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the State prohibitory policy. This bill, if passed, will not authorize State legislation which goes beyond the constitution of the respective States. All it will do is simply to give full scope to the legitimate cxercise of the police powers of the States in dealing with this question by making interstate shipments of liquors subject to State jurisdiction within the boundaries of the State “ before the delivery of said liquors to the consignee” unhampered by the “ restriction of the commerce clause of the Constitution.

It simply removes, so far as Congressional action has not already removed and can remove it, so much of the“ restriction" as now exists by virtue of the commerce clause upon the free exercise of the State police power. It does not delegate any power to the State, and it does not authorize or permit the State to enact any specific legislation or exercise any particular control. It removes the "impediment” of the commerce clause and leaves the field open and free for State action. The incumbrance being removed and the field being open, if a State enacts any legislation on this subject that is in violation of the State or Federal Constitution, then such State legislation falls to the ground, but the fact that the State under such circumstances has passed an unconstitutional statute does not affect the validity of this act. In such case it would appear not that this act was unconstitutional, but that the State had attempted to do something that did not come within the scope of the impediments removed by the act. It is competent, the Supreme Court have held, for Congress to divest subjects of interstate commerce “ of that character at an earlier period of time than would otherwise be the case.” (In re Rahrer.) Having so divested them, if the State undertakes to deal with them in a manner unauthorized by the constitution, either State or Federal, that question does not involve the validity of the Federal but of the State statute.


It seems also important to state the condition which has arisen under the Rhodes decision, and which has occasioned the demand for this legislation from practically every State in the Union. Nonresident manufacturers or dealers in intoxicating liquors located in some of the States send out their soliciting agents and establish agencies in other States, who travel over and canvass the territory, soliciting sales and taking orders for such liquors to be shipped in by the principal, consigned to the subscribers—sometimes to be sent to them direct, and in other cases to be sent to them in care of the soliciting agent.

A system of evasion has also been devised by which liquors are sent in by the consignor outside the State to himself as consignee at some point within another State, or a quantity of liquors is shipped in to a fictitious person as consignee, with instructions to the railroad or express agent that the party to whom they are consigned will not call for the goods, but that they shall dispose of them to any person or persons applying who will pay the cost of transportation, the price of the liquors, and the C. O. D. return charges.

By these methods a regular business of dealing in intoxicating liquors by foreign dealers has been kept up in many of the States

with impunity. Under these systems of evasion the States are entirely powerless either to prohibit such delivery in the original package or to exercise any control or regulation over them whatsoever prior to their delivery to the consignee. They can not even impose a license or any restrictions of any nature on the business carried on in this manner, for under the Rhodes decision such liquors are protected by the interstate-commerce clause of the Constitution until They are delivered to the consignee. In many cases like those just referred to there is no legitimate consignee, never was, and it was never intended that there should be. It is a palpable evasion of State law, made possible by the inaction of Congress under the Rhodes decision, and until this remedial legislation is enacted the country has the peculiar spectacle of manufacturers and venders outside the State doing with impunity what the State or locality forbids its own citizens to do either altogether or except under prescribed conditions.

Among other things it has been objected that the passage of this bill would give extraterritorial effect to such legislation of the States as sought to bring within their jurisdiction imported original packages before their delivery to the consignee; that the passage of the bill would be tantamount to a delegation of power vested exclusively in Congress by the Constitution to "regulate commerce among the several States;” that the passage of the bill, together with the operations of State laws designed to act on interstate shipments of liquors, would amount to concurrent legislation by the Federal Government and the several States upon a subject the control of which, by the terms of the Constitution, was granted exclusively to Congress; that the power of Congress to regulate interstate commerce does not include the power to prohibit, and also that the right to import intoxicating liquors from another State for the personal use of the consignee, which it is contended the bill under consideration would deny, is a right secured by the Constitution of the United States and incapable of being destroyed by legislation.


No clearer nor more conclusive answer to the first two propositions (as well as the third by necessary implication) is possible than the opinion of the Supreme Court in the Rahrer case (140 U. S., 561– 564), as handed down by Chief Justice Fuller, and from which we quote verbatim:

By the adoption of the Constitution the ability of the several States to act upon the matter solely in accordance with their own will was extinguished, and the legislative will of the General Government substituted. No affirmative guaranty was thereby given to any State of the right to demand as between it and the others what it could not have obtained before, while the object was undoubtedly sought to be attained of preventing commercial regulations partial in their character or contrary to the common interests. And the magnificent growth and prosperity of the country attest the success which has attended the accomplishment of that object. But this furnishes no support to the position that Congress could not, in the exercise of the discretion reposed in it, concluding that the common interests did not require entire freedom in the traffic in ardent spirits, enact the law in question. In so doing Congress has not attempted to delegate the power to regulate commerce, or to exercise any poucer reserved to the States, or to grant a power not possessed by the States, or to adopt State laws. It has taken its own course and made its own regulation, applying to these subjects of interstate commerce one common rule, whose uniformity is not affected by variations in State laws in dealing with such property.

The principle upon which local-option laws, so called, have been sustained is that while the legislature can not delegate its power to make a law it can make a law which leaves it to municipalities or the people to determine some fact or state of things upon which the action of the law may depend; but we do not rest the validity of the act of Congress on this analogy. The power over interstate commerce is too vital to the integrity of the nation to be qualified by any refinement of reasoning. The power to regulate is solely in the General Government, and it is an essential part of that regulation to prescribe the regular means for accomplishing the introduction and incorporation of articles into and with the mass of property in the country or State. (12 Wheat., 448.)

No reason is perceived why, if Congress chooses to provide that certain designated subjects of interstate commerce shall be governed by a rule which divests them of that character at an earlier period of time than would otherwise be the case, it is not within its competency to do so.

The differences of opinion which have existed in this tribunal in many leading cases upon this subject have arisen, not from a denial of the power of Congress when exercised, but upon the question whether the inaction of Congress was in itself equivalent to the affirmative interposition of a bar to the operation of an undisputed power possessed by the States.

We recall no decision giving color the idea that when Congress acted its action would be less potent than when it kept silent.

The framers of the Constitution never intended that the legislative power of the nation shall find itself incapable of disposing of a subject-matter specifically committed to its charge.

Congress did not use terms of permission to the State to act, but simply removed an impediment to the enforcement of the State laws in respect to imported packages in their original condition, created by the absence of a specific utterance on its part. It imparted no power to the State not then possessed, but allowed imported property to fall at once upon arrival within the local jurisdiction.

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This is not the case of a law enacted in the unauthorized exercise of a power exclusively confided to Congress, but of a law which it was competent for the State to pass, but which could not operate upon articles occupying a certain situation until the passage of the act of Congress.

That act in terms removed the obstacle, and we perceive no adequate ground for adjudging that a reenactment of the State law was required before it can have the effect upon imported which it had always had upon domestic property.

Jurisdiction attached, not in virtue of the law of Congress, but because the effect of the latter was to place the property where jurisdiction could attach.

The opponents of the bill claim, and its advocates admit, what every lawyer knows, that Congress can not delegate its own powers nor enlarge those of a State nor give to State laws extraterritorial jurisdiction. None of these are attempted by the bill under consideration. The effect, as the Chief Justice has so well said, will be “ simply to remove an impediment to the enforcement of the State laws in respect to imported packages in their original condition created by the absence of a specific utterance” on the part of Congress, and thus place the imported property in such a position that State jurisdiction can attach.

It is pertinent to call attention to a decision in the case of In re Vliet, given in 43 Fed. Rep., 763, which follows the case of In re Rahrer, 140 U. S., 561-564:

It is competent for Congress, under the grant of power to regulate commerce among the States, to determine when a subject of that commerce shall become amenable to the law of the State in which the transit ends.

We already have a Federal statute upon another subject which does with reference to the transportation of nitroglycerin and similar products what it is by this proposed legislation designed to do in the case of intoxicating liquors. Sections 4278 and 4279 relate to the manner of boxing and shipping the products named, whereas section 4280, immediately following, and most vigorously urged, is as follows:

The two preceding sections shall not be so construed as to prevent any State, Territory, district, city, or town within the United States from regulating or prohibiting the traffic in or transportation of those substances between persons or places lying or being wholly within their respective territorial limits, or from prohibiting the introduction thereof into such limits for sale, use, or consumption therein.

THE SCOPE OF THE WILSON LAW CAN BE ENLARGED. But it is contended that while Congress might deprive the importer of the right to sell merchandise in the original unbroken package, this is but an incident to the interstate-commerce transaction and it is not competent for Congress to pass any regulation which would interfere with the delivery of any such merchandise to the consignee. A mass of citations from the original commerce cases of Brown 1. Maryland and Gibbons v. Ogden could be cited showing that the right of sale of the imported merchandise in original unbroken packages is not an incident but the principal object of importation. Legislation that destroys the commercial character of The article in the hands of the original consignee is clearly destructive of the principal object of the transportation. Legislation which attaches earlier and simply enables the prevention of delivery of an article that loses its commercial value when delivered is a much less interference with the interstate contract, as the portion of the transaction upon which it acts is a negligible incident compared with that affected by the Wilson law.

In this connection it is important to observe that in the very earliest original package and interstate and foreign commerce cases the right of the importer to sell the imported merchandise in the original package was affirmed, and such right was held to be an essential incident of such commerce. In the Leisy v. Hardin case it was repeatedly held, and, in fact, the crux of the decision was, that a man had a constitutional right to sell imported liquors in the original unbroken package, State regulations to the contrary notwithstanding. In other words, that until such sale the interstate transportation was not complete and the liquors retained their interstate-commerce character. By the passage of the Wilson law Congress divested such imported packages of their interstate-commerce character upon their arrival within the State, and the law was held to be constitutional. When, however, the exact language of the law was before the court for its interpretation it was held that the words employed did not permit State jurisdiction to attach until after the delivery to the consignee. This interpretation, while strained and artificial, is no doubt the law to-day.

The construction placed by the court, in the opinion in the lottery case (188 U. S., 358–362), is in entire harmony with and sustains this proposition. The court there (188 U. S.) says:

So that we have in the Rahrer case a recognition of the principle that power of Congress to regulate interstate commerce may sometimes be exerted with the effect of excluding particular articles from such commerce.

Here it is clear that the court treat the prohibition of sale in the hands of the original consignee as tantamount to excluding the liquors from interstate commerce, clearly considering the sale to be the substantial and principal object of the transportation, or interstate commerce.

That this remark was not an inadvertence appears from their comments in the same line on the Rhodes case, when, assuming that all the States had prohibitory laws, they said that, the Wilson Act would have had the necessary effect to exclude ardent spirits altogether from commerce among the States, for no one would ship for purposes of sale packages containing such spirits to points within any State that forbade their sale at any time or place, even in unbroken packages, and in addition provided for the seizure and forfeiture of such packages.

Where the court treat the power to destroy the commercial value of the liquor in the hands of the original consignee as a power to completely exclude it as an article of commerce, it is idle to claim that the right to sell in the original package is a mere incident, as that shows that the court understand it to be the main and dominating incident of interstate transportation.

Down to the passage of the Wilson law imported intoxicating liquors were held not to have become commingled with the mass of property within the State, and, therefore, subject to State jurisdiction until after their delivery to the consignee and the sale by him in the original unbroken package. By the passage of the Wilson law, as interpreted by the Supreme Court in the Rahrer and Rhodes cases, Congress set forward the time when State jurisdiction could attach by divesting intoxicating liquors of their interstate-commerce character after their delivery to the consignee.

We think that Congress can still further set forward this period of time and subject intoxicating liquors to the jurisdiction of the State upon their arrival within its borders, both before and after delivery to the consignee, as Congress unquestionably intended to do, and as the people expected it had done, by the passage of the Wilson law.

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The last objection to the pending bill is found in the claim that the Wilson law goes as far as it is competent for Congress to go in the matter of subjecting intoxicating liquors imported from one State into another to the jurisdiction of the State into which they are shipped and is limited to liquors intended for sale. In other words, it is contended that the right to import intoxicating liquors for one's personal use is a right derived from the Constitution of the United States, and which can not be impaired or destroyed by legislation. It is conceded by those who make this claim that they think they find their authority for this doctrine in a decision of the Supreme Court in the case of Vance v. Vandercook (170 U. S., 436), where the court say:

But the right of persons in one State to ship liquors into another State to a resident for his own use is derived from the Constitution of the United States, and does not rest on the grant of State law.

Now, in view of all these decisions and the facts involved, the decision of the Supreme Court in the Vance v. Vandercook case, supra, is readily understood. They had held in the Rhodes case that, under the Wilson law, Congress did not submit imported intoxicating

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