of the
Court of Appeals that the petitioners violated § 32 of the Lanham
Act is reversed.

															Although the District Court also dismissed Ives' claims alleging
that the petitioners violated § 43(a) of the Lanham Act and the
state unfair competition law, the Court of Appeals did not address
those claims. Because § 43(a) prohibits a broader range of
practices than does § 32, as may the state unfair competition law,
the District Court's decision dismissing Ives' claims based upon
those statutes must be independently Page 456 U. S. 859 reviewed. Therefore, we remand to the Court of Appeals for
further proceedings consistent with this opinion. Reversed and remanded. * Together with No. 81-11, Darby Drug Co., Inc., et al. v.
Ives Laboratories, Inc., also on certiorari to the same
court.

															[ Footnote 1 ]

															Under the Trademark Act of 1946 (Lanham Act), 60 Stat. 427, as
amended, 15 U.S.C. § 1051 et seq., the term "trade-mark"
includes

															"any word, name, symbol, or device or any combination thereof
adopted and used by a manufacturer or merchant to identify his
goods and distinguish them from those manufactured or sold by
others."

															15 U.S.C. § 1127. A "registered mark" is one registered in the
United States Patent and Trademark Office under the terms of the
Lanham Act "or under the Act of March 3, 1881, or the Act of
February 20, 1905, or the Act of March 19, 1920." Ibid. [ Footnote 2 ]

															The generic manufacturers purchase cyclandelate and empty
capsules and assemble the product for sale to wholesalers and
hospitals. The petitioner wholesalers, Darby Drug Co., Inc., Rugby
Laboratories, Inc., and Sherry Pharmaceutical Co., Inc., in turn,
sell to other wholesalers, physicians, and pharmacies.

															[ Footnote 3 ]

															Initially, the generic manufacturers did not place any
identifying mark on their capsules. After Ives initiated this
action, Premo imprinted "Premo" on its capsules and Inwood
imprinted "Inwood 258."

															[ Footnote 4 ]

															Since the early 1970's, most States have enacted laws allowing
pharmacists to substitute generic drugs for brand name drugs under
certain conditions. See generally Note, Consumer
Protection and Prescription Drugs: The Generic Drug Substitution
Laws, 67 Ky.L.J. 384 (1978-1979). The New York statutes involved in
this action are typical of these generic substitution laws. New
York law requires that prescription forms contain two lines, one of
which a prescribing physician must sign. N.Y.Educ.Law § 6810
(McKinney Supp.1981-1982). If the physician signs over the words
"substitution permissible," substitution is mandatory if a
substitute generic drug is on an approved list, N.Y.Educ.Law §
6816-a (McKinney Supp.1981-1982); N.Y.Pub.Health Law §
206.1( o ) (McKinney Supp.1981-1982), and permissible if
another generic drug is available. Unless the physician directs
otherwise, the pharmacist must indicate the name of the generic
manufacturer and the strength of the drug dispensed on the label.
N.Y.Educ.Law § 6816-a(1)(c). In addition, the prescription form
must specifically state that, unless the physician signs above the
line"dispense as written," the prescription will be filled
generically. § 6810(6)(a).

															If a pharmacist mislabels a drug or improperly substitutes, he
is guilty of a misdemeanor, and subject to a fine, § 6811, 6815,
6816, and to revocation of his license. § 6808.

															[ Footnote 5 ]

															Ives conceded that CYCLOSPASMOL and the petitioners' generic
equivalents are bioequivalent, and have the same bioavailability. See 455 F.
Supp. 939 , 942 (EDNY 1978), and 488 F.
Supp. 394 , 396 (EDNY 1980). Bioavailability is an absolute term
which measures both the rate and the amount of a drug which reaches
the general circulation from a defined dosage. Drugs are
"bioequivalent" if, when administered in equal amounts to the same
individual, they reach general circulation at the same relative
rate and to the same relative extent. Remington's Pharmaceutical
Sciences 1368 (15th ed.1975).

															[ Footnote 6 ]

															The state law claim was not discussed in the decision under
review, and no further reference will be made to it here.

															[ Footnote 7 ]

															Section 32 of the Lanham Act, 60 Stat. 437, as amended, 15
U.S.C. § 1114, provides in part:

															"(1) Any person who shall, without the consent of the registrant
-- "

															"(a) use in commerce any reproduction, counterfeit, copy, or
colorable imitation of a registered mark in connection with the
sale, offering for sale, distribution, or advertising of any goods
or services on or in connection with which such use is likely to
cause confusion, or to cause mistake, or to deceive; or"

															"(b) reproduce, counterfeit, copy, or colorably imitate a
registered mark and apply such reproduction, counterfeit, copy, or
colorable imitation to labels, signs, prints, packages, wrappers,
receptacles or advertisements intended to be used in commerce upon
or in connection with the sale, offering for sale, distribution, or
advertising of goods or services on or in connection with which
such use is likely to cause confusion, or to cause mistake, or to
deceive,"

															"shall be liable in a civil action by the registrant for the
remedies hereinafter provided. Under subsection (b) of this
section, the registrant shall not be entitled to recover profits or
damages unless the acts have been committed with knowledge that
such imitation is intended to be used to cause confusion, or to
cause mistake or to deceive."

															[ Footnote 8 ]

															The claim involved two types of infringements. The first was
"direct" infringement, in which druggists allegedly filled
CYCLOSPASMOL prescriptions marked "dispense as written" with a
generic drug and mislabeled the product as CYCLOSPASMOL. The
second, "intermediate" infringement, occurred when pharmacists,
although authorized by the prescriptions to substitute, allegedly
mislabeled a generic drug as CYCLOSPASMOL. The one retail pharmacy
originally named as a defendant consented to entry of a decree
enjoining it from repeating such actions. 455 F. Supp. at 942.

															[ Footnote 9 ]

															Section 43(a) of the Lanham Act, 60 Stat. 441, 15 U.S.C. §
1125(a), provides:

															"(a) Any person who shall affix, apply, or annex, or use in
connection with any goods or services, or any container or
containers for goods, a false designation of origin, or any false
description or representation, including words or other symbols
tending falsely to describe or represent the same, and shall cause
such goods or services to enter into commerce, and any person who
shall with knowledge of the falsity of such designation of origin
or description or representation cause or procure the same to be
transported or used in commerce or deliver the same to any carrier
to be transported or used, shall be liable to a civil action by any
person doing business in the locality falsely indicated as that of
origin or in the region in which said locality is situated, or by
any person who believes that he is or is likely to be damaged by
the use of any such false description or representation."

															[ Footnote 10 ]

															In general terms, a product feature is functional if it is
essential to the use or purpose of the article or if it affects the
cost or quality of the article. See Sears, Roebuck & Co. v.
Stiffel Co., 376 U. S. 225 , 376 U. S. 232 (1964); Kellogg Co. v. National Biscuit Co., 305 U.
S. 111 , 305 U. S. 122 (1938).

															[ Footnote 11 ]

															To establish secondary meaning, a manufacturer must show that,
in the minds of the public, the primary significance of a product
feature or term is to identify the source of the product, rather
than the product itself. See Kellogg Co. v. National Biscuit
Co., supra, at 305 U. S.
118 .

															[ Footnote 12 ]

															The District Court also found that the petitioners did not
continue to provide drugs to retailers whom they knew or should
have known were engaging in trademark infringement. 488 F. Supp. at
397. The Court of Appeals did not discuss that finding, and we do
not address it.

															[ Footnote 13 ]

															JUSTICE WHITE, in his opinion concurring in the result, voices
his concern that we may have "silently acquiesce[d] in a
significant change in the test for contributory infringement." Post at 456 U. S. 861 .
His concern derives from his perception that the Court of Appeals
abandoned the standard enunciated by Judge Friendly in its first
opinion, a standard which both we and JUSTICE WHITE approve, post at 456 U. S.
859 -860. The Court of Appeals, however, expressly
premised its second opinion on "the governing legal principles . .
. set forth in Judge Friendly's opinion upon the earlier appeal,
601 F.2d 631 (2d Cir.1979)," and explicitly claimed to have
rendered its second decision by "[a]pplying those principles. . .
." 638 F.2d 538, 542 (1981).

															JUSTICE WHITE's concern is based on a comment by the Court of
Appeals that the generic manufacturers "could reasonably
anticipate" illegal substitution of their drugs. Id. at
543. If the Court of Appeals had relied upon that statement to
define the controlling legal standard, the court indeed would have
applied a "watered down" and incorrect standard. As we read the
Court of Appeals' opinion, however, that statement was intended
merely to buttress the court's conclusion that the legal test for
contributory infringement, as earlier defined, had been met. See infra at 456 U. S.
856 -857.

															[ Footnote 14 ]

															Such blatant trademark infringement inhibits competition and
subverts both goals of the Lanham Act. By applying a trademark to
goods produced by one other than the trademark's owner, the
infringer deprives the owner of the goodwill which he spent energy,
time, and money to obtain. See S.Rep. No. 1333, 79th
Cong., 2d Sess., 3 (1946). At the same time, the infringer deprives
consumers of their ability to distinguish among the goods of
competing manufacturers. See H.R.Rep. No. 944, 76th Cong.,
1st Sess., 3 (1939).

															[ Footnote 15 ]

															Of course, if the trial court bases its findings upon a mistaken
impression of applicable legal principles, the reviewing court is
not bound by the clearly erroneous standard. United States v.
Singer Manufacturing Co., 374 U. S. 174 , 374 U. S. 194 ,
n. 9 (1963). However, in this instance, the District Court applied
correct legal principles when it adopted the precise test developed
by the Court of Appeals. Compare 601 F.2d 631, 636 (1979), with 488 F. Supp. at 397.

															[ Footnote 16 ]

															As the opinions from the lower courts reveal, more than one
inference can be drawn from the evidence presented. Prior to trial,
test shoppers hired by Ives gave CYCLOSPASMOL prescriptions on
which the "substitution permissible" line was signed to 83 New York
pharmacists. Forty-eight of the pharmacists dispensed CYCLOSPASMOL;
the rest dispensed a generic drug. Ten of the thirty-five
pharmacists who dispensed a generic drug included the word
CYCLOSPASMOL on the label, although 5 of those 10 also included
some form of the word "generic." Nine of the ten told the consumer
of the substitution. Only 1 of the 10 charged the brand name price
for the generic drug. 488 F. Supp. at 397.

															The District Court concluded that that evidence did not justify
the inference that the petitioners' catalogs invite pharmacists to
mislabel. Ibid. The Court of Appeals, emphasizing that 10
of the 35 druggists who dispensed a generic drug mislabeled it as
CYCLOSPASMOL, found a pattern of substitution and mislabeling. 638
F.2d at 543. The dissenting judge on the appellate panel,
emphasizing that only 1 of 83 pharmacists attempted an illegal
substitution and reaped a profit made possible by the color
imitation, concluded the facts supported the District Court's
finding that mislabeling resulted from confusion about the
substitution laws, rather than from profit considerations. Id. at 546.

															On the basis of the record before us, the inferences drawn by
the District Court are not, as a matter of law, unreasonable.

															[ Footnote 17 ]

															The Court of Appeals cited no evidence to support its
conclusion, which apparently rests upon the assumption that a
pharmacist who has been provided an imitative generic drug will be
unable to resist the temptation to profit from illegal activity. We
find no support in the record for such a far-reaching conclusion.
Moreover, the assumption is inconsistent with the District Court's
finding that only a "few instances," rather than a substantial
number, of mislabelings occurred. 488 F. Supp. at 397.

															[ Footnote 18 ]

															The Court of Appeals characterized the District Court's finding
as resting on "a short and casual exchange with a witness. . . ."
638 F.2d at 544. The District Court, however, stated that its
conclusion that pharmacists did not understand the drug
substitution law rested upon the fact that, in numerous instances,
a pharmacist told a consumer that state law prohibited filling
prescriptions with generic products, even though the consumer had
presented a prescription allowing generic substitution. 488 F.
Supp. at 397-398.

															[ Footnote 19 ]

															In reaching that conclusion, the Court of Appeals took judicial
notice of the fact that, in May, 1980, six indictments were handed
down in New York City charging pharmacists with substituting
cyclandelate for CYCLOSPASMOL. We note that the evidence of which
the Court of Appeals took judicial notice not only involved no
convictions, but also reflected knowledge that was not available
when the District Court rendered its decision. Moreover, even if
the District Court failed to consider relevant evidence, which
would have been an error of law, the Court of Appeals, rather than
make its own factual determination, should have remanded for
further proceedings to allow the trial court to consider the
evidence. See Pullman-Standard v. Swint, ante at 456 U. S.
291 -292.

															[ Footnote 20 ]

															The Court of Appeals reached that conclusion despite the
District Court's express finding that, for purposes of § 43(a), the
capsule colors were functional. See supra at 456 U. S. 853 .
As the dissent below noted, the Court of Appeals' majority either
disregarded the District Court's finding of functionality, see 638 F.2d at 545, n. 1 (Mulligan, J., dissenting), or
implicitly rejected that finding as not "persuasive." See
id. at 547.

															While the precise basis for the Court of Appeals' ruling on this
issue is unclear, it is clear that the Court of Appeals erred. The
appellate court was not entitled simply to disregard the District
Court's finding of functionality. While the doctrine of
functionality is most directly related to the question of whether a
defendant has violated § 43(a) of the Lanham Act, see
generally Note, The Problem of Functional Features: Trade
Dress Infringement Under Section 43(a) of the Lanham Act, 82
Colum.L.Rev. 77 (1982), a finding of functionality may also be
relevant to an action involving § 32. By establishing to the
District Court's satisfaction that uniform capsule colors served a
functional purpose, the petitioners offered a legitimate reason for
producing an imitative product.

															Nor was the Court of Appeals entitled simply to dismiss the
District Court's finding of functionality as not "persuasive." If
the District Court erred as a matter of law, the Court of Appeals
should have identified the District Court's legal error. If the
Court of Appeals disagreed with the District Court's factual
findings, it should not have dismissed them without finding them
clearly erroneous.

															JUSTICE WHITE, with whom JUSTICE MARSHALL joins, concurring in
the result.

															We granted certiorari in these cases in order to review the
legal standard employed by the Second Circuit in finding that a
generic drug manufacturer is vicariously liable for trademark
infringement committed by pharmacists who dispense the generic
drug. The Court implicitly endorses the legal standard purportedly
employed by the Court of Appeals, ante at 456 U. S.
853 -854, but finds that the court erred in setting aside
factual findings that were not clearly erroneous. The question
whether the Court of Appeals had misapplied the clearly erroneous
rule, however, was not presented in the petitions for certiorari.
This was conceded at oral argument. [ Footnote 2/1 ] Tr. of Oral Arg. 69. Our Rule 21.1(a)
states that "[o]nly the questions set forth in the petition or
fairly included therein will be considered by the Court." The
majority suggests no reason for ignoring our own Rule. Furthermore,
if the issue presented in the petitions for certiorari had been
whether the clearly erroneous standard, although properly invoked,
was erroneously applied, it is doubtful in my mind that this
fact-bound issue would have warranted certiorari. I nevertheless
concur in reversal, because I believe that the Court of Appeals has
watered down to an impermissible extent the standard for finding a
violation of § 32 of the Lanham Act, 15 U.S.C. § 1114.

															In its first opinion in this litigation, the Court of Appeals
indicated that a

															"manufacturer or wholesaler would be liable Page 456 U. S. 860 under § 32 if he suggested, even if only by implication, that a
retailer fill a bottle with the generic capsules and apply Ives'
mark to the label, or continued to sell capsules containing the
generic drug which facilitated this to a druggist whom he knew or
had reason to know was engaging in the practices just
described."

															601 F.2d 631, 636 (1979) ( Ives II ). The District Court
applied this test, but concluded that no violation of § 32 had been
shown. On appeal after trial, a majority of the Second Circuit
found defendants liable for contributory infringement by revising
and expanding the doctrine of contributory trademark infringement.
638 F.2d 538 (1981) ( Ives IV ):

															"By using capsules of identical color, size, and shape, together
with a catalog describing their appearance and listing comparable
prices of CYCLOSPASMOL and generic cyclandelate, appellees could reasonably anticipate that their generic drug
product would by a substantial number of druggists be substituted
illegally. . . . This amounted to a suggestion, at least by
implication, that the druggists take advantage of the opportunity
to engage in such misconduct." Id. at 543 (emphasis added). Ives II required
a showing that petitioners intended illegal substitution or
knowingly continued to supply pharmacists palming off generic
cyclandelate as CYCLOSPASMOL; Ives IV was satisfied merely
by the failure to "reasonably anticipate" that illegal substitution
by some pharmacists was likely. In my view, this is an erroneous
construction of the statutory law governing trademark
protection. William R. Warner & Co. v. Eli Lilly & Co., 265 U. S. 526 (1924), made clear that a finding of contributory infringement
requires proof of either an intent to induce illegal substitution
or continued sales to particular customers whom the manufacturer
knows or should know are engaged in improper palming off. In that
case, it was shown that the manufacturer's salesmen actively
induced, either in direct terms or by insinuation, the filling of
requests for Coco-Quinine with Page 456 U. S. 861 Quin-Coco. "The wrong was in designedly enabling the dealers to
palm off the preparation as that of the respondent." [ Footnote 2/2 ] Id. at 265 U. S. 530 . Coca-Cola Co. v. Snow Crest Beverages,
Inc., 64 F. Supp.
980 , 989 (Mass.1946), aff'd, 162 F.2d 280 (CA1), cert. denied, 332 U.S. 809 (1947), the case upon which the
Court of Appeals relied in Ives II, stands for this very
proposition. There was no contributory infringement in Snow Crest's
manufacture of a product identical in appearance to that of
Coca-Cola. Judge Wyzanski observed that

															"any man of common sense knows that, in any line of business, .
. . there are some unscrupulous persons who, when it is to their
financial advantage to do so, will palm off on customers a
different product from that ordered by the customer."

															64 F. Supp. at 988-989. These cases reflect the general
consensus. 2 J. McCarthy, Trademarks and Unfair Competition § 25:2
(1973) ("[T]he supplier's duty does not go so far as to require him
to refuse to sell to dealers who merely might pass off its
goods"). The mere fact that a generic drug company can anticipate
that some illegal substitution will occur to some unspecified
extent, and by some unknown pharmacists, should not, by itself, be
a predicate for contributory liability. I thus am inclined to
believe that the Court silently acquiesces in a significant change
in the test for contributory infringement.

															Diluting the requirement for establishing a prima facie case of contributory trademark infringement is particularly
unjustified in the generic drugs field. Preventing the use of
generic drugs of the same color to which customers had become
accustomed in their prior use of the brand name product interferes
with the important state policy, expressed in New York and 47 other
States, of promoting the substitution of Page 456 U. S. 862 generic formulations. See Warner, Consumer Protection
and Prescription Drugs: The Generic Drug Substitution Laws, 67
Ky.L.J. 384 (1978-1979).

															The Court of Appeals concluded that there was no "persuasive
evidence of a legitimate reason" for petitioners to use imitative
colors. The District Court, however, had expressly found that, for
purposes of § 43(a), the capsule colors were functional. With
respect to functionality, I fully agree with the Court that the
Court of Appeals erred in setting aside factual findings without
finding that they were clearly erroneous. The District Court found
that capsule color was functional in several respects: patient
anxiety and confusion were likely if accustomed medicine were
dispensed in a different color; capsule colors assist patients in
identifying the correct pill to take; standard colors help
physicians identify the drug involved in case of overdose.
[ Footnote 2/3 ] Clearly, the Court
of Appeals could not reject these findings merely because it viewed
the evidence as less persuasive than did the District Court. Rule
52(a) imposes a stricter standard.

															Finally, although the Court states that a "finding of
functionality may also be relevant to an action involving § 32," it
does not explicate the relationship of functionality in a § 32
case. It is my view that a finding of functionality offers a
complete affirmative defense to a contributory infringement Page 456 U. S. 863 claim predicated solely on the reproduction of a functional
attribute of the product. A functional characteristic is "an
important ingredient in the commercial success of the product," 601
F.2d at 643, and, after expiration of a patent, it is no more the
property of the originator than the product itself. It makes no
more sense to base contributory infringement upon the copying of
functional colors than on the petitioners' decision to use the same
formulation of the drug, or even to market the generic substitute
in the first place. To be sure, the very existence of generic drugs
"facilitates" illegal substitution. But Ives no longer has a patent
for cyclandelate, "and the defendants have a right to reproduce it
as nearly as they can." Saxlehner v. Wagner, 216 U.
S. 375 , 216 U. S. 380 (1910) (Holmes, J.). Reproduction of a functional attribute is
legitimate competitive activity.

															I am also mindful that functionality is a defense to a suit
under § 43(a) of the Lanham Act alleging damages from a
competitor's "false designation of origin" on a good. [ Footnote 2/4 ] The use of a product or
package design that is so similar to that of another producer that
it is likely to confuse purchasers as to the product's source may
constitute "false designation of origin" within the meaning of the
Act. [ Footnote 2/5 ] As the Court of
Appeals noted in Ives II, § 43(a) "goes beyond § 32 in
making certain types of unfair competition federal statutory
torts," 601 F.2d at 641. Section 43(a) offers the direct protection
of Ives' interest in this case, and it is not surprising that the
alleged Page 456 U. S. 864 § 43(a) violation was the primary claim in this litigation, as
it has been in other cases of this genre. It would be anomalous for
the imitation of a functional feature to constitute contributory
infringement for purposes of § 32, while the same activity is not a
"false designation of origin" under § 43(a). [ Footnote 2/6 ]

															I would reverse the decision of the Court of Appeals and remand
for review of the District Court's findings consistent with the
principles stated above.

															[ Footnote 2/1 ]

															The third question in petitioner Darby Drug Co.'s petition
embraced the claim that the Court of Appeals had failed to observe
Rule 52(a) in overturning the District Judge's finding of
functionality. As discussed below, I agree with the Court's
invocation of Rule 52 with respect to this aspect of the decision
below.

															[ Footnote 2/2 ]

															Although Warner and other cases were decided before §
32 was enacted, the purpose of the Lanham Act was to codify and
unify the common law of unfair competition and trademark
protection. S.Rep. No. 1333, 79th Cong., 2d Sess. (1946). There is
no suggestion that Congress intended to depart from Warner and other contemporary precedents.

															[ Footnote 2/3 ]

															"The reality is that, for every link in the distributive chain
(from producer to ultimate consumer), the color and shape of drugs
dispensed by prescription do perform a function. For each of them,
color or shape may be a convenient shorthand code by which to
identify the drug and its milligram dosage so that mistakes can be
avoided in the interests of pharmaceutical precaution and patient
safety. For the patient-user, of course, the constancy of color and
shape may be as psychologically reassuring, and therefore as
medically beneficial, as the drug itself; in addition, they also
serve to identify the drug for his ingestion. . . ."

															"[I]f the generic producer is constrained by § 43(a), trademark
law, or the law of unfair competition to adopt a substantially
different color, . . . the therapeutic value of his generic drug
might be seriously impaired, and confusion at the pharmacist level
could be compounded beyond redemption."

															3 R. Callmann, Unfair Competition, Trademarks and Monopolies §
82.1(m), pp. 217, 213 (Supp.1981).

															[ Footnote 2/4 ] See, e. g International Order of Job's Daughter v. Lindeburg
& Co., 633 F.2d 912, 917 (CA9 1980), cert.
denied, 452 U.S. 941 (1981); Keebler Co. v. Rovira Biscuit
Corp., 624 F.2d 366, 378 (CA1 1980). See generally Note, The Problem of Functional Features: Trade Dress Infringement
Under Section 43(a) of the Lanham Act, 82 Colum.L.Rev. 77, 81
(1982) ("Over the past three years, the rule that functionality of
a copied feature bars relief in section 43(a) claims for trade
dress infringement or product imitation has become the plurality
view").

															[ Footnote 2/5 ] See, e.g., Truck Equip. Serv. Co. v. Fruehauf Corp., 536 F.2d 1210 (CA8), cert. denied, 429 U.S. 861 (1976); Warner Bros., Inc. v. Gay Toy Inc., 658 F.2d 76 (CA2
1981). See also Note, 82 Colum.L.Rev., supra, at
78-80.

															[ Footnote 2/6 ]

															This is not to suggest that the copying of a functional feature
protects a defendant from § 32 liability predicated on active
inducement of trademark infringement or protects a defendant who
has also reproduced nonfunctional features.

															JUSTICE REHNQUIST, concurring in the result.

															I agree that the judgment of the Court of Appeals should be
reversed. That court set aside factual findings of the District
Court without having found them to be clearly erroneous, as
required by Rule 52(a) of the Federal Rules of Civil Procedure. I
disagree, however, with the Court's determining for itself that the
findings of the District Court were not clearly erroneous. I think,
in the usual case, this is a question best decided by the courts of
appeals, who have a good deal more experience with the application
of this principle than we do, and I see no reason to make an
exception in this case.

															I also assume, correctly I hope, that the Court's discussion of
appellate review of trial court findings in bench trials, ante at 456 U. S. 855 ,
is limited to cases in which the appellate court has not found the
trial court findings to be "clearly erroneous." United States
v. United States Gypsum Co., 333 U. S. 364 (1948), upon which the Court relies, establishes the authority of a
reviewing court to make its own findings, contrary to those of the
trial court, where it has determined the latter to be "clearly
erroneous."

															I agree with the Court that these cases should be remanded to
the Court of Appeals to review the District Court's dismissal of
respondent's claims under § 43(a) of the Lanham Act and its state
law claims.


U.S. Supreme Court Florida v. Jimeno, 500
U.S. 248 (1991) Florida v. Jimeno No. 90-622 Argued March 25, 1991 Decided May 23, 1991 500
U.S. 248 CERTIORARI TO THE SUPREME COURT OF
FLORIDA Syllabus Having stopped respondent Jimeno's car for a traffic infraction,
police officer Trujillo, who had been following the car after
overhearing Jimeno arranging what appeared to be a drug
transaction, declared that he had reason to believe that Jimeno was
carrying narcotics in the car, and asked permission to search it.
Jimeno consented, and Trujillo found cocaine inside a folded paper
bag on the car's floorboard. Jimeno was charged with possession
with intent to distribute cocaine in violation of Florida law, but
the state trial court granted his motion to suppress the cocaine on
the ground that his consent to search the car did not carry with it
specific consent to open the bag and examine its contents. The
Florida District Court of Appeal and Supreme Court affirmed. Held: A criminal suspect's Fourth Amendment right to be
free from unreasonable searches is not violated when, after he
gives police permission to search his car, they open a closed
container found within the car that might reasonably hold the
object of the search. The Amendment is satisfied when, under the
circumstances, it is objectively reasonable for the police to
believe that the scope of the suspect's consent permitted them to
open the particular container. Here, the authorization to search
extended beyond the car's interior surfaces to the bag, since
Jimeno did not place any explicit limitation on the scope of the
search, and was aware that Trujillo would be looking for narcotics
in the car, and since a reasonable person may be expected to know
that narcotics are generally carried in some form of container.
There is no basis for adding to the Fourth Amendment's basic test
of objective reasonableness a requirement that, if police wish to
search closed containers within a car, they must separately request
permission to search each container. Pp. 500 U. S.
250 -252. 564 So. 2d
1083 (Fla.1990), reversed and remanded.

															REHNQUIST, C.J., delivered the opinion of the Court, in which
WHITE, BLACKMUN, O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ.,
joined. MARSHALL, J., filed a dissenting opinion, in which STEVENS,
J., joined, post, p. 500 U. S.
252 . Page 500 U. S. 249 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

															In this case, we decide whether a criminal suspect's Fourth
Amendment right to be free from unreasonable searches is violated
when, after he gives a police officer permission to search his
automobile, the officer opens a closed container found within the
car that might reasonably hold the object of the search. We find
that it is not. The Fourth Amendment is satisfied when, under the
circumstances, it is objectively reasonable for the officer to
believe that the scope of the suspect's consent permitted him to
open a particular container within the automobile.

															This case began when a Dade County police officer, Frank
Trujillo, overheard respondent, Enio Jimeno, arranging what
appeared to be a drug transaction over a public telephone.
Believing that respondent might be involved in illegal drug
trafficking, Officer Trujillo followed his car. The officer
observed respondent make a right turn at a red light without
stopping. He then pulled respondent over to the side of the road in
order to issue him a traffic citation. Officer Trujillo told
respondent that he had been stopped for committing a traffic
infraction. The officer went on to say that he had reason to
believe that respondent was carrying narcotics in his car, and
asked permission to search the car. He explained that respondent
did not have to consent to a search of the car. Respondent stated
that he had nothing to hide, and gave Trujillo Page 500 U. S. 250 permission to search the automobile. After two passengers
stepped out of respondent's car, Officer Trujillo went to the
passenger side, opened the door, and saw a folded, brown paper bag
on the floorboard. The officer picked up the bag, opened it, and
found a kilogram of cocaine inside.

															Respondent was charged with possession with intent to distribute
cocaine in violation of Florida law. Before trial, he moved to
suppress the cocaine found in the bag on the ground that his
consent to search the car did not extend to the closed paper bag
inside of the car. The trial court granted the motion. It found
that, although respondent "could have assumed that the officer
would have searched the bag" at the time he gave his consent, his
mere consent to search the car did not carry with it specific
consent to open the bag and examine its contents. No. 88-23967
(Cir.Ct.Dade Cty., Fla., Mar. 21, 1989); App. to Pet. for Cert.
A-6.

															The Florida District Court of Appeal affirmed the trial court's
decision to suppress the evidence of the cocaine. 550 So. 2d 1176
(Fla. 3d DCA 1989). In doing so, the court established a per
se rule that "consent to a general search for narcotics does
not extend to sealed containers within the general area agreed
to by the defendant.'" Ibid. (citation omitted). The
Florida Supreme Court affirmed, relying upon its decision in State v. Wells, 539 So. 2d 464 (1989) aff'd on other grounds, 495 U. S. 495 U.S. 1
(1990). 564 So. 2d
1083 (1990). We granted certiorari to determine whether consent
to search a vehicle may extend to closed containers found inside
the vehicle. 498 U.S. 997 (1990), and we now reverse the judgment
of the Supreme Court of Florida. The touchstone of the Fourth Amendment is reasonableness. Katz v. United States, 389 U. S. 347 , 389 U. S. 360 (1967). The Fourth Amendment does not proscribe all state-initiated
searches and seizures; it merely proscribes those which are
unreasonable. Illinois v. Rodriguez, 497 U.
S. 177 (1990). Thus, we have long approved consensual
searches because it Page 500 U. S. 251 is no doubt reasonable for the police to conduct a search once
they have been permitted to do so. Schneckloth v.
Bustamonte, 412 U. S. 218 , 412 U. S. 219 (1973). The standard for measuring the scope of a suspect's consent
under the Fourth Amendment is that of "objective" reasonableness --
what would the typical reasonable person have understood by the
exchange between the officer and the suspect? Illinois v.
Rodriguez, supra, at 497 U. S.
183 -189; Florida v. Royer, 460 U.
S. 491 , 460 U. S.
501 -502 (1983) (opinion of WHITE, J.); id. at 460 U. S. 514 (BLACKMUN, J., dissenting). The question before us, then, is
whether it is reasonable for an officer to consider a suspect's
general consent to a search of his car to include consent to
examine a paper bag lying on the floor of the car. We think that it
is.

															The scope of a search is generally defined by its expressed
object. United States v. Ross, 456 U.
S. 798 (1982). In this case, the terms of the search's
authorization were simple. Respondent granted Officer Trujillo
permission to search his car, and did not place any explicit
limitation on the scope of the search. Trujillo had informed
respondent that he believed respondent was carrying narcotics, and
that he would be looking for narcotics in the car. We think that it
was objectively reasonable for the police to conclude that the
general consent to search respondent's car included consent to
search containers within that car which might bear drugs. A
reasonable person may be expected to know that narcotics are
generally carried in some form of a container. "Contraband goods
rarely are strewn across the trunk or floor of a car." Id. at 456 U. S. 820 .
The authorization to search in this case, therefore, extended
beyond the surfaces of the car's interior to the paper bag lying on
the car's floor.

															The facts of this case are therefore different from those in State v. Wells, supra, on which the Supreme Court of
Florida relied in affirming the suppression order in this case.
There, the Supreme Court of Florida held that consent to search the
trunk of a car did not include authorization to pry open a locked
briefcase found inside the trunk. It is very likely Page 500 U. S. 252 unreasonable to think that a suspect, by consenting to the
search of his trunk, has agreed to the breaking open of a locked
briefcase within the trunk, but it is otherwise with respect to a
closed paper bag.

															Respondent argues, and the Florida trial court agreed with him,
that, if the police wish to search closed containers within a car,
they must separately request permission to search each container.
But we see no basis for adding this sort of superstructure to the
Fourth Amendment's basic test of objective reasonableness. Cf.
Illinois v. Gates, 462 U. S. 213 (1983). A suspect may, of course, delimit as he chooses the scope
of the search to which he consents. But if his consent would
reasonably be understood to extend to a particular container, the
Fourth Amendment provides no grounds for requiring a more explicit
authorization.

															"[T]he community has a real interest in encouraging consent, for
the resulting search may yield necessary evidence for the solution
and prosecution of crime, evidence that may ensure that a wholly
innocent person is not wrongly charged with a criminal
offense." Schneckloth v. Bustamonte, supra, at 412 U. S.
243 .

															The judgment of the Supreme Court of Florida is accordingly
reversed, and the case remanded for further proceedings not
inconsistent with this opinion. It is so ordered. JUSTICE MARSHALL, with whom JUSTICE STEVENS joins,
dissenting.

															The question in this case is whether an individual's general
consent to a search of the interior of his car for narcotics should
reasonably be understood as consent to a search of closed
containers inside the car. Nothing in today's opinion dispels my
belief that the two are not one and the same from the consenting
individual's standpoint. Consequently, an individual's consent to a
search of the interior of his car should not be understood to
authorize a search of closed containers inside the car. I
dissent. Page 500 U. S. 253 In my view, analysis of this question must start by identifying
the differing expectations of privacy that attach to cars and
closed containers. It is well established that an individual has
but a limited expectation of privacy in the interior of his car. A
car ordinarily is not used as a residence or repository for one's
personal effects, and its passengers and contents are generally
exposed to public view. See Cardwell v. Lewis, 417 U. S. 583 , 417 U. S. 590 (1974) (plurality opinion). Moreover, cars "are subjected to
pervasive and continuing governmental regulation and controls," South Dakota v. Opperman, 428 U.
S. 364 , 428 U. S. 368 (1976), and may be seized by the police when necessary to protect
public safety or to facilitate the flow of traffic, see
id. at 428 U. S.
368 -369.

															In contrast, it is equally well established that an individual
has a heightened expectation of privacy in the contents of a closed
container. See, e.g., United States v. Chadwick, 433 U. S. 1 , 433 U. S. 13 (1977). Luggage, handbags, paper bags, and other containers are
common repositories for one's papers and effects, and the
protection of these items from state intrusion lies at the heart of
the Fourth Amendment. U.S.Const., Amdt. 4 ("The right of the people
to be secure in their . . . papers, and effects, against
unreasonable searches and seizures, shall not be violated"). By
placing his possessions inside a container, an individual manifests
an intent that his possessions be "preserve[d] as private," United States v. Katz, 389 U. S. 347 , 389 U. S. 351 (1967), and thus kept "free from public examination," United
States v. Chadwick, supra, 433 U.S. at 433 U. S. 11 .

															The distinct privacy expectations that a person has in a car, as
opposed to a closed container, do not merge when the individual
uses his car to transport the container. In this situation, the
individual still retains a heightened expectation of privacy in the
container. See Robbins v. California, 453 U.
S. 420 , 453 U. S. 425 (1981) (plurality opinion); Arkansas v. Sanders, 442 U. S. 753 , 442 U. S.
763 -764 (1979). Nor does an individual's heightened
expectation of privacy turn on the type of container Page 500 U. S. 254 in which he stores his possessions. Notwithstanding the
majority's suggestion to the contrary, see ante at ___,
this Court has soundly rejected any distinction between "worthy"
containers, like locked briefcases, and "unworthy" containers, like
paper bags.

															"Even though such a distinction perhaps could evolve in a series
of cases in which paper bags, locked trunks, lunch buckets, and
orange crates were placed on one side of the line or the other, the
central purpose of the Fourth Amendment forecloses such a
distinction. For just as the most frail cottage in the kingdom is
absolutely entitled to the same guarantees of privacy as the most
majestic mansion, so also may a traveler who carries a toothbrush
and a few articles of clothing in a paper bag or knotted scarf
claim an equal right to conceal his possessions from official
inspection as the sophisticated executive with the locked attache
case." United States v. Ross, 456 U.
S. 798 , 456 U. S. 822 (1982) (footnotes omitted).

															Because an individual's expectation of privacy in a container is
distinct from, and far greater than, his expectation of privacy in
the interior of his car, it follows that an individual's consent to
a search of the interior of his car cannot necessarily be
understood as extending to containers in the car. At the very
least, general consent to search the car is ambiguous with respect
to containers found inside the car. In my view, the independent and
divisible nature of the privacy interests in cars and containers
mandates that a police officer who wishes to search a suspicious
container found during a consensual automobile search obtain
additional consent to search the container. If the driver intended
to authorize search of the container, he will say so; if not, then
he will say no. * The only
objection that the police could have to such a Page 500 U. S. 255 rule is that it would prevent them from exploiting the ignorance
of a citizen who simply did not anticipate that his consent to
search the car would be understood to authorize the police to
rummage through his packages.

															According to the majority, it nonetheless is reasonable for a
police officer to construe generalized consent to search an
automobile for narcotics as extending to closed containers, because
"[a] reasonable person may be expected to know that narcotics are
generally carried in some form of a container." Ante at
___. This is an interesting contention. By the same logic, a person
who consents to a search of the car from the driver's seat could
also be deemed to consent to a search of his person, or indeed of
his body cavities, since a reasonable person may be expected to
know that drug couriers frequently store their contraband on their
persons or in their body cavities. I suppose (and hope) that even
the majority would reject this conclusion, for a person who
consents to the search of his car for drugs certainly does not
consent to a search of things other than his car for
drugs. But this example illustrates that, if there is a reason for
not treating a closed container as something "other than" the car
in which it sits, the reason cannot be based on intuitions about
where people carry drugs. The majority, however, never identifies a
reason for conflating the distinct privacy expectations that a
person has in a car and in closed containers.

															The majority also argues that the police should not be required
to secure specific consent to search a closed container, because
" [t]he community has a real interest in encouraging consent.'" Ante at 500 U. S. 252 ,
quoting Schneckloth v. Bustamonte, 412 U.
S. 218 , 412 U. S. 243 (1973). I find this rationalization equally unsatisfactory. If
anything, a rule that permits the police to construe a consent to
search more broadly than it may have been intended would discourage
individuals from consenting to searches of their cars. Apparently,
the majority's real concern is that, if the police were required to
ask for additional consent to search a closed container found
during the Page 500 U. S. 256 consensual search of an automobile, an individual who did not
mean to authorize such additional searching would have an
opportunity to say no. In essence, then, the majority is claiming
that "the community has a real interest" not in encouraging
citizens to consent to investigatory efforts of their law
enforcement agents, but rather in encouraging individuals to be duped by them. This is not the community that the Fourth
Amendment contemplates.

															Almost 20 years ago, this Court held that an individual could
validly "consent" to a search -- or, in other words, waive his
right to be free from an otherwise unlawful search -- without being
told that he had the right to withhold his consent. See
Schneckloth v. Bustamonte, supra. In Schneckloth, as
in this case, the Court cited the practical interests in
efficacious law enforcement as the basis for not requiring the
police to take meaningful steps to establish the basis of an
individual's consent. I dissented in Schneckloth, and what
I wrote in that case applies with equal force here.

															"I must conclude, with some reluctance, that, when the Court
speaks of practicality, what it really is talking of is the
continued ability of the police to capitalize on the ignorance of
citizens so as to accomplish by subterfuge what they could not
achieve by relying only on the knowing relinquishment of
constitutional rights. Of course it would be 'practical' for the
police to ignore the commands of the Fourth Amendment, if, by
practicality, we mean that more criminals will be apprehended, even
though the constitutional rights of innocent people go by the
board. But such a practical advantage is achieved only at the cost
of permitting the police to disregard the limitations that the
Constitution places on their behavior, a cost that a constitutional
democracy cannot long absorb."

															412 U.S. at 412 U. S.
288 .

															I dissent.

															* Alternatively, the police could obtain such consent in advance
by asking the individual for permission to search both the car and
any closed containers found inside.


U.S. Supreme Court Crandall v. State of Nevada, 73 U.S. 6
Wall. 35 35 (1867) Crandall v. State of
Nevada 73 U.S. (6 Wall.) 35 ERROR TO THE
SUPREME COURT OF NEVADA Syllabus 1. A special tax on railroad and stage companies for every
passenger carried out of the state by them is a tax on the
passenger for the privilege of passing through the state by the
ordinary modes of travel, and is not a simple tax on the business
of the companies.

															2. Such a tax imposed by a state is not in conflict with that
provision of the federal Constitution which forbids a state to lay
a duty on exports.

															3. The power granted to Congress to regulate commerce with
foreign nations and among the states includes subjects of
legislation which are necessarily of a national character, and
therefore exclusively within the control of Congress.

															4. But it also includes matters of a character merely local in
their operation, as the regulation of port pilots, the
authorization of bridges over navigable streams, and perhaps
others, and upon this class of subjects the state may legislate in
the absence of any such legislation by Congress.

															5. If the tax on passengers when carried out of the state be
called a regulation of commerce, it belongs to the latter class,
and there being no legislation of Congress on the same subject, the
statute will not be void as a regulation of commerce.

															6. The United States has a right to require the service of its
citizens at the seat of federal government, in all executive,
legislative, and judicial departments and at all the points in the
several states where the functions of government are to be
performed. Page 73 U. S. 36 7. By virtue of its power to make war and to suppress
insurrection, the government has a right to transport troops
through all parts of the Union by the usual and most expeditious
modes of transportation.

															8. The citizens o� the United States have the correlative right
to approach the great departments of the government, the ports of
entry through which commerce is conducted, and the various federal
offices in the states.

															9. The taxing power, being in its nature unlimited over the
subjects within its control, would enable the state governments to
destroy the above-mentioned rights of the federal government and of
its citizens if the right of transit through the states by railroad
and other ordinary modes of travel were one of the legitimate
objects of state taxation.

															10. The existence of such a power in the states is therefore,
inconsistent with objects for which the federal government was
established and with rights conferred by the Constitution on that
government and on the people. An exercise of such a power is
accordingly void.

															In 1865, the Legislature of Nevada enacted that

															"There shall be levied and collected a capitation tax of one
dollar upon every person leaving the state by any railroad, stage
coach, or other vehicle engaged or employed in the business of
transporting passengers for hire,"

															and that the proprietors, owners, and corporations so engaged
should pay the said tax of one dollar for each and every person so
conveyed or transported from the state. For the purpose of
collecting the tax, another section required from persons engaged
in such business or their agents a report every month, under oath,
of the number of passengers so transported, and the payment of the
tax to the sheriff or other proper officer.

															With the statute in existence, Crandall, who was the agent of a
stage company engaged in carrying passengers through the State of
Nevada, was arrested for refusing to report the number of
passengers that had been carried by the coaches of his company and
for refusing to pay the tax of one dollar imposed on each passenger
by the law of that state. He pleaded that the law of the state
under which he was prosecuted was void because it was in conflict
with the Constitution of the United States, and his plea being
overruled, the case came into the supreme court of the state. The
court -- considering that the tax laid was not an impost on
"exports" Page 73 U. S. 37 nor an interference with the power of Congress "to regulate
commerce among the several states" -- decided against the right
thus set up under the federal Constitution.

															Its judgment was now here for review. Page 73 U. S. 39 MR. JUSTICE MILLER delivered the opinion of the Court.

															The question for the first time presented to the Court by this
record is one of importance. The proposition to be considered is
the right of a state to levy a tax upon persons residing in the
state who may wish to get out of it, and upon persons not residing
in it who may have occasion to pass through it.

															It is to be regretted that such a question should be submitted
to our consideration with neither brief nor argument on the part of
plaintiff in error. But our regret is diminished by the reflection
that the principles which must govern its determination have been
the subject of much consideration in cases heretofore decided by
this Court.

															It is claimed by counsel for the state that the tax thus levied
is not a tax upon the passenger, but upon the business of the
carrier who transports him.

															If the act were much more skillfully drawn to sustain this
hypothesis than it is, we should be very reluctant to admit that
any form of words which had the effect to compel every person
traveling through the country by the common and usual modes of
public conveyance to pay a specific sum to the state was not a tax
upon the right thus exercised. The statute before us is not,
however, embarrassed by any nice difficulties of this character.
The language which we have just quoted is that there shall be
levied and collected a capitation tax upon every person leaving the
state by any railroad or stage coach, and the remaining provisions
of the act which refer to this tax only provide a mode of
collecting it. The officers and agents of the railroad companies,
and the proprietors of the stage coaches, are made responsible for
this, and so become the collectors of the tax.

															We shall have occasion to refer hereafter somewhat in detail to
the opinions of the judges of this Court in The
Passenger Page 73 U. S. 40 Cases, [ Footnote 1 ]
in which there were wide differences on several points involved in
the case before us. In the case from New York then under
consideration, the statute provided that the health commissioner
should be entitled to demand and receive from the master of every
vessel that should arrive in the port of New York from a foreign
port, one dollar and fifty cents for every cabin passenger, and one
dollar for each steerage passenger, and from each coasting vessel,
twenty-five cents for every person on board. That statute does not
use language so strong as the Nevada statute indicative of a
personal tax on the passenger, but merely taxes the master of the
vessel according to the number of his passengers; but the Court
held it to be a tax upon the passenger, and that the master was the
agent of the state for its collection. Chief Justice Taney, while
he differed from the majority of the Court and held the law to be
valid, said of the tax levied by the analogous statute of
Massachusetts that

															"its payment is the condition upon which the state permits the
alien passenger to come on shore and mingle with its citizens and
to reside among them. It is demanded of the captain, and not from
every separate passenger, for convenience of collection. But the
burden evidently falls upon the passenger, and he in fact pays it
either in the enhanced price of his passage or directly to the
captain before he is allowed to embark for the voyage. The nature
of the transaction and the ordinary course of business show that
this must be so."

															Having determined that the statute of Nevada imposes a tax upon
the passenger for the privilege of leaving the state or passing
through it by the ordinary mode of passenger travel, we proceed to
inquire if it is for that reason in conflict with the Constitution
of the United States.

															In the argument of the counsel for the defendant in error and in
the opinion of the Supreme Court of Nevada, which is found in the
record, it is assumed that this question must be decided by an
exclusive reference to two provisions of Page 73 U. S. 41 the Constitution, namely that which forbids any state, without
the consent of Congress, to lay any imposts or duties on imports or
exports and that which confers on Congress the power to regulate
commerce with foreign nations and among the several states.

															The question as thus narrowed is not free from difficulties. Can
a citizen of the United States traveling from one part of the Union
to another be called an export? It was insisted in The
Passenger Cases, to which we have already referred, that
foreigners coming to this country were "imports" within the meaning
of the Constitution, and the provision of that instrument that the
migration or importation of such persons as any of the states then
existing should think proper to admit should not be prohibited
prior to the year 1808, but that a tax might be imposed on such
importation, was relied on as showing that the word "import,"
applied to persons as well as to merchandise. It was answered that
this latter clause had exclusive reference to slaves, who were
property as well as persons, and therefore proved nothing. While
some of the judges who concurred in holding those laws to be
unconstitutional gave as one of their reasons that they were taxes
on imports, it is evident that this view did not receive the assent
of a majority of the Court. The application of this provision of
the Constitution to the proposition which we have stated in regard
to the citizen is still less satisfactory than it would be to the
case of foreigners migrating to the United States.

															But it is unnecessary to consider this point further in the view
which we have taken of the case.

															As regards the commerce clause of the Constitution, two
propositions are advanced on behalf of the defendant in error.

															1. That the tax imposed by the state on passengers is not a
regulation of commerce.

															2. That if it can be so considered, it is one of those powers
which the states can exercise until Congress has so legislated as
to indicate its intention to exclude state legislation on the same
subject.

															The proposition that the power to regulate commerce, as granted
to Congress by the Constitution, necessarily excludes Page 73 U. S. 42 the exercise by the states of any of the power thus granted is
one which has been much considered in this Court, and the earlier
discussions left the question in much doubt. As late as the January
Term 1849, the opinions of the judges in The Passenger
Cases show that the question was considered to be one of much
importance in those cases, and was even then unsettled, though
previous decisions of the Court were relied on by the judges
themselves as deciding it in different ways. It was certainly, so
far as those cases affected it, left an open question.

															In the case of Cooley v. Board of Wardens, [ Footnote 2 ] four years later, the same
question came directly before the Court in reference to the local
laws of the port of Philadelphia concerning pilots. It was claimed
that they constituted a regulation of commerce, and were therefore
void. The Court held that they did come within the meaning of the
term "to regulate commerce," but that until Congress made
regulations concerning pilots, the states were competent to do
so.

															Perhaps no more satisfactory solution has ever been given of
this vexed question than the one furnished by the Court in that
case. After showing that there are some powers granted to Congress
which are exclusive of similar powers in the states because they
are declared to be so, and that other powers are necessarily so
from their very nature, the Court proceeds to say that the
authority to regulate commerce with foreign nations and among the
states includes within its compass powers which can only be
exercised by Congress, as well as powers which, from their nature,
can best be exercised by the state legislatures, to which latter
class the regulation of pilots belongs.

															"Whatever subjects of this power are in their nature national or
admit of one uniform system or plan of regulation may justly be
said to be of such a nature as to require exclusive legislation by
Congress."

															In the case of Gilman v. Philadelphia [ Footnote 3 ] this doctrine is reaffirmed, and
under it a bridge across a stream navigable from the ocean,
authorized by state law, was held to be Page 73 U. S. 43 well authorized in the absence of any legislation by Congress
affecting the matter.

															It may be that under the power to regulate commerce among the
states, Congress has authority to pass laws the operation of which
would be inconsistent with the tax imposed by the state of Nevada,
but we know of no such statute now in existence. Inasmuch,
therefore, as the tax does not itself institute any regulation of
commerce of a national character or which has a uniform operation
over the whole country, it is not easy to maintain, in view of the
principles on which those cases were decided, that it violates the
clause of the federal Constitution which we have had under
review.

															But we do not concede that the question before us is to be
determined by the two clauses of the Constitution which we have
been examining.

															The people of these United States constitute one nation. They
have a government in which all of them are deeply interested. This
government has necessarily a capital established by law, where its
principal operations are conducted. Here sits its legislature,
composed of senators and representatives, from the states and from
the people of the states. Here resides the President, directing
through thousands of agents the execution of the laws over all this
vast country. Here is the seat of the supreme judicial power of the
nation, to which all its citizens have a right to resort to claim
justice at its hands. Here are the great executive departments,
administering the offices of the mails, of the public lands, of the
collection and distribution of the public revenues, and of our
foreign relations. These are all established and conducted under
the admitted powers of the federal government. That government has
a right to call to this point any or all of its citizens to aid in
its service, as members of the Congress, of the courts, of the
executive departments, and to fill all its other offices, and this
right cannot be made to depend upon the pleasure of a state over
whose territory they must pass to reach the point where these
services must be rendered. The government also has its offices of
secondary Page 73 U. S. 44 importance in all other parts of the country. On the seacoasts
and on the rivers it has its ports of entry. In the interior it has
its land offices, its revenue offices, and its subtreasuries. In
all these it demands the services of its citizens and is entitled
to bring them to those points from all quarters of the nation, and
no power can exist in a state to obstruct this right that would not
enable it to defeat the purposes for which the government was
established.

															The federal power has a right to declare and prosecute wars,
and, as a necessary incident, to raise and transport troops through
and over the territory of any state of the Union.

															If this right is dependent in any sense, however limited, upon
the pleasure of a state, the government itself may be overthrown by
an obstruction to its exercise. Much the largest part of the
transportation of troops during the late rebellion was by
railroads, and largely through states whose people were hostile to
the Union. If the tax levied by Nevada on railroad passengers had
been the law of Tennessee, enlarged to meet the wishes of her
people, the Treasury of the United States could not have paid the
tax necessary to enable its armies to pass through her
territory.

															But if the government has these rights on her own account, the
citizen also has correlative rights. He has the right to come to
the seat of government to assert any claim he may have upon that
government or to transact any business he may have with it. To seek
its protection, to share its offices, to engage in administering
its functions. He has a right to free access to its seaports,
through which all the operations of foreign trade and commerce are
conducted, to the subtreasuries, the land offices, the revenue
offices, and the courts of justice in the several states, and this
right is in its nature independent of the will of any state over
whose soil he must pass in the exercise of it.

															The views here advanced are neither novel nor unsupported by
authority. The question of the taxing power of the states, as its
exercise has affected the functions of the federal government, has
been repeatedly considered by this Page 73 U. S. 45 Court, and the right of the states in this mode to impede or
embarrass the constitutional operations of that government, or the
rights which its citizens hold under it, has been uniformly
denied.

															The leading case of this class is that of McCulloch v.
Maryland. [ Footnote 4 ] The
case is one every way important, and is familiar to the statesman
and the constitutional lawyer. The Congress, for the purpose of
aiding the fiscal operations of the government, had chartered the
Bank of the United States, with authority to establish branches in
the different states and to issue notes for circulation. The
Legislature of Maryland had levied a tax upon these circulating
notes which the bank refused to pay on the ground that the statute
was void by reason of its antagonism to the federal Constitution.
No particular provision of the Constitution was pointed to as
prohibiting the taxation by the state. Indeed, the authority of
Congress to create the bank, which was strenuously denied, and the
discussion of which constituted an important element in the opinion
of the Court, was not based by that opinion on any express grant of
power, but was claimed to be necessary and proper to enable the
government to carry out its authority to raise a revenue, and to
transfer and disburse the same. It was argued also that the tax on
the circulation operated very remotely, if at all, on the only
functions of the bank in which the government was interested. But
the Court, by a unanimous judgment, held the law of Maryland to be
unconstitutional.

															It is not possible to condense the conclusive argument of Chief
Justice Marshall in that case, and it is too familiar to justify
its reproduction here, but an extract or two, in which the results
of his reasoning are stated, will serve to show its applicability
to the case before us. "That the power of taxing the bank by the
states," he says,

															"may be exercised so as to destroy it is too obvious to be
denied. But taxation is said to be an absolute power which
acknowledges no other limits than those prescribed by the
Constitution, and, like Page 73 U. S. 46 sovereign power of any description, is trusted to the discretion
of those who use it. But the very terms of this argument admit that
the sovereignty of the state in the article of taxation is
subordinate to, and may be controlled by, the Constitution of the
United States."

															Again he says,

															"We find then, on just theory, a total failure of the original
right to tax the means employed by the government of the Union for
the execution of its powers. The right never existed, and the
question of its surrender cannot arise. . . . That the power to tax
involves the power to destroy; that the power to destroy may defeat
and render useless the power to create; that there is a plain
repugnance in conferring on one government a power to control the
constitutional measures of another, which other, with respect to
those very means, is declared to be supreme over that which exerts
the control, are propositions not to be denied. If the states may
tax one instrument employed by the government in the execution of
its powers, they may tax any and every other instrument. They may
tax the mail; they may tax the mint; they may tax patent rights;
they may tax the papers of the custom house; they may tax judicial
process; they may tax all the means employed by the government to
an excess which would defeat all the ends of government. This was
not intended by the American people. They did not design to make
their government dependent on the states."

															It will be observed that it was not the extent of the tax in
that case which was complained of, but the right to levy any tax of
that character. So in the case before us it may be said that a tax
of one dollar for passing through the state of Nevada by stage
coach or by railroad cannot sensibly affect any function of the
government or deprive a citizen of any valuable right. But if the
state can tax a railroad passenger one dollar, it can tax him one
thousand dollars. If one state can do this, so can every other
state. And thus one or more states covering the only practicable
routes of travel from the east to the west, or from the north to
the south, may totally prevent or seriously burden all
transportation of passengers from one part of the country to the
other. Page 73 U. S. 47 A case of another character in which the taxing power as
exercised by a state was held void because repugnant to the federal
Constitution, is that of Brown v. state of Maryland. [ Footnote 5 ]

															The State of Maryland required all importers of foreign
merchandise who sold the same by wholesale, by bale or by package,
to take out a license, and this act was claimed to be
unconstitutional. The Court held it to be so on three different
grounds: first, that it was a duty on imports; second, that it was
a regulation of commerce; and third, that the importer who had paid
the duties imposed by the United States, had acquired a right to
sell his goods in the same original packages in which they were
imported. To say nothing of the first and second grounds, we have
in the third a tax of a state declared to be void because it
interfered with the exercise of a right derived by the importer
from the laws of the United States. If the right of passing through
a state by a citizen of the United States is one guaranteed to him
by the Constitution, it must be as sacred from state taxation as
the right derived by the importer from the payment of duties to
sell the goods on which the duties were paid.

															In the case of Weston v. City of Charleston, [ Footnote 6 ] we have a case of state
taxation of still another class held to be void as an interference
with the rights of the federal government. The tax in that instance
was imposed on bonds or stocks of the United States, in common with
all other securities of the same character. It was held by the
Court that the free and successful operation of the government
required it at times to borrow money; that to borrow money it was
necessary to issue this class of national securities, and that if
the states could tax these securities, they might so tax them as to
seriously impair or totally destroy the power of the government to
borrow. This case, itself based on the doctrines advanced by the
Court in McCulloch v. State of Maryland, has been followed
in all the recent cases involving state Page 73 U. S. 48 taxation of government bonds, from that of People of New
York v. Tax Commissioners, [ Footnote 7 ] to the decisions of the court at this
term.

															In all these cases, the opponents of the taxes levied by the
states were able to place their opposition on no express provision
of the Constitution, except in that of Brown v. Maryland. But in all the other cases and in that case also, the Court
distinctly placed the invalidity of the state taxes on the ground
that they interfered with an authority of the federal government,
which was itself only to be sustained as necessary and proper to
the exercise of some other power expressly granted.

															In The Passenger Cases, to which reference has already
been made, JUSTICE GRIER, with whom Justice Catron concurred, makes
this one of the four propositions on which they held the tax void
in those cases. Judge Wayne expresses his assent to JUSTICE GRIER's
views, and perhaps this ground received the concurrence of more of
the members of the Court who constituted the majority than any
other. But the principles here laid down may be found more clearly
stated in the dissenting opinion of the Chief Justice in those
cases, and with more direct pertinency to the case now before us
than anywhere else. After expressing his views fully in favor of
the validity of the tax, which he said had exclusive reference to
foreigners, so far as those cases were concerned, he proceeds to
say, for the purpose of preventing misapprehension, that so far as
the tax affected American citizens, it could not, in his opinion,
be maintained. He then adds:

															"Living as we do under a common government, charged with the
great concerns of the whole Union, every citizen of the United
States from the most remote states or territories, is entitled to
free access not only to the principal departments established at
Washington, but also to its judicial tribunals and public offices
in every state in the Union. . . . For all the great purposes for
which the federal government was formed, we are one people, with
one common country. Page 73 U. S. 49 We are all citizens of the United States, and as members of the
same community must have the right to pass and repass through every
part of it without interruption, as freely as in our own states.
And a tax imposed by a state for entering its territories or
harbors is inconsistent with the rights which belong to citizens of
other states as members of the Union and with the objects which
that Union was intended to attain. Such a power in the states could
produce nothing but discord and mutual irritation, and they very
clearly do not possess it."

															Although these remarks are found in a dissenting opinion, they
do not relate to the matter on which the dissent was founded. They
accord with the inferences which we have already drawn from the
Constitution itself and from the decisions of this Court in
exposition of that instrument.

															Those principles, as we have already stated them in this
opinion, must govern the present case. Judgments reversed and the case remanded to the Supreme
Court of the State of Nevada, with directions to discharge the
plaintiff in error from custody. [ Footnote 1 ] 48 U. S. 7 How.
283.

															[ Footnote 2 ] 53 U. S. 12 How.
299.

															[ Footnote 3 ] 70 U. S. 3 Wall.
713.

															[ Footnote 4 ] 17 U. S. 4 Wheat.
316.

															[ Footnote 5 ] 25 U. S. 12 Wheat.
419.

															[ Footnote 6 ] 27 U. S. 2 Pet.
449.

															[ Footnote 7 ] 67 U. S. 2 Black
620.

															MR. JUSTICE CLIFFORD.

															I agree that the state law in question is unconstitutional and
void, but I am not able to concur in the principal reasons assigned
in the opinion of the Court in support of that conclusion. On the
contrary, I hold that the act of the state legislature is
inconsistent with the power conferred upon Congress to regulate
commerce among the several states, and I think the judgment of the
Court should have been placed exclusively upon that ground. Strong
doubts are entertained by me whether Congress possesses the power
to levy any such tax, but whether so or not, I am clear that the
state legislature cannot impose any such burden upon commerce among
the several states. Such commerce is secured against such
legislation in the states by the Constitution, irrespective of any
Congressional action.

															THE CHIEF JUSTICE also dissents, and concurs in the views I have
expressed.