The West Virginia prohibition law of February, 1913, Code 1913,
c. 32A, as amended by Acts of 1915, p. 33,
id., p. 660,
includes in its prohibitions the bringing into the state by
carriers of intoxicating liquors intended for personal use and the
receipt and possession of such liquors, when so introduced, for
personal use.
Since the right asserted by the plaintiff is a permanent right
to ship such liquors into the state, the decision concerns the
state law as now amended, though the amendment occurred after the
decision of the court below and after the first argument in this
Court.
Without considering whether governmental power respecting
intoxicating liquors extends to the prohibition of personal use,
the right to restrict the means of procuring them for that purpose
exists as an incident to the indubitable power to forbid
manufacture and sale. Therefore these prohibitions of the West
Virginia law are not offensive to the due process clause of the
Fourteenth Amendment.
The prohibitions, however, unless sanctioned by a valid law of
Congress, would be repugnant to the Constitution as a direct
burden
Page 242 U. S. 312
on interstate commerce and an interference with the power of
Congress to regulate it.
Leisy v. Hardin, 135 U.
S. 100.
The Act of Congress of March 1, 1913, 37 Stat. 699, known as the
Webb-Kenyon Act, operated, if constitutional, to give effect to the
above stated prohibitions of the West Virginia law in respect of
liquors shipped into the state for personal use by withdrawing from
such shipments the immunity of interstate commerce, and, to forbid
the shipment or transportation into the state of liquors intended
to be received or possessed there for personal use contrary to such
state prohibitions.
Adams Express Co. v. Kentucky,
238 U. S. 190,
distinguished.
The Webb-Kenyon Act is a legitimate exertion of the power to
regulate commerce.
That power, in the case of intoxicants, because of their
character extends to the total prohibition of their transport in
interstate commerce, and necessarily includes the lesser power,
exercised in the Webb-Kenyon Act, of adapting the regulation to the
various local requirements and conditions that may be expressed in
the laws of the states.
Such a mode of exercise involves no delegation of the power to
the states.
Neither is the act objectionable as productive of a lack of
uniformity. This results:
(1) Because it applies uniformly to the conditions which call it
into play; its provisions apply to all the states, and
(2) Because the power of Congress to regulate interstate
commerce is not subject to the restriction that regulations shall
be uniform throughout the United States.
The right of Congress to regulate a subject of interstate
commerce, its scope, and the mode in which it may be exerted depend
upon the degree of the power of Congress over the subject regulated
--
viz., in this case, intoxicating liquor, and not upon
those considerations which cause some subjects of interstate
commerce to be under state control in the absence of congressional
regulation and others to be free from state control until Congress
has acted.
Leisy v. Hardin, supra, explained and
applied.
The Webb-Kenyon Act is not repugnant to the due process clause
of the Fifth Amendment.
219 F. 333,
id. 339, affirmed.
These were suits for injunctions compelling the defendants to
accept intoxicating liquors for shipment into West Virginia. The
appeals were taken from decrees of the district court dismissing
the bills. The facts are stated in the opinion.
Page 242 U. S. 315
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
To refer to the principal state law relating to these suits, to
the pleadings and the decision of the court below, will make the
issues in these cases clear and point directly to the elements
required to be considered in deciding them.
West Virginia, in February, 1913, enacted a prohibition
Page 242 U. S. 316
law to go into effect on July first of the following year. Code
1913, c. 32A. Putting out of view the right of druggists, under
stringent regulations provided by the statute, to sell for
medicinal purposes, and the right otherwise to sell wine for
sacramental and alcohol for scientific and manufacturing purposes,
the law forbade "the manufacture, sale, keeping or storing for sale
in this state, or offering or exposing for sale," intoxicating
liquors, and the intoxicants embraced were comprehensively defined.
The statute contained many restrictions concerning hotels,
restaurants, clubs, and so-called associations where liquor was
kept and served either as a result of membership or by gift or
otherwise, which were evidently intended to prevent the frustration
of the prohibitions against the keeping of intoxicants for sale and
purchase by subterfuge in the guise of the exercise of an
individual right. There was no express prohibition against the
individual right to use intoxicants, and none implied unless that
result arose (a) from the prohibition in universal terms of all
sales and purchases of liquor within the state, (b) from the clause
providing that every delivery made in the state by a common or
other carrier of the prohibited intoxicants should be considered as
a consummation of a sale made in the state at the point of
delivery, and (c) from the prohibitions which the statute contained
against solicitations made to induce purchases of liquor, and
against the publication in the state of all circulars,
advertisements, price lists, etc., which might tend to stimulate
purchases of liquor.
Under this statute, and in reliance upon the provisions of the
act of Congress known as the Webb-Kenyon Law (Act of Congress of
March 1, 1913, 37 Stat. 699), the State of West Virginia, in one of
its courts, sued the Western Maryland Railroad Company and the
Adams Express Company to enjoin them from carrying from Maryland
into West Virginia liquor in violation of law. In substance,
Page 242 U. S. 317
it was charged that very many shipments had been taken by the
carriers contrary to the law, both as to solicitations and as to
the use for which the liquor was intended. Preliminary injunctions
were issued restraining the carrying of liquor into the state,
subject to many conditions as to investigation, etc., etc. With
these injunctions in force, these suits were commenced by the Clark
Distilling Company to compel the carriers to take a shipment of
liquor which it was asserted was ordered for personal use, and
deliver it in West Virginia, on the ground that the Act of Congress
to Regulate Commerce imposed the duty to receive and carry, and
that, besides, the West Virginia prohibition law, when rightly
construed, did not forbid it. The carriers, not challenging the
asserted meaning of the West Virginia law, set up the injunctions
and averred that to receive and carry the liquor would violate
their provisions, and therefore there was no duty under the United
States law to do so. West Virginia intervened in the suits, relying
upon the state law and the injunctions which had been issued. At
the trial, it was shown that the plaintiff Distilling Company had
systematically solicited purchases and constantly shipped liquor
from Maryland into West Virginia in violation of the prohibition
law. The court held that the West Virginia law did not prohibit
personal use, and did not forbid shipments for such use, and that,
as there was no state prohibition, the Webb-Kenyon Law had no
application, and that, as the solicitations forbidden by the state
statute were solicitations to do that which was forbidden, that
consideration was irrelevant. The construction of the statute made
by the state court was held not authoritatively binding, as that
court was not one of last resort, and the right to practically
modify the injunctions was declared to exist because West Virginia,
by making herself a party to the suits, had submitted herself to
the jurisdiction of the court. All questions concerning the power
of the State of West Virginia
Page 242 U. S. 318
to pass the prohibition law if it meant otherwise, and of the
right of Congress to adopt the Webb-Kenyon Act under a like
hypothesis, were reserved. 219 F. 333. Before the decrees entered
became final, the Circuit Court of Appeals for the Fourth Circuit,
in a case pending before it (
West Virginia v. Adams exp.
Company, 219 F. 794), decided directly to the contrary. It
held that the law of West Virginia did prohibit shipments for
personal use; that it did forbid solicitations therefore for such
purchases; that, by operation of the Webb-Kenyon Act, there was no
longer a right to ship liquor into the state in violation of its
laws, and that both the state law and the Webb-Kenyon Act were
constitutional. Controlled by such decision, the trial court
recalled its opinion, heard a reargument, and, although not
changing its view, accepted and gave effect to the conclusions
reached by the circuit court of appeals because they were deemed to
be authoritative, and the cases were brought directly here, because
of the constitutional questions, to review such action.
The issues to be decided may by embraced in four propositions
which we proceed separately to consider.
1.
The correct meaning of the West Virginia law as to the
subjects in dispute.
The difference as to the meaning of the statute in the court
below was whether or not the West Virginia law prohibited the
receipt of liquor for personal use, and, if it did, whether or not
the prohibitions of the law equally applied to shipments from
outside and to those originating in the state. But the possibility
of dispute over these subjects no longer exists, because, after the
decision below and since the cases were first argued (for they have
been here argued twice), the State of West Virginia amended the
statute so as to leave no room for doubt that it does forbid all
shipments, whether for personal use or otherwise, and whether from
within or without the state. The pertinent
Page 242 U. S. 319
provisions of the amendments are placed in the margin. [
Footnote 1] As the relief sought is the
permanent right to ship in the future, the meaning of the statute
now -- that is, as amended -- is the test by which we must consider
the questions requiring solution. Indeed, this is frankly admitted
by the
Page 242 U. S. 320
parties, since it is unequivocally declared that the question is
the operation and effect of the statute as amended and its
constitutionality. We therefore come to the second question, which
is:
2.
The power of the state to enact the prohibition law
consistently with the due process clause of the Fourteenth
Amendment and the exclusive power of Congress to regulate commerce
among the several states.
That government can, consistently with the due process clause,
forbid the manufacture and sale of liquor and regulate its traffic
is not open to controversy, and that there goes along with this
power full police authority to make it effective is also not open.
Whether the general authority includes the right to forbid
individual use we need not consider, since clearly there would be
power, as an incident to the right to forbid manufacture and sale,
to restrict the means by which intoxicants for personal use could
be obtained, even if such use was permitted. This being true, there
can be no doubt that the West Virginia prohibition law did not
offend against the due process clause of the Fourteenth
Amendment.
But that it was a direct burden upon interstate commerce and
conflicted with the power of Congress to regulate commerce among
the several states, and therefore could not be used to prevent
interstate shipments from Maryland into West Virginia, has been not
open to question since the decision in
Leisy v. Hardin,
135 U. S. 100. And
this brings us to consider whether the Webb-Kenyon
Page 242 U. S. 321
Law has so regulated interstate commerce as to give the state
the power to do what it did in enacting the prohibition law and
cause its provisions to be applicable to shipments of intoxicants
in interstate commerce, thus saving that law from repugnancy to the
Constitution of the United States, which is the third proposition
for consideration.
3.
Assuming the constitutionality of the Webb-Kenyon Act,
what is its true meaning and its operation upon the prohibitions
contained in the West Virginia law?
Omitting words irrelevant to the subject now under
consideration, the title and text of the Webb-Kenyon Act are as
follows:
"An Act Divesting Intoxicating Liquors of Their Interstate
Character in Certain cases."
". . . That the shipment or transportation, in any manner or by
any means whatsoever, of any spirituous, vinous, malted, fermented,
or other intoxicating liquor of any kind from one state, territory,
or district of the United States . . . into any other state,
territory, or district of the United States, . . . which said
spirituous, vinous, malted, fermented, or other intoxicating liquor
is intended, by any person interested therein, to be received,
possessed, sold, or in any manner used, either in the original
package or otherwise, in violation of any law of such state,
territory, or district of the United States . . . is hereby
prohibited."
As the state law forbade the shipment into or transportation of
liquor in the state, whether from inside or out, and all receipt
and possession of liquor so transported, without regard to the use
to which the liquor was to be put, and as the Webb-Kenyon Act
prohibited the transportation in interstate commerce of all liquor
"intended to be received, possessed, sold or in any manner used,
either in the original package or otherwise, in violation of any
law of such state," there would seem
Page 242 U. S. 322
to be no room for doubt that the prohibitions of the state law
were made applicable by the Webb-Kenyon Law. If that law was valid,
therefore, the state law was not repugnant to the commerce clause.
It is insisted that this view gives too wide an effect to the
Webb-Kenyon Law, since that act was only intended to include state
prohibitions insofar as they forbade the shipment, receipt, and
possession of liquor for a forbidden use, and hence, as individual
use was not forbidden by the state law, the shipment, receipt, and
possession for such use was not embraced by the Webb-Kenyon Act,
and the state law, so far as it was outside of that Act, was
repugnant to the commerce clause. This is sought to be supported by
the historical environment of the Webb-Kenyon Act as evidenced by
the debates on its passage and by a decision of the court, as well
as decisions of state courts (which are in the margin [
Footnote 2]), which, it is insisted,
have so construed that act.
Assuming, for the sake of argument only, that the debates may be
resorted to for the purpose of showing environment, we are of
opinion they clearly establish a result directly contrary to that
which they are cited to maintain. Undoubtedly they show that it was
insisted the act was not intended to interfere with personal use,
as, of course, it was not, since its only purpose was to give
effect to state prohibitions, not to compel the states to prohibit
personal use. Indeed, the meaning which it is sought to affix to
the Webb-Kenyon Act, if accepted, would cause that act to have the
effect of compelling the states to prohibit personal use, since, if
all the prohibitions of state laws against manufacture, sale,
receipt, and possession of intoxicants remained subject to the
danger of indirect
Page 242 U. S. 323
violation by permitting shipment, receipt, and possession for
personal use, it would follow that a necessary and immediate
incentive was imposed upon the states by the Webb-Kenyon Act to
enact a provision against personal use.
The antecedents of the Webb-Kenyon Act -- that is, its
legislative and judicial progenitors, leave no room for the
contention made. To correct the great evil which was asserted to
arise from the right to ship liquor into a state through the
channels of interstate commerce, and there receive and sell the
same in the original package in violation of state prohibitions,
was indisputably the purpose which led to the enactment of the
Wilson Law (Act of Congress of August 8, 1890, 26 Stat. 313),
forbidding the sale of liquor in a state in the original package
even although brought in through interstate commerce, when the
existing or future state laws forbade sales of intoxicants. And
this was recognized by the long line of decisions (a few of the
leading cases are in the margin [
Footnote 3]) which upheld that law, and pointed out that
it permitted the state prohibitions to take away from interstate
commerce shipments a right which they otherwise would have embraced
-- that is, the right to sell after receipt in the original
package, any state law to the contrary notwithstanding. At the same
time, it was recognized, however, that, as the right to receive
liquor was not affected by the Wilson Act, such receipt and the
possession following from it and the resulting right to use
remained protected by the commerce clause even in a state where
what is known as the dispensary system prevailed.
Vance v.
Vandercook Co., 170 U. S. 438.
Reading the Webb-Kenyon Law in the light thus thrown upon it by the
Wilson Act and the decisions of this Court which sustained and
applied it,
Page 242 U. S. 324
there is no room for doubt that it was enacted simply to extend
that which was done by the Wilson Act -- that is to say, its
purpose was to prevent the immunity characteristic of interstate
commerce from being used to permit the receipt of liquor through
such commerce in states contrary to their laws, and thus in effect
afford a means by subterfuge and indirection to set such laws at
naught. In this light, it is clear that the Webb-Kenyon Act, if
effect is to be given to its text, but operated so as to cause the
prohibitions of the West Virginia law against shipment, receipt,
and possession to be applicable and controlling irrespective of
whether the state law did or did not prohibit the individual use of
liquor. That such also was the embodied spirit of the Webb-Kenyon
Act plainly appears, since, if that be not true, the coming into
being of the act is wholly inexplicable.
The case in this Court relied upon to establish the contrary
(
Adams Express Co. v. Kentucky, 238 U.
S. 190) clearly does not do so. All that was decided in
that case was that, as the court of last resort of Kentucky, into
which liquor had been shipped, had held that the state statute did
not forbid shipment and receipt of liquor for personal use,
therefore the Webb-Kenyon Act did not apply, since it only applied
to things which the state law prohibited. The leading state case
cited is
Van Winkle v. State, 4 Del. 578. It is true in
that case the state law prohibited shipment to and receipt of
intoxicants in local-option territory, and if the Webb-Kenyon Law
had been applied, there would have been no possible ground for
claiming that the state prohibitions could be escaped, because the
liquor was shipped in interstate commerce. But the shipment was
held to be protected as interstate commerce despite the state
prohibition because the Webb-Kenyon Law was not correctly applied,
for the following reason: coming to consider the text of that law,
the court said that, as the Webb-Kenyon Act prohibited
Page 242 U. S. 325
the shipment of intoxicants "only when liquor is intended to be
used in violation of the law of the state," and as the liquor
shipped was intended for personal use, which was not forbidden,
therefore the shipment, although prohibited by the state law, was
beyond the reach of the Webb-Kenyon Act. But we see no ground for
following the ruling thus made, since, as we have already pointed
out, it necessarily rested upon an entire misconception of the text
of the Webb-Kenyon Act, because that act did not simply forbid the
introduction of liquor into a state for a prohibited use, but took
the protection of interstate commerce away from all receipt and
possession of liquor prohibited by state law.
The movement of liquor in interstate commerce and the receipt
and possession and right to sell prohibited by the state law having
been in express terms divested by the Webb-Kenyon Act of their
interstate commerce character, it follows that, if that act was
within the power of Congress to adopt, there is no possible reason
for holding that to enforce the prohibitions of the state law would
conflict with the commerce clause of the Constitution, and this
brings us to the last question, which is:
4.
Did Congress have power to enact the Webb-Kenyon
Law?
We are not unmindful that opinions adverse to the power of
Congress to enact the law were formed and expressed in other
departments of the government. Opinion of the Attorney General, 30
Ops.Atty.Gen. 88; Veto Message of the President, 49 Cong.Rec. 4291.
We are additionally conscious therefore of the responsibility of
determining these issues and of their serious character.
It is not in the slightest degree disputed that, if Congress had
prohibited the shipment of all intoxicants in the channels of
interstate commerce, and therefore had prevented all movement
between the several states, such action would have been lawful
because within the power
Page 242 U. S. 326
to regulate which the Constitution conferred.
Lottery
Case, 188 U. S. 321;
Hoke v. United States, 227 U. S. 308. The
issue therefore is not one of an absence of authority to accomplish
in substance a more extended result than that brought about by the
Webb-Kenyon Law, but of a want of power to reach the result
accomplished because of the method resorted to for that purpose.
This is certain, since the sole claim is that the act was not
within the power given to Congress to regulate because it submitted
liquors to the control of the states by subjecting interstate
commerce in such liquors to present and future state prohibitions,
and hence, in the nature of things, was wanting in uniformity. Let
us test the contentions by reason and authority.
The power conferred is to regulate, and the very terms of the
grant would seem to repel the contention that only prohibition of
movement in interstate commerce was embraced. And the cogency of
this is manifest, since, if the doctrine were applied to those
manifold and important subjects of interstate commerce as to which
Congress from the beginning has regulated, not prohibited, the
existence of government under the Constitution would be no longer
possible.
The argument as to delegation to the states rests upon a mere
misconception. It is true the regulation which the Webb-Kenyon Act
contains permits state prohibitions to apply to movements of liquor
from one state into another, but the will which causes the
prohibitions to be applicable is that of Congress, since the
application of state prohibitions would cease the instant the act
of Congress ceased to apply. In fact, the contention previously
made, that the prohibitions of the state law were not applicable to
the extent that they were broader than the Webb-Kenyon Act, is in
direct conflict with the proposition as to delegation now made.
So far as uniformity is concerned, there is no question
Page 242 U. S. 327
that the act uniformly applies to the conditions which call its
provisions into play -- that its provisions apply to all the states
-- so that the question really is a complaint as to the want of
uniform existence of things to which the act applies, and not to an
absence of uniformity in the act itself. But, aside from this, it
is obvious that the argument seeks to engraft upon the Constitution
a restriction not found in it -- that is, that the power to
regulate conferred upon Congress obtains subject to the requirement
that regulations enacted shall be uniform throughout the United
States. In view of the conceded power on the part of Congress to
prohibit the movement of intoxicants in interstate commerce, we
cannot admit that, because it did not exert its authority to the
full limit, but simply regulated to the extent of permitting the
prohibitions in one state to prevent the use of interstate commerce
to ship liquor from another state, Congress exceeded its authority
to regulate. We can see, therefore, no force in the argument relied
upon tested from the point of view of reason, and we come to the
question of authority.
It is settled, says the argument, that interstate commerce is
divided into two great classes, one embracing subjects which do not
exact uniformity, and which, although subject to the regulation of
Congress, are, in the absence of such regulation, subject to the
control of the several states (
Cooley v. Port
Wardens, 12 How. 299), and the other embracing
subjects which do require uniformity, and which, in the absence of
regulation by Congress, remain free from all state control
(
Leisy v. Hardin, 135 U. S. 100). As
to the first, it is said, Congress may, when regulating, to the
extent it deems wise to do so, permit state legislation enacted or
to be enacted to govern, because to do so would only be to do that
which would exist if nothing had been done by Congress. As to the
second class, the argument is that, in adopting regulations,
Congress is wholly without power to provide for the application
Page 242 U. S. 328
of state power to any degree whatever, because, in the absence
of the exertion by Congress of power to regulate, the subject
matter would have been free from state control, and because,
besides, the recognition of state power under such circumstances
would be to bring about a want of uniformity. But, granting the
accuracy of the two classifications which the proposition states,
the limitation upon the power of Congress to regulate which is
deduced from the classifications finds no support in the authority
relied upon to sustain it. Let us see if this is not the case by
examining the authority relied upon. What is that authority? The
ruling in
Leisy v. Hardin, supra. But that case, instead
of supporting the contention, plainly refutes it for the following
reason: although
Leisy v. Hardin declared in express terms
that the movement of intoxicants in interstate commerce belonged to
that class which was free from all interference by state control in
the absence of regulation by Congress, it was at the same time in
the most explicit terms declared that the power of Congress to
regulate interstate commerce in intoxicants embraced the right to
subject such movement to state prohibitions, and that the freedom
of intoxicants to move in interstate commerce and the protection
over it from state control arose only from the absence of
congressional regulation, and would endure only until Congress had
otherwise provided. Thus, in that case, in pointing out that the
movement of intoxicants in interstate commerce was under the
control of Congress despite the wide scope of the police authority
of the state over the subject, it was said (p.
135 U. S.
108):
"Yet a subject matter which has been confided exclusively to
Congress by the Constitution is not within the jurisdiction of the
police power of the state, unless placed there by congressional
action."
Again, referring to the uniform operation of interstate commerce
regulations, it was said (p.
135 U. S.
109):
"Hence, inasmuch as interstate commerce, consisting in the
transportation, purchase,
Page 242 U. S. 329
sale, and exchange of commodities, is national in its character,
and must be governed by a uniform system, so long as Congress does
not pass any law to regulate it, or allowing the states so to do,
it thereby indicates its will that such commerce shall be free and
untrammeled."
Further the Court said (p.
135 U. S.
119):
"The conclusion follows that, as the grant of the power to
regulate commerce among the states, so far as one system is
required, is exclusive, the states cannot exercise that power
without the assent of Congress."
Again, after pointing out that the question of the prohibition
of manufacture and sale of particular articles was a matter of
state concern, it was said (p.
135 U. S.
123):
"But, notwithstanding it is not vested with supervisory power
over matters of local administration, the responsibility is upon
Congress, so far as the regulation of interstate commerce is
concerned, to remove the restriction upon the state in dealing with
imported articles of trade within its limits, which have not been
mingled with the common mass of property therein, if, in its
judgment, the end to be secured justifies and requires such
action."
And finally, after pointing out that the states had no power to
interfere with the movement of goods in interstate commerce before
they had been commingled with the property of the state, it was
said that this limitation obtained "in the absence of congressional
permission" to the state (p.
135 U. S.
124).
Thus, it follows that, although we accept the classification of
interstate commerce in intoxicants made in
Leisy v.
Hardin, we could not accept the contention which is now based
upon that classification without in effect overruling that case,
or, what is equivalent thereto, refusing to give effect to the
doctrine of that case announced in terms so certain that there is
no room for controversy or contention concerning them. But we would
be required to go further than this, since it would result that we
would have to shut our eyes to the construction put upon the
Page 242 U. S. 330
ruling in
Leisy v. Hardin by Congress in legislating
when it adopted the Wilson Act, and also to practically overrule
the line of decisions which we have already referred to sustaining
and enforcing that act. Let us see if this is not certain. As we
have already pointed out, the very regulation made by Congress in
enacting the Wilson Law to minimize the evil resulting from
violating prohibitions of state law by sending liquor through
interstate commerce into a state, and selling it in violation of
such law, was to divest such shipments of their interstate commerce
character and to strip them of the right to be sold in the original
package free from state authority which otherwise would have
obtained. And that Congress had the right to enact this legislation
making existing and future state prohibitions applicable was the
express result of the decided cases to which we have referred,
beginning with
In re Rahrer, 140 U.
S. 545. As the power to regulate which was manifested in
the Wilson Act, and that which was exerted in enacting the
Webb-Kenyon Law, are essentially identical, the one being but a
larger degree of exertion of the identical power which was brought
into play in the other, we are unable to understand upon what
principle we could hold that the one was not a regulation without
holding that the other had the same infirmity -- a result which, as
we have previously said, would reverse
Leisy v. Hardin and
overthrow the many adjudications of this Court sustaining the
Wilson Act.
These considerations dispose of the contention, but we do not
stop with stating them, but recur again to the reason of things for
the purpose of pointing out the fundamental error upon which the
contention rests. It is this: the mistaken assumption that the
accidental considerations which cause a subject, on the one hand,
to come under state control in the absence of congressional
regulation, and other subjects, on the contrary, to be free from
state control until Congress has acted, are the essential criteria
by which to test the question of the power of Congress to
Page 242 U. S. 331
regulate and the mode in which the exertion of that power may be
manifested. The two things are widely different, since the right to
regulate and its scope and the mode of exertion must depend upon
the power possessed by Congress over the subject regulated.
Following the unerring path pointed out by that great principle, we
can see no reason for saying that, although Congress, in view of
the nature and character of intoxicants, had a power to forbid
their movement in interstate commerce, it had not the authority to
so deal with the subject as to establish a regulation (which is
what was done by the Webb-Kenyon Law) making it impossible for one
state to violate the prohibitions of the laws of another through
the channels of interstate commerce. Indeed, we can see no escape
from the conclusion that, if we accepted the proposition urged, we
would be obliged to announce the contradiction in terms that,
because Congress had exerted a regulation lesser in power than it
was authorized to exert, therefore its action was void for excess
of power. Or, in other words, stating the necessary result of the
argument from a concrete consideration of the particular subject
here involved, that, because Congress, in adopting a regulation,
had considered the nature and character of our dual system of
government, state and nation, and, instead of absolutely
prohibiting, had so conformed its regulation as to produce
cooperation between the local and national forces of government to
the end of preserving the rights of all, it had thereby transcended
the complete and perfect power of regulation conferred by the
Constitution. And it is well again to point out that this abnormal
result to which the argument leads concerns a subject as to which
both state and nation, in their respective spheres of authority,
possessed the supremest authority before the action of Congress
which is complained of, and hence the argument virtually comes to
the assertion that, in some undisclosed way, by the exertion of
congressional authority, power possessed has evaporated.
Page 242 U. S. 332
It is only necessary to point out that the considerations which
we have stated dispose of all contentions that the Webb-Kenyon Act
is repugnant to the due process clause of the Fifth Amendment,
since what we have said concerning that clause in the Fourteenth
Amendment as applied to state power is decisive.
Before concluding, we come to consider what we deem to be
arguments of inconvenience which are relied upon -- that is, the
dread expressed that the power by regulation to allow state
prohibitions to attach to the movement of intoxicants lays the
basis for subjecting interstate commerce in all articles to state
control, and therefore destroys the Constitution. The want of force
in the suggested inconvenience becomes patent by considering the
principle which, after all, dominates and controls the question
here presented -- that is, the subject regulated and the extreme
power to which that subject may be subjected. The fact that
regulations of liquor have been upheld in numberless instances
which would have been repugnant to the great guaranties of the
Constitution but for the enlarged right possessed by government to
regulate liquor has never, that we are aware of, been taken as
affording the basis for the thought that government might exert an
enlarged power as to subjects to which, under the constitutional
guaranties, such enlarged power could not be applied. In other
words, the exceptional nature of the subject here regulated is the
basis upon which the exceptional power exerted must rest, and
affords no ground for any fear that such power may be
constitutionally extended to things which it may not, consistently
with the guaranties of the Constitution, embrace.
Affirmed.
MR. JUSTICE McREYNOLDS concurs in the result.
MR. JUSTICE HOLMES and MR. JUSTICE VAN DEVANTER dissent.
[
Footnote 1]
"SEC. 7. It shall be unlawful for any person to keep or have,
for personal use or otherwise, or to use, or permit another to
have, keep or use, intoxicating liquors at any restaurant, store,
office building, club, place where soft drinks are sold (except a
drug store may have and sell alcohol and wine as provided by
sections four and twenty-four), fruit stand, news stand, room, or
place where bowling alleys, billiard or pool tables are maintained,
livery stable, boathouse, public building, park, road, street or
alley. It shall also be unlawful for any person to give or furnish
to another intoxicating liquors, except as otherwise hereinafter
provided in this section. Anyone violating this section shall be
guilty of misdemeanor, and, upon conviction thereof, shall be fined
not less than one hundred dollars nor more than five hundred
dollars and be imprisoned in the county jail not less than two nor
more than six months;
provided, however, that nothing
contained in this section shall prevent one in his home from having
and there giving to another intoxicating liquors when such having
or giving is in no way a shift, scheme or device to evade the
provisions of this act; but the word 'home' as used herein, shall
not be construed to be one's club, place of common resort, or room
of a transient guest in a hotel or boarding house.
And,
provided further that no common carrier, for hire, nor other
person, for hire or without hire, shall bring or carry into this
state, or carry from one place to another within the state,
intoxicating liquors for another, even when intended for personal
use, except a common carrier may, for hire, carry pure grain
alcohol and wine, and such preparations as may be sold by druggists
for the special purposes and in the manner as set forth in sections
four and twenty-four, and,
provided, further, however,
that in case of search and seizure, the finding of any liquors
shall be
prima facie evidence that the same are being kept
and stored for unlawful purposes."
"SEC. 34. It shall be unlawful for any person in this state to
receive, directly or indirectly, intoxicating liquors from a
common, or other carrier. It shall also be unlawful for any person
in this state to possess intoxicating liquors, received directly or
indirectly from a common or other carrier in this state. This
section shall apply to such liquors intended for personal use as
well as otherwise, and to interstate, as well as intrastate,
shipments or carriage. Any person violating this section shall be
guilty of a misdemeanor, and, upon conviction, shall be fined not
less than one hundred dollars nor more than two hundred dollars and
in addition thereto may be imprisoned not more than three months;
provided, however, that druggists may receive and possess
pure grain alcohol, wine and such preparations as may be sold by
druggists for the special purpose and in the manner as set forth in
sections four and twenty-four."
[
Footnote 2]
Van Winkle v. State, 27 Del. 578;
Adams Express Co.
v. Commonwealth, 154 Ky. 462;
Adams Express Co. v.
Commonwealth, 160 Ky. 66;
Palmer v. Southern Express
Co., 129 Tenn. 116;
Ex Parte Peede, 75 Tex.Crim.Rep.
247.
[
Footnote 3]
In re Rahrer, 140 U. S. 545;
Rhodes v. Iowa, 170 U. S. 412;
American Express Co. v. Iowa, 196 U.
S. 133;
Pabst Brewing Co. v. Crenshaw,
198 U. S. 17;
Rosenberger v. Pacific Express Co., 241 U. S.
48.