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becomes of the sovereignty of a State, if it no longer has the power to regulate as it sees best the acts and conduct of its own citizens in matters affecting their morals, their health, and their personal rights? A State may and must of necessity yield to the supreme power of the Congress under the Constitution, but never before has it been solemnly insisted or even suggested that one State ought to, or can yield its police power to the police power of another State.

This discussion suggests the very great difficulty in framing a law regulating C. O. D. shipments of liquors so that it will stand the test of the Constitution. It is believed, however, that the bill now reported meets the situation and overcomes the difficulty. The transactions covered by it comprise interstate commerce and the right of sale which is an incident of commerce. The measure proposed is a regulation by Congress in that it separates the actual interstate commerce from the incidental right of sale and proposes that in all such transactions express companies and other common carriers, when they undertake to act as agent of the consignor in making a sale for him of liquor in another State, shall as to such sale be subject to the police power of the latter State.

If under the police power of that State a sale can not be made the express company will simply decline to act as such agent, and in the declination will be sustained by the law of Congress. No hardship will be worked upon anybody, for the express company may still transport and deliver the liquor and may contract to do so. The consignee nor the consignor is seriously affected, for the money can accompany the order, or can be forwarded after delivery. The Southern Express Company has already, of its own accord, discontinued the C. O. D. business in liquors, and the other express companies ought to be compelled to do so. Hon. F. G. du Bignon, general counsel for the Southern Express Company, in a letter to a member of this committee, written a year ago, said:

While I have always felt that we have a legal right to handle C. O. D. shipments of liquor, when shipped from points outside of the State, I have advised the company that it was not policy to do so, and my advice was taken, and the company has positively declined for more than two years to accept C. O. D. shipments of liquor. My experience is that anyone of standing in his community can get liquor shipped without having it shipped C. O. D., and that the effect of sending it C. O. D. is simply to make the office of the express company a barroom for lawless and irresponsible characters, which could do the company no possible good, and it could forego very well the loss of the little revenue derived from it.

The proposed measure (H. R. 16479) is in direct line with the Wilson law of 1890; it supplements and completes that law, so that the State may control all sales of liquor by all people within its territory; it meets a real and growing evil, and its passage, in the judgment of your committee, would go very far toward satisfying the demand for further legislation on the subject of interstate commerce in liquors.

It is not considered improper at this stage of this report to enter upon some general discussion of interstate commerce in liquor, and for the purpose of not only supporting H. R. 16479, but also for the purpose of determining whether said bill goes as far as the power of Congress authorizes it to go in giving to the States free rein and free power in the regulation of the liquor traffic.

Concededly it does not go so far as certain other legislation that has been proposed. It does not go so far as H. R. 13655, known as the Littlefield bill, and which has already been referred to. This

latter bill presents a phase of the question that is both interesting and profitable to discuss and consider, in order that a correct understanding may be reached as to the power of the States and the power of the Congress over the liquor traffic. We have already seen and discussed what the C. O. D. provision of the Littlefield bill proposes to do. This provision comprises the second section of the bill. What the remainder of the bill proposes can best be stated in the language of the bill itself, to wit:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the interstate commerce character of all interstate shipments of intoxicating liquors, including ale, wine, and beer, from one State or Territory into another State or Territory shall terminate immediately upon their arrival within the boundary of the State or Territory in which the place of destination is situated and before the delivery of said liquors to the consignee, and said liquors and all corporations and persons engaged in such shipment shall then become 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 liquors had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise: Provided, That shipments of such liquors entirely through a State or Territory and not intended for delivery therein shall not be subject to the provisions of this act, nor shall this act authorize the infringement of the right of common carriers to continuously transport such merchandise from without such State to a station therein.

SEC. 2. That in all such shipments to be paid for on delivery, commony called C. O. D. shipments, the sale shall be held to be made at the place of destination or where the money is paid or the goods delivered.

It will be conceded, so far as the writer of this report is concerned, that he has no objection to the things this bill proposes to do, so far as the things themselves are concerned. He is perfectly willing, as an abstract proposition, for each State to be privileged to prevent the importation of liquors just the same as it is now privileged to prevent their sale after importation. The question, however, is not one of whether the writer or anyone else would like to see certain things done, or whether it is desirable from any standpoint that they be done, but the question is, can they be done under the Constitution? In other words, the question presented by H. R. 16479 and H. R. 13655 is not one of morals nor of prohibition, but is purely and only a question of constitutional law. The difficulty ever and always enco: ntered in dealing with this and kindred questions grows out of our dual system of government-out of the conflict between the powers of the State and the powers of the General Government. It is not always easy to draw a line and say, Here at this line the power of the General Government stops and the power of the State begins. It is incumbent, however, upon each legislator, when a meas re is presented for his consideration, to draw this line in accordance with his best judgment, and to so draw it that he can preserve the powers of both Governments. The framers of our Government never designed that the duty should rest alone on the courts to preserve the Constitution. The legislator is under the same oath as the judge to preserve that great instrument, the ark of the covenant of all our liberties. While the question now under consideration is not free from difficulties, there are certain fundamental principles, universally conceded, that if applied will enable a solution of it to be very easily reached.

It is argued that while it is historically true that one of the most potent inducements to the formation of the Union was the commer

cial confusion that existed in the country when the States were separate and independent, that it is also historically true that the police power of the States is older than the commerce clause of the Constitution and is preserved in the tenth amendment thereof. But what does this prove? It matters not what the police power of the States. includes, we know it does not include the power to regulate commerce between the States, for that power was specifically relinquished by all the States to the General Government. Article 8, section 1, of the Constitution says that the Congress shall have power "to regulate commerce with foreign nations and among the several States and with the Indian tribes." Clearly, therefore, regardless of what rights were reserved to the States by the tenth amendment, the right to regulate commerce between the States was not one of them and to-day forms no part of the power of any State.

Whatever, therefore, is a part of interstate commerce or of commerce between the States can not be regulated by the States, but is subject to the regulation alone of Congress. This is the Constitution and Congress can not change it any more than the States can. Chief Justice Taney, in the license cases (5th Howard, 580), said:

For it will hardly be contended that an act of Congress can alter the Constitution and confer upon a State a power which the Constitution declares it shall not possess. And if the grant of power to the United States to make regulations of commerce is a prohibition to the States to make any regulation upon the subject, Congress could no more restore to the States the power of which they were thus deprived than it could authorize them to coin money, or make paper money a tender in the payment of debts, or to do any other act forbidden to them by the Constitution.

What does H. R. 13655 propose shall be done? It proposes that that which is really and actually interstate commerce shall not be interstate commerce when it crosses the boundary line of a State, and that the change shall be wrought by the edict of Congress. Suppose that Congress should declare that a black man traveling from one State into another should be a white man as soon as he crossed the boundary line of the State he was entering, would such a declaration change the color of the man? Can Congress make horses out of cattle when they cross the boundary line of a State? Whatever is interstate commerce, is inherently and intrinsically so, as much so as a horse is a horse, or a white man is a white man, and no edict of Congress can change the fact. The declaration, therefore, in H. R. 13655, that interstate commerce shall not be interstate commerce, does not and can not change the fact, and, therefore, we find that the proposition in this measure is the very simple one that, despite the Constitution and in direct violation of it, the State shall be empowered to regulate commerce between the States.

It is no defense of a support of the measure to say that the measure in and of itself does not violate the Constitution, and that such violation will only come when some State undertakes to regulate interstate commerce. In the first place, this measure proposes in and of itself that Congress shall not regulate interstate commerce or, in other words, that Congress shall abdicate the duty imposed upon it by the Constitution of regulating interstate commerce, an abdication for which there is no warrant or justification under the Constitution.

The bill next proposes, by means of a fiction amounting to an absurdity, that interstate commerce is not interstate commerce, and

specifically directs that such interstate commerce shall be subject to the police power of the States. The bill therefore, is open in and of itself to the criticism that it undertakes to confer upon the States a power vested by the Constitution in Congress alone.

This view, of course, all depends upon whether or not spirituous liquors are legitimate articles of commerce, and whether or not the act of transporting them from one State into another forms an essential part of interstate commerce.

In the license cases (5th Howard) Mr. Chief Justice Taney said (p. 576):

It has, indeed, been suggested that if a State deems the traffic in ardent spirits to be injurious to its citizens and calculated to introduce immorality, vice, and pauper ism into the State, it may constitutionally refuse to permit its importation, notwithstanding the laws of Congress; and that the State may do this upon the same principles that it may resist and prevent the introduction of disease, pestilence, or pauperism from abroad. But it must be remembered that 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 as far as human foresight or human means can guard against them.

But spirits and distilled liquors are universally admitted to be subjects of ownership and property, and are therefore subjects of exchange, barter, and traffic like any other commodity in which a right of property exists.

In the same case, Mr. Justice Catron said (pp. 598-599):

That ardent spirits have been for ages, and now are subjects of sale and of lawful commerce, and that of a large class throughout a great portion of the civilized world is not open to controversy. So our commercial treaties with foreign powers declare them to be, and so the dealing in them among the States of this Union recognizes them to be.

Mr. Chief Justice Fuller, in Leisy v. Hardin (135 U. S., 110), said: That ardent spirits, distilled liquors, and beer are subjects of exchange, barter, and traffic like any other commodity in which a right of traffic exists, and are so recognized by the usages of the commercial world, the laws of Congress, and the decisions of courts, is not denied.

In the Vandercook case (170 U. S., 444) the court said:

The right to send liquors from one State into another and the act of sending the same is interstate commerce.

In Gibson v. Odgen (9 Wheat., 1), it is held that commerce is not traffic alone; that it is "intercourse."

In the Trans-Missouri case (166 U. S., 325), the court said: "Transporting commodities is commerce, and if from one State to another, it is interstate commerce.'

In 15th Wheaton, 232, the court said:

Beyond all question, the transportation of freight, or of the subjects of commerce, for the purpose of exchange or sale, is a constituent of commerce itself. This has never been doubted, and probably the transportation of articles of trade from one State to another was the prominent idea in the minds of the framers of the Constitution, when to Congress was committed the power to regulate commerce among the several States. A power to prevent embarrassing restrictions by any State was the thing desired.

In the case of Telegraph Company v. Texas (105 U. S., 464), the court said:

A telegraph company occupies the same relation to commerce as a carrier of messages, that a railroad company does as a carrier of goods. Both companies are instruments of commerce and their business is commerce itself.

In Hadley v. Kansas City Southern Railway (187 U. S., 617), the court said:

Transportation for others, as an independent business, is commerce, irrespective of the purpose to sell or retain the goods which the owner may entertain with regard to them after they shall have been delivered.

In County of Mobile v. Kimball (102 U. S., 691), the court said:

Commerce with foreign countries and among the States, strictly considered, consists in intercourse and traffic, including in these terms navigation and the transportation and transit of persons and property, as well as the purchase, sale, and exchange of commodities.

Mr. Justice Harlan, in the Lottery case (188 U. S., 345), said:

What is the import of the word "commerce" as used in the Constitution? It is not defined by that instrument. Undoubtedly, the carrying from one State to another by independent carriers, of things or commodities that are ordinary subjects of traffic, and which have in themselves a recognized value in money, constitutes interstate commerce.

Mr. Justice Catron in the License cases (5th Howard), clearly draws the distinction between the power of the State and the power of the General Government. He said:

And here is the limit between the sovereign power of the State and the Federal power. That is to say, that which does not belong to commerce, is within the jurisdiction of the police power of the State, and that which does belong to commerce is within the jurisdiction of the United States.

The power over commerce that was surrendered by the States to the General Government is forcibly and positively stated by Mr. Justice Johson, in Gibbons v. Ogden. (9 Wheaton, 1.) He said:

*

The power to regulate commerce here meant to be granted was that power to regulate commerce which previously existed in the States. But what was that power? The States were unquestionably supreme, and each possessed that power over commerce which is acknowledged to reside in every sovereign State. * * The law of nations regarding man as a social animal, pronounced all commerce legitimate in a state of peace until prohibited by positive law. The power of a sovereign State over commerce, therefore, amounts to nothing more than a power to limit and restrain it at pleasure. And since the power to prescribe the limits to its freedom necessarily implies the power to determine what shall remain unrestrained, it follows that the power must be exclusive. It can reside in but one potentate, and hence the grant of this power carries with it the whole subject, leaving nothing for the States to act upon. Mr. Chief Justice Marshall, in Brown v. Maryland (12 Wheaton, 445), said:

What, then, is the just extent of a power to regulate commerce with foreign nations and among the several States? The question was considered in the case of Gibbons v. Ogden (9 Wheaton, 1), in which it was declared to be complete in itself, and to acknowledge no limitations other than as prescribed by the Constitution. The power is coextensive with the subject on which it acts, and can not be stopped at the external boundary of a State, but must enter its interior.

These authorities are conclusive upon the proposition that liquors are legitimate articles of commerce, that the transportation of them by common carriers is commerce, and that the carrying of them by such carriers from one State into another is interstate commerce. The authorities cited are likewise conclusive upon the proposition that the power to regulate and control such interstate commerce has been granted by the States to the General Government, leaving nothing for the States to act upon. It would seem unmistakably to

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