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below, in so far as it restrained the defendant officers from seizing the property shipped into the State of South Carolina from California by the plaintiff company for residents of the State of South Carolina on the orders of such residents, for their own use. It reversed that part of the decree below in so far as it restrained the State of South Carolina from levying upon the property of plaintiff company shipped into the State to agents of the plaintiff company for the purpose of being stored and sold therein in original packages.

Mr. Justice White delivered the opinion of the court and said (p. 452) :

It follows that under the Constitution of the United States every resident of South Carolina is free to receive for his own use liquor from other States, and that the inhibitions of a State statute do not operate to prevent liquors from other States from being shipped into such State on the order of a resident for his use. The right of persons in one State to ship 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 the State law.

The Supreme Court has now called a halt. A recent case decided in that court is valuable and interesting. Not for what it decided as far as this question is concerned, but for what it says has been and has not been decided with reference to this question. An express company received a package of liquor in Illinois for delivery in Iowa, the purchase price and cost of carriage to be collected on delivery, commonly called a “C. O. D.” package. The State of Iowa seized the liquor and proceeded against the carrier for selling liquor in Iowa contrary to the laws of that State. The Supreme Court held it was a sale in Illinois, and in speaking of Bowman v. Railway Company, Leisy v. Harden, Rhodes v. Iowa, Vance v. Vandercook Company, the court said, as part of the opinion:

Those cases rested upon the broad principle of the freedom of commerce between the States and of the right of a citizen of one State to freely contract to receive merchandise from another State, and of the equal right of the citizen of a State to contract to send merchandise into other States. They rested also upon the obvious want of power of one State to destroy contracts concerning interstate commerce, valid in the States where made.

And the court also said:

The contention was that, as by the Wilson Act, the power of the State operated upon the property the moment it passsed the State boundary line, therefore the State of Iowa had the right to forbid the transportation of the merchandise within the State and to punish those carrying it therein. This was not sustained. The court declined to express an opinion as to the authority of Congress, under its power to regulate commerce, to delegate to the States the right to forbid the transportation of merchandise from one State to another, It was, however, decided that the Wilson Act manifested no attempt on the part of Congress to exert such power, but was only a regulation of commerce, since it merely provided in the case of intoxicating liquors that such merchandise, when transported from one State to another, should lose its character as interstate commerce upon completio of delivery under the contract of interstate shipment and before sale in the original packages.

American Express Company v. Iowa (196 U. S., 133).
Adams Express Company v. Iowa (196 U. S., 147).

The case in 196 U. S. does not change the law, but states that the cases cited rest upon the broad principles of the freedom of commerce between the States, and of the right of a citizen of one State to freely contract to receive merchandise from another State, and of the equal right of the citizen of a State to contract to send merchandise into other States; that the court had declined to express an opinion as to the authority of Congress to delegate to the States the right to forbid transportation from one State to another; that the act of 1890 manifested no attempt on the part of Congress to exert such power, but was only a regulation of commerce. This view of the Supreme Court will make it necessary to reexamine the question. The Constitution conferred upon Congress the power to regulate commerce, and the Supreme Court decided that the right of sale was incident to the right to import, placing the imported article under the protection of Congress until after sale by the importer in the original package.

Congress, by the act of 1890, surrendered its power of protection, so as to permit the States to prevent sale by the importer. This is a regulation of interstate commerce by the States and a violation of the Constitution, doing indirectly what can not be done directly. The Supreme Court established the limit, and Congress itself recedes from its constitutional limitations with the approval of the Supreme Court. The act of 1890 transferred the power of regulation from Congress to the States, and it can not well be said that it is a regulation by Congress when the States are permitted to regulate. It is the power of regulation that is so vital and important, not whether a given act is a regulation; for anything that in any manner interferes with the operations of interstate commerce is a regulation and a refusal to permit transportation; and a refusal to permit a sale by the importer in the original package is a regulation by the States. As said by the Supreme Court:

The power to regulate is the power to prescribe the rules by which commerce is to be governed.

It is this power of regulation which is transferred from Congress to the States. It does not make any difference whether it is called a delegation of power by Congress to the States to prohibit transportation of interstate commerce or a regulation of interstate commerce by Congress. The effect is the same, for it permits the States to regulate interstate commerce. It is not a question of name, but right and power. The equality and freedom sought by the fathers is seriously interfered with. Commerce is not as free as one would be led to believe after reading this opinion of the Supreme Court; not as free as the Constitution intended. The citizen has not the right the language of the case implies. Prior to the act of 1890, under the broad principles of the freedom of commerce between the States, the citizen could freely contract to receive and ship his product from State to State and return with his money. Now he has a restricted freedom of commerce. He can not ship the product and return with his money.

The protective power of the nation extends over interstate commerce from the time it commences commercial transit and remains with it continuously until it reaches the consignee or is sold or becomes a part of the general mass of property in the State. This power of Congress is to be found in the Constitution and decisions of the Supreme Court, and these are as much a part of the law as the Constitution itself. Hence we look to the Constitution and the Supreme Court for the power of Congress and its limitations, and there we find, prior to the act of 1890, that the importer had the

constitutional right to sell his interstate-commerce product in the original package, and the right of the State did not attach until after the sale, or until after the product is mixed with the common mass of property in the State. Now, where does Congress obtain the power to deprive the importer of this constitutional right, either by a regulation of its own or delegating that power to the State, or withdrawing its own power over the product and permitting the State to act earlier? The Supreme Court has a right to reverse itself and draw a line different from that in Brown v. Maryland, but Congress can not change a constitutional right given by the Constitution itself or by the Supreme Court.

To understand the cases cited and to apply them correctly it will be necessary, or at least better, to divide the subjects of the power. Generally speaking, the importer is the one shipping and introducing the article of commerce into a State. This act may or may not be based on a contract. He may be delivering the article pursuant to a contract obligating him to do so, or he may ship his product in anticipation of a purchaşer, or ship for storage purposes only. Then there is the consignee, who sends an order, which is filled, either C. O. D. or otherwise, both consignor and consignee being importers to some extent. As there is a distinction, it will be well to keep the difference in mind. Under Rhodes case (without knowing anything about the facts that led up to the shipping of the product) the product must be delivered to the consignee. This conclusion is reached without knowing whether the liquor was shipped on the order of a resident citizen of Iowa for his own use or whether the importer or consignor had shipped it into Iowa awaiting a customer. Vance v. Vandercook decides two propositions: One, that the State law can not prevent a resident citizen of a State from sending into another State and receiving liquor for his own use, this right being derived from the Constitution of the United States; the other, that the importer, presumably the owner, can not ship his product into another State in violation of the law of that State and store it, awaiting a customer, so as to sell even in the original package.

The case of Vance v. Vandercook followed immediately after the Rhodes case, reported in the same book. The Rhodes case held that there must be a delivery to the consignee without disclosing the particular facts. On one branch of the case Vance v. Vandercook held that the owner of the product could not ship it from the State of California into the State of South Carolina in violation of the laws of the State of South Carolina, refusing delivery to the consignee, which was allowed in the Rhodes case.

American Express Company v. Iowa does not disclose whether the goods were shipped on the order of the consignee or whether the consignor shipped the goods in anticipation of a customer. Without a complete knowledge of the facts in the particular case it is very difficult to apply the general principle announced. By taking the law as expressed in American Express Company v. Iowa (without a knowledge of the facts in that case or in the Rhodes case) it would look as though the question turned upon whether or not there was a contract to deliver. Excluding the facts and resting upon an abstract principle of law, it would seem as though at this time the holding is that freedom of commerce between the States and the right of a citizen of one State to freely contract to receive merchandise from another State, and of the equal right of a citizen of a State to contract to send merchandise into other States is and will be maintained; and that, as before the act of 1890, there must be delivery to the consignee, and that one State lacks the power to destroy contracts concerning interstate commerce valid in the State where made.

This bill to amend further the act of 1890 is intended to overrule the Supreme Court in its construction of that act, and will permit States at the State line to prevent the introduction of interstate commerce into the receiving State, no matter under what right or under what circumstances it is seeking admission into that State; in other words, allow the State law to become operative at the State line, so from that moment of time the carrier and every person handling the that moment of time the carrier and every person handling the product, including the consignee, will be liable to punishment, and the product seized upon discovery and destroyed. The importance of the amendment will be seen from its effect. It will not require argument to prove its unconstitutionality, for the effect will be to prevent freedom of commerce between the States. It will interfere with the right of the citizen of one State to freely contract to receive merchandise from another State, and it will prevent a citizen in one State from contracting to send merchandise into other States, and it will destroy contracts concerning interstate commerce valid in the States where made.

Its unconstitutionality will be readily seen by testing its provisions by the case of the American Express Company v. Iowa (196 U. S., 133) and cases cited. The Supreme Court of the United States has been consistent in agreeing with all text writers that it is of national importance that over the subject of interstate commerce there should be but one regulating power. Now we have two regulating powers or two powers regulating one article of interstate commerce. The article commences commercial transit under the protecting power of the Federal Government, feeling sure from any attack by any person or State until it reaches the territory of the hostile State, when the Federal Government abandons the product to the tender mercies of discriminating State legislation, destroying the unity contemplated by the fathers. This is the boasted freedom of commercial intercourse, freedom of commerce between the States, and rights of citizens to freely contract to receive merchandise into one State from another State, and of the equal right of the citizen of a State to contract to send merchandise into other States.

The power of Congress exclusively to regulate interstate and foreign commerce is vital to the prosperity and permanency of the Union. To allow the legislation of 1890 to remain upon the statute book and further amend it will weaken us with foreign nations, for the product of the foreign importer will be subject to the law of the State of arrival and destroy foreign commerce as well as interstate commerce.

As so pertinently said by Mr. Chief Justice Marshall in Brown v. Maryland:

What would be the language of a foreign government which should be informed that its merchants, after importing according to law, were forbidden to sell the merchandise imported? What answer would the United States give to the complaints and just reproaches to which such an extraordinary circumstance would expose them? No apology could be received or even offered. Such a state of things would break up commerce. It would not meet this agreement to say that this state of things will never be produced. That the good sense of the States is sufficient security against it. The Constitution has not confided bis subject to that good sense. It is placed elsewhere. The quesion is, Where does the power reside? Not how far will it be probably abused. The power claimed by the State is in its nature in conflict with that given to Congress, and the greater or less extent in which it may be exercised does not enter into the inquiry concerning its existence.

As far as shipment by jugs is concerned, to an unknown consignee in anticipation of a purchaser, by freight or express, it is a fraud upon the law and undoubtedly a delivery under the act of 1890, so that the State law would attach as soon as the place of delivery is reached and it was ascertained there was no bona fide consignee within the doctrine of Vance v. Vandercook; but at any rate within Vance v. Vandercook shipments can not be made in anticipation of a purchaser.

It is the unanimous opinion of the Supreme Court of the United States that every citizen of every State derives from the Constitution of the United States the right to receive from States other than his own liquor for his own use; that under the commerce clause of the Constitution interstate commerce must be delivered to the consignee, and the delivery can not be interrupted by any law, State or national. Then why should Congress attempt any further legislation to permit State legislation to become operative at the State line, so as to prevent either being consummated? (Heymann v. Southern Railway Company, Supreme Court of the United States, December 3, 1906.)

We concur in the report of Mr. Jenkins.

RICHARD WAYNE PARKER.
ROBERT M. NEVIN.
HENRY T. BANNON.

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