The decision by the state court that an article is within the
prohibition of a state statute is binding here.
The protection accorded by the federal Constitution to
interstate commerce does not extend beyond the sale in original
packages as imported, and a contract made in one state for delivery
of liquor in another state which does not limit the sale in the
latter state to original packages encounters the local statute, and
cannot be enforced if contrary thereto.
Where there have been no purchases and no deliveries under a
contract for delivery of liquor, but the vendee has given notice of
refusal to accept because the contract is illegal in the delivery,
the state court, in sustaining the illegality of the contract, does
not deny the seller the right to sell the article or have it
transported in interstate commerce.
Page 226 U. S. 193
Where a large number of bottles, each in a separate box, are all
contained in one case, each bottle is not to be regarded as a
separate original package and protected from interference by state
statute under the commerce clause of the Constitution, and this
even if the contract of shipment declared there was to be no retail
sale by the consignee.
Quaere, and not decided, whether an article such as
Poinsetta, the beverage involved in this case, having a low
percentage of malt, is governed by the Wilson Act.
A state may, in the exercise of its police power, prohibit the
sale of intoxicating liquor, and to the end of making the
prohibition effectual may include in the prohibition beverages
which, separately considered, may be innocuous, and so
held as to Poinsetta, a beverage containing a small
percentage of malt.
The court has no concern with the wisdom of exercising the
police power, and unless the enactment has no substantial relation
to a proper purpose, cannot declare that the limit of legislative
power has been transcended.
For the courts to attempt to determine whether the exercise of
the police power within legislative limits is wise would be
contrary to our constitutional system and substitute judicial
opinion for the legislative will. The only question in this Court
is whether the legislature had the power to establish the
regulation.
The legislation to that effect in many of the states shows that
the opinion is extensively held that a general prohibition of sale
of malt liquors, whether intoxicating or not, is necessary to
suppress the sale of intoxicants.
In the exercise of its police power to prohibit the sale of
intoxicants, a state may include within the prohibition malt and
other liquors sold under the guise of innocent beverages.
100 Miss. 650 affirmed.
The facts, which involve the constitutionality of a statute of
Mississippi which includes the prohibition of the sale of malt
liquors, are stated in the opinion.
Page 226 U. S. 197
MR. JUSTICE HUGHES delivered the opinion of the Court.
This is an action for breach of contract. The Purity Extract
& Tonic Company (plaintiff below), a Tennessee corporation, is
the manufacturer of a beverage called "Poinsetta;" and in November,
1910, it made an agreement with the defendant, Lynch, for the
purchase of the article by him on stated terms during the period of
five years. The agreement contemplated resales by the defendant in
Hinds County, Mississippi, to the making of which he was to devote
his best efforts. It was provided that he was to sell only in that
county, where he was to have the exclusive right of sale, for which
he was to pay to the plaintiff the sum of $500 within five days
after the making of the contract. It was to recover this amount
that the action was brought, the defendant having repudiated the
agreement at the outset
Page 226 U. S. 198
upon the ground that, on coming to Mississippi, he found it to
be unlawful to sell "Poinsetta" in that state. The trial court
sustained the defense of illegality, and its judgment was affirmed
by the Supreme Court of Mississippi. 100 Miss. 650.
The statute which the agreement has been held to violate is
Chapter 115 of the Laws of Mississippi of 1908, ยง 1, which includes
in its prohibition the sale of malt liquors.
The case was tried upon an agreed statement of facts in which
the characteristics of "Poinsetta" are set forth at length. In
substance, the statement is that it is composed of pure distilled
water to the extent of 90.45 percent, the remaining 9.55 percent
being solids derived from cereals, "which are in an unfermented
state, and are wholesome and nutritious;" that "it contains 5.73
percent of malt, and is sold as a beverage;" that it does not
contain either alcohol or saccharine matter, being manufactured in
such a manner under a secret formula obtained from German
scientists as to bring neither into its composition; that it is not
intoxicating; that its taste and odor are distinctive; that its
appearance is such that "it would not probably be mistaken for any
intoxicating liquor;" and that it
"cannot be employed as a subterfuge for the sale of beer because
it is bottled in a distinctive way, and its name blown in each
bottle which contains the beverage."
It is further agreed that
"the United States government does not treat Poinsetta as within
the class of intoxicating liquors, and does not require anything to
be done with reference to its sale."
The state court, following its decision in
Fuller v.
Jackson, 97 Miss. 237, construed the statute as prohibiting
the sale of all malt liquors, whether, in fact intoxicating or not,
and this construction of the state law is binding here. The court
said:
"Poinsetta may or may not be an intoxicant, but it is a malt
liquor, and as such
Page 226 U. S. 199
is prohibited from being sold in this state. The prohibition law
cannot be made effective unless it excludes all subterfuges."
(100 Miss. 650, 657.)
The agreed statement of facts also contained the following:
"Poinsetta is put up in bottles at Chattanooga, Tennessee, and
is shipped in bottles, each separate and apart from the other,
placed in a case to which they are in no way attached, and which is
done merely to prevent breakage of the bottles in transit. The case
is not fastened with nails or other device, but merely closed. The
bottles so contained are shipped in interstate commerce from
Chattanooga, Tennessee, and are to be received under the contract
by the consignee in Mississippi in the same condition as when
bottled, and are to be sold as each several package. There is to be
no retail sale under such right by said Lynch in the State of
Mississippi, but all shipments are to be made direct either to said
Lynch, or to other persons who shall desire to purchase said drink,
and are to be delivered to said purchasers of said bottles in
precisely the same shape as prepared in Tennessee, and said
Poinsetta is still contained in the original package at the time it
will be offered for sale in Mississippi by the purchaser thereof in
the original package, which was sent from Tennessee through Alabama
into Mississippi."
The plaintiff brings this writ of error, assailing the validity
of the statute, as construed by the state court, (1) as an
unconstitutional interference with interstate commerce and (2) as
depriving the plaintiff of its liberty and property without due
process of law.
First. We do not find that the decision of the state
court involves a denial of any right incident to interstate
commerce. The contract, it is true, provided for purchases by the
defendant from the plaintiff, the deliveries to be made at
Chattanooga, Tennessee, for transportation to the defendant at
Jackson, Mississippi. So far as appears, however, there were no
purchases and no deliveries. The
Page 226 U. S. 200
reason obviously is that the agreement looked to resales by the
defendant in Hinds County. Finding that such sales would be against
the local law, he refused performance
in limine. The state
court did not deny to the plaintiff the right to sell to the
defendant, or to have its article transported and delivered to the
defendant in interstate commerce. (
Rhodes v. Iowa,
170 U. S. 412,
Louisville & Nashville R. Co. v. Cook Brewing Co.,
223 U. S. 70,
223 U. S. 82.)
It had no such question before it. This suit was brought to recover
the amount which the defendant promised to pay for the exclusive
right of making sales in Hinds County. In this aspect, the validity
of the contract under the state law was to be judged by its
provisions for sales within the state. The contract contained no
suggestion that these sales were to be limited to those made in the
original packages imported. Its provisions were broad enough to
include other sales, and hence encountered the local statute as
applied to transactions outside the protection accorded by the
federal Constitution to interstate commerce.
Nor is the contention of the plaintiff aided by the agreed
statement of facts. This statement, in one of its clauses, says
that there was to be "no retail sale" by the defendant. Whatever
this may mean in the light of the words of the contract, which
contained no such limitation, it is clear that the defendant was
not debarred from selling the bottles separately. On the contrary,
the argument for the plaintiff is that "each bottle," brought into
the state in cases as described, constitutes "an original package."
As to this, it is to be noted that, by the terms of the contract,
the agreed prices on the purchases by the defendant from the
plaintiff were per cask containing ten dozen bottles and per case
containing six dozen bottles, respectively. In short, the plain
purpose was that the defendant was to buy in casks and cases, and
in the light of the transactions thus contemplated, and, as they
would
Page 226 U. S. 201
be normally conducted, between the plaintiff as manufacturer and
the defendant as local dealer, it cannot be said that each separate
bottle which he might sell in Hinds County must be considered as an
original package, so as to save the sale from the interdiction of
the state law.
May v. New Orleans, 178 U.
S. 496;
Austin v. Tennessee, 179 U.
S. 343;
Cook v. Marshall County, 196 U.
S. 261. We are therefore not called upon to consider
whether or not the Wilson act (August 8, 1890, c. 728, 26 Stat.
313) governs in the case of such an article as "Poinsetta," and,
confining ourselves to the issue presented, we express no opinion
upon that point.
Second. Treating the matter, then, as one of local
sales, the question is whether the prohibitory law of the state, as
applied to a beverage of this sort, is in conflict with the
Fourteenth Amendment.
That the state, in the exercise of its police power, may
prohibit the selling of intoxicating liquors is undoubted.
Bartemeyer v.
Iowa, 18 Wall. 129;
Boston Beer Co. v.
Massachusetts, 97 U. S. 25;
Mugler v. Kansas, 123 U. S. 623;
Kidd v. Pearson, 128 U. S. 1;
Crowley v. Christensen, 137 U. S. 86. It is
also well established that, when a state exerting its recognized
authority, undertakes to suppress what it is free to regard as a
public evil, it may adopt such measures having reasonable relation
to that end as it may deem necessary in order to make its action
effective. It does not follow that, because a transaction,
separately considered, is innocuous, it may not be included in a
prohibition the scope of which is regarded as essential in the
legislative judgment to accomplish a purpose within the admitted
power of the government.
Booth v. Illinois, 184 U.
S. 425;
Otis v. Parker, 187 U.
S. 606;
Ah Sin v. Wittman, 198 U.
S. 500,
198 U. S. 504;
New York ex Rel. Silz v. Hesterberg, 211 U. S.
31;
Murphy v. California, 225 U.
S. 623. With the wisdom of the exercise of that judgment
the court has no concern, and unless it clearly appears that
Page 226 U. S. 202
the enactment has no substantial relation to a proper purpose,
it cannot be said that the limit of legislative power has been
transcended. To hold otherwise would be to substitute judicial
opinion of expediency for the will of the legislature, a notion
foreign to our constitutional system.
Thus, in
Booth v. Illinois, supra, the defendant was
convicted under a statute of that state which made it a criminal
offense to give an option to buy grain at a future time. It was
contended that the statute, as interpreted by the state court,
was
"not directed against gambling contracts relating to the selling
or buying of grain or other commodities, but against mere options
to sell or buy at a future time without any settlement between the
parties upon the basis of differences, and therefore involving no
element of gambling."
The argument was that it directly forbade the citizen "from
pursuing a calling which, in itself, involves no element of
immorality." This Court, in sustaining the judgment of conviction,
said:
"If, looking at all the circumstances that attend, or which may
ordinarily attend, the pursuit of a particular calling, the state
thinks that certain admitted evils cannot be successfully reached
unless that calling be actually prohibited, the courts cannot
interfere unless, looking through mere forms and at the substance
of the matter, they can say that the statute enacted professedly to
protect the public morals has no real or substantial relation to
that object, but is a clear unmistakable infringement of rights
secured by the fundamental law."
It must be assumed, it was added, that
"the legislature was of opinion that an effectual mode to
suppress gambling grain contracts was to declare illegal all
options to sell or buy at a future time,"
and the Court could not say that the means employed were not
appropriate to the end which it was competent for the state to
accomplish. (
Id., pp.
184 U. S.
429-430.)
The same principle was applied in
Otis v. Parker,
187 U. S. 606,
Page 226 U. S. 203
which dealt with the provision of the Constitution of California
that all contracts for the sale of shares of the capital stock of
any corporation, on margin, or to be delivered at a future day,
should be void, and that any money paid on such contracts might be
recovered. The objection urged against the provision in its literal
sense was that the prohibition of all sales on margin bore no
reasonable relation to the evil sought to be cured; but the court
upheld the law, being unwilling to declare that the deep-seated
conviction on the part of the people concerned as to what was
required to effect the purpose could be regarded as wholly without
foundation. (
Id., pp.
187 U. S.
609-610.),
A strong illustration of the extent of the power of the state is
found in
Silz v. Hesterberg, 211 U. S.
31. The State of New York, by its forest, fish, and game
law, prohibited the possession of certain game during the closed
season. The statute covered game coming from without the state. It
appeared that Silz was charged with the possession of plover and
grouse which had been lawfully taken abroad during the open season
and had been lawfully brought into the state; that these game birds
were varieties different from those known as plover and grouse in
the State of New York; that, although of the same families, in
form, size, color, and markings, they could readily be
distinguished from the latter, and that they were wholesome and
valuable articles of food. This Court affirmed the conviction,
saying:
"It is insisted that a method of inspection can be established
which will distinguish the imported game from that of the domestic
variety, and prevent confusion in its handling and selling. That
such game can be distinguished from domestic game has been
disclosed in the record in this case, and it may be that such
inspection laws would be all that would be required for the
protection of domestic game. But, subject to constitutional
limitations, the legislature of the state is authorized to pass
measures for the protection of the
Page 226 U. S. 204
people of the state in the exercise of the police power, and is
itself the judge of the necessity or expediency of the means
adopted."
It was pointed out that the prohibition in question had been
found to be expedient in several states, "owing to the possibility
that dealers in game may sell birds of the domestic kind under the
claim that they were take in another state or country."
It was competent for the Legislature of Mississippi to recognize
the difficulties besetting the administration of laws aimed at the
prevention of traffic in intoxicants. It prohibited, among other
things, the sale of "malt liquors." In thus dealing with a class of
beverages which, in general, are regarded as intoxicating, it was
not bound to resort to a discrimination with respect to ingredients
and processes of manufacture which, in the endeavor to eliminate
innocuous beverages from the condemnation, would facilitate
subterfuges and frauds and fetter the enforcement of the law. A
contrary conclusion, logically pressed, would save the nominal
power while preventing its effective exercise. The statute
establishes its own category. The question in this Court is whether
the legislature had power to establish it. The existence of this
power, as the authorities we have cited abundantly demonstrate, is
not to be denied simply because some innocent articles or
transactions may be found within the proscribed class. The inquiry
must be whether, considering the end in view, the statute passes
the bounds of reason and assumes the character of a merely
arbitrary fiat.
That the opinion is extensively held that a general prohibition
of the sale of malt liquors, whether intoxicating or not, is a
necessary means to the suppression of trade in intoxicants
sufficiently appears from the legislation of other states and the
decision of the courts in its construction.
State v.
O'Connell, 99 Me. 61;
State v. Jenkins, 64 N.H. 375;
State v. York, 74 N.H. 125, 127;
State ex Rel.
Guilbert v. Kauffman, 68 Ohio
Page 226 U. S. 205
St. 635;
Luther v. State, 83 Neb. 455;
Pennell v.
State, 141 Wis. 35. We cannot say that there is no basis for
this widespread conviction.
The state, within the limits we have stated, must decide upon
the measures that are needful for the protection of its people,
and, having regard to the artifices which are used to promote the
sale of intoxicants under the guise of innocent beverages, it would
constitute an unwarrantable departure from accepted principle to
hold that the prohibition of the sale of all malt liquors,
including the beverage in question, was beyond its reserved
power.
Judgment affirmed.