al use of liquor as an appropriate measure
for the enforcement of the Eighteenth Amendment.[36] But while Congress
might thus prevent the use of the channels of interstate commerce to
frustrate State law, it could not itself, the Court held, undertake to
punish a violation of that law by discriminatory taxation; and in United
States _v._ Constantine,[37] a grossly disproportionate excise tax
imposed on retail liquor dealers carrying on business in violation of
local law was held unconstitutional.

State Activities and Instrumentalities

Today it is apparent that the Tenth Amendment does not shield the States
nor their political subdivisions from the impact of the authority
affirmatively granted to the Federal Government. It was cited to no
avail in Case _v._ Bowles,[38] where a State officer was enjoined from
selling timber on school lands at a price in excess of the maximum
prescribed by the Office of Price Administration. When California
violated the Federal Safety Appliance Act in the operation of the State
Belt Railroad as a common carrier in interstate commerce it was held
liable for the statutory penalty.[39] At the suit of the Attorney
General of the United States, the Sanitary District of Chicago was
enjoined from diverting water from Lake Michigan in excess of a
specified rate. On behalf of a unanimous court, Justice Holmes wrote:
"This is not a controversy among equals. The United States is asserting
its sovereign power to regulate commerce and to control the navigable
waters within its jurisdiction. * * * There is no question that this
power is superior to that of the States to provide for the welfare or
necessities of their inhabitants."[40] Some years earlier, in a suit
brought by Kansas to prevent Colorado from using the waters of the
Arkansas River for irrigation, the Attorney General of the United States
had unsuccessfully advanced the claim that the Federal Government had an
inherent legislative authority to deal with the matter. In a petition to
intervene in the suit he had taken the position, as summarized by the
Supreme Court, that "the National Government * * * has the right to make
such legislative provision as in its judgment is needful for the
reclamation of all these arid lands and for that purpose to appropriate
the accessible waters. * * * All legislative power must be vested in
either the state or the National Government; no legislative powers
belong to a state government other than those