1. A license from the federal government, under the internal
revenue acts of Congress, is no bar to an indictment under a state
law prohibiting the sale of intoxicating liquors.
The License
Tax Cases, supra, p. <|72 U.S. 462|>462, herein
affirmed.
2. A law of a state taxing or prohibiting a business already
taxed by Congress,
Page 72 U. S. 476
as
ex. gr., the keeping and sale of intoxicating
liquors, Congress having declared that its imposition of a tax
should not be taken to abridge the power of the state to tax or
prohibit the licensed business, is not unconstitutional.
3. The provision in the 8th article of the amendments to the
Constitution, that "excessive fines" shall not be "imposed, nor
cruel and unusual punishments inflicted" applies to national not to
state legislation, the Court observing, however, that if this were
otherwise, a fine of $50 and imprisonment at hard labor in the
house of correction, during three months -- the punishment imposed
by a state for violating one of its statutes forbidding the keeping
and sale of intoxicating liquors -- cannot be regarded as
excessive, cruel, or unusual.
Pervear, the plaintiff in error, was indicted in the state court
for keeping and maintaining without license a tenement for the
illegal sale and illegal keeping of intoxicating liquors.
In bar of this indictment he pleaded specially three matters of
defense:
(1) That he had a license from the United States under the
internal revenue acts of Congress to do all the acts for which he
was indicted:
(2) That he had paid a tax or duty on the intoxicating liquors,
for keeping and selling which the indictment was found, in the same
packages, and in the same form and quantity in which he sold the
same, and
(3) That the fine and punishment imposed and inflicted by the
law of Massachusetts for the acts charged in the indictment were
cruel, excessive, and unusual, and that the state law was therefore
in conflict with the Constitution of the United States [the 8th
article to the amendments of which, proposed in 1789, declares that
"excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted"].
This plea was overruled, and Pervear declining to plead further,
a plea of not guilty was entered for him. He was then put on trial,
and the court instructed the jury that the
Page 72 U. S. 477
plea was no defense to the indictment, to which instruction
exception was taken. A verdict of guilty was thereupon found, and
Pervear was sentenced to pay a fine of fifty dollars and to be
confined at hard labor in the house of correction for three
months.
The writ of error brought this sentence under review, and the
general question now was did the state court err in instructing the
jury that the plea was no defense to the indictment?
Page 72 U. S. 478
THE CHIEF JUSTICE, after stating the case as already given,
delivered the opinion of the Court.
We have already decided at this term that the first proposition
of the plea in this case is no bar to an indictment under a state
law taxing or prohibiting the sale of intoxicating liquors.
The second proposition of the plea is nothing more than a
different form of the first. Both are identical in substance.
The case of
Brown v. Maryland was referred to in
argument as an authority for the general proposition that the sale
of goods in the same packages on which a duty had been paid to the
United States cannot be prohibited by state legislation. But this
case does not sustain the proposition in support of which it is
cited.
The discussion in
Brown v. Maryland related wholly to
imports under national legislation concerning commerce with foreign
nations. A law of Maryland required importers of foreign goods to
take out and pay for a state license for the sale of such goods in
that state, and under this law the members of a Baltimore firm were
indicted for having sold certain goods in packages as imported
without having taken out the required license. The defense was that
the duty on the goods, imposed by the act of Congress, had been
paid to the United States; that the license tax was, in
Page 72 U. S. 479
effect, an additional import duty which could not be
constitutionally imposed by state law.
This Court sustained the defense then set up. It held that, by
the terms of the Constitution, the power to impose duties on
imports was exclusive in Congress and that the law of Maryland was
in conflict with the act of Congress on the same subject and was
therefore void.
But the defense set up in the case before us is a very different
one. It is not founded on any exclusive power of Congress nor any
act of Congress in conflict with state law. It is founded on the
general power to levy and collect taxes, admitted on all hands to
be concurrent only with the same general power in the state
governments, and upon an act of Congress imposing a tax in the form
of duty on licenses, but expressly declaring that the imposing such
a tax shall not be taken to abridge the power of the state to tax
or prohibit the licensed business.
The defense rests, then, in this part on the simple proposition
that a law of a state taxing or prohibiting business already taxed
by Congress is unconstitutional. And that proposition is identical
in substance and effect with the first proposition of the plea, and
has been held in the
License Tax Cases [
Footnote 1] to be no bar to the
indictment.
The circumstance that the state prohibition applies to
merchandise in original packages is wholly immaterial. Even in the
case of importation, that circumstance is only available to the
importer. Merchandise in original packages, once sold by the
importer, is taxable as other property. But in the case before us
there was no importation. So far as appears, the liquors were
home-made, or, if not, were in second hands. And the sale of such
liquors within a state is subject exclusively to state control.
[
Footnote 2]
The third proposition of the plea is that fines and penalties
imposed and inflicted by the state law for offenses charged in the
indictment are excessive, cruel, and unusual.
Of this proposition it is enough to say that the article of
Page 72 U. S. 480
the Constitution relied upon in support of it does not apply to
state, but to national, legislation. [
Footnote 3]
But if this were otherwise, the defense could not avail the
plaintiff in error. The offense charged was the keeping and
maintaining, without license, a tenement for the illegal sale and
illegal keeping of intoxicating liquors. The plea does not set out
the statute imposing fines and penalties for the offense. But it
appears from the record that the fine and punishment in the case
before us was fifty dollars and imprisonment at hard labor in the
house of correction for three months. We perceive nothing excessive
or cruel or unusual in this. The object of the law was to protect
the community against the manifold evils of intemperance. The mode
adopted, of prohibiting under penalties the sale and keeping for
sale of intoxicating liquors without license, is the usual mode
adopted in many, perhaps all of the states. It is wholly within the
discretion of state legislatures. We see nothing in the record, nor
has anything been read to us from the statutes of the state which
warrants us in saying that the laws of Massachusetts having
application to this case are in conflict with the Constitution of
the United States.
The judgment of the Supreme Court of the Commonwealth must
be
Affirmed.
NOTE
The same order was made in four other cases, [
Footnote 4] "presenting," as THE CHIEF
JUSTICE said, "substantially the same facts and governed by the
same principles."
At a later day of the term, to-wit, April 30, 1867, several
other cases on this same subject, coming here in error to the
Supreme Court of Iowa, [
Footnote
5] were submitted to the court on the records
Page 72 U. S. 481
and briefs of Mr. Riddle, for the plaintiffs in error, and Mr.
Cooley
contra.
On the following 7th of May, the CHIEF JUSTICE delivered the
opinion of the Court that the cases resembled in all essential
features cases already decided at this term which presented the
question of the constitutionality of state laws prohibiting,
restraining, or taxing the business of selling liquors under the
internal revenue licenses of the United States; that the brief of
the learned counsel for the plaintiff in error calling upon the
court to review its decisions affirming the validity of those laws,
the Court had done so, and was satisfied with the conclusions
already announced.
The several judgments of the Supreme Court of the state of Iowa
were therefore
Affirmed.
[
Footnote 1]
Supra, last preceding case, p. <|72 U.S.
462|>462.
[
Footnote 2]
License Cases,
5 How. 504.
[
Footnote 3]
Barron v.
Baltimore, 7 Pet. 243.
[
Footnote 4]
Lynde v. Commonwealth of Massachusetts; Salmon v. Same; Cass
v. Same; Armstrong v. Same.
[
Footnote 5]
Carney v. Iowa; Munzenmainer v. Same; Bachman v. Same;
Bahlor v. Same; Newman v. Same; Stutz v. Same; Bennett v.
Same.
