1. Under § 2 of the Twenty-first Amendment, which provides:
"The transportation or importation into any State, Territory, or
possession of the United States for delivery or use therein of
intoxicating liquors, in violation of the laws thereof, is hereby
prohibited,"
a State may exact a license fee for the privilege of importing
beer from other States. P.
299 U. S. 61.
2. There is no ground (1) for the proposition that such a tax
violates the commerce clause by discriminating against the
wholesaler of imported beer in favor of the wholesaler of beer
locally brewed, both paying the same wholesaler's license tax; or
(2) for the proposition that the right conferred by the amendment
to prohibit importation is conditional upon prohibition of local
manufacture and sale. Pp.
299 U. S.
61-62.
3. A California law imposing a fee of $500 per annum for the
privilege of importing beer, and $750 per annum for the privilege
of manufacturing beer,
held consistent with the equal
protection clause of the Fourteenth Amendment, first, because a
classification recognized by the Twenty-first Amendment cannot be
deemed forbidden by the Fourteenth, and second, because the
classification rests on conditions requiring difference of
treatment. P.
299 U. S.
64.
12 F. Supp.
140 reversed.
Page 299 U. S. 60
Appeal from a decree of a three-judge District Court enjoining
officials of the California from enforcing a license fee fr the
privilege of importing beer.
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
This suit, brought in the federal court for southern California,
challenges the validity, under the Twenty-First Amendment of the
Federal Constitution, of the provisions of a statute of that State,
and of the regulations thereunder, which impose a license fee of
$500 for the privilege of importing beer to any place within its
borders. [
Footnote 1] The
license does not confer the privilege of selling. [
Footnote 2]
Compare Premier-Pabst Sales
Co. v. Grosscup, 298 U. S. 226.
The plaintiffs are domestic corporations and individual citizens
of California who sue on behalf of themselves and of others
similarly situated. Each is engaged in selling at wholesale at one
or more places of business within the
Page 299 U. S. 61
state beer imported from Missouri or Wisconsin, and has a
wholesaler's license which entitles the holder to sell there to
licensed dealers beer lawfully possessed, whether it be imported or
is of domestic make. For that license, the fee is $50. Each
plaintiff has refused to apply for an importer's license, claiming
that the requirement discriminates against wholesalers of imported
beer, and that, hence, the statute violates both the commerce
clause and the equal protection clause. The bill alleges that heavy
penalties are exacted for importing, or having in possession,
imported beer without having secured an importer's license; that,
unless enjoined defendants will enforce the statute; that
enforcement would subject each of the plaintiffs to irreparable
injury, and that the matter in controversy exceeds $3,000.
The several state officials charged with the duty of enforcing
the statute were joined as defendants, and made return to an order
to show cause. They assert that the challenged statutory provisions
and regulations are valid because of the Twenty-First Amendment,
ratified December 5, 1933, which provides by § 2:
"The transportation or importation into any State, Territory, or
possession of the United States for delivery or use therein of
intoxicating liquors, in violation of the laws thereof, is hereby
prohibited."
First. The main contention of the plaintiffs is that
the exaction of the importer's license fee violates the commerce
clause by discriminating against the wholesaler of imported beer.
But there is no discrimination against them
qua
wholesalers. Everyone holding a wholesaler's license who is
lawfully possessed of any beer may sell it. The fee exacted for the
privilege of selling, and the conditions under which a sale may be
made, are the same whether the beer to be sold is imported or
domestic, or is both. The difference in position charged as a
discrimination is not in the terms under which beer may be
sold.
Page 299 U. S. 62
It arises from the fact that no one may import beer without
securing a license therefor. What the plaintiffs complain of is the
refusal to let them import beer without paying for the privilege of
importation. Prior to the Twenty-First Amendment, it would
obviously have been unconstitutional to have imposed any fee for
that privilege. The imposition would have been void not because it
resulted in discrimination, but because the fee would be a direct
burden on interstate commerce, and the commerce clause confers the
right to import merchandise free into any state, except as Congress
may otherwise provide. The exaction of a fee for the privilege of
importation would not, before the Twenty-First Amendment, have been
permissible even if the state had exacted an equal fee for the
privilege of transporting domestic beer from its place of
manufacture to the wholesaler's place of business.
Compare
82 U. S. 15
Wall. 232,
82 U. S. 274,
82 U. S. 277.
Thus, the case does not present a question of discrimination
prohibited by the commerce clause.
The amendment which "prohibited" the "transportation or
importation" of intoxicating liquors into any state "in violation
of the laws thereof" abrogated the right to import free, so far as
concerns intoxicating liquors. The words used are apt to confer
upon the state the power to forbid all importations which do not
comply with the conditions which it prescribes. The plaintiffs ask
us to limit this broad command. They request us to construe the
amendment as saying, in effect: the state may prohibit the
importation of intoxicating liquors provided it prohibits the
manufacture and sale within its boarders, but if it permits such
manufacture and sale, it must let imported liquors compete with the
domestic on equal terms. To say that would involve not a
construction of the amendment, but a rewriting of it.
Page 299 U. S. 63
The plaintiffs argue that, despite the amendment, a state may
not regulate importations except for the purpose of protecting the
public health, safety, or morals, and that the importer's license
fee was not imposed to that end. Surely the state may adopt a
lesser degree of regulation than total prohibition. Can it be
doubted that a state might establish a state monopoly of the
manufacture and sale of beer, and either prohibit all competing
importations or discourage importation by laying a heavy impost, or
channelize desired importations by confining them to a single
consignee?
Compare 83 U. S. 16
Wall. 36;
Vance v. W. A. Vandercook Co. (No. 1),
170 U. S. 438,
170 U. S. 447.
There is no basis for holding that it may prohibit, or so limit,
importation only if it establishes monopoly of the liquor trade. It
might permit the manufacture and sale of beer while prohibiting
absolutely hard liquors. If it may permit the domestic manufacture
of beer and exclude all made without the state, may it not, instead
of absolute exclusion, subject the foreign article to a heavy
importation fee? Moreover, in the light of history, we cannot say
that the exaction of a high license fee for importation may not,
like the imposition of the high license fees exacted for the
privilege of selling at retail, serve as an aid in policing the
liquor traffic.
Compare Phillips v. City of Mobile,
208 U. S. 472,
208 U. S.
479.
The plaintiffs argue that limitation of the broad language of
the Twenty-First Amendment is sanctioned by its history, and by the
decisions of this Court on the Wilson Act, the Webb-Kenyon Act, and
the Reed Amendment. [
Footnote
3] As we think the language of the amendment is
Page 299 U. S. 64
clear, we do not discuss these matters. The plaintiffs insist
that to sustain the exaction of the importer's license fee would
involve a declaration that the amendment has, in respect to liquor,
freed the states from all restrictions upon the police power to be
found in other provisions of the Constitution. The question for
decision requires no such generalization.
Second. The claim that the statutory provisions and the
regulations are void under the equal protection clause may be
briefly disposed of. A classification recognized by the
Twenty-First Amendment cannot be deemed forbidden by the
Fourteenth. Moreover, the classification in taxation made by
California rests on conditions requiring difference in treatment.
Beer sold within the state comes from two sources. The brewer of
the domestic article may be required to pay a license fee for the
privilege of manufacturing it, and, under the California statute,
is obliged to pay $750 a year.
Compare Brown-Forman Co. v.
Kentucky, 217 U. S. 563. The
brewer of the foreign article cannot be so taxed; only the importer
can be reached. He is subjected to a license fee of $500.
Compare Kidd v. Alabama, 188 U. S. 730,
188 U. S.
732.
Reversed.
MR. JUSTICE BUTLER concurs in the result.
MR. JUSTICE STONE took no part in the consideration or decision
of this case.
[
Footnote 1]
The lower courts have differed on this question.
See Triner
Corp. v. Arundel, 11 F. Supp.
145;
Premier-Pabst Sales Corp. v.
Grosscup, 12 F. Supp.
970;
General Sales & Liquor Co. v.
Becker, 14 F. Supp.
348;
Pacific Fruit & Produce Co. v.
Martin, 16 F. Supp.
34.
See also the following unreported decisions:
Premier-Pabst Sales Co. v. McNutt, D.Ind. January 4, 1935;
Philip Blum & Co. v. Henry, E.D.Wis., March 28,
1936.
[
Footnote 2]
Constitution of the State of California, Art. 22, § 22, as
amended November 6, 1934; Alcoholic Beverage Control Act, June 13,
1935, St.Cal.1935, p. 1123, c. 330, § 2(k); § 3; § 5(8), (13); §
6(d), (f); § 7; § 49; §§ 10, 11; § 31; Rules of State Board of
Equalization, rule 9, (a), (e).
[
Footnote 3]
E.g., In re Rahrer, 140 U. S. 545;
Scott v. Donald, 165 U. S. 58;
Vance v. W. A. Vandercook Co. (No. 1), 170 U.
S. 438;
Clark Distilling Co. v. Western Maryland Ry.
Co., 242 U. S. 311;
Seaboard Air Line Ry. v. North Carolina, 245 U.
S. 298;
McCormick & Co., Inc. v. Brown,
286 U. S. 131.