The power of a state under the Webb-Kenyon Law to forbid
shipment into its territory of intoxicating liquor from other
states includes the lesser power to prescribe by law the conditions
under which such shipments may be allowed.
The Webb-Kenyon Law having subjected interstate shipments of
intoxicating liquor to state legislation, a state law requiring
carriers to keep records of such shipments, open for the inspection
of any officer or citizen, is valid notwithstanding the prohibition
of § 15 of the Act to Regulate Commerce, as amended June 18, 1910,
against the divulging of information by interstate carriers.
Section 5, North Carolina Public Laws, 1913, c. 44, p. 76,
sustained. 169 N.Car. 295 affirmed.
The case is stated in the opinion.
Page 245 U. S. 299
MR. JUSTICE McREYNOLDS delivered the opinion of the court.
Pertinent provisions of "An act to secure the enforcement of the
laws against the sale and manufacture of intoxicating liquors"
established by the General Assembly of North Carolina March 3, 1913
(Pub.Laws 1913, c. 44, p. 76), are copied in the margin. [
Footnote 1] Section 5 requires
railroad
Page 245 U. S. 300
companies to keep a separate book in which shall be entered the
name of every person to whom intoxicating liquor is shipped,
together with amount, kind, date of receipt, etc., to be followed
by the consignee's signature acknowledging delivery. And it further
provides that the
Page 245 U. S. 301
book shall be open for inspection by any officer or citizen, and
makes failure so to do a misdemeanor.
Plaintiff in error was indicted at the May term, 1914, Superior
Court, Wake county, upon a charge of violating § 5 by refusing, in
the preceding January, to permit a citizen to inspect its record
showing shipments of spirituous and malt liquors transported from
Virginia into that county, "said record containing the names of the
consignee, consignor, date of receipt and delivery of said
shipments, and to whom delivered."
The jury returned a special verdict in which they found:
"That R. L. Davis, on a date prior to the starting of this
prosecution, he being at that time a citizen of the County of Wake,
State of North Carolina, went to the office of the defendant
company during its business hours, and while said office was open,
and demanded of the agent that he be allowed to inspect the book
kept by the defendant showing shipments of liquor from points
outside of the State of North Carolina to the city of Raleigh; . .
. the agent of the defendant stated that he was instructed to and
did refuse to allow . . . the inspection; . . . Davis had no legal
process, and did not make any demand under any legal process, and,
at the time of the alleged demand, he was neither a state not
federal officer of any kind of any state or territory; . . . he was
seeking information from said book for the purpose of prosecuting
persons suspected of violating the law of North Carolina, [and] was
seeking general information as to shipments of whisky into the City
of Raleigh from points in another state, and that he had in his
mind specially an effort to see what evidence could be procured
against one or more specific parties in the City of Raleigh,
meaning by the words 'general information' that he was seeking to
ascertain who were the consignees of liquor and the quantities they
were receiving, for the purpose of prosecuting such parties as may
be charged or suspected with the violation
Page 245 U. S. 302
of the prohibition laws of the state,"
and that he "had no authority except that which existed, if any,
by virtue of the fact that he was at that time a citizen of the
state."
Upon this special verdict, the state supreme court adjudged
plaintiff in error guilty as charged, 169 N.C. 295, and it now
maintains the judgment is erroneous, for reasons following:
I. Section 5, c. 44,
supra, is void because an attempt
by the state to regulate interstate commerce, in that it imposes as
a condition precedent to delivery that the carrier shall keep a
separate book containing name of person to whom liquor is shipped,
amount and kind received, date of receipt and delivery, by whom and
to whom delivered, and the consignee is required to receipt
therefor before delivery.
II. In order to comply with § 5 by permitting records of
interstate shipments of liquor to be inspected by a mere citizen,
the carrier would necessarily violate the provisions of § 15, Act
to Regulate Commerce, as amended June 18, 1910 (36 Stat. 539, 551,
553), which prohibit such action except under circumstances
specified. (These are copied below. [
Footnote 2])
Page 245 U. S. 303
The Webb-Kenyon Law (Act of Congress March 1, 1913, entitled "An
Act divesting intoxicating liquors of their interstate character in
certain cases," 37 Stat. 699) cannot affect the application of
these principles to shipments destined to points in Wake County,
because it relates to liquors intended to be received, possessed,
sold, or used in violation of state law, and to receive or possess
liquor in any quantity in that county is not unlawful.
For some years, it has been the established policy of North
Carolina
"approved by popular vote and expressed and enforced by the
general and many local statutes, that, except in very restricted
instances, the manufacturing and sale of intoxicating liquors shall
not be allowed."
Smith v. Express Company (1914), 166 N.C. 155. Since
our decision in
Clark Distilling Co. v. Western Maryland Ry.
Co., 242 U. S. 311,
242 U. S. 320,
242 U. S. 324,
it has not been open to serious question that the Webb-Kenyon Law
is a valid enactment; that
"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;"
and that, under it, a state may inhibit shipments
Page 245 U. S. 304
therein of intoxicating liquors from another by a common carrier
although intended for the consignee's personal use where such use
is not actually forbidden. Plainly, therefore, after that
enactment, nothing in the laws or Constitution of the United States
restricted North Carolina's power to make shipment of intoxicants
into Wake County a penal offense irrespective of any personal right
in a consignee there to have and consume liquor of that
character.
The challenged act, instead of interposing an absolute bar
against all such shipments, as it was within the power of the state
to do, in effect permitted them upon conditions intended to secure
publicity, to the end that public policy might not be set at naught
by subterfuge and indirection. The greater power includes the
less.
The provisions of § 15, Act to Regulate Commerce, here relied on
were intended to apply to matters within the exclusive control of
the federal government, and when, by a subsequent act, Congress
rendered interstate shipments of intoxicating liquors subject to
state legislation, those provisions necessarily ceased to be
paramount in respect of them.
The judgment of the court below is
Affirmed.
Mr. Justice VAN DEVANTER dissents.
[
Footnote 1]
Public Laws of North Carolina 1913, c. 44, p. 76:
"Sec. 1. That it shall be unlawful for any person, firm,
corporation, association, or company, by whatever name called,
other than druggists and medical depositories duly licensed
thereto, to engage in the business of selling, exchanging,
bartering, giving away for the purpose of direct or indirect gain,
or otherwise handling spirituous, vinous or malt liquors in the
State of North Carolina. Any person, firm, or corporation or
association violating the provisions of this act shall be guilty of
a misdemeanor."
"Sec. 2. That it shall be unlawful for any person, firm,
association, or corporation, by whatever name called, other than
druggists and medical depositories duly licensed thereto, to have
or keep in his, their, or its possession for the purpose of sale
any spirituous, vinous, or malt liquors, and proof of any one of
the following facts shall constitute
prima facie evidence
of the violation of this section:"
"First: The possession of a license from the government of the
United States to sell or manufacture intoxicating liquors; or"
"Second: The possession of more than one gallon of spirituous
liquors at any one time, whether, in one or more places; or"
"Third: The possession of more than three gallons of vinous
liquors at any one time, whether, in one or more places; or"
"Fourth: The possession of more than five gallons of malt
liquors at any one time, whether, in one or more places; or"
"Fifth: The delivery to such person, firm, association or
corporation of more than five gallons of spirituous or vinous
liquors, or more than twenty gallons of malt liquors within any
four successive weeks, whether in one or more places; or"
"Sixth: The possession of intoxicating liquors as samples to
obtain orders thereon. . . ."
"Sec. 3. Upon the filing of complaint, under oath, by a
reputable citizen, or information furnished under oath by an
officer charged with the execution of the law, before a justice of
the peace, recorder, mayor, or other officer authorized by law to
issue warrants, charging that any person, firm, corporation,
association or company, by whatever name called, has in his, their
or its possession at a place or places specified, more than one
gallon of spirituous or vinous liquors or more than five gallons of
malt liquors for the purpose of sale, a warrant shall be issued
commanding the officer to whom it is directed to search the place
or places described in such complaint or information. . . ."
"Sec. 5. All express companies, railroad companies, or other
transportation companies doing business in this state are required
hereby to keep a separate book in which shall be entered
immediately upon receipt thereof the name of the person to whom the
liquor is shipped, the amount and kind received, and the date when
received, the date when delivered, by whom delivered, and to whom
delivered, after which record shall be a blank space, in which the
consignee shall be required to sign his name, or if he cannot
write, shall make his mark in the presence of a witness, before
such liquor is delivered to such consignee, and which said book
shall be open for inspection to any officer or citizen of the
state, county, or municipality any time during business hours of
the company, and said book shall constitute
prima facie
evidence of the facts therein, and will be admissible in any of the
courts of this state. Any express company, railroad company, or
other transportation company or any employee or agent of any
express company, railroad company, or other transportation company
violating the provisions of this section shall be guilty of a
misdemeanor:
Provided, upon the filing of a certificate
signed by a reputable physician or two (2) reputable citizens that
the consignee is unable, by reason of sickness or infirmities or
age, to appear in person, then the said company is authorized to
deliver any package to the agent of said consignee, and the agent
shall sign the name of the consignee and his own name, and the
certificate shall be filed of record."
[
Footnote 2]
"An Act to Regulate Commerce," as amended June 18, 1910 (36
Stat. 539, 551, 553):
"Section 15. . . ."
"It shall be unlawful for any common carrier subject to the
provisions of this act, or any officer, agent, or employee of such
common carrier, or for any other person or corporation lawfully
authorized by such common carrier to receive information therefrom,
knowingly to disclose to or permit to be acquired by any person or
corporation other than the shipper or consignee, without the
consent of such shipper or consignee, any information concerning
the nature, kind, quantity, destination, consignee, of such shipper
or consignee, any information concerning to such common carrier for
interstate transportation, which information may be used to the
detriment or prejudice of such shipper or consignee, or which may
improperly disclose his business transactions to a competitor, and
it shall also be unlawful for any person or corporation to solicit
or knowingly receive any such information which may be so used:
Provided, that nothing in this Act shall be construed to
prevent the giving of such information in response to any legal
process issued under the authority of any state or federal court,
or to any officer or agent of the government of the United States,
or of any state or territory, in the exercise of his powers, or to
any officer or other duly authorized person seeking such
information for the prosecution of persons charged with or
suspected of crime; or information given by a common carrier to
another carrier or its duly authorized agent, for the purpose of
adjusting mutual traffic accounts in the ordinary course of
business of such carriers."
"Any person, corporation, or association violating any of the
provisions of the next preceding paragraph of this section shall be
deemed guilty of a misdemeanor, and for each offense, on
conviction, shall pay to the United States a penalty of not more
than one thousand dollars."