27 Del. 578 | Del. | 1914
after making the foregoing statement of the case, delivered the opinion of the court.
“That it shall be unlawful for any person to carry, bring, or have brought» any quantity of spirituous, vinous or malt liquor from any point within the State of Delaware into local option territory within said state greater than one gallon within the space of twenty-four hours.”
We hold that the act does not amount to an abridgment of those privileges guaranteed to citizens by the fourteenth amendment of the federal Constitution, for the reasons given in that part of the opinion of the Court of General Sessions, in State v. Grier, ante, 88 Atl. 579, in disposing of the same subject.
Propositions of law numbered 7 and 8 were not seriously urged at the argument and are therefore decided against the contention of the plaintiff in error without an opinion.
Section 5 provides that:
11 Nothing in this act shall be construed to apply to the shipment or delivery to physicians or druggists, of spirituous, vinous or malt liquor, in unbroken packages in quantity not to exceed five gallons at any one time, nor to the delivery to churches, or the proper officers thereof, of wine in unbroken packages for sacramental purposes.”
Section 6 provides:
“That it shall be unlawful for any person to carry, bring or have brought any quantity of spirituous, vinous or malt liquor from any point within the State of Delaware into local option territory within said state greater than one gallon within the space of twenty-four hours.”
The contention of the plaintiff in error is that these two provisions of the statute constitute class legislation, favoring some and discriminating against others, in that the shipment of liquor to physicians in five gallon quantities is allowed while the shipment of liquor to others in any quantity is prohibited; that the exception in favor of physicians is not made to enable them to have liquor for medicinal purposes, for the reason that physicians cannot sell liquor, and as physicians are thus allowed to have liquor shipped to them for their own personal use to the extent of five gallons at a time, while other people may not have any liquor shipped to them at all, the classification is unreasonable and arbitrary. Pretty much the same argument is made as to druggists, excepting with respect to them the law provides a method of sale. We understand that no contention is made that the classification with respect to the right of shipment of liquor to churches or to their proper officers for sacramental purposes is a classification violative of the amendment to the federal Constitution.
The provision of the federal Constitution guaranteeing to all persons the equal protection of the laws, does not mean broadly that all persons howsoever situated shall have the same rights and be protected in doing the same things, but it means that all persons in like situations shall in those situations have an equal protection of the law. To this end governments may legislate
In order to determine whether the classifications made by sections 5 and 6 of the act are reasonable or unreasonable, just or arbitrary, and therefore constitutional or unconstitutional, we must consider the law as it existed and the conditions that prevailed at the time the statute was enacted, and the purposes and objects sought to be attained thereby.
It has long been the policy of this state to restrict the right to sell liquor to those licensed to sell it. It was enacted by the statute of March 22, 1867:
"That no person * * * without having first obtained a proper license therefor, * * * shall, within the limits of this state, be engaged in * *_ * any business * * * in this section hereafter next mentioned, that is to say, * * * selling vinous, spirituous or malt liquors." Chapter 117, Volume 13, Laws of Delaware.
This statute, in so far as it related to the business of selling liquor, was repealed and its general provision superseded by the more specific provisions of the act of April 10, 1873 (Chapter 418, Volume 14, Laws of Delaware; Rev. Code, p. 410), and the acts amendatory thereto, by the first section of which a sweeping declaration is made as to who shall not sell liquor in the State of Delaware. The act says:
Following these words of general exclusion, the statute provides for the sale of liquor in any and in all cases under a system of licenses, which have a relation to the quantity to be sold and the place upon which the liquor is to be drunk, and designates and classifies the persons to whom licenses for the sale of liquor in different ways, may be granted. In these classifications, physicians are neither included nor in any way mentioned, but druggists are mentioned and included.
By this statute, druggists were allowed to procure licenses for the sale of liquor limited to certain quantities but apparently not limited to medicinal purposes. Chapter 418, Volume 14, Laws of Delaware; Chapter 384, Volume 16, Laws of Delaware; Chapter 125, Volume 25, Laws of Delaware.
Under the act of April 24, 1889 (Chapter 555, Volume 18, Laws of Delaware), the right of sale of liquor by druggists was further restricted by a provision that:
“It shall * * * be unlawful for any druggist licensed to sell intoxicating liquors, to sell the same otherwise than upon the written order or prescription of a regular practicing physician, which order or prescription shall state that such liquor is necessary for medicinal purposes.”
Under this statute a druggist had a right to sell liquor only when licensed, and then only upon prescription and for one defined purpose.
Thus stood the law with respect to the sale of liquor for medicinal purposes, at the time of the adoption of the Constitution of 1897.
The Constitution of 1897 (Section 1, art. 13) provides for the submission to the qualified voters of certain districts in the State of Delaware the question whether the manufacture and sale of liquors therein shall be licensed or prohibited, and directs that when upon such submission a majority is against license:
“No person, firm or corporation shall thereafter manufacture or sell spirituous, vinous or malt liquors, except for medicinal or sacramental purposes, within said district.”
In harmony with the exception in the Constitution and the act of submission respecting the sale of liquors for medicinal and sacramental purposes in prohibition territories, the General Assembly of 1911, by Chapter 147, Volume 26, Laws of Delaware, passed an act entitled “An act regulating the sale of intoxicating liquors for medicinal purposes” (applicable only to Kent and Sussex Counties), which provides:
“Section 1. That from and after the approval of this act all prescriptions for intoxicating liquors for medicinal purposes shall be written by regular practicing physicians in blank prescription books. * * * Such prescriptions shall set forth the kind and quantity of liquors prescribed, the name of the person for whom prescribed, the date on which the prescription is written and the directions for use, and shall be signed by the full name of the physician issuing the same, and no physician shall write any prescription for intoxicating liquors except the person for whom it is issued is actually sick and such liquor is required as a medicine for such illness. * * *
“Section 3. Every druggist in this state who holds a license for the sale of intoxicating liquors shall keep in good faith in a book which he shall provide for the purpose, an exact and true record of all prescriptions filled by him,’’ etc.
This act is known as the “Prescription Act” and repeals only those acts and parts of acts inconsistent Vith it and supplements those acts not inconsistent with it, the manifest purpose of the act being to provide a method of sale of intoxicating liquor for medicinal purposes in prohibition districts, to meet the exception made by the Constitution.
Such is the history of the legislation upon the subject until the enactment of the Hazel Law in 1913.
It is admitted that the provision of the Hazel Law allowing the shipment and delivery,of wine to church officérs “for sacramental purposes” is in harmony with the exception of the Constitution, and as the purpose for which the wine is to be used is expressed in the permissive words of the statute, it is a lawful classification and does not amount to a discrimination against
It must be conceded that in permitting druggists and physicians to receive liquor by shipment in such large quantities, when other individuals not in their occupations are forbidden to have liquor shipped to them in any quantity, the Legislature had some reason for making the classification and establishing the difference. If the exception had been in favor of shoemakers and sailors, no reason could have been discovered for the discrimination, but when the discrimination is in favor of two classes, which of all classes are recognized by common acceptance, and specifically by law as well, to have a special and professional use for the particular commodity, the discrimination is understood. The fact that the purpose for which imported liquor may be used by persons in these professional classes is not designated by the statute, detracts nothing fjjom the necessary inference that liquor may be shipped to them, by permission of the statute, because of the' recognized necessity of liquor as a drug to be used and administered and therefore readily to be obtained by those who under the law are authorized either to administer or sell it. In making the exception of physicians and druggists, the statute undoubtedly makes a discrimination in their favor. Such a discrimination is permitted or prohibited and therefore lawful or unlawful only as the discrimination is reasonable or arbitrary. We think the discrimination may even amount to a privilege, yet the privilege is based upon the peculiar professional character of those to whom it is extended, the especial purposes for which they are permitted by the Constitution to use the liquor, and as a public recognition of their occupations in relation to the sick and as
When Kent and Sussex Counties decided against license, only so much of the old license law was repealed by that decision as was inconsistent with the new situation, leaving portions of the old law existing. The law as it existed, after the submission, and as it now exists, so far as it relates to the right of druggists to sell liquor, is positive. No druggist shall sell liquor in Kent or Sussex County except he be licensed as required by law; no druggist so licensed, shall sell liquor except for medicinal purposes; and no druggist shall sell liquor .even for medicinal purposes, except in the quantities and by prescription of physicians, likewise required by law.
With this much law relating to the sale of intoxicating liquor by druggists surviving on the statute books and alive, the Legislature in discriminating in the Hazel Law in favor of druggists must have only intended to recognize a class dealing in liquor for medicinal purposes, and by providing a means by which that class could get a supply of liquor, endeavored to carry out the meaning of the Constitution which expressly allowed the manufacture and sale of liquor for medicinal purposes in prohibition territory.
There is not now nor has * there ever been a statute of the State of Delaware which confers upon physicians a right to sell liquor, and the early law, which denies the right to all persons not licensed, excluded physicians and excludes them yet, unless, indeed, the contention of the state in this case be maintained.
The state contends that the discrimination of the fifth section of the Hazel Law in favor of physicians is a reasonable one, upon the ground that the Constitution preserves the right of the sale of liquor for medicinal purposes in territory where the sale of liquor for other purposes is prohibited, and that as the Legislature has by no statute (other than the Prescription Act) enacted legislation for the regulation of the sale of liquor for medicinal purposes in prohibition territory, the sale of liquor for medicinal
With the contention of the state and ruling of the court below, that liquor may be sold by physicians, we do not concur. In the first place, the Hazel Law is not a law regulating the sale of liquor. It is a law regulating the shipment and delivery of liquor. This law neither confers upon nor withholds from any one the right to sell liquor in prohibition territory, and in. this respect it makes no exception of physicians or druggists. A physician not having a right to sell liquor in Kent County before the enactment of the Hazel Law, has no right to sell the liquor in that county after the enactment of that law.
There is a law against the sale of liquor in a prohibition territory (Chapter 65, Volume 24, Laws of Delaware) and this law makes it “unlawful for any person * * * to sell * * * liquors, except for medicinal or sacramental purposes, within said districts.” There is nothing in this law or in any law of the State of Delaware that by expression confers upon physicians the right to sell liquor either with or without a license, for any purpose. Now, is it necessary to hold, by implication of the Constitution preserving the right of the sale of liquor for medicinal purposes, that physicians because of the importance of the commodity to their profession, have the right to sell it ? We think not, for we believe the existing law with respect to a legal method of selling liquor by druggists for medicinal purposes, satisfies the exception of the.Constitution, whether it satisfies a popular demand for liquor or not.
Although physicians are not authorized by the expression or the implication of any law of this state, to sell liquor in any place, in any quantity, for any purpose, they are not prohibited from using it for medicinal purposes. In general opinion, it is considered an important and by the framers of the Constitution it was thought to be a necessary thing to be used in the practice of medicine. Against its use as a medicine, there is no law, in fact its use as a medicine is recognized and protected by law, and a physician may use and administer it in his practice, just
We are of opinion that, upon the contention made, the act does not violate the fourteenth amendment of the federal Constitution, and is not therefore unconstitutional.
Propositions 4, 5 and 6 are as follows:
“That beer, being an intoxicating liquor, is an article of commerce, and in this case is a lawful article of interstate commerce, and as such cannot be subject to state law as to its transportation, and delivery as a part of such transportation, in Kent County.
“That the federal law of March 1, 1913, known as the 'Webb-Kenyon Law,’ entitled, ‘An act divesting intoxicating liquors of their interstate character in certain cases,’ does not deprive the shipment in question of the protection of the Interstate Commerce Law, in that the shipment-in question was intended to be used for a lawful purpose.
“That if the said federal statute, known as the ‘Webb-Kenyon Law’, is applicable by its terms to the case charged in the indictment in this case, yet that the said federal statute is unconstitutional.”
These propositions are nearly related in principle and present in different phases the same questions of law, and will therefore be considered together. They involve questions of the validity of a state law regulating or attempting to regulate and restrict commerce between the states in a specified commodity,’ and the validity of a federal law delegating, permitting or acquiescing in the exercise of such a power by a state, in view of the provision of the federal Constitution conferring upon the Congress, of the United States supreme power to regulate commerce between the states, and thus present in new forms old questions which have been the bases of legislative and judicial conflicts between the state and federal governments almost since their foundation.
In our scheme of government, which contemplates the delegation of certain and defined powers to national control and the
When between these extremes of sovereignty there comes a thing, which from its nature as property is a subject of ownership, traffic and interstate commerce and over it the federal government assumes supreme control, and which because of its nature is a menace to the health, morals and safety of society, and over it the state likewise attempts supreme control, there occurs a collision of powers, and from that collision one only can emerge supreme.
The conflict between the state and federal governments for control and regulation of the sale and transportation of liquor has been waged since early times, and revolves around what is known as the commerce clause of the federal Constitution (article 1, § 8), and the meaning and legal effect of that clause as a supreme federal power, taken in connection with or in opposition to the police powers of the states, which, when existing and defined, are in turn supreme in the states.
The Constitution declares that the Congress has power “to regulate commerce with foreign nations, among the several states, and with the Indian tribes.” These words give all the authority which the United States has over commerce. The police powers of the states are not conferred by statute, but are powers reserved to the states, for the regulation of their internal affairs, and are rather elastic in their scope and definition.
The power to regulate commerce among the several states is granted to the Congress in the same clause and by the same
The case of Brown v. State of Maryland forms the basis of the subsequent decisions of the Supreme Court upon the matter of federal regulation of commerce between the states with respect to the commodity of liquor. The first important cases before the
On the part of those attacldng the right of a state to regulate the resale of liquor authorized by the laws of Congress to be imported into the state, and thereby ultimately to prohibit the resale thereof, it was contended that a congressional act authorizing importation of spirits is a legislative determination that the foreign article may properly, and shall, enter into consumption of the state, and be sold in the interior market thereof; and that a state statute, limiting or restricting the resale, amounts to an interception in the hands of the first buyer, shuts the importer from the country as really as if he were prohibited to import, and therefore contravenes the determination of the federal legislation, upon a directly opposite policy.
On the other hand, the state contended that the requirement that a purchaser of imported spirits be licensed under a state law, before resale, is a regulation of the internal commerce of the state, having for its object the preservation of order, morals and health and intended to discourage intemperance and to promote sobriety, and therefore falls within the class of laws, enacted under the powers reserved to the state, and generally called “police regulations”.
The court held that a state could not by statute prohibit the importation of foreign spirits, as such a law would be repugnant to the commercial power of the federal government, but the matter of the resale by the consignee of imported spirits in the original package, was one over which the Congress and the states had concurrent jurisdiction, to the extent that in the absence of regulation by act of Congress, under the power conferred by the commerce clause of the Constitution, a state within its police power
The law as decided by the License Cases in 1847 was little disturbed by judicial decisions until the decade of 1880-1890, in which period the case of Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205, was heard. In that case the Supreme Court held valid a statute of the State of Kansas, which prohibited the manufacture and sale of intoxicating liquors within the limits of that state, except for medical, scientific or mechanical purposes, but expressly avoided an opinion upon the power of a state to prohibit the sale of imported liquor within its limits, when such liquor was authorized by Congress to be imported, intimating, against the decision in the License Cases, that when the liquor is authorized to be imported from one state to another, the right of sale of the liquor would seem to follow the right to import it. The decision in this case has a relation to the matter under discussion only because it was an early expression of doubt by the Supreme Court of the right of a state to regulate or prohibit the resale of liquor after the importation, as decided in the License Cases.
The point in the judgment of the License Cases was strictly confined to the right of the states to regulate or prohibit the sale of intoxicating liquor by the consignee after it had been brought within state limits. The right to transport liquor into the states was not questioned in those cases. Indeed, the reasoning which justified the right of a state to prohibit sales of imported liquor, admitted by implication, the right to transport liquor from one state into another as a commodity of lawful commerce, free from the control of the several states and subject to the exclusive power of Congress over commerce.
The case of Bowman v. Chicago, etc., Railway Co., 125 U. S. 465, 8 Sup. Ct. 689, 1062, 31 L. Ed. 700, decided in 1888, represents the next important step in the progress of judicial interpretations of state and federal powers over commerce that is inter
With respect to the right of a state to act upon matters of commerce in the absence of action by the federal Congress, the decision in this case did not go quite to the extent of the decision in the License Cases, but held that the right of a state to regulate commerce by a state law, in the absence of a law of Congress upon the same subject, is a right to be determined from the circumstances of each case as it arises; deciding that the statute of Iowa forbidding common carriers to transport intoxicating liquors into that state from another state, excepting under certain conditions, although adopted without a purpose of affecting interstate commerce, and while intended as a part of a general system designed to protect the health and morals of the people against the evils resulting from the unrestricted manufacture and sale of intoxicating liquors within the state, was neither an inspection law, nor a quarantine law, nor a law confined to the regulation of purely internal and domestic commerce of the state, over which a state may properly exercise control, but was essentially a regulation of commerce among the states, affecting interstate commerce in an essential and vital part, and not being sanctioned by the authority of Congress, either expressed or implied, was repugnant to the Constitution of the United States; and concluding with a quaere as to the main point decided in the License Cases and questioned in Mugler v. Kansas, namely, whether the right of transportation of an article of commerce from one state to another includes by necessary implication the right of the consignee to sell it in the unbroken package at the place where the transportation ends.
The question adverted to and not decided in the opinions of the Supreme Court in Mugler v. Kansas and Bowman v. Chicago, etc., Railway Co., supra, whether a state may withhold, from a consignee of imported liquor, the right to sell the same in the original package, as an essential and constituent part of commerce in that article, was presented to the Supreme Court for
The court cited numerous decisions made by it in recognition of the undoubted right of the states to control their purely internal affairs, under the exercise of powers not surrendered to the national government; but held that wherever the law of a state amounts essentially to a regulation of commerce among the states, by prohibiting commerce with other states in an article recognized by the laws of Congress as a subject of interstate commerce, before the article has ceased to be an article of commerce between one state and another, it comes in conflict with a power which, in this particular, has been exclusively vested in the general government, and is therefore void. Fully admitting the police powers of the states, the court expressed itself to the effect that to extend the police power of a state over the subjects of commerce, nation-wide in character, not purely local and of minor concern, like dams, harbor and pilot regulations, bridges over navigable rivers, piers, docks, etc., would make commerce subordinate to that power and would enable a state to bring within its police power any article of consumption that a state might wish to exclude, whether it belonged to that which was drunk, or to food which was eaten, or to clothing which was worn; that while a state under its police powers may by law resist and prevent the introduction of disease, pestilence or pauperism from abroad, yet disease, pestilence and pauperism are not subjects of commerce, although sometimes among its attendant evils. They are not things to be regulated and trafficked in, but to be prevented, and as long as liquors are the subject of ownership and property and therefore the lawful subjects of exchange, barter, and traffic, not made by law unlike any other commodity in which a right of property and a right to traffic exist, then importation cannot be prevented by a state law; and as sale thereof by the consignee in the destination state is a constituent of commerce itself, the sale cannot be prevented by a state under claim of its control over the commodity under its police power. The court reviewed the position taken in the License Cases with respect to
“The absence of any law of Congress on the subject is equivalent to its declaration that commerce in that matter shall be free. Thus the absence of regulations as to interstate commerce with reference to any particular subject is taken as a declaration that the importation of that article into the states shall be unrestricted.”
The court overruled the decision in Peirce v. New Hampshire (License Cases) 5 How. 504, 12 L. Ed. 256, and held that liquor is a legitimate article of commerce, that an interstate commercial transaction in liquor is not complete upon delivery to the consignee, but extends to and includes the subsequent sale thereof by the consignee, and that, even when Congress is silent upon the subject, a statute of a state, prohibiting the sale of imported liquor by the consignee in an interstate transaction, where the sale is made in the unbroken original package, is unconstitutional and void, as repugnant to the commerce clause of the Constitution, granting to Congress alone the power to regulate commerce among the states.
In this and in the preceding cases of the same decisional trend were vigorous dissenting opinions, delivered in maintenance of the principle that the regulation of the sale and traffic in liquor is within the police power of a state, even to the prevention of sale after arrival and to the exclusion of liquor by importation.
The decision in the Leisy case, extending to an interstate commercial transaction in liquor the right of sale in the original package by the consignee in the destination state, regardless of the laws of such state prohibiting such sale, was rendered April 28, 1890, and there was immediately introduced in Congress a bill to meet that decision and to annul its force, which was enacted into law on August 8, 1890¡ and is known as the “Wilson Law”.
The Wilson Act provides:
“That all fermented, distilled or other intoxicating liquors or liquids transported into any state or territory or remaining therein for use, consumption, sale or storage therein, shall upon arrival in such state or territory be subject to the operation and effect of the laws of such state or territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such state or territory, and shall not be exempt therefrom by reason of being
It thus appears that the power which the Supreme Court in the License Cases conceded to the states, in regulating or preventing a resale by a consignee of an imported article in the original package, was denied to the states by the Supreme Court in the Leisy case, and that the right thus first conceded, and then denied, was determined by the Wilson Law. The point of decision in the two named cases and the matter contemplated as the subject of the Wilson Law, as finally defined, was restricted to the right of a state to regulate or prevent a resale of liquor upon delivery, and did not extend to the right of a state to regulate or prohibit the importation of liquor, the law upon the latter point remaining as decided in Bowman v. Chicago, etc., Railway Co., supra.
Upon the enactment of the Wilson Law, two questions immediately arose: first, the constitutionality of the law in depriving the consignee of liquor in an interstate transaction of his theretofore recognized right to sell the liquor in the original package in the destination state, as an ingredient or constituent element of commerce; and, second, if constitutional, when and at what point in the interstate transaction did liquor lose its interstate characteristic and become “subject to the operation and effect of the laws” of the destination state, under the terms of the statute that “liquors transported into any state * * * shall upon arrival in such state be subject to the operation and effect of the laws of such state.”
These questions and such others as were related to them have been considered and decided by the Supreme Court in a number of cases, to the leading ones of which reference will be made, showing the law as it stood from the date of the enactment of the Wilson Law in 1890 to the year 1913.
By these decisions, the sovereign powers of the states and of the United States over matters exclusively their own were again defined and asserted. In re Rahrer, 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572, the court said:
(b) “The power of Congress to regulate commerce among the several states, when the subjects of that power are national in their nature, is also exclusive. The Constitution does not provide that interstate commerce shall be free, but, by the grant of this exclusive power to regulate it, it was left free except as Congress might impose restraint. Therefore, it has been determined that the failure of Congress to exercise this exclusive power in any case is an expression of its will that the subject shall be free from restrictions or impositions upon it by the several states. Robbins v. Shelby Taxing District, 120 U. S. 489 [7 Sup. Ct. 592, 30 L. Ed. 694]. And if a law passed by a state in the exercise of its acknowledged powers comes into conflict with that will, the Congress and the state cannot occupy the position of equal opposing sovereignties, because the Constitution declares its supremacy and that of the laws passed in pursuance thereof. Gibbons v. Ogden, 9 Wheat. 1, 210 [6 L. Ed. 23]. That which is not supreme must yield to that which is supreme. Brown v. Maryland, 12 Wheat. 419, 448 [6 L. Ed. 678].”
(c) That Congress can neither delegate its own powers to a state nor enlarge the powers that belong to a state.
Recognizing these as firmly established principles, susceptible of dispute only in their application to the given facts of a case or to the precise terms of a statute, it was decided:
(1) That the right to have and use intoxicating liquors for personal purposes is denied no one by either state or federal laws.
(2) That intoxicating liquors constitute a legitimate subject of interstate commerce. Vance v. Vandercook Co., 170 U. S. 438, 444, 18 Sup. Ct. 674, 42 L. Ed. 1100; L. & N. R. R. Co. v. Cook Brewing Co., 223 U. S. 70, 32 Sup. Ct. 189, 56 L. Ed. 355.
(3) That liquor, as a designated subject of interstate commerce, may be governed by a regulation which divests it of that character, when that regulation is promulgated by a law of the federal government,_ prescribing one common rule, the uniformity of which is not affected or disturbed by variations in state laws dealing with the same subject. In re Rahrer, 140 U. S. 545, 561, 11 Sup. Ct. 865, 35 L. Ed. 572.
(4) That the right of a consignee to sell imported merchandise in the original package is not a right conferred or protected by the Constitution. In re Rahrer, 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572.
(5) That by the Wilson Law Congress divested interstate commerce in liquor of one of its theretofore interstate characteristics, namely, the right of sale by the consignee, not by delegating the federal power, oyer the subject to the states, nor by permitting the commerce in the commodity to be regulated by the states, but by bringing to bear directly_ upon interstate commerce itself, the force of its own rule applicable to all interstate transactions in liquor without regard to the local laws of the destination states, that the interstate commercial transaction in liquor.shall terminate upon the arrival of the liquor in the destination state, and with the termination of the interstate transaction terminates the federal control, and thereafter begins the state control thereover. In re Rahrer, 140 U. S. 545, 564, 11 Sup. Ct. 865, 35 L. Ed. 572.
(7) That the expression of the Wilson Act, that liquor “shall upon arrival in [the destination] state be subject to the operation and effect of the laws of such state,” did not mean arrival within state territory merely, but meant arrival at the point of completion of the interstate transaction, namely, in the hands of the consignee; that the Wilson Law conferred no right upon a state to forbid a common carrier to transport liquor from one state into another state, or to stop at the state line an interstate shipment of liquor, or otherwise to interfere with or apply its laws to such interstate shipment until the transportation was concluded by delivery to the consignee. Rhodes v. Iowa, 170 U. S. 412, 18 Sup. Ct. 664, 42 L. Ed. 1088; Vance v. Vandercook Co., 170 U. S. 438,18 Sup. Ct. 674, 42 L. Ed. 1100; Heymann s. Southern Ry. Co., 203 U. S. 270, 27 Sup. Ct. 104, 51 L. Ed. 178, 7 Ann. Cas. 1130; Adams Express Co. v. Kentucky, 214 U. S. 218, 29 Sup. Ct. 633, 53 L. Ed. 972; L. & N. R. R. Co. v. Cook Brewing Co., 223 U. S. 70, 32 Sup. Ct. 189, 56 L. Ed. 355.
(8) That a common carrier is not forbidden by the Wilson Law to transport liquor from one state into another state, even when by the laws of the latter state the shipment as well as the sale of liquor is prohibited, and that, on the contrary, such shipment, when it constitutes an interstate commercial transaction, is not only protected, but may be compelled, by the commerce clause of the Constitution, notwithstanding such a shipment may be in open violation of the laws of the state into which the shipment is made, or notwithstanding the carrier might have notice that the consignee intended to sell the liquor, when received, or in some other way to dispose of it in violation of the state law. L. & N. R. R. Co. v. Cook Brewing Co., 223 U. S. 70, 32 Sup. Ct. 189, 56 L. Ed. 355; Adams Express Co. v. Commonwealth, 154 Ky. 462, 157 S. W. 908, 48 L. R. A. (N. S.) 342.
Thus stood the law with respect to state and federal control over the sale and shipment of liquor until the year 1913, when Congress enacted a statute known generally by the name of its authors as the ‘‘ Webb-Kenyon Law”.
The Webb-Kenyon bill, after its introduction, was subjected to vigorous debate and important amendment, with the result that the popular impression of that legislation has been gathered more from the controversy that revolved about it than from knowledge of the measure itself. It is not unnatural, therefore, that the popular conception of the law is that it confers upon a state the power absolutely and totally to prohibit the importation of liquor for any purpose, while an examination of the precise terms of the lay/ shows a very different purpose and a very different power.
. The Webb-Kenyon bill, as introduced into Congress, consisted of two sections. The first section of the bill provided, in substance, that the shipment or transportation of liquor from one state into any other, which, liquor “is intended by any person interested therein, directly or indirectly, or in any manner connected with the transaction” to be received, possessed, or kejpt, or in any manner used, in violation of any law of such state, “ enacted in the exercise of the police power of such state”, is prohibited, and any “contracts pertaining to such transactions are declared to be null and void”, and “no suit or action shall be maintained * * * upon any such contract, or for the enforcement or protection of any alleged right” based upon such contract, “or for the protection in any manner whatsoever of such prohibited transactions.”
The expression “by any person * * * in any manner connected with the transaction ” may have meant transaction of shipment, in which event the expression included common carriers; and the concluding expression, prohibiting the enforcement, by suit, of rights growing out of a contract and of “protection in any manner whatsoever of such prohibited transactions,”
The second section of the bill provided that any liquor transported into any state, or remaining therein for use, consumption, sale or storage shall upon arrival within the boundaries of such state, and before delivery to the consignee, be subject to the operation and effect of the laws of such state enacted in the exercise of its reserved police, powers, to the same extent and in the same manner as though such liquor had been produced in such state. H. R. 17,593, 62d Congress, Introduced January 10, 1912, Congressional Record, February 8, 10, 11, 14, 1913, p. 2919.
The effect of the last section, which represents the popular conception of the law, would have been to overcome the decision in Bowman v. Chicago, etc., Ry. Co., and to prohibit the transportation of liquor into any state that prohibited such transportation, and stop the shipment at the frontier, as it were, or, if it got. in, then to apply to it the law which the Supreme Court in Mugler v. Kansas established as to the right of a state, under its police powers, to regulate and prohibit the sale of liquor within its borders. This is the bill and the legal effect of its provisions as it started on its passage.
The first thing that was done was the offer and rejection of an amendment to make criminal the transportation of liquors in interstate commerce intended to be used contrary to the law of the destination state. Congressional Record, February 12, 1913, p. 3081.
The next step was to eliminate from the bill the second section thereof. This is the section that in effect conferred upon the states the right to prohibit the importation of liquor by subjecting imported liquors to the operation of state laws upon arrival at the state boundary. The last step was to withdraw from the last part of the first section that part of the section that avoided contracts of transportation of liquor and withheld protection for prohibited transactions, and to strike out in the middle of the section the broad language, by which common carriers might be included among those connected “with the transaction,” leav
“That the shipment or transportation, in any manner or by any means whatsoever, of any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, from one state, territory, or District of the United States, or place non-contiguous to but subject to the jurisdiction thereof, into any other state, territory, or District of the United States, or place non-contiguous to but subject to the jurisdiction thereof, or from any foreign country into any state, territory or District of the United States, or place non-contiguous to, but subject to the jurisdiction thereof, which said spirituous, vinous, malted, fermented, or' other intoxicating liquor is intended, by any person interested therein, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such state, territory, or District of the United States, or place non-contiguous to but subject to the jurisdiction thereof, is hereby prohibited.”
The bill in its entirety was attacked in both houses of Congress, and upon its first passage was vetoed by the President of the United States, upon the ground that it was unconstitutional, and was passed over the President’s veto on the first day of March, 1913.
Under authority of this act, the General Assembly of the State of Delaware enacted a statute, approved by the Governor on the eighth day of the following month, entitled “An act regulating the shipment or carrying of spirituous, vinous or malt liquor into local option territory, or the delivery of the same in such territory” (Chapter 139, Volume 27, Laws of Delaware), the provisions of which, so far as they relate to the phase of the case now under consideration, are:
“Section 1. That it shall be unlawful for any common carrier, knowingly to accept or receive for shipment, transportation or delivery to any person or place within local option territory, or to carry, bring into, transfer to any other person, carrier or agent, handle, deliver or distribute in local option territory, any spirituous, vinous or malt liquor, regardless of the name by which it may be called. * * *
“Section 4. This act shall apply to all packages of spirituous, vinous or malt whether broken or unbroken. * * *
“Section 6. That it shall be unlawful for any person to carry, bring or have brought any quantity of spirituous, vinous or malt liquor from any point within the State of Delaware into local option territory within said state greater than one gallon within the space of twenty-four hours.”
In the case of L. & N. R. R. Co. v. Cook Brewing Co., 223 U. S. 70, 82, 32 Sup. Ct. 189, 56 L. Ed. 355, decided after the enactment of the Wilson Law and before the enactment of the
“By a long line of decisions, beginning even prior to Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128, it has been indisputably determined:
“ (a) That beer and other intoxicating liquors are recognized and legitimate subjects of interstate commerce.
“ (b) That it is not competent for any state to forbid any common carrier to transport such articles from a consignor in one state to a consignee in another.
“ (c) That until such transportation is concluded by delivery to the consignee, such commodities do not become subject to state regulation, restraining their sale or disposition."
Before the enactment of the Webb-Kenyon Law, therefore, there was no question that the State of Delaware was without power to enact into law the provisions of the Hazel Act so far as they relate to and affect interstate commerce. After the enactment of the Webb-Kenyon Law, and in the exercise of the power assumed to have been conferred upon it by that statute, the State of Delaware did what admittedly it could not have done before, and by the Hazel Law prohibited commerce in liquor between other states and prohibition districts in this state, when the liquor was to be used for any purpose, other than medicinal and sacramental.
Under this state of the law, the first question therefore is, how far and to what extent are the prohibitions of the Hazel Act authorized, aided or validated by the Webb-Kenyon Law, when considered with especial reference to the offense for which the defendant below was indicted? The defendant below, acting as agent for a common carrier, completed a shipment of liquor from the State of Pennsylvania to a prohibition district in the State of Delaware, by receiving the same and delivering it to the consignee in that district. It is admitted in the case stated that the liquor “was intended” by the consignee “to be used by him for his own consumption”, and “he did not intend to sell or otherwise unlawfully dispose of the same.” The Hazel Act prohibits the shipment of liquor into the prohibition districts of this state for any purpose (excepting the two designated), whether the liquor be intended to be used in violation of law or not. The
In the judicial interpretation of laws, courts are guided by well recognized rules. When the language of a statute is plain and conveys a clear and definite meaning, courts give to the statute the exact meaning conveyed by the language, adding nothing thereto and taking nothing therefrom. Another mean
Thus the Webb-Kenyon Law means exactly what its language conveys, and the meaning of the law fits precisely the situation it seems intended to remedy, and but for the fact that its meaning is questioned, it would receive from us neither interpretation nor exposition. But as the Webb-Kenyon Law was applied by the court below to the given facts of the case there tried, it becomes necessary on review to ascertain the meaning of the law in order to ascertain whether the law is applicable to this case.
Undoubtedly the purpose of the Webb-Kenyon Law, as finally enacted, was to enable the states more effectually to enforce their own laws in preventing and reducing the illicit sale of liquor, by restricting the supply to a point that discourages infractions of the law. Of this there is no doubt, but the question is how far in effectuating this purpose does the Webb-Kenyon Law go, namely, to the point of permitting a state to prohibit the importation of liquor for all purposes, or to the point of permitting a state to prohibit the importation when the liquor is intended for an unlawful purpose?
At the outset it is conceded that, before the enactment of the Webb-Kenyon Law, it was unlawful to sell liquor in certain prohibition districts in the State of Delaware; yet under the federal law as it then stood, notwithstanding the state law, a common carrier was protected by the commerce clause of the federal Constitution in transporting liquor into those districts, even when it had full knowledge that the liquor carried by it was intended to be used in violation of law.
It is fair to say that the plain intent of the Webb-Kenyon Law was to withdraw this protection from the carrier, and thereby aid the state in enforcing its law against the illegal sale of liquor, for the carefully chosen language of the act fits precisely this interpretation.
The language of the law is:
“Thatthe shipment or transportation [of liquor] from one state * * '* into any other state, * * * which -said * * * liquor is intended, by any person interested therein, to be received, possessed, sold or in any manner used, * * * in violation of any law of such state, * * * 'is hereby -prohibited.”
By this language it is apparent, first, that the "thing prohibited is the shipment or transportation of liquor; second, that such shipment or transportation of liquor is prohibited (a) when the liquor so shipped is intended to be received, possessed, sold or used in violation of the laws of a state, and (b) when that 'intention is entertained by any person interested in -the liquor. From this analysis of the law it is likewise apparent, first, that -all shipments of liquor are not by express language prohibited; "and, second that the test of a shipment of the kind prohibited is -the intent of a person, not interested in "the shipment, but interested in the liquor, to receive, possess, sell or use the liquor in violation of the state law.
But it was urged at the argument, and -it was held by the court, below, that the effect of the Webb-Kenyon Law was to divest liquor of its interstate -character in all cases and to prohibit all shipments of liquor into a state, when by state -law all shipments for all purposes are prohibited, without regard to the lawfulness or unlawfulness of the purpose to which "the liquor was intended to be put, 'upon the theory that the interest of the carrier in its contract and act of carriage of the liquor makes it a “person interested therein”, within the language of the act, -and
The Webb-Kenyon Law makes unlawful the thing it prohibits, and conversely it is fair to say that a thing not by it prohibited is not by it made unlawful. The statute says:
“That the shipment or transportation” of liquor into a state, “which said * * * liquor [meaning when said liquor! is intended by any person interested therein, to be received, possessed, sold or in any_ manner used, * * * in violation of any law of such state, * * * is hereby prohibited.”
That is what the law prohibits. Then conversely the law must mean that the shipment or transportation of liquor into a state, when said liquor is not intended, by any person interested therein, to be received, possessed, sold or in any manner used, in violation of any law of such state, is not thereby prohibited. This seems to us a necessary deduction from the language used, for if the statute does not contemplate as an exception the shipment that might be lawful, then it prohibits all shipments, and if this is what was intended, it is hard to conceive why the intention was left to be deduced and construed from the language used, when simple and direct language might have been used, prohibiting outright any shipment for any purpose, as was used in the statutes of Kentucky, Tennessee, Iowa and Delaware. Before we could hold that Congress intended or attempted to part with any of its constitutional control over interstate commerce, Congress would have to grant or permit or otherwise validly confer upon the states such control by language that conveys a precise and unmistakable meaning to that effect, and not by language
It was held by the court below that if the Webb-Kenyon Law did not enable a state absolutely to prohibit all shipments of liquor into its territory, when the liquor was intended for any purpose, the Webb-Kenyon Law was but a re-enactment of the Wilson Law. With this view we do not concur. By the Wilson Law the resale by the consignee was the only thing prohibited, leaving the carrier free to transport liquor into the territory of a prohibition state, either for purposes made lawful or unlawful by the laws of such state. The Wilson Law affected interstate commerce, and divested commerce in liquor of its interstate character only to the extent of subjecting it to the state law and of depriving it of its right of resale after delivery to the consignee, and left the carrier under the protection of the commerce clause of the Constitution for the rest of the interstate transaction. Under this protection the carrier could import liquor into a prohibition state, whether the intended use of the liquor was lawful or unlawful. In fact under this protection a carrier could import liquor into a prohibition state, with full knowledge that upon arrival at destination and delivery to the consignee it was intended by him to be received, possessed, sold or otherwise used in violation of the laws of that state. This was the mischief intended to be remedied by the Webb-Kenyon Law, as this was the state of the law after the enactment of the Wilson Law 'and after the decision of the Supreme Court in L. & N. R. R. Co. v. Cook Brewing Co., 223 U. S. 70, 32 Sup. Ct. 189, 56 L. Ed. 355, decided January 22, 1912, and the state of the law when the Webb-Kenyon bill was introduced in Congress and finally enacted on March 1, 1913.
To remedy this evil and to aid the states in preventing the shipment of liquor for unlawful purposes, the Webb-Kenyon Law attempted a very different thing from what the Wilson Law did and by clear expression withdrew or attempted to withdraw from the carrier of liquor intended for unlawful purposes the protection it theretofore had, and afforded the states a means by which they could more effectively reach and prevent the violation of their
We find nothing in the law which affords a means to the states to prevent the transportation of liquor by a common carrier when the liquor is intended for a lawful purpose.
The state courts of last resort that have thus far given an interpretation to the provisions of the Webb-Kenyon Law are the Court of Appeals of Kentucky, the Supreme Court of Tennessee, the Supreme Court of Iowa, and the Supreme Court of Kansas. Adams Express Co. v. Commonwealth, 154 Ky. 462, 157 S. W. 908, 48 L. R. A. (N. S.) 342; Palmer v. Southern Express Co. (Tenn.) 165 S. W. 236 (not officially reported); Iowa v. U. S. Express Co., 145 N. W. 451 (not officially reported); Kansas v. Columbia Brewing Co., 139 Pac. 1169 (not officially reported).
These courts gave to the Webb-Kenyon Law the same interpretation and meaning, as applied to the particular and different cases before them, that this court has given it in the case under consideration.
The Court of Appeals of Kentucky and the Supreme Court of Tennessee each held that the Webb-Kenyon Act did not prohibit the shipment of liquor or authorize a state to prohibit the shipment of liquor when the liquor was intended by the consignee for a lawful purpose, which was the case before them, and declined to consider the act in its relation to facts in which the intention was to put the liquor to an unlawful use. The Supreme Court of Iowa and the Supreme Court of Kansas held, conversely, that the act prohibited an interstate shipment of liquor when the liquor was intended to be used by the consignee for an unlawful purpose, which was the case before each of them, and expressly declined to consider whether the act prohibited the shipment of liquor in cases like the Kentucky case, the Tennessee case, and this case, in which the intention was to use the liquor for a lawful purpose. Neither one of the courts construed the act to prohibit interstate shipment of liquor for all purposes, that is, to be used for either a lawful or unlawful purpose, as neither court, of course, passed upon the phase of the act not raised by the case before it, but each court read the act with the meaning that left open a
The Hazel Law of the State of Delaware, which, with certain exceptions, makes it unlawful for common carriers to transport liquor either by interstate or intrastate shipments, into prohibition territory, without regard to the purpose for which the liquor so imported is intended there to be used, was either copied from a similar law of the State of Kentucky, or the two laws were taken from another law as a common source, for the provisions of each are essentially alike.
Under facts identical with the facts of this case, liquor was, carried by an express company from a distant state into prohibition territory of the State of Kentucky, and there delivered to the consignee. For this offense the express company was proceeded against under the statute of Kentucky. In the case instituted against it, it appeared in an agreed state of facts that the—
“said liquors (so imported) were intended by said consignees, respectively, for their personal use, and were so used by them, and were not intended by them to be sold contrary to law, and were not sold by them.”
The Court of Appeals of Kentucky (Adams Express Co. v. Commonwealth, 154 Ky. 462, 157 S. W. 908, 48 L. R. A. [N. S.] 342) being the court first called upon to pass upon the Webb-Kenyon Law, in an opinion delivered June 17, 1913, held that the Webb-Kenyon Law did not apply to the facts of that case, deciding that the Webb-Kenyon Law prohibited the shipment of liquor intended to be received, used or sold in violation of a state law and did not prohibit the shipment of liquor when there-'was no intention by some one interested in the liquor to violate the state law. With respect to the applicability of the law, the court said:
“This law specifies with particularity the character of transaction designed tó be taken from under the protection of the commerce clause, and manifestly it was not intended by it to remove this protection from any other
“The purpose, and the only purpose, of the Webb-Kenyon Law, * * * was to withdraw from interstate shipments of intoxicating liquor the complete protection it had under the principle announced in the Cook Brewing Company case, as well as in many other cases; and assuming, as we do, that the Webb-Kenyon law is valid legislation, there can be no doubt that section 2569a, Ky. St., is operative when applied to intoxicating liquor that is shipped as an interstate transaction to a consignee' living in local option territory in this state to be received, possessed, sold, or in any manner used in violation of any law of this state. If, however, the liquor is not intended by any person interested therein to be received, possessed, sold or in any manner used in violation of the laws of this state, then, notwithstanding the Webb-Kenyon Law, its carriage and delivery is as fully protected by the commerce clause of the federal Constitution as it was before the enactment of the Webb-Kenyon Law. * * *
“It therefore appears that the issue in this case really comes down to this: Was the liquor involved in this transaction intended by any person interested therein to be received, possessed, sold, or in any manner used in violation of any law of this state? It is shown by the agreed state of facts, when- considered in the light of the Constitution and laws of the state, and the opinions of this court, that it was not. This being true, the aid of the Webb-Kenyon Law cannot be invoked to secure the punishment of the carrier, as it does not prohibit a common carrier from receiving, carrying, and delivering, as an interstate transaction, intoxicating liquor to the consignee when it is not intended by any person interested therein to be received, possessed, sold, or in any manner used in .'violation of the laws of this state, or withhold from such a transaction the protection afforded by the commerce clause of the federal Constitution. As to this character of transaction, the Webb-Kenyon Law has no application, and, having no application, the law, as it existed, before the enactment of this legislation, is in force, and, being in force, the carrier cannot be punished for receiving, carrying, and delivering, as an interstate transaction, intoxicating liquor in local option territory to a consignee who purchased it at a point in another state, and when it is not intended by any person interested therein to be received, possessed, sold, or in any manner used in violation of the law of this state. If, however, the liquor is intended to be received, possessed, sold, or in any manner used in violation of the law of this state, then the Webb-Kenyon Act applies, although the transaction may be an interstate one, and the carrier is not protected from the punishment imposed by section 2569a of .the statute by the commerce clause of the federal constitution, under which it would have been exempt from punishment before the enactment of the Webb-Kenyon Law, which was intended to and does withdraw from the character of shipments therein mentioned the protection theretofore afforded by the commerce clause.
“The result of our views on the whole case is that whether a carrier of an interstate shipment of liquor subjects itself to punishment or not depends on the use to which the person to whom it delivers liquor intends to put it. If this use violates a law of the state, then the carrier may be punished; if it does not, the carrier has not committed any offense.’’
The case of Palmer v. Southern Express Co., 165 S. W. 236, decided by the Supreme Court of Tennessee, at its December Term, 1913, and not yet officially reported, was the second case before a state court of last resort, involving the Webb-Kenyon Law. In that case the provisions of the statute of the State of Tennessee relating to interstate shipments of liquor into that state were held by the court to amount to an interference with interstate commerce and therefore repugnant to the commerce clause of the federal Constitution. It was contended however, that the various provisions of the Tennessee statute so held invalid were saved by the Webb-Kenyon Law. The Supreme Court of Tennessee disposed of this contention by giving to the Webb-Kenyon Law an interpretation that made it inapplicable to the case before it, and in doing so used the following language:
"It is perceived that the thing which the act (Webb-Kenyon Law)prohibits is the interstate shipment or transportation of the liquors mentioned therein, when ‘ intended by any person interested therein, to be received, possessed, sold or in any manner- used, either in the original package or otherwise, in violation of any law of’ the state, etc., into which the shipment is made.
“It is enough to say for the disposition of the case before us that it does not appear that the liquors shipped were intended to be sold, or used in violation of any law of the state; and therefore the act does not apply to the present controversy. It appears from the facts stated in the bill, confessed by the demurrer, and agreed to on the record at the hearing in the court below, that the liquors were purchased for the personal use of complainant and his family. This was a lawful use, and indeed permitted by the statute in question. * * * The act therefore does not apply to the present controversy. A vigorous attack is made on the constitutionality of the act, but we do not deem it essential or even proper, to go into this question, since the view already stated is sufficient to dispose of the case in so far as the Webb-Kenyon Act relates to it.
“But, before passing from this phase of the case, we desire to add, in order that the present opinion may not be misunderstood, that what we have just held as to the inapplicability of the Webb-Kenyon Act to the case before us, is not intended to cover those instances in which sales of liquors are made in a foreign state for shipment into this state to be sold or used in violation of the prohibition laws of this state. * * * What we have said as to the certificates or statements or superscriptions on the packages, we apply in the present opinion only to intoxicating liquors shipped into this state for the personal use of the consignee and his family, that only being the nature of the case before us; nor do we desire to be understood as expressing any opinion as to whether there can be constitutionally withdrawn from the operation of the interstate commerce laws, an article otherwise of a com
The Supreme Court of Iowa next passed upon the Webb-Kenyon Law. The decision in the case of Iowa v. U. S. Express Co., 145 N. W. 451, rendered February 17, 1914 (not yet officially reported), was based upon a finding of fact that the consignee received the shipment of beer with intent to resell the same in violation of a law of Iowa, under circumstances that charged the carrier, the United States Express Company, with knowledge of that intent, and “that in so far as this case is concerned, the question of purchase and shipment to a consignee for his own personal use is entirely eliminated.”
The Supreme Court of Iowa interpreted the Webb-Kenyon Law to prohibit a shipment of liquor into a state contrary to the laws of .that state when the liquor was intended by the consignee to be sold in violation of the law of that state. With respect to a case like ours, however, where liquor was shipped into the state not intended by the consignee to be sold in violation of the law of this state, but intended by him to be used in a manner lawful under the laws of the state, the Supreme Court of Iowa, in order to avoid an adjudication upon a state of facts not before it, said:
“Eliminating, as we must for the purposes of this case, the question as to an interstate shipment for the personal use of the buyer and the consignee, there is no room for doubt as to the proper interpretation of the act. It does just what the title says it was intended to do, to wit, divest intoxicating liquors of their interstate character in certain cases, and these cases are specifically set out in the act itself. This is to say the shipment or transportation of intoxicating liquor from one state to another when such shipment is intended by any person therein to be received, sold or used in violation of any law of such state (to which the shipment is made) is prohibited. This is the sum and substance of the act; and that it has reference to such shipments as are involved in this case clearly appears.”
The case of State of Kansas v. Columbia Brewing Co., 139 Pac. 1169, decided by the Supreme Court of Kansas in April of this year (and not officially reported), is the last judicial pronouncement by a state court upon the Webb-Kenyon Law of which we have knowledge. From the statement of facts as con
“ Depoli was engaged in the wholesale liquor business in Cherokee County in violation of law, and had ordered the car load of beer in question a few days before its arrival at Corona for use in his business.”
The statutes of the State of Kansas—
“prohibit the sale of intoxicating liquors, except that certain wholesale druggists may sell alcohol in specified quantities to certain registered pharmacists for medicinal, mechanical and scientific purposes. Provision is made for the seizure and condemnation of intoxicating liquors kept or used in violation of law.”
Before passing upon the question of law raised by the facts as stated, the court made allusion to the conditions that prevailed at the point of consignment, showing a population out of harmony with the restrictive features of the state law against the sale of liquor, and disclosing a situation in which the enforcement of those laws was attended with great difficulty, when violators of
“The Wilson Law, which permitted shipments of liquor to retain their interstate character until delivery to the consignee, * * * left the state law subject to evasions embarrassing to its administration.”
Thus stating local conditions and the limited effectiveness of the Wilson Law to meet them, the court makes clear its understanding of the purpose and effect of the Webb-Kenyon Law by saying:
“The act of March 1, 1913, by suffering the police power of the state to attach to interstate shipments of liquor intended for unlawful uses before delivery exactly meets the condition presented by this record,_ and permits the state effectually to enforce a policy deemed highly essential to its welfare.
“It is indeed true that the Supreme Court of the United States has many times declared that intoxicating liquors are recognized and legitimate subjects of interstate commerce. This declaration, however, has always been made in accordance with existing law. Congress has now spoken upon the subject in such a way that the declaration must be qualified. Intoxicating liquors are recognized and legitimate subjects of interstate commerce only when not intended for sale or use in violation of the laws of the destination state. The result is that the fact that the consignment in controversy was still in transit from the state of its origin did not protect it from condemnation consequent upon the finding of the court that it was intended for unlawful use in Kansas.”
The rulings of the Supreme Court of Kansas and of the Supreme Court of Iowa are in entire harmony one with the other and are consistent with our understanding of the Webb-Kenyon Law as to its applicability to cases similar to the cases before those two courts.
The rulings of the Court of Appeals of Kentucky and of the Supreme Court of Tennessee are likewise in accord one with the other and with our understanding of the inapplicability of the Webb-Kenyon Law to cases like the cases before those two courts and like the case before us, which in point of fact are precisely the converse of the cases heard in Kansas and Iowa. The rulings by these four state courts of last resort and the holding of this court in the case now under consideration disclose in so far as they were called upon to express their views, that each court read the Webb-Kenyon Law in the same way and gave to its language the same meaning.
The first court was the United States District Court for the District of Oregon, and the case was the United States ex rel. F. Zimmerman & Co. v. Oregon-Washington Railroad & Navigation Co. et al. (D. C.) 210 Fed. 378. From the opinion of the District Judge in that case, the facts of the case and the point of decision seem to be substantially these: The law of the state of Idaho prohibits the shipment and delivery of liquor to any person at any place in that staté where the sale of liquor is prohibited, except for certain specified purposes, and the Webb-Kenyon Act of the Congress of the United States in effect prohibits the shipment or transportation of liquor into the State of" Idaho, which liquor is intended to be received, possessed, sold or used in violation of any law of the said state.
In conformity with their' understanding of the statute of Idaho and the act of Congress, the defendant railroad companies promulgated a rule whereby they refused to receive liquor for shipment and to transport liquor from points outside of the State of Idaho to points within a prohibition unit of that state. The plaintiff prayed for a mandamus requiring the defendant railroad company to accept in Oregon for transportation, and to ship into Idaho, a gallon of whisky consigned to a resident of a prohibition district in that state and intended for his personal use.
The court held that the Idaho statute was broad enough to make unlawful all interstate shipments, of intoxicating liquor, although intended for the personal use of the consignee, and that the District Court in Oregon sitting as a nisi prius court in another jurisdiction should so consider the Idaho law until it is otherwise interpreted by the courts of Idaho, and especially in a case where it is sought by mandamus to compel a defendant to violate the terms of a statute.
The question of whether the Webb-Kenyon Law was applicable to the case does not appear from the opinion to have been considered. The constitutionality of the act, however, was raised;
“The law is not so clearly unconstitutional as to justify this court in compelling the defendant to violate it.”
The United States District Court for the District of Minnesota is the other federal court in which questions under the Webb-Kenyon Law were submitted for consideration, and the case is Theo. Hamm Brewing Co. v. Chicago, Rock Island & Pacific Railway Co., 214 Fed. —. In this case, the procedure was in effect the same and the facts were in the main similar to those in the case before the District Court for the District of Oregon, but were sufficiently differentiated to enable the court before passing upon the constitutionality of the act to inquire into and determine its applicability.
From the opinion delivered and the decree entered by the United States District Court for the District of Minnesota, it appears that an association of railroads, describing themselves as “Western Trunk Lines”, of which the defendant railway company was one, had promulgated a rule forbidding their employees to receive liquor in the State of Minnesota and to ship and transport it into the State of Iowa, even when the liquor was intended for personal use and private consumption, and that the plaintiff in the State of Minnesota offered to the defendant for shipment into the State of Iowa a gallon of whisky which the defendant railway company, through its agents, and acting in obedience to the rule before mentioned, refused to accept and to ship. A bill was filed by the plaintiff in the District Court, praying that the railway company be enjoined and restrained from refusing to accept, receive, transport, carry or deliver liquor sold in Minnesota by the plaintiff to persons residing in Iowa. In pursuance with the prayer of the plaintiff, the court decreed that the defendant railway company be permanently enjoined and restrained from refusing or failing to accept, receive, transport, carry or
This decree was entered by the District Court upon the reasoning that was disclosed by the opinion of Charles A. Willard, Judge, which is as follows:
“The Webb-Kenyon Law declares unlawful the shipment of intoxicating liquor which ‘is intended by any person interested therein to be received, possessed, sold or in atiy manner used, either in the original package or otherwise, in violation of any law of such state’ into which it is shipped.
“The beer, which Moss, a resident of Iowa, ordered from the plaintiff, whose brewery is established at St. Paul, Minn., and which was .to be shipped over the defendant’s line of railroad, was not .intended by either Moss or the railroad company to be received, possessed, sold, or used in violation of any law of Iowa.
“The law of Iowa does, however, prohibit the transportation by any common carrier of intoxicating liquors, unless the person to whom the liquor is consigned has a permit. But the Webb-Kenyon Law while it says that the liquor must not be received, possessed, sold or used in violation of law, does not say that it shall not be transported in violation of law.
“If it had been the intention of Congress to prohibit the procurement from points outside of the state by a citizen of Iowa of intoxicating liquors for his own personal use, it would have been very easy to have indicated that by prohibiting the transportation of all interstate shipments.
“Assuming, as I do, that the law is valid, I hold that it does not apply to this case.”
The great volume of cases that record the controversies that for nearly a century have revolved about the commerce clause of the federal Constitution disclose that, .whatever deviation there may have been in some of its rulings, to one principle the Supreme Court of the United States has uniformly, consistently and steadfastly adhered, as a fixed and established principle of constitutional government, extending to and binding alike upon the governments of the states and of the United States, and
Much was said in the argument touching the validity of the Webb-Kenyon Law, but as we have reached the conclusion that the prosecution against the defendant below must fail because this legislation is not applicable under the agreed facts to the transaction for which he was indicted, there is for that reason no case before us calling for a consideration of, or justifying a decision upon, the constitutionality of that legislation. • In disposing of this case, we are not called upon to assert or deny the constitutionality of the Webb-Kenyon Law. That is a subject for the consideration of this court and for determination by the court having authority to render final judgment, upon a proper case being presented.
We are of opinion that upon the facts of this case, and under the laws of the State of Delaware and of the United States of America, a crime punishable under the laws of the State of Dela