2. The word "territory," in the Amendment (in the phrase "the
United States and all territory subject to the jurisdiction
thereof") means the regional areas, of land and adjacent waters,
over which the United States claims and exercises dominion and
control as a sovereign power, the term being used in a physical,
not a metaphorical, sense, and referring to areas and districts
having fixity of location and recognized boundaries. P.
262 U. S.
122.
3. The territory subject to the jurisdiction of the United
States includes the land areas under its dominion and control, the
ports, harbors, bays, and other enclosed arms of the sea along its
coast, and a marginal belt of the sea extending from the coast line
outward a marine league, or three geographic miles, and this
territory, and all of it, is that which the Amendment designates as
its field of operation. P.
262 U. S. 122.
4. Domestic merchant ships outside the waters of the United
States, whether on the high seas or in foreign waters, are part of
the "territory" of the United States in a metaphorical sense only,
and are not covered by the Amendment. P.
262 U. S.
123.
5. The jurisdiction arising out of the nationality of a merchant
ship, as established by her domicile, registry, and use of the
flag, partakes more of the characteristics of personal than of
territorial sovereignty, is chiefly applicable to ships on the high
seas where there is no territorial sovereign; and, as respects
ships in foreign
Page 262 U. S. 102
territorial waters, it has little application beyond what is
affirmatively or tacitly permitted by the local sovereign. P.
262 U. S.
123.
6. The Amendment covers foreign merchant ships when within the
territorial waters of the United States. P.
262 U. S.
124.
7. A merchant ship of one country, voluntarily entering the
territorial limits of another, subjects herself to the jurisdiction
of the latter. The jurisdiction attaches in virtue of her presence,
just as with other objects within those limits. During her stay,
she is entitled to the protection of the laws of that place, and
correlatively is bound to yield obedience to them. The local
sovereign may, out of considerations of public policy, choose to
forego the exertion of its jurisdiction, or to exert it in a
limited way only, but this is a matter resting solely in its
discretion. P.
262 U. S.
124.
8. The Eighteenth Amendment does not prescribe any penalties,
forfeitures, or mode of enforcement, but, by its second section,
leaves these to legislative action. P.
262 U. S.
126.
9. The only instance in which the National Prohibition Act
recognizes the possession of intoxicating liquor for beverage
purposes as lawful is where the liquor was obtained before the act
went into effect and is kept in the owner's dwelling for use
therein by him, his family, and his
bona fide guests. P.
262 U. S.
127.
10. Examination of the National Prohibition Act, as supplemented
November 23, 1921, c. 134, 42 Stat. 222, shows
(a) That it is intended to be operative throughout the
territorial limits of the United States, with the single exception
of liquor in transit through the Panama Canal or on the Panama
Railroad,
(b) That it is not intended to apply to domestic vessels when
outside the territorial waters of the United States,
(c) That it is intended to apply to all merchant vessels,
whether foreign or domestic, when within those waters, save as the
Panama Canal Zone exception provides otherwise. Pp.
262 U. S.
127-129.
11. Congress, however, has power to regulate the conduct of
domestic merchant ships when on the high seas, or to exert such
control over them when in foreign waters as may be affirmatively or
tacitly permitted by the territorial sovereign. P.
262 U. S.
129.
12. The antiquity of the practice of carrying intoxicating
liquors for beverage purposes as part of a ship's sea stores, the
wide extent of the practice, and its recognition in a congressional
enactment, do not go to prove that the Eighteenth Amendment and the
Prohibition Act could not have been intended to disturb that
practice, since their avowed and obvious purpose was to put an end
to prior practices respecting such liquors. P.
262 U. S.
129.
Page 262 U. S. 103
13. After the adoption of the Amendment and the enactment of the
National Prohibition Act, Congress withdrew the prior statutory
recognition of liquors as legitimate sea stores. Rev.Stats., §
2775; Act of September 21, 1922, c. 356, Tit. IV, and § 642, 42
Stat. 858, 948, 989. P.
262 U. S.
130.
14. The carrying of intoxicating liquors, as sea stores, for
beverage purposes, through the territorial waters or into the ports
and harbors of the United States by foreign or domestic merchant
ships is forbidden by the Amendment and the act. P.
262 U. S.
130.
284 F. 890 affirmed.
285 F. 79 reversed.
Appeals from decrees of the district court dismissing, on the
merits, as many suits brought by the appellant steamship companies
for the purpose of enjoining officials of the United States from
seizing liquors carried by appellants' passenger ships as sea
stores and from taking other proceedings against the companies and
their vessels, under the National Prohibition Act.
Page 262 U. S. 119
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
These are suits by steamship companies operating passenger ships
between United States ports and foreign ports to enjoin threatened
application to them and their ships of certain provisions of the
National Prohibition Act. The defendants are officers of the United
States charged with the act's enforcement. In the first ten cases,
the plaintiffs are foreign corporations and their ships are of
foreign registry, while in the remaining two the plaintiff's are
domestic corporations, and their ships are of United States
registry. All the ships have long carried and now carry, as part of
their sea stores, intoxicating liquors intended to be sold or
dispensed to their passengers and crews at meals and otherwise for
beverage purposes. Many of the passengers and crews are accustomed
to using such beverages and insist that the ships carry and supply
liquors for such purposes. By the laws of all the foreign ports at
which the ships touch, this is permitted, and by the laws of some
it is required. The liquors are purchased for the ships and taken
on board in the foreign ports and are sold or dispensed in the
course of all voyages, whether from or to those ports.
The administrative instructions dealing with the subject have
varied since the National Prohibition Act went into effect.
December 11, 1919, the following instructions were issued (T.D.
38218):
"All liquors which are prohibited importation, but which are
properly listed as sea stores on vessels arriving in ports of the
United States, should be placed under seal by the boarding officer
and kept sealed during the entire time of the vessel's stay in
port, no part thereof to be removed from under seal for use by the
crew at meals or for any other purpose."
"Excessive or surplus liquor stores are no longer dutiable,
being prohibited importation, but are subject to seizure and
forfeiture.
Page 262 U. S. 120
"
"Liquors properly carried as sea stores may be returned to a
foreign port on the vessel's changing from the foreign to the
coasting trade, or may be transferred under supervision of the
customs officers from a vessel in foreign trade, delayed in port
for any cause, to another vessel belonging to the same line or
owner."
January 27, 1920, the first paragraph of those instructions was
changed (T.D. 38248) so as to read:
"All liquors which are prohibited importation, but which are
properly listed as sea stores on American vessels arriving in ports
of the United States, should be placed under seal by the boarding
officer and kept sealed during the entire time of the vessel's stay
in port, no part thereof to be removed from under seal for use by
the crew at meals or for any other purpose. All such liquors on
foreign vessels should be sealed on arrival of the vessels in port,
and such portions thereof released from seal as may be required
from time to time for use by the officers and crew."
October 6, 1922, the Attorney General, in answer to an inquiry
by the Secretary of the Treasury, gave an opinion to the effect
that the National Prohibition Act, construed in connection with the
Eighteenth Amendment to the Constitution, makes it unlawful (a) for
any ship, whether domestic or foreign, to bring into territorial
waters of the United States, or to carry while within such waters,
intoxicating liquors intended for beverage purposes, whether as sea
stores or cargo, and (b) for any domestic ship, even when without
those, waters to carry such liquors for such purposes either as
cargo or sea stores. The President thereupon directed the
preparation, promulgation, and application of new instructions
conforming to that construction of the act. Being advised of this
and that, under the new instructions, the defendants would seize
all liquors carried in contravention of the act as so construed and
would proceed to subject
Page 262 U. S. 121
the plaintiffs and their ships to penalties provided in the act,
the plaintiffs brought these suits.
The hearings in the district court were on the bills or amended
bills, motions to dismiss, and answers, and there was a decree of
dismissal on the merits in each suit. 284 F. 890;
International
Mercantile Marine v. Stuart, 285 F. 79. Direct appeals under
Judicial Code § 238 bring the cases here.
While the construction and application of the National
Prohibition Act is the ultimate matter in controversy, the act is
so closely related to the Eighteenth Amendment, to enforce which it
was enacted, that a right understanding of it involves an
examination and interpretation of the amendment. The first section
of the latter declares, 40 Stat. 1050, 1941:
"Section 1. After one year from the ratification of this
article, the manufacture, sale, or transportation of intoxicating
liquors within, the importation thereof into, or the exportation
thereof from the United States and all territory subject to the
jurisdiction thereof for beverage purposes is hereby
prohibited."
These words, if taken in their ordinary sense, are very plain.
The articles proscribed are intoxicating liquors for beverage
purposes. The acts prohibited in respect of them are manufacture,
sale, and transportation within a designated field, importation
into the same, and exportation therefrom, and the designated field
is the United States and all territory subject to its jurisdiction.
There is no controversy here as to what constitutes intoxicating
liquors for beverage purposes; but opposing contentions are made
respecting what is comprehended in the terms "transportation,"
"importation" and "territory."
Some of the contentions ascribe a technical meaning to the words
"transportation" and "importation." We think they are to be taken
in their ordinary sense, for it better comports with the object to
be attained. In that
Page 262 U. S. 122
sense, transportation comprehends any real carrying about or
from one place to another. It is not essential that the carrying be
for hire, or by one for another, nor that it be incidental to a
transfer of the possession or title. If one carries in his own
conveyance for his own purposes, it is transportation no less than
when a public carrier, at the instance of a consignor, carriers and
delivers to a consignee for a stipulated charge.
See United
States v. Simpson, 252 U. S. 465.
Importation, in a like sense, consists in bringing an article into
a country from the outside. If there be an actual bringing in, it
is importation, regardless of the mode in which it is effected.
Entry through a custom house is not of the essence of the act.
Various meanings are sought to be attributed to the term
"territory" in the phrase "the United States and all territory
subject to the jurisdiction thereof." We are of opinion that it
means the regional areas -- of land and adjacent waters -- over
which the United States claims and exercises dominion and control
as a sovereign power. The immediate context and the purport of the
entire section show that the term is used in a physical, and not a
metaphorical, sense -- that it refers to areas or districts having
fixity of location and recognized boundaries.
See United
States v. Bevans, 3 Wheat. 336,
16 U. S.
390.
It now is settled in the United States and recognized elsewhere
that the territory subject to its jurisdiction includes the land
areas under its dominion and control, the ports, harbors, bays, and
other enclosed arms of the sea along its coast, and a marginal belt
of the sea extending from the coast line outward a marine league,
or three geographic miles.
Church v.
Hubbart, 2 Cranch 187,
6 U. S. 234;
The Ann, 1 Fed.Cas., p. 926;
United States v.
Smiley, 27 Fed.Cas., p. 1132;
Manchester v.
Massachusetts, 139 U. S. 240,
139 U. S.
257-258;
Louisiana v. Mississippi, 202 U. S.
1,
202 U. S. 52; 1
Kent's Com. (12th ed.) *29; 1 Moore,
Page 262 U. S. 123
International Law Digest, § 145; 1 Hyde, International Law, §§
141, 142, 154; Wilson, International Law (8th ed.) § 54; Westlake,
International Law (2d ed.) p. 187
et seq; Wheaton,
International Law (5th Eng. ed. [Phillipson]) p. 282; 1 Oppenheim
International Law (3d ed.) §§ 185-189, 252. This, we hold, is the
territory which the amendment designates as its field of operation,
and the designation is not of a part of this territory, but of
"all" of it.
The defendants contend that the amendment also covers domestic
merchant ships outside the waters of the United States, whether on
the high seas or in foreign waters. But it does not say so, and
what it does say shows, as we have indicated, that it is confined
to the physical territory of the United States. In support of their
contention, the defendants refer to the statement sometimes made
that a merchant ship is a part of the territory of the country
whose flag she flies. But this, as has been aptly observed, is a
figure of speech, a metaphor.
Scharrenberg v. Dollar S.S.
Co., 245 U. S. 122,
245 U. S. 127;
In re Ross, 140 U. S. 453,
140 U. S. 464;
1 Moore International Law Digest § 174; Westlake, International Law
(2d ed.) p. 264; Hall, International Law (7th ed. [Higgins]) § 76;
Manning, Law of Nations (Amos), p. 276; Piggott Nationality, Pt.
II, p. 13. The jurisdiction which it is intended to describe arises
out of the nationality of the ship, as established by her domicile,
registry, and use of the flag, and partakes more of the
characteristics of personal than of territorial sovereignty.
See The Hamilton, 207 U. S. 398,
207 U. S. 403;
American Banana Co. v. United Fruit Co., 213 U.
S. 347,
213 U. S. 355;
1 Oppenheim International Law (3d ed.) §§ 123-125, 128. It is
chiefly applicable to ships on the high seas, where there is no
territorial sovereign, and as respects ships in foreign territorial
waters, it has little application beyond what is affirmatively or
tacitly permitted by the local sovereign. 2 Moore International
Page 262 U. S. 124
Law Digest, §§ 204, 205; Twiss, Law of Nations (2d ed.) § 166;
Woolsey, International Law (6th ed.) § 58; 1 Oppenheim
International Law (3d ed.) §§ 128, 146, 260.
The defendants further contend that the amendment covers foreign
merchant ships when within the territorial waters of the United
States. Of course, if it were true that a ship is a part of the
territory of the country whose flag she carries, the contention
would fail. But, as that is a fiction, we think the contention is
right.
The merchant ship of one country voluntarily entering the
territorial limits of another subjects herself to the jurisdiction
of the latter. The jurisdiction attaches in virtue of her presence,
just as with other objects within those limits. During her stay,
she is entitled to the protection of the laws of that place, and
correlatively is bound to yield obedience to them. Of course, the
local sovereign may out of considerations of public policy choose
to forego the exertion of its jurisdiction or to exert the same in
only a limited way, but this is a matter resting solely in its
discretion. The rule, now generally recognized, is nowhere better
stated than in
The Exchange,
7 Cranch 116,
11 U. S. 136,
11 U. S. 144,
where Chief Justice Marshall, speaking for this Court, said:
"The jurisdiction of the nation within its own territory is
necessarily exclusive and absolute. It is susceptible of no
limitation not imposed by itself. Any restriction upon it, deriving
validity from an external source, would imply a diminution of its
sovereignty to the extent of the restriction, and an investment of
that sovereignty to the same extent in that power which could
impose such restriction."
"All exceptions, therefore, to the full and complete power of a
nation within its own territories must be traced up to the consent
of the nation itself. They can flow from no other legitimate
source."
"
* * * *"
Page 262 U. S. 125
"When private individuals of one nation spread themselves
through another as business or caprice may direct, mingling
indiscriminately with the inhabitants of that other, or when
merchant vessels enter for the purposes of trade, it would be
obviously inconvenient and dangerous to society, and would subject
the laws to continual infraction, and the government to
degradation, if such individuals or merchants did not owe temporary
and local allegiance, and were not amenable to the jurisdiction of
the country. Nor can the foreign sovereign have any motive for
wishing such exemption. His subjects thus passing into foreign
countries are not employed by him, nor are they engaged in national
pursuits. Consequently there are powerful motives for not exempting
persons of this description from the jurisdiction of the country in
which they are found, and no one motive for requiring it. The
implied license, therefore, under which they enter can never be
construed to grant such exemption."
That view has been reaffirmed and applied by this Court on
several occasions.
United States v. Diekelman,
92 U. S. 520,
92 U. S.
525-526;
Wildenhus' Case, 120 U. S.
1,
120 U. S. 11;
Nishimura Ekiu v. United States, 142 U.
S. 651,
142 U. S. 659;
Knott v. Botany Mills, 179 U. S. 69,
179 U. S. 74;
Patterson v. Bark Eudora, 190 U.
S. 169,
190 U. S.
176-178;
Strathearn S.S. Co. v. Dillon,
252 U. S. 348,
252 U. S.
355-356.
And see Buttfield v. Stranahan,
192 U. S. 470,
192 U. S.
492-493;
Oceanic Steam Navigation Co. v.
Stranahan, 214 U. S. 320, 324
[argument of counsel -- omitted];
Brolan v. United States,
236 U. S. 216,
236 U. S. 218.
In the
Patterson case, the Court added:
"Indeed, the implied consent to permit them [foreign merchant
ships] to enter our harbors may be withdrawn, and if this implied
consent may be wholly withdrawn it may be extended upon such terms
and conditions as the government sees fit to impose."
In principle, therefore, it is settled that the amendment could
be made to cover both domestic and foreign
Page 262 U. S. 126
merchant ships when within the territorial waters of the United
States. And we think it has been made to cover both when within
those limits. It contains no exception of ships of either class,
and the terms in which it is couched indicate that none is
intended. Such an exception would tend to embarrass its enforcement
and to defeat the attainment of its obvious purpose, and therefore
cannot reasonably be regarded as implied.
In itself, the amendment does not prescribe any penalties,
forfeitures, or mode of enforcement, but, by its second section,
[
Footnote 1] leaves these to
legislative action.
With this understanding of the amendment, we turn to the
National Prohibition Act, c. 85, 41 Stat. 305, which was enacted to
enforce it. The act is a long one, and most of its provisions have
no real bearing here. Its scope and pervading purpose are fairly
reflected by the following excerpts from Title II:
"Sec. 3. No person [
Footnote
2] shall on or after the date when the eighteenth amendment to
the Constitution of the United States goes into effect,
manufacture, sell, barter, transport, import, export, deliver,
furnish or possess any intoxicating liquor except as authorized in
this act, and all the provisions of this act shall be liberally
construed to the end that the use of intoxicating liquor as a
beverage may be prevented."
"
* * * *"
"Sec. 21. Any room, house, building, boat, vehicle, structure,
or place where intoxicating liquor is manufactured, sold, kept, or
bartered in violation of this title, and all intoxicating liquor
and property kept and used
Page 262 U. S. 127
in maintaining the same, is hereby declared to be a common
nuisance."
"
* * * *"
"Sec. 23. That any person who shall, with intent to effect a
sale of liquor, by himself, his employee, servant, or agent, for
himself or any person, company, or corporation keep or carry around
on his person, or in a vehicle, or other conveyance whatever . . .
any liquor . . . in violation of this title is guilty of a
nuisance. . . ."
"
* * * *"
"Sec. 26. When the commissioner, his assistants, inspectors, or
any officer of the law shall discover any person in the act of
transporting in violation of the law, intoxicating liquors in any
wagon, buggy, automobile, water or air craft, or other vehicle, it
shall be his duty to seize any and all intoxicating liquors found
therein being transported contrary to law."
Other provisions show that various penalties and forfeitures are
prescribed for violations of the act, and that the only instance in
which the possession of intoxicating liquor for beverage purposes
is recognized as lawful is where the liquor was obtained before the
act went into effect and is kept in the owner's dwelling for use
therein by him, his family, and his
bona fide guests.
As originally enacted, the act did not in terms define its
territorial field, but a supplemental provision [
Footnote 3] afterwards enacted declares that
it "shall apply not only to the United States but to all territory
subject to its jurisdiction," which means that its field coincides
with that of the Eighteenth Amendment. There is in the act no
provision making it applicable to domestic merchant ships when
outside the waters of the United States, nor any provision making
it inapplicable to merchant ships, either domestic or foreign, when
within those waters, save in the Panama Canal. There is a special
provision dealing
Page 262 U. S. 128
with the Canal Zone [
Footnote
4] which excepts "liquor in transit through the Panama Canal or
on the Panama Railroad." The exception does not discriminate
between domestic and foreign ships, but applies to all liquor in
transit through the canal, whether on domestic or foreign ships.
Apart from this exception, the provision relating to the Canal Zone
is broad and drastic like the others.
Much has been said at the bar and in the briefs about the Canal
Zone exception, and various deductions are sought to be drawn from
it respecting the applicability of the act elsewhere. Of course,
the exception shows that Congress, for reasons appealing to its
judgment, has refrained from attaching any penalty or forfeiture to
the transportation of liquor while "in transit through the Panama
Canal or on the Panama Railroad." Beyond this, it has no bearing
here, save as it serves to show that, where in other provisions no
exception is made in respect of merchant ships, either domestic or
foreign, within the waters of the United States, none is
intended.
Examining the act as a whole, we think it shows very plainly,
first, that it is intended to be operative throughout the
territorial limits of the United States, with the single exception
stated in the Canal Zone provision; secondly, that it is not
intended to apply to domestic vessels when outside the territorial
waters of the United States;
Page 262 U. S. 129
and, thirdly, that it is intended to apply to all merchant
vessels, whether foreign or domestic, when within those waters,
save as the Panama Canal Zone exception provides otherwise.
In so saying, we do not mean to imply that Congress is without
power to regulate the conduct of domestic merchant ships when on
the high seas, or to exert such control over them when in foreign
waters as may be affirmatively or tacitly permitted by the
territorial sovereign; for it long has been settled that Congress
does have such power over them.
Lord v. Steamship Co.,
102 U. S. 541;
The Abby Dodge, 223 U. S. 166,
223 U. S. 176.
But we do mean that the National Prohibition Act discloses that it
is intended only to enforce the Eighteenth Amendment and limits its
field of operation, like that of the amendment, to the territorial
limits of the United States.
The plaintiffs invite attention to data showing the antiquity of
the practice of carrying intoxicating liquors for beverage purposes
as part of a ship's sea stores, the wide extent of the practice,
and its recognition in a congressional enactment, and argue
therefrom that neither the amendment nor the act can have been
intended to disturb that practice. But in this they fail to
recognize that the avowed and obvious purpose of both the amendment
and the act was to put an end to prior practices respecting such
liquors, even though the practices had the sanction of antiquity,
generality, and statutory recognition. Like data could be produced
and like arguments advanced by many whose business, recognized as
lawful theretofore, was shut down or curtailed by the change in
national policy. In principle, the plaintiffs' situation is not
different from that of the innkeeper whose accustomed privilege of
selling liquor to his guests is taken away, or that of the dining
car proprietor who is prevented from serving liquor to those who
use the cars which he operates to and fro across our northern and
southern boundaries.
Page 262 U. S. 130
It should be added that, after the adoption of the amendment and
the enactment of the National Prohibition Act, Congress distinctly
withdrew the prior statutory recognition of liquors as legitimate
sea stores. The recognition was embodied in § 2775 of the Revised
Statutes, which was among the provisions dealing with customs
administration, and when, by the Act of September 21, 1922, those
provisions were revised, that section was expressly repealed, along
with other provisions recognizing liquors as legitimate cargo. C.
356, Title IV and § 642, 42 Stat. 858, 948, 989. Of course, as was
observed by the district court, the prior recognition, although
representing the national policy at the time, was not in the nature
of a promise for the future.
It therefore is of no importance that the liquors in the
plaintiffs' ships are carried only as sea stores. Being sea stores
does not make them liquors any the less; nor does it change the
incidents of their use as beverages. But it is of importance that
they are carried through the territorial waters of the United
States and brought into its ports and harbors. This is prohibited
transportation and importation in the sense of the amendment and
the act. The recent cases of
Grogan v. Walker & Sons
and
Anchor Line v. Aldridge, 259 U. S.
80, are practically conclusive on the point. The
question in one was whether carrying liquor intended as a beverage
through the United States from Canada to Mexico was prohibited
transportation under the amendment and the act, the liquor being
carried in bond by rail, and that in the other was whether the
transshipment of such liquor from one British ship to another in
the harbor of New York was similarly prohibited, the liquor being
in transit from Scotland to Bermuda. The cases were considered
together, and an affirmative answer was given in each, the Court
saying in the opinion, p.
259 U. S.
89:
"The Eighteenth Amendment meant a great revolution in the policy
of this country, and presumably and
Page 262 U. S. 131
obviously meant to upset a good many things on, as well as off,
the statute book. It did not confine itself in any meticulous way
to the use of intoxicants in this country. It forbade export for
beverage purposes elsewhere. True, this discouraged production
here, but that was forbidden already, and the provision applied to
liquors already lawfully made.
See Hamilton v. Kentucky
Distilleries & Warehouse Co., 251 U. S.
146, 151, note 1 [argument of counsel -- omitted]. It is
obvious that those whose wishes and opinions were embodied in the
amendment meant to stop the whole business. They did not want
intoxicating liquor in the United States, and reasonably may have
though that, if they let it in, some of it was likely to stay.
When, therefore, the amendment forbids not only importation into
and exportation from the United States, but transportation within
it, the natural meaning of the words expresses an altogether
probable intent. The Prohibition Act only fortifies in this respect
the interpretation of the amendment itself. The manufacture,
possession, sale, and transportation of spirits and wine for other
than beverage purposes are provided for in the act, but there is no
provision for transshipment or carriage across the country from
without. When Congress was ready to permit such a transit for
special reasons in the Canal Zone, it permitted it in express
words. Title III, § 20, 41 Stat. 322."
Our conclusion is that, in the first ten cases, those involving
foreign ships, the decrees of dismissal were right, and should be
affirmed, and in the remaining two, those involving domestic ships,
the decrees of dismissal were erroneous, and should be reversed,
with directions to enter decrees refusing any relief as respects
the operations of the ships within the territorial waters of the
United States and awarding the relief sought as respects operations
outside those waters.
Decrees in Nos. 659, 660, 661, 662, 666, 667, 668, 669, 670
and 678, affirmed.
Decrees in Nos. 693 and 694, reversed.
Page 262 U. S. 132
MR. JUSTICE McREYNOLDS dissents.
[
Footnote 1]
The second section says: "The Congress and the several states
shall have concurrent power to enforce this article by appropriate
legislation." For its construction,
see United States v.
Lanza, December 11, 1922.
[
Footnote 2]
The act contains a provision (§ 1 of Title II) showing that it
uses the word "persons" as including "associations, copartnerships,
and corporations" when the context does not indicate otherwise.
[
Footnote 3]
Section 3, Act November 23, 1921, c. 134, 42 Stat. 222.
[
Footnote 4]
The pertinent portion of § 20 of Title III, relating to the
Canal Zone, is as follows:
"Sec. 20. That it shall be unlawful to import or introduce into
the Canal Zone, or to manufacture, sell, give away, dispose of,
transport, or have in one's possession or under one's control
within the Canal Zone, any alcoholic, fermented, brewed, distilled,
vinous, malt, or spirituous liquors, except for sacramental,
scientific, pharmaceutical, industrial, or medicinal purposes,
under regulations to be made by the President, and any such liquors
within the Canal Zone in violation hereof shall be forfeited to the
United States and seized:
Provided, that this section
shall not apply to liquor in transit through the Panama Canal or on
the Panama Railroad."
MR. JUSTICE SUTHERLAND dissenting.
I agree with the judgment of the court insofar as it affects
domestic ships, but I am unable to accept the view that the
Eighteenth Amendment applies to foreign ships coming into our ports
under the circumstances here disclosed.
It would serve no useful purpose to give my reasons at any
length for this conclusion. I therefore state them very generally
and briefly.
The general rule of international law is that a foreign ship is
so far identified with the country to which it belongs that its
internal affairs, whose effect is confined to the ship, ordinarily
are not subjected to interference at the hands of another state in
whose ports it is temporarily present, 2 Moore, Int.Law. Dig., p.
292;
United States v. Rodgers, 150 U.
S. 249,
150 U. S. 260;
Wildenhus' Case, 120 U. S. 1,
120 U. S. 12;
and, as said by Chief Justice Marshall, in
Murray v.
Schooner Charming Betsy, 2 Cranch 64, 118: " . . .
An act of Congress ought never to be construed to violate the law
of nations if any other possible construction remains. . . ."
That the government has full power under the Volstead Act to
prevent the landing or transshipment from foreign vessels of
intoxicating liquors or their use in our ports is not doubted, and
therefore it may provide for such assurances and safeguards as it
may deem necessary to those ends. Nor do I doubt the power of
Congress to do all that the Court now holds has been done by that
act, but such power exists not under the Eighteenth Amendment, to
whose provisions the act is confined, but by virtue of other
provisions of the Constitution, which Congress here has not
attempted to exercise. With great deference to the contrary
conclusion of the Court, due regard for the principles of
international comity, which exists between
Page 262 U. S. 133
friendly nations, in my opinion, forbids the construction of the
Eighteenth Amendment and of the act which the present decision
advances. Moreover, the Eighteenth Amendment, it must not be
forgotten, confers concurrent power of enforcement upon the several
states, and it follows that, if the general government possesses
the power here claimed for it under that amendment, the several
states within their respective boundaries, possess the same power.
It does not seem possible to me that Congress, in submitting the
amendment or the several states in adopting it, could have intended
to vest in the various seaboard states a power so intimately
connected with our foreign relations and whose exercise might
result in international confusion and embarrassment.
In adopting the Eighteenth Amendment and in enacting the
Volstead Act, the question of their application to foreign vessels
in the circumstances now presented does not appear to have been in
mind. If, upon consideration, Congress shall conclude that, when
such vessels, in good faith carrying liquor among their sea stores,
come temporarily into our ports, their officers should,
ipso
facto, become liable to drastic punishment and the ships
themselves subject to forfeiture, it will be a simple matter for
that body to say so in plain terms. But interference with the
purely internal affairs of a foreign ship is of so delicate a
nature, so full of possibilities of international
misunderstandings, and so likely to invite retaliation that an
affirmative conclusion in respect thereof should rest upon nothing
less than the clearly expressed intention of Congress to that
effect, and this I am unable to find in the legislation here under
review.