It is settled by previous adjudications of this Court:
(1) That the respective states have plenary power to regulate
the sale of intoxicating liquors within their borders, and the
scope and extent of such regulations depend solely on the judgment
of the lawmaking power of the states, provided always they do not
transcend the limits of state authority by invading rights which
are secured by the Constitution of the United States, and provided
further that the regulations as adopted do not operate a
discrimination against the rights of residents or citizens of other
states of the Union.
(2) That the right to send liquors from one state into another,
and the act of sending the same, is interstate commerce, the
regulation whereof has been committed by the Constitution of the
United States to Congress, and hence that a state law which denies
such a right or substantially interferes with or hampers the same
is in conflict with the Constitution of the United States.
(3) That the power to ship merchandise from one state into
another carries with it, as an incident, the right in the receiver
of the goods to sell them in the original packages, any state
regulation to the contrary notwithstanding -- that is to say that
the goods
Page 170 U. S. 439
received by interstate commerce remain under the shelter of the
interstate commerce clause of the Constitution, until by a sale in
the original package they have been commingled with the general
mass of property in the state, but, since the passage of the Act of
August 8, 1890, c. 728, 26 Stat. 313, which provides
"that all fermented, distilled or other intoxicating liquors or
liquids transported into any state or territory, or remaining
therein for use, consumption, sale, or storage therein shall, upon
arrival in such state or territory, be subject to the operation and
effect of the laws of such state or territory enacted in the
exercise of its police powers to the same extent and in the same
manner as though such liquids or liquors had been produced in such
state or territory, and shall not be exempt therefrom by reason of
being introduced therein in original packages or otherwise,"
while the receiver of intoxicating liquors in one state, sent
from another state, has the constitutional right to receive them
for his own use, without regard to the state laws to the contrary,
he can no longer assert a right to sell them in the original
packages in defiance of state law.
The South Carolina Act of March 5, 1897, No. 340, amending the
Act of March 6, 1896, No. 61, is unconstitutional insofar as it
compels the resident of the state who desires to order alcoholic
liquors for his own use to first communicate his purpose to a state
chemist, and insofar as it deprives any nonresident of the right to
ship by means of interstate commerce any liquor into South Carolina
unless previous authority is obtained from the officers of the
State of South Carolina, since as, on the face of these
regulations, it is clear that they subject the constitutional right
of the nonresident to ship into the state and of the resident in
the state to receive for his own use, to conditions which are
wholly incompatible with and repugnant to the existence of the
right which the statute itself acknowledges.
The bill below was filed by the appellee, a corporation created
by the laws of California, and a citizen of that state. It alleged
in substance that the corporation was the owner of large vineyards
in California, from which it produced well known qualities of pure
wines and brandies and other liquors; that through its traveling
agent, a citizen of the State of Virginia, it took orders from
certain residents of the State of South Carolina residing in the
City of Charleston, to deliver to each of them in Charleston
certain original packages of wines and brandies, the products of
the vineyards of the complainant; that, in consequence of said
orders, seventy-three original packages for the customers aforesaid
were shipped
Page 170 U. S. 440
in one car, by a contract for continuous interstate carriage
from San Francisco to Charleston; that, under a law of South
Carolina, known as the "Dispensary Law," certain officers of the
State of South Carolina had seized the packages of liquor above
described, and prevented the delivery thereof, and openly avowed
their intention to continue to levy upon any packages of liquor
shipped into the State of South Carolina in violation of the law of
the state. The bill moreover alleged another shipment of the same
character and a like seizure. The bill then averred as follows:
"And your orator further shows that your orator intends in the
course of its said business, as aforesaid, further and in addition
to said shipments so ordered by its said customers, in advance as
aforesaid, to ship also from San Francisco, California, to its
agent in the State of South Carolina and to store and warehouse in
the State of South Carolina, and to sell in the State of South
Carolina, in the original unbroken packages as imported, as
aforesaid, to the residents and citizens of the State of South
Carolina, its wines and other liquors, products of its vineyards,
as aforesaid, for the lawful use and consumption of the said
residents and citizens of the State of South Carolina in the due
and lawful exercise of your orator's right of importation of such
wines etc., products of its, vineyards, into the State of South
Carolina, in lawful intercourse, trade, and commerce with the
citizens and residents of the State of South Carolina, under the
Constitution and laws of the United States, all of which shipments,
as aforesaid, the defendants and other persons claiming to act as
state constables and officials threaten to seize, take, and carry
away, detain, convert, and sell, to the manifest wrong, damage, and
injury of your orator and its trade and business, as
aforesaid."
"And your orator further shows that, by and under the terms,
principle, policy, and operation of the said dispensary law of the
State of South Carolina, as aforesaid, approved March 6, 1896, and
amended March 5, 1897, all wines, beers, ales, alcoholic,
spirituous, and other intoxicating liquors are subjects of lawful
manufacture, barter, sale, export, and import in the State of South
Carolina, and have been, are being,
Page 170 U. S. 441
and will continue to be, lawfully used and consumed as a
beverage by the citizens and residents of the State of South
Carolina."
Averring the avowed purpose of the state officers to continue to
seize all liquors thereafter shipped by the complainant into the
state to residents therein or for sale in original packages, the
bill proceeded to charge that the state law upon which the officers
relied was void because repugnant to the Constitution of the United
States; that to prevent the continuing wrong which would
necessarily arise from the conduct of the state officers, and to
avoid a multiplicity of suits, a writ of injunction was necessary,
restraining the state officers from interfering with complainant in
its shipment of its products to residents of the state on their
orders, and also enjoining the state officers from interfering with
the complainant in shipping its products from the State of
California into the State of South Carolina to its agents there,
for the purpose of selling the same in original packages, the
provisions of the South Carolina law to the contrary
notwithstanding. This mere outline of the averments of the bill
suffices to convey an understanding of the controversy which the
record presents. A restraining order was granted as prayed for
against the designated state officers, and, after due pleadings and
proceedings, this restraining order was perpetuated, and a final
decree was entered in favor of the complainant in accordance with
the prayer of the bill.
MR. JUSTICE WHITE, after stating the facts in the foregoing
language, delivered the opinion of the Court.
In the two cases of
Scott v. Donald, 165 U. S.
58,
165 U. S. 107, the
Court was called upon to determine whether a law of the State of
South Carolina controlling the sale of intoxicating liquors within
that state was repugnant to the Constitution of the
Page 170 U. S. 442
United States. In one of the cases, it was held that the court
below had jurisdiction to entertain a bill filed by the
complainants to enjoin the execution of the law, as to liquors by
them owned; while in both cases it was decided that insofar as the
law then in question forbade the sending from one state into South
Carolina of intoxicating liquors for the use of the person to whom
it was shipped, the statute was repugnant to the third clause of
section 8 of the first article of the Constitution of the United
States, commonly spoken of as the "interstate commerce clause" of
the Constitution. It was, besides, decided that the law in
question, which created state officers or agents with authority to
buy liquor to be sold in the state and which forbade the sale of
any liquor except that so bought and offered for sale by the state
officers or agents, was also in violation of the Constitution of
the United States because amounting to an unjust discrimination
against liquors the products of other states. The conclusion
reached on this latter subject was predicated not on the general
theory which the statute put in practice, but on particular
provisions of the law by which the discrimination was brought
about. Whether a state could, without violating the Constitution of
the United States, confer upon certain officers or agents the sole
power to buy all liquors which were to be sold in the state,
allowing no other liquor to be sold except that offered for sale by
the designated officers or agents, was not decided. On the
contrary, this question was reserved, for, as the state law was
found to violate the Constitution because of express discriminatory
provisions which it contained, it became unnecessary to determine
whether a law of that general character would be inherently
repugnant to the Constitution of the United States. Referring to
this last question, the Court said (p.
165 U. S.
101):
"It was pressed on us in the argument that it is not competent
for a state, in the exercise of its police power, to monopolize the
traffic in intoxicating liquors, and thus put itself in competition
with the citizens of other states. This phase of the subject is
novel and interesting, but we do not think it necessary for us now
to consider it. It is sufficient for the present case to hold, as
we do, that when a state recognizes the
Page 170 U. S. 443
manufacture, sale, and use of intoxicating liquors as lawful, it
cannot discriminate against the bringing of such articles in and
importing them from other states; that such legislation is void, as
a hindrance to interstate commerce, and an unjust preference of the
products of the enacting state as against similar products of other
states."
The controversy which this record presents arises from a law of
South Carolina similar in its general scope to the one which was
under review in
Scott v. Donald. The statute before us,
however, was enacted after the decision in
Scott v.
Donald, and changes in many important particulars the law
which was passed on in that case. The statute, as changed, retains
the general provisions conferring on the state officers or agents
the exclusive right to buy all liquor which is to be sold in the
state, and to sell the same, but does not contain those clauses in
the previous statute which were held to operate as a
discrimination. It moreover modifies the previous statute to the
extent that it allows shipments of intoxicating liquors to be made
from other states into the State of South Carolina to residents
therein for their own use, but subjects the exercise of this right
to designated regulations and restrictions. Despite these
differences, it is asserted that the present law is repugnant to
the Constitution of the United States for the following reasons:
First. Because, although the features in the prior act which were
held to be discriminatory have been eliminated from this act,
nevertheless there are, it is asserted, other provisions in the
present act which on their face amount to a discrimination, and
therefore render the act void. Second. Because, as the act, as at
present drawn, created state officers and confers upon them the
power to buy all the liquor which is to be sold in the state, and
forbids the sale of any other liquor by any other person, it is
therefore in violation of the Constitution of the United States to
the extent that it seeks to control or forbid the sale in original
packages of all liquor shipped into South Carolina from other
states. And this controversy presents for consideration the
question which was reserved in
Scott v. Donald. Third.
Because, although the amended statute recognizes the right of
residents
Page 170 U. S. 444
of other states to ship intoxicating liquors to the residents of
South Carolina and their right to receive the same for their own
use, it, in reality, it is asserted, denies such right, since its
exercise is subjected to conditions which hamper and frustrate the
same to such a degree that they are equivalent to a denial of the
right itself. The two first contentions go to the whole statute,
and therefore, if well taken, render it void as an entirety. The
third is narrower in its purport, since it only assails as
unconstitutional the particular restrictions which the statute
imposes upon the right of the residents of another state to ship
into South Carolina, and of the residents of that state to receive
liquor for their own use. We therefore at the outset, dispose of
the two first contentions, before approaching the third.
In the inception, is it necessary to bear in mind a few
elementary propositions which are so entirely concluded by the
previous adjudications of this Court that they need only be briefly
recapitulated.
(a) Beyond dispute, the respective states have plenary power to
regulate the sale of intoxicating liquors within their borders, and
the scope and extent of such regulations depend solely on the
judgment of the lawmaking power of the states, provided always they
do not transcend the limits of state authority by invading rights
which are secured by the Constitution of the United States, and
provided further that the regulations as adopted do not operate a
discrimination against the rights of residents or citizens of other
states of the Union.
(b) Equally well established is the proposition that the right
to send liquors from one state into another, and the act of sending
the same, is interstate commerce, the regulation whereof has been
committed by the Constitution of the United States to Congress, and
hence that a state law which denies such a right or substantially
interferes or hampers the same is in conflict with the Constitution
of the United States.
(c) It is also certain that the settled doctrine is that the
power to ship merchandise from one state into another carries
Page 170 U. S. 445
with it, as an incident, the right in the receiver of the goods
to sell them in the original packages, any state regulation to the
contrary notwithstanding -- that is to say that the goods received
by interstate commerce remain under the shelter of the interstate
commerce clause of the Constitution until, by a sale in the
original package, they have been commingled with the general mass
of property in the state.
This last proposition, however, while generically true, is no
longer applicable to intoxicating liquors, since Congress, in the
exercise of its lawful authority, has recognized the power of the
several states to control the incidental right of sale, in the
original packages, of intoxicating liquors shipped into one state
from another, so as to enable the states to prevent the exercise by
the receiver of the accessory right of selling intoxicating liquors
in original packages except in conformity to lawful state
regulations. In other words, by virtue of the act of Congress, the
receiver of intoxicating liquors in one state, sent from another,
can no longer assert a right to sell in defiance of the state law
in the original packages, because Congress has recognized to the
contrary. The act of Congress referred to was approved August 8,
1890, and is entitled "An act to limit the effect of the
regulations of commerce between the several states and with foreign
countries in certain cases." It reads as follows:
"That all fermented, distilled or other intoxicating liquors or
liquids transported into any state or territory, or remaining
therein for use, consumption, sale or storage therein, shall, upon
arrival in such state or territory, be subject to the operation and
effect of the laws of such state or territory enacted in the
exercise of its police powers, to the same extent and in the same
manner as though such liquids or liquors had been produced in such
state or territory, and shall not be exempt therefrom by reason of
being introduced therein in original packages or otherwise."
26 Stat. 313.
The scope and effect of this act of Congress have been settled.
In re Rahrer, 140 U. S. 545;
Rhodes v. Iowa, ante, 170 U. S. 412.
In the first of these cases, the constitutional power of
Congress to pass the enactment in question was upheld, and the
Page 170 U. S. 446
purpose of Congress in adopting it was declared to have been to
allow state laws to operate on liquor shipped into one state from
another, so as to prevent the sale in the original package in
violation of state laws. In the second case, the same view was
taken of the statute, and although it was decided that the power of
the state did not attach to the intoxicating liquor when in course
of transit, and until receipt and delivery, it was yet reiterated
that the obvious and plain meaning of the act of Congress was to
allow the state laws to attach to intoxicating liquors received by
interstate commerce shipments before sale in the original package,
and therefore at such a time as to prevent such sale if made
unlawful by the state law.
The claim that the state statute is unconstitutional because it
deprives of the right to sell imported liquor in the original
packages rests, therefore, on the assumption that the state law is
a regulation of interstate commerce because it forbids the doing of
an act which, in consequence of the permissive grant resulting from
the act of Congress, the state had undoubtedly the lawful power to
do. Indeed, the entire argument by which it is endeavored to
maintain the contention arises from excluding from view the change
as to the sale of intoxicating liquor arising from the act of
Congress -- that is, it rests on the fallacious assumption that the
state is without power to forbid the sale of intoxicating liquors
in original packages despite the act of Congress, while in fact, as
a result of that act, the restrictions and regulations of state
laws become operative on the original package before the sale
thereof, and therefore such packages cannot be sold if the state
law forbids the sale, or can be only so sold in the manner and form
prescribed by the state regulations. In view of the self-evident
misconception upon which the argument proceeds, it becomes
unnecessary to review the many decisions of this Court cited in
support of the proposition relied upon. Their authority is
unquestioned, but their irrelevancy is equally obvious. They all
relate to and illustrate various aspects of the principle that the
right to send merchandise from one state to another carries with it
as an incident the power of
Page 170 U. S. 447
the one by whom they are received to sell them in the original
package, even although so doing may be contrary to a state law.
None of them has the remotest bearing on the exception to this
general rule springing from the act of Congress. The right of the
state to forbid the sale of liquors in the original packages being
clear, it results that a state law cannot be void because in excess
of state authority, when it is but the execution of a power
lawfully vested in the legislature of the state. This reasoning
would dispose of the case but for the contention that the act of
Congress in question has no bearing on the controversy, and indeed
that, in this case, the power of the state to control the sale of
intoxicants in an original package must be determined just as if
the act of Congress had never been passed.
Congress, it is argued, by the act in question, has submitted
merchandise in original packages only to the control of state laws
"enacted in the exercise of its police powers." As the state law
here in question does not forbid, but, on the contrary, authorizes,
the sale of intoxicants within the state, hence it is not a police
law, therefore not enacted in the exercise of the police power of
the state, and consequently does not operate upon the sale of
original packages within the state. But the premise upon which
these arguments rest is purely arbitrary and imaginary. From the
fact that the state law permits the sale of liquor subject to
particular restrictions, and only upon enumerated conditions, it
does not follow that the law is not a manifestation of the police
power of the state. The plain purpose of the act of Congress having
been to allow state regulations to operate upon the sale of
original packages of intoxicants coming from other states, it would
destroy its obvious meaning to construe it as permitting the state
laws to attach to and control the sale only in case the states
absolutely forbade sales of liquor, and not to apply in case the
states determined to restrict or regulate the same.
The confusion of thought which is involved in the proposition to
which we have just referred is embodied in the principle upon which
the court below mainly rested its conclusion -- that is,
"if all alcoholic liquors, by whomsoever held, are
Page 170 U. S. 448
declared contraband, they cease to belong to commerce, and are
within the jurisdiction of the police power; but so long as their
manufacture, purchase, or sale, and their use as a beverage in any
form or by any person are recognized, they belong to commerce, and
are without the domain of the police power."
But this restricts the police power to the mere right to forbid,
and denies any and all authority to regulate or restrict. The
manifest purpose of the act of Congress was to subject original
packages to the regulations and restraints imposed by the state
law. If the purpose of the act had been to allow the state law to
govern the sale of the original package only where the sales of all
liquor were forbidden, this object could have found ready
expression, while, on the contrary, the entire context of the act
manifests the purpose of Congress to give to the respective states
full legislative authority, both for the purpose of prohibition as
well as for that of regulation and restriction with reference to
the sale in original packages of intoxicating liquors brought in
from other states.
Nor is the claim well founded that it was decided in
Scott
v. Donald that the provisions of the act of Congress of 1890
do not apply in any state by whose laws the sale of liquor is not
absolutely forbidden -- that is to say that the right exists to
sell original packages in violation of the state laws wherever they
do not prohibit liquor from being sold under any circumstances. The
language in
Scott v. Donald which it is asserted
establishes this doctrine is as follows (p.
165 U. S.
100):
"It [the South Carolina law then considered] is not a law
purporting to forbid the importation, manufacture, sale, and use of
intoxicating liquors as articles detrimental to the welfare of the
state and to the health of the inhabitants, and hence it is not
within the scope and operation of the act of Congress of August,
1890."
Separated from its context, these words might have the
significance sought to be attached to them; but when elucidated by
a reference to what immediately preceded them and that which
immediately followed, it is obvious that they refer to the matter
which was being considered -- that is, a state law which did not
forbid the sale, but, on the contrary, allowed it
Page 170 U. S. 449
under conditions of express discrimination against the products
of other states. Immediately following the passage cited is this
language:
"That law [the act of Congress] was not intended to confer upon
any state the power to discriminate injuriously against the
products of other states in articles whose manufacture and use are
not forbidden, and which are therefore the subjects of legitimate
commerce. When that law provided that"
"all fermented, distilled or intoxicating liquors transported
into any state or territory, remaining therein for use,
consumption, sale or storage therein, should, upon arrival in such
state or territory, be subject to the operation and effect of the
laws of such state or territory enacted in the exercise of its
police powers to the same extent and in the same manner as though
such liquids or liquors had been produced in such state or
territory, and should not be exempt therefrom by reason of being
introduced therein in original packages or otherwise,"
"evidently equality or uniformity of treatment under state laws
was intended. The question whether a given state law is a lawful
exercise of the police power is still open, and must remain open,
to this Court. Such a law may forbid entirely the manufacture and
sale of intoxicating liquors, and be valid, or it may provide equal
regulations for the inspection and sale of all domestic and
imported liquors, and be valid. But the state cannot, under the
congressional legislation referred to, establish a system which in
effect discriminates between interstate and domestic commerce in
commodities to make and use which are admitted to be lawful."
Having found that the law under consideration expressly
discriminated against the products of other states, the question
which arose for decision was whether the act of Congress allowed
such a law to operate on the original package, and it became
therefore not necessary to decide what would be the rule where
discrimination did not exist. The conclusion expressed on that
branch of the case was this, and nothing more: that although the
act of Congress authorizes a state law to attach to an original
package so as to prevent its sale, it did not contemplate and
sanction the operation of a state law which
Page 170 U. S. 450
injuriously discriminated against the products of other states
and which, in consequence of such discrimination, was not a police
law in the correct sense of those words. It would lead to an
impossible conclusion to treat the sentences in
Scott v.
Donald upon which reliance is placed as having the
significance attributed to them in argument, since, as we have
already stated, the Court expressly reserved the question of
whether a state law which undertook to confer on its officers power
to buy all liquor which was to be sold in the state would be
constitutional if no express discriminatory provisions were found
in it. It is obvious from even a casual reading of the opinion that
the Court did not pass on the very question which it expressly
declared it abstained from deciding.
A more plausible, but equally unsound, proposition is involved
in the contention that the state law in question is inherently
discriminatory. The argument by which this is supported is as
follows: the law gives to the state officers exclusive right to
purchase all the liquor to be sold in the state. The authority to
purchase includes the right on the part of the buyer to determine
from whom and where the purchase may be made. This gives the
officers the opportunity, by exercising their right of purchase, to
buy in one state to the detriment and exclusion of the products of
every other state. As no other product, then, but that which the
officers buy can be sold in the state, it follows that although
intoxicants will be freely offered for sale in the state, only
liquors coming from the state in which the officer has purchased
will be so sold, and the products of all other states will be
excluded from sale and be thereby discriminated against. And
whether these consequences will arise will depend solely upon the
arbitrary discretion of the state officers in determining where and
from whom the liquor that they propose to offer for sale will be by
them purchased. This, it is argued, demonstrates the inherent
discrimination arising from legislation which makes state officers
the sole persons authorized to buy and sell liquor -- a
discrimination whose unjust consequences can only be avoided by
recognizing the right of the residents of all other states to ship
their products into the state and sell them in original
Page 170 U. S. 451
packages. In the first place, to maintain this proposition, the
presumption must be indulged in that the state officer, in
purchasing as provided by the state statute instead of buying
fairly and in the best markets, affording an equal chance to all
sellers and to every locality, will, on the contrary, so act as to
discriminate against the products of one or more states and in
favor of those of others.
Such a presumption would be equally justified in case the state
law authorized only residents to be licensed to sell liquor and
restricted the number of such licenses. The person so licensed,
whether one or one hundred, would buy where they pleased the liquor
they proposed to sell, and it would therefore be fully as cogent to
argue that they might elect to buy in one place instead of another,
and thus discriminate against the persons or places from where or
from whom they did not buy. The argument will not be strengthened,
even if it be conceded that there is a difference between licensing
a number of persons to buy or sell, and concentrating the power, to
buy all the liquor to be sold, in the hands of state officers, and
by further conceding that whether the statute discriminates against
producers of other states is to be determined solely by the power
to bring about the discrimination which might arise from its
execution, and not by whether the power has been so carried out as
to cause an actual discrimination. Under these concessions, there
would doubtless be force in the position taken if the authority of
the state officers to buy the liquor to be by them sold excluded
the right of the residents of every other state to ship to the
residents of South Carolina liquor for their own use, for in that
event the products of the state from which no liquor was bought by
the state officers would be wholly excluded from the state,
although by the state law liquor could be sold therein by the state
agents. But the weight of the contention is overcome when it is
considered that the interstate commerce clause of the Constitution
guaranties the right to ship merchandise from one state into
another, and protects it until the termination of the shipment by
delivery at the place of consignment, and this right is wholly
unaffected by the act of Congress which allows state
Page 170 U. S. 452
authority to attach to the original package before sale, but
only after delivery.
Scott v. Donald, supra; Rhodes v. Iowa,
supra. It follows that, under the Constitution of the United
States, every resident of South Carolina is free to receive for his
own use liquor from other states, and that the inhibitions of a
state statute do not operate to prevent liquors from other states
from being shipped into such state on the order of a resident for
his use. This demonstrates the unsoundness of the contention that
if state agents are the only ones authorized to buy liquor for sale
in a state, and they select the liquor to be sold from particular
states, the products of other states will be excluded. They cannot
be excluded if they are free to come in for the use of any resident
of South Carolina who may elect to order them for his use. The
products of other states will be, of course, excluded from sale in
the original packages in the state; but as the right of the state
to prevent the sale in original packages of intoxicants coming from
other states, in consequence of the state law forbidding the sale
of any but certain liquor, attaches to the original packages from
other states by virtue of the act of Congress, the inability to
make such sales arises from a lawful state enactment. To hold the
law unconstitutional because it prevents such sale in the original
package would be to decide that the state law was unconstitutional
because it exerted a power which the state had a lawful right to
exercise. Indeed the law of the state here under review does not
purport to forbid the shipment into the state from other states of
intoxicating liquors for the use of a resident, and if it did so,
it would, upon principle and under the ruling in
Scott v.
Donald, to that extent be in conflict with the Constitution of
the United States. It is argued that the foregoing considerations
are inapplicable, since the state law now before us, while it
recognizes the right of residents of other states to ship liquor
into South Carolina for the use of residents therein, attaches to
the exercise of that right such restrictions as virtually destroy
it.
But the right of persons in one state to ship liquor into
another state to a resident for his own use is derived from the
Constitution of the United States, and does not rest on the
Page 170 U. S. 453
grant of the state law. Either the conditions attached by the
state law unlawfully restrain the right or they do not. If they do
-- and we shall hereafter examine this contention -- then they are
void. If they do not, then there is no lawful ground of complaint
on the subject.
We are thus brought to examine whether the regulations imposed
by the state law on the right of the residents of other states to
ship into the State of South Carolina alcoholic liquor to the
residents of that state when ordered by them for their use are so
onerous and burdensome in their nature as to substantially impair
the right -- that is, whether they so hamper and restrict the
exercise of the right as to materially interfere with or in effect
prevent its enjoyment.
Before, however, approaching this question, we briefly dispose
of two other contentions. It is said that the law now before us is
expressly discriminatory, since it really contains the provisions
found in the previous statute, and which were held in
Scott v.
Donald to be repugnant to the Constitution of the United
States. This argument is predicated on the following proposition:
the law now before us was passed subsequent to the decision in
Scott v. Donald holding that the discriminatory clauses in
the previous act were void, and it entirely omits them. Its
repealing clause, however, only repeals laws inconsistent
therewith, and the argument is that, as the provisions found in the
previous law, and which were declared unconstitutional by this
Court, are not inconsistent with the present law, therefore they
continue to exist, and the present law must be interpreted as if
they were written in it. The error of the argument is so
self-evident as to require only a passing notice. The very fact
that the omitted provisions had been before the enactment of the
new law declared to be unconstitutional affords a conclusive
demonstration of their inconsistency with the present law. In
addition, the fact that the present law has omitted the provisions
which had been declared unconstitutional excludes the supposition
that it was the intention of the new law, by silence on the
subject, to perpetuate and reenact the void provisions. It is,
moreover, contended that there is an express discrimination found
in the present
Page 170 U. S. 454
statute which was not referred to in
Scott v. Donald,
the provision in question being one which authorizes the use by a
resident of South Carolina of wine or liquor made by him for such
purpose. The context of the entire statute conclusively
demonstrates that the right thus given in an exceptional and
limited case in no way relieves alcoholic liquors made by a citizen
of South Carolina for his own use from the restrictions imposed by
the statute as to the sale of all other liquors, and this therefore
leaves liquor made by a resident for his own use under the control
of the general regulations which the statute creates, and this
completely answers the contention.
The right recognized by the state in residents of another state
to ship into South Carolina to a resident of that state liquor for
his own use is regulated by the statute as follows:
"Any person residing in this state intending to import for
personal use and consumption any spirituous, malt, vinous,
fermented, brewed, or other liquor, containing alcohol, from any
other state or foreign country, shall first certify to the chemist
of South Carolina College the quantity and kind of liquor proposed
to be imported, together with the name and place of business of the
person, firm, or corporation from whom it is desired to purchase,
accompanying such certificate with the statement that the proposed
consignor has been requested to forward a sample of such liquor to
the said chemist at Columbia, South Carolina. Upon the receipt of
said sample, the said chemist shall immediately proceed to test the
same, and if it be found to be pure and free from any poisonous,
hurtful, or deleterious matters, he shall issue a certificate to
that effect, stating therein the name of the proposed consignor and
consignee and the quantity and kind of liquor proposed to be
imported thereunder, which certificate shall be dated and forwarded
by said chemist, postpaid, to the proposed consignor at his place
of business. The said consignor shall cause such certificate to be
attached to the package containing the liquor when it is shipped in
this state, and no package bearing such certificate shall be liable
to seizure or confiscation,
Page 170 U. S. 455
but any package of spirituous, malt, vinous, fermented, brewed,
or other liquid, or liquor containing alcohol imported into this
state without such certificate, or any package containing liquor
other than described in the certificate therein attached, or any
package shipped by or to any person or persons not named in such
certificate, shall be seized and confiscated as provided in this
act. Any certificate obtained from the chemist as herein provided
shall be used within sixty days after the date of its issue, and
shall be invalid thereafter. It shall be unlawful to use said
certificates for more than one importation."
The regulation, then, compels the resident of the state who
desires to order for his own use to first communicate his purpose
to a state chemist. It moreover deprives any nonresident of the
right to ship by means of interstate commerce any liquor into South
Carolina unless previous authority is obtained from the officers of
the State of South Carolina. On the face of these regulations, it
is clear that they subject the constitutional right of the
nonresident to ship into the state, and of the resident in the
state to receive for his own use, to conditions which are wholly
incompatible with and repugnant to the existence of the right which
the statute itself acknowledges. The right of the citizen of
another state to avail himself of interstate commerce cannot be
held to be subject to the issuing of a certificate by an officer of
the State of South Carolina without admitting the power of that
officer to control the exercise of the right. But the right arises
from the Constitution of the United States. It exists wholly
independent of the will of either the lawmaking or the executive
power of the state. It takes its origin outside of the State of
South Carolina, and finds its support in the Constitution of the
United States. Whether or not it may be exercised depends solely
upon the will of the person making the shipment, and cannot be in
advance controlled or limited by the action of the state in any
department of its government. As the law directs that a sample of
the liquor proposed to be shipped shall be sent to the state
officer in advance of the shipment, and as a prerequisite for
obtaining permission to make a
Page 170 U. S. 456
subsequent shipment, it is claimed in argument that this law is
an inspection law passed for the purpose of guarantying the purity
of the product to be shipped into the state for the use of a
resident therein, and therefore it is but a valid manifestation of
the police power of the state exerted for the purposes of
inspection only. But it is obvious that this argument is unsound,
as the inspection of a sample sent in advance is not in the
slightest degree an inspection of the goods subsequently shipped
into the state. The sample may be one thing, and the merchandise
which thereafter comes in another. It is hence beyond reason to say
that the law provides for an inspection of the goods shipped into
the state from other states, when in fact it exacts no inspection
whatever. Conceding, without deciding, the power of the state,
where it has placed the control of the sale of all liquor within
the state in charge of its own officers, to provide an inspection
of liquors shipped into a state by residents of other states for
use by residents within the state, it is clear that such a law, to
be valid, must not substantially hamper or burden the
constitutional right, on the one hand, to make, and, on the other,
to receive, such shipment. A law of this nature must at least,
provide for some inspection of the article to justify its being an
inspection law. The power of the state to inspect an article
protected by the guaranties of the Constitution, because intended
only for use, and which cannot be sold, is, in the nature of
things, restrained by limitations arising from the constitutional
provisions of a more restricted nature than would be the power to
inspect articles intended for sale within the state. The greater
harm and abuse which might arise in the latter case suggests a
wider power than is incident to the other.
It follows from the foregoing that the decree below rendered was
well founded insofar as it restrained the defendants from seizing
the property shipped into the State of South Carolina from the
State of California by the complainant for the residents of the
State of South Carolina on the orders of such residents for their
own use, because said shipments had not been made in compliance
with the regulations
Page 170 U. S. 457
of the law of South Carolina. But it further follows that the
decree below was wrong insofar as it restrained the state officers
from levying upon the property of the complainant shipped into the
state to agents of complainant for the purpose of being stored and
sold therein in original packages, and from interfering with such
sales. These conclusions require that the judgment below be
affirmed in part and reversed in part.
This renders it necessary to remand the case to the court
below with instructions to enter a decree setting aside the
injunction and dismissing the bill to the extent above indicated,
and perpetuating the injunction only insofar as is above pointed
out, the whole in accordance with the views hereinabove expressed,
and it is so ordered.
MR. JUSTICE SHIRAS, dissenting in part, with whom THE CHIEF
JUSTICE and MR. JUSTICE McKENNA concur.
In the opinion and judgment of the Court, insofar as they affirm
the decree of the circuit court restraining the state officers from
seizing property shipped into the State of South Carolina from the
State of California by the complainant for residents of South
Carolina on their order for their own use, I fully concur. But the
reasons which lead me to so concur constrain me to withhold my
assent from that portion of said opinion and judgment which
reverses the decree below in respect that it restrained such
officers from levying upon and confiscating property of the
complainant shipped into the state to agents for the purpose of
being stored and sold therein in original packages.
In the few observations I shall submit, it will be assumed as
well settled that before the passage of the Act of August 8, 1890,
known as the "Wilson Act," it was not within the power of any state
to forbid the importation of wines and liquors from foreign
countries or other states, nor their sale in the original packages,
nor to subject such sale to discriminatory taxes or regulations.
Walling v. Michigan, 116 U. S. 446;
Bowman v. Chicago Railway Co., 125
U. S. 507;
Page 170 U. S. 458
Leisy v. Hardin, 135 U. S. 100;
Lyng v. Michigan, 135 U. S. 161.
The case before us therefore turns upon the proper construction
and application of that statute.
Since its passage, it has been considered by this Court in two
cases, and the conclusions therein reached will now be pointed
out.
In the case of
In re Rahrer, 140 U.
S. 545, the question for adjudication was the validity
of a constitutional provision of the State of Kansas which provided
that "the manufacture and sale of intoxicating liquors shall be
forever prohibited in this state except for medical, scientific,
and mechanical purposes," and of certain statutes of that state
which declared that
"any person or persons who shall manufacture, sell or barter any
spirituous, malt, vinous, fermented or other intoxicating liquors
shall be guilty of a misdemeanor, and be punished as hereinafter
provided, provided, however, that such liquors may be sold for
medical, scientific and mechanical purposes as provided in this
act,"
and it was held that in the case of a person arrested by the
state authorities for selling imported liquor on the 9th day of
August, 1890 contrary to the law of the state which forbade the
sale, the act of Congress which had gone into effect on the 8th day
of August, 1890, providing that imported liquors should be subject
to the operation and effect of the state laws to the same extent
and in the same manner as though the liquors had been produced in
the state justified the imposition of the penalties of the state
law.
It will be perceived that this was a case in which the state
laws wholly prohibited the manufacture and sale of intoxicating
liquors as articles of ordinary consumption and merchandise, and
this Court said, referring to the Wilson bill:
"Congress did not use terms of permission to the state to act,
but simply removed an impediment to the enforcement of the state
laws in respect to imported packages in their original condition. .
. . It imparted no power to the state not then possessed, but
allowed imported property to fall at once upon arrival within the
local jurisdiction. "
Page 170 U. S. 459
In
Scott v. Donald, 165 U. S. 58, was
presented the question of the validity of the Act of the General
Assembly of South Carolina approved January 2, 1895, generally
known as the "State Dispensary Law." That legislation did not
forbid the use, manufacture, or sale of intoxicating liquors but
enacted an elaborate system of regulation whereby no wines or
liquors, except domestic wines should be manufactured or sold
except through the agency of a state board of control, a
commissioner, and certain county dispensers, and after an
inspection by a state chemist.
Packages of wines and liquors made in other states, and imported
by a resident of the state for his own use and in the possession of
railroad companies which, as common carriers, had brought the
packages within the state were seized and confiscated as contraband
by constables of the state.
This Court, after considering certain provisions of the act
which relieved the sale of domestic wines from restrictions imposed
upon imported wines, and also those which created a system of
inspection, said:
"This is not a law purporting to forbid the importation,
manufacture, sale, and use of intoxicating liquors as articles
detrimental to the welfare of the state and to the health of its
inhabitants, and hence is not within the scope and operation of the
Act of Congress of August 8, 1890. That law was not intended to
confer upon any state the power to discriminate injuriously against
the products of other states in articles whose manufacture and use
are not forbidden, and which are therefore the subjects of
legitimate commerce. When that law provided that"
"all fermented, distilled or intoxicating liquors, transported
into any state or territory, remaining therein for use,
consumption, sale or storage therein should, upon arrival in such
state or territory, be subject to the operation and effect of the
laws of such state or territory enacted in the exercise of its
police powers to the same extent and in the same manner as though
such liquids or liquors had been produced in such state or
territory, and should not be exempt therefrom by reason of being
introduced therein in original packages or otherwise,"
evidently equality or uniformity
Page 170 U. S. 460
of treatment under state laws was intended. The question whether
a given state law is a lawful exercise of the police power is still
open, and must remain open, to this Court. Such a law may forbid
entirely the manufacture and sale of intoxicating liquors, and be
valid. Or it may provide equal regulations for the inspection and
sale of all domestic and imported liquors, and be valid. But the
state cannot, under the congressional legislation referred to,
establish a system which in effect, discriminates between
interstate and domestic commerce in commodities to make and use
which are admitted to be lawful. . . . It is sufficient for the
present case to hold, as we do, that when a state recognizes the
manufacture, sale, and use of intoxicating liquors as lawful, it
cannot discriminate against the bringing of such articles in and
importing them from other states; that such legislation is void as
a hindrance to interstate commerce, and an unjust preference of the
products of the enacting state as against similar products of the
other states.
Accordingly, the conclusion reached was that, as respected
residents of the State of South Carolina desiring to import foreign
wines and liquors for their own use, the act in question in that
case was void.
In the present case, which arose under a later statute, this
Court follows
Scott v. Donald in holding that the act is
invalid as sought to be applied to the importation by residents of
the state for their own use, but holds that the residents of other
states cannot import wines and liquors, and sell them in the
original packages, although such articles are recognized by the
state as lawful subjects of manufacture, use, and sale.
The Court concedes that it is not within the power of the state,
even when reinforced by the act of Congress of August, 1890, to
deprive a resident of one State of the right to ship liquor into
another state to a resident for his own use, "because such right is
derived from the Constitution of the United States, and does not
rest on the grant of the state law," yet hold that the act of South
Carolina can validly declare that all liquors imported from other
states, for the purpose of sale in original packages, can be seized
and confiscated, the common
Page 170 U. S. 461
carrier thereof subjected to fine, and the consignee, if he
removes the liquors from the depot or pays freight or express
charges thereon, subjected to a fine of five hundred dollars and to
an imprisonment of twelve months at hard labor in the state
penitentiary.
Such legislation manifestly forbids interstate commerce in
articles whose manufacture and sale within the state are permitted,
and, in view of the previous decisions of this Court, can only be
defended by invoking the provisions of the act of Congress. This
seems to be the theory upon which the opinion of the majority
proceeds, as shown by the following statement:
"The claim that the state statute is unconstitutional because it
deprives of the right to sell imported liquors in the original
packages rests on the assumption that the state law is a regulation
of interstate commerce because it forbids the doing of an act
which, in consequence of the permissive grant resulting from the
act of Congress, the state had undoubtedly the lawful power to do.
Indeed, the entire argument by which it is endeavored to maintain
the contention arises from excluding from view the change as to the
sale of intoxicating liquors arising from the act of Congress."
But if the act of Congress can validly operate to authorize the
state to forbid the sale in original packages of imported articles
of the same kind with those whose manufacture and sale within the
state are permitted and regulated, I am unable to see why it cannot
also operate to authorize the state to forbid the importation for
use. Once concede that it is competent for Congress to abdicate its
control over interstate commerce in articles whose manufacture,
sale, and use are lawful within the state, and to confer upon the
state the power to forbid importation of such articles for sale, it
must follow that it would equally be competent for Congress to
authorize the state to forbid the importation of such articles for
use. And conversely, if it be not competent for Congress to
authorize a state to forbid the importation for use of articles
whose use in domestic commerce is lawful, so it would not be
competent for Congress to authorize a state to forbid the
importation for sale of articles whose sale in domestic commerce is
lawful.
Page 170 U. S. 462
I am altogether unwilling to attribute to Congress an intention
to abandon the protection of interstate commerce in articles of
food or drink, whether for personal use or for sale, where similar
articles are treated by a state as lawful subjects of domestic
commerce. If such were the intention of Congress in the Act of
August, 1890, I should be compelled to regard such legislation as
invalid. The control and regulation of foreign and interstate
commerce are among the most important powers possessed by the
national legislature, and, as has often been said by this Court,
were among the most potent causes which led to the establishment of
the Constitution. The conceded purpose of protecting commerce from
hostile action between the states would be defeated if Congress
could withdraw from the exercise of its powers in such matters and
turn them over to the legislatures of the states.
But there is no reason to suppose that Congress intended any
such act of abdication in the present instance. Reasonable meaning
and effect can be given to the Act of August 8, 1890, without
giving it such a construction as would raise the serious question
of its constitutionality.
Its plain meaning is that if, in the
bona fide exercise
of its police power, the state finds it necessary to declare that
all fermented, distilled, or other intoxicating liquor is of a
detrimental character, and that its use and consumption are against
the morals, good health, and safety of its inhabitants, it may
legislate, on that assumption, with equal effect as to such liquor
whether imported or of domestic manufacture. Such legislation may
take the form of total prohibition and be valid, as we held in
In re Rahrer, 140 U. S. 545,
under a statute of the State of Kansas. The articles prohibited
were thus taken out of the sphere of commerce, whether interstate
or domestic, and no discriminations were thereby made or attempted
adversely to the persons or property of other states.
Or the legislation may seek to regulate the sale of intoxicating
liquors, and if the regulations are reasonable in the fair exercise
of the police power, applicable alike to articles imported and to
those made in the state, their validity may well be sustained
without infringing upon the federal control of interstate
commerce.
Page 170 U. S. 463
Thus if the State of South Carolina, instead of prohibiting the
sale of imported liquors in imported packages altogether and
confiscating them to her own use, had seen fit to prescribe
reasonable regulations of the sale -- such, for instance, as
forbade its taking place on Sunday, or in the nighttime, or to be
drunk on the premises, or to be made to minors -- and if such
regulations likewise applied to the sale of domestic liquors, then
the case might be deemed to fall within the proper exercise of the
police power.
Far different is the nature of the provisions of these acts of
South Carolina. They do not pretend to forbid either the use,
manufacture, or sale of intoxicating liquors. They do not provide a
reasonable system of inspection, calculated to protect the public
from imposition. They do not seek to subject the sale to reasonable
regulations, but do contain provisions which, if carried into
effect, would wholly prevent the makers and owners of wines and
liquors made in foreign countries or in the other states from
exercising the right of free commerce under the Constitution. At
the most, it can only be said that such persons can be permitted to
send their property into South Carolina for sale if the state
authorities think fit to allow them that privilege.
Nor, even if allowed this restricted privilege of importation,
are they permitted to sell their property for what it is worth in
the market, because they can sell only through a county dispenser,
who is compelled to give a bond in the penal sum of $3,000,
conditioned that he will not sell intoxicating liquors at a price
other than that fixed by the state board of control. This provision
not merely hampers the citizens of the other states in their
exercise of the right of trade and commerce, but deprives the
residents of the State of the right to purchase articles of a
commercial character at prices regulated by open competition.
It may be said that such a construction of the act of Congress
would deprive it of actual operation; that the power and laws of
the states would be left just as they were before its passage. But,
not infrequently, courts have said that there are statutes that are
merely declaratory of the law as
Page 170 U. S. 464
it previously existed. And such declaratory statutes are not
without value when they serve to elucidate existing law or to
remove uncertainty when decisions or prior enactments are supposed
to conflict. The act in question may well be regarded as a
legislative attempt to define the boundaries between federal and
state powers in respect to interstate commerce in intoxicating
liquors, and this Court, in the cases of
In re Rahrer and
of
Scott v. Donald, and in the recent case of
Rhodes
v. Iowa, ante at
170 U. S. 412, has
so treated it. But it cannot, as I think, be either interpreted or
sustained as an effort to transfer the regulative control in
matters of interstate commerce from the nation to the states.
The opinion of the majority, as I read it, fails to recognize
frequent and well considered decisions of this Court, and seems to
justify a brief reference to them.
In
Brown v.
Maryland, 12 Wheat. 419, an act of the State of
Maryland imposing penalties on all importers of foreign articles or
commodities, including wines and spirituous liquors, if they should
sell the same without having first procured a license from the
state authorities, was held repugnant to the provision of the
Constitution of the United States, which declares that
"[n]o state shall, without consent of Congress, lay any impost,
or duty on imports or exports, except what may be absolutely
necessary for executing its inspection laws,"
and to that which declares that Congress shall have power "to
regulate commerce with foreign nations, among the several states,
and with the Indian tribes." In the course of his reasoning, Chief
Justice Marshall said:
"The object of the Constitution would be as completely defeated
by a power to tax the article in the hands of the importer the
instant it was landed as by a power to tax it while entering the
port. There is no difference, in effect, between a power to
prohibit the sale of an article and a power to prohibit its
introduction into the country. The one would be a necessary
consequence of the other. No goods would be imported if none could
be sold."
And, again:
"If this power to regulate commerce reaches the interior of a
state, and may be there exercised, it must
Page 170 U. S. 465
be capable of authorizing the sale of those articles which it
introduces. Commerce is intercourse. One of its most ordinary
ingredients is traffic. It is inconceivable that the power to
authorize this traffic, when given in the most comprehensive terms,
with the intent that its efficacy should be complete, should cease
at the point when its continuance is indispensable to its value. To
what purpose should the power to allow importation be given
unaccompanied with the power to authorize a sale of the thing
imported? Sale is the object of importation, and is an essential
ingredient of that intercourse of which importation constitutes a
part. It is as essential an ingredient, as indispensable to the
existence of the entire thing, then, as importation itself. It must
be considered as a component part of the power to regulate
commerce. Congress has a right not only to authorize importation,
but to authorize the importer to sell. . . . The power claimed by
the state is, in its nature, in conflict with that given to
Congress, and the greater or less extent in which it may be
exercised does not enter into the inquiry concerning its
existence."
Walling v. Michigan, 116 U. S. 446, was
a case wherein was brought into question the validity of a statute
of the State of Michigan, which imposed a tax or duty on persons
who, not having their principal place of business within the state,
engage in the business of selling liquors to be shipped into the
state, and it was held that a discriminating tax imposed by a
state, operating to the disadvantage of products of other states
when introduced into the first mentioned state, is in effect a
regulation of commerce between the states, and as such a usurpation
of the power conferred by the Constitution upon Congress. Replying
to the contention on behalf of the statute that it was passed in
the exercise of the police power of the state, Mr. Justice Bradley
said:
"This would be a perfect justification of the act if it did not
discriminate against the citizens and products of other states in a
matter of commerce between the states, and thus usurp one of the
prerogatives of the national legislature. The police power cannot
be set up to control the inhibitions of the federal
Page 170 U. S. 466
Constitution or the powers of the United States government
created thereby."
In
Robbins v. Shelby County Taxing District,
120 U. S. 489, it
was held that interstate commerce cannot be taxed at all by a
state, even though the same amount of tax should be laid on
domestic commerce or that which is carried on solely within the
state.
A law of the State of Iowa forbidding any common carrier from
bringing within that state, for any person or corporation, any
intoxicating liquors from any other state or territory without a
permit from the state authorities was held void in the case of
Bowman v. Chicago & Northwestern Railway, 125 U.
S. 465, and the Court, through Mr. Justice Matthews,
said:
"Here is the limit between the sovereign power of the state and
the federal power -- that is to say that which does not belong to
commerce is within the jurisdiction of the police power of the
state, and that which does belong to commerce is within the
jurisdiction of the United States. . . . The same process of
legislation and reasoning adopted by the state and its courts would
bring within the police power any article of consumption that a
state might wish to exclude, whether to that which was drunk, or to
food and clothing."
By an act passed in 1871, the Legislative Assembly of the
District of Columbia subjected persons selling imported goods
without a license to penalties, and this act was held invalid in
Stoutenburgh v. Hennick, 129 U. S. 141,
and, in disposing of the contention that Congress must be regarded
as having authorized or adopted this legislation, MR. CHIEF JUSTICE
FULLER, said:
"In our judgment, Congress, for the reasons given, could not
have delegated the power to enact the third clause of the
twenty-first section of the Act of Assembly, construed to include
business agents such as Hennick, and there is nothing in this
record to justify the assumption that it endeavored to do so, for
the powers granted to the District were municipal merely, and
although, by several acts, Congress repealed or modified parts of
this particular bylaw, these parts were separately operative, and
such as were within the scope of municipal action, so that this
congressional legislation cannot
Page 170 U. S. 467
be resorted to as ratifying the objectionable clause,
irrespective of the inability to ratify that which could not have
been originally authorized."
In
Minnesota v. Barber, 136 U.
S. 313, this Court held invalid a statute of the State
of Minnesota which made it a matter of fine or imprisonment for any
one to sell any fresh beef, mutton, lamb, or pork, which had not
been inspected in a manner prescribed in the act. Referring to the
contention in behalf of the state that there was no discrimination
against the products and business of other states for the reason
that the statute requiring an inspection of animals on the hoof, as
a condition for the privilege of selling in the state, was
applicable alike to all owners of such animals, whether citizens of
Minnesota or citizens of other states, this Court, through MR.
JUSTICE HARLAN, said:
"To this we answer that a statute may, upon its face, apply
equally to the people of all the states, and yet be a regulation of
interstate commerce which a state may not establish. A burden
imposed by a state upon interstate commerce is not to be sustained
simply because the statute imposing it applies alike to the people
of all the states, including the people of the state enacting such
statute. The people of Minnesota have as much right to protection
against the enactments of that state, interfering with the freedom
of commerce among the states, as have the people of other states.
Although this statute is not avowedly or in terms directed against
the bringing into Minnesota of the products of other states, its
necessary effect is to burden or affect commerce with other states,
as involved in the transportation into that state, for the purposes
of sale there, of all fresh beef, veal, mutton, or pork, however
free from disease may have been the animals from which it was
taken."
We did not find it necessary in
Scott v. Donald to pass
upon the validity of a scheme whereby a state should seek to
establish itself as a trader in articles of commerce, and to punish
as criminals all persons who should attempt to deal in such
articles. Nor has the Court seen fit to discuss that question in
the present case. It may be that, if confined to articles of
Page 170 U. S. 468
state production, such a scheme might not be open to objections
on federal grounds. But where a state proposes to create a monopoly
in articles which its own legislation recognizes as proper subjects
of manufacture, sale, and use, and where those articles are a part
of international and interstate commerce, it is, I submit, too
plain to call for argument that such an attempt does not comport
with that freedom of trade and commerce to preserve which is one of
the most important purposes of our federal system.
If these views are sound, then the acts of South Carolina in
question, insofar as they seek to prevent citizens of that state
from importing for their own use wines and liquors, and to
arbitrarily forbid, and not, by reasonable regulations, control,
sales of such articles when imported, are void as an
unconstitutional interference with interstate commerce.
I think the decree of the circuit court should be affirmed.
I am authorized to state that THE CHIEF JUSTICE and MR. JUSTICE
McKENNA concur in the views of the opinion.