A statute of Arkansas, requiring a permit for the transportation
of intoxicating liquor through the State, which may be obtained
upon application, for a nominal fee -- the object of the regulation
being merely to identify those who engage in such transportation,
their routes and points of destination, thus enabling local
officials to insure transportation without diversion, in conformity
with the permit -- is not violative of the commerce clause of the
Federal Constitution. P.
314 U. S.
396.
201 Ark. 1123, 148 S.W.2d 656, affirmed.
Appeal from a judgment affirming a conviction and sentence for
transportation of liquor without a permit in violation of a State
law.
Page 314 U. S. 391
MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
Appellant was convicted and fined by an Arkansas court for
transporting intoxicating liquor through the state without a
permit, as required by an Arkansas statute. The question for
decision is whether this statutory requirement and its penal
sanction unduly encroach upon the power over interstate commerce
delegated to Congress.
Page 314 U. S. 392
The Arkansas Supreme Court sustained the requirement of the
permit as a local police regulation permissible under the commerce
clause. 201 Ark. 1123, 148 S.W.2d 656. The case comes here on
appeal under the provisions of § 237(a) of the Judicial Code, 28
U.S.C. § 344(a), §§ 861a, 861b.
Section 14177, Pope's 1937 Digest of Arkansas Statutes, § 5, Act
109 of 1935, under which appellant was convicted, makes it unlawful
for any person to ship into the state any distilled spirits without
first having obtained a permit from the state commissioner of
revenue. The statute provides that the form of permit and the
shipments into the state shall be governed by rules and regulations
promulgated by the commissioner. Appellant was tried upon a
stipulation of facts which tended to show that, when arrested in
Arkansas, he was engaged in transporting by motor truck, without a
permit, a load of distilled spirits from a point in Illinois to a
point in Mississippi. The state court held that this violated §
14177. At the time of the offense, there were no regulations
specifically applicable to transportation passing through the
state, the regulations then in force being adapted to
transportation for delivery within the state or from point to point
within the state.
We have no occasion to decide whether the Arkansas statute, when
applied to transportation passing through that state for delivery
or use in another, derives support from the Twenty-first Amendment,
which prohibits the "transportation or importation" of intoxicating
liquors "into any State . . . for delivery or use therein" in
violation of its laws,
cf. United States v. Gudger,
249 U. S. 373. Nor
need we decide whether appellant's admission that the transported
liquor was intended for importation into Mississippi for illegal
use there establishes a violation of the Twenty-first Amendment
while he was in Arkansas, so as to deprive him of the right to seek
protection of the commerce clause on his journey through Arkansas,
cf. McFarland v. American Sugar Refining Co., 241 U. S.
79,
241 U. S. 84-85.
We may also assume that appellant's admission no more deprives him
of the right to invoke the protection of the
Page 314 U. S. 393
commerce clause against the Arkansas statute than did intended
violation by the importer of the liquor laws of the state of
destination before the adoption of the Webb-Kenyon Act, 37 Stat.
699, and the Twenty-first Amendment.
See Bowman v. Chicago
& N.W. Ry. Co., 125 U. S. 465;
Leisy v. Hardin, 135 U. S. 100. For
we are of the opinion that, upon principles of constitutional
interpretation consistently accepted and followed by this Court
ever since the decisions in
Willson v. Black Bird Creek
Marsh Co., 2 Pet. 245, and
Cooley v.
Board of Wardens, 12 How. 299, the commerce clause
does not foreclose the Arkansas regulation with which we are now
concerned.
The commerce here is transportation alone, there being no
question of sale or use within the state of regulation. We may
therefore put to one side the cases in which local restrictions or
prohibitions on sale or use of intoxicating liquor or other
articles of commerce, unaided by Acts of Congress, have been deemed
a prohibited burden on interstate commerce,
see Bowman v.
Chicago & N.W. Ry. Co., supra; Leisy v. Hardin, supra. The
present scheme of regulation is narrower in operation, and has a
less restrictive effect upon the commerce. It does not forbid the
traffic in liquor, nor does it impede it more than is reasonably
necessary to inform the local authorities who is to effect the
transportation through the state, and to afford opportunity for
them to police it.
The Arkansas Supreme Court in this case has declared that, under
the statute, appellant was entitled to a permit on application,
which he does not appear to have made; that the permit requirement
is, in its nature, an inspection measure for which only a nominal
fee, necessary to defray the cost of issuing it and of police
inspection
Page 314 U. S. 394
and of necessary reports, is charged.
* It also said
that any failure by the state commissioner to act reasonably and
promptly in administering the law would be controlled by the courts
through mandamus. In a later case,
Hardin v. Spiers, 152
S.W.2d 1010, arising under regulations not in force at the time of
appellant's conviction, the same court declared that the
commissioner must exercise this power in a reasonable, not an
arbitrary, manner.
While the commerce clause has been interpreted as reserving to
Congress the power to regulate interstate commerce in matters of
national importance, that has never been deemed to exclude the
states from regulating matters primarily of local concern with
respect to which Congress has not exercised its power, even though
the regulation has some effect on interstate commerce. As we had
occasion to point out at the last term of Court, there are many
matters which are appropriate subjects of regulation in the
interest of the safety, health, and wellbeing of local communities
which, because of their local character and their number and
diversity, and because of the practical difficulties involved, may
never be adequately dealt with by Congress. Because of their local
character, also, there is wide scope for local regulation without
impairing the uniformity of control over the commerce in matters of
national concern and without materially obstructing the free flow
of commerce, which were the principal objects sought to be secured
by the commerce clause. Such regulations, in the absence of
supervening Congressional action, have for the most part been
sustained by this Court,
Page 314 U. S. 395
notwithstanding the commerce clause.
See California v.
Thompson, 313 U. S. 109,
313 U. S. 113,
et seq. and cases cited.
See also cases collected
in
Di Santo v. Pennsylvania, 273 U. S.
34,
273 U. S. 39-40,
and in
South Carolina Highway Dept. v. Barnwell Bros.,
303 U. S. 177,
303 U. S. 188,
Note 5, and
303 U. S.
191.
In the cases referred to, the Court has sustained a variety of
local regulations designed to safeguard the states from injurious
local effects that may attend interstate transportation. Familiar
examples are inspection and quarantine laws for the protection of
local health and safety, applicable to persons, animals, and
merchandise moving in interstate commerce. Again, a state may
insure the safe and convenient use of its harbors and navigable
waterways by controlling the movement of vessels in interstate and
foreign commerce; in the interests of safety, it may control the
operations of interstate trains and of their employees and
appliances.
Of recent years, the Court has sustained state regulations of
the size and weight of motor cars moving interstate, designed to
insure the safe and economical use of the states' highways.
South Carolina Highway Dept. v. Barnwell Bros., supra, and
cases cited. A state may police "caravans" of motor vehicles moving
over its highways in interstate commerce, and charge a compensatory
license for for doing it.
Morf v. Bingaman, 298 U.
S. 407;
Clark v. Paul Gray, Inc., 306 U.
S. 583. It may, in the interest of public safety and
convenience, restrict particular types of motor vehicles moving in
interstate commerce to particular areas.
Sproles v.
Binford, 286 U. S. 374,
286 U. S.
393-395;
cf. Clark v. Paul Gray, Inc., supra,
306 U. S. 598.
And a state may undertake to insure the fitness and integrity of
those negotiating contracts for interstate transportation by
licensing them and requiring a bond to insure their good behavior.
California v. Thompson, supra.
While the subject matter of the present regulation,
transportation of liquor, with its attendant dangers to the
Page 314 U. S. 396
communities through which it passes, differs in many respects
from those which we have mentioned, all are alike in their
tendency, if unregulated, to affect the public interest adversely
in varying ways depending on local conditions. The efforts at
effective regulation, state and national, of intoxicating liquor,
evidenced by the long course of litigation in this Court, have not
left us unaware of the peculiar difficulties of controlling it, or
of its tendency to get out of legal bounds. The present requirement
of a permit is not shown to be more than a means of establishing
the identity of those who are to engage in the transportation,
their route, and point of destination, and affords opportunity for
local officials to take appropriate measures to insure that the
liquor is transported without diversion, in conformity to the
permit. The permit device is not unlike state requirements of
health certificates for animals or certificates of inspection for
goods, which have been sustained here both as to transportation
into a state,
Savage v. Jones, 225 U.
S. 501,
225 U. S. 528;
Mintz v. Baldwin, 289 U. S. 346, and
through it,
Reid v. Colorado, 187 U.
S. 137;
cf. Morf v. Bingaman, supra. Where the
power to regulate commerce for local protection exists, the states
may adopt effective measures to accomplish the permitted end. The
Arkansas statute does not conflict with any act of Congress. It
does not forbid or preclude the transportation, or interfere with
the free flow of commerce among the states beyond what is
reasonably necessary to protect the local public interest in
preventing unlawful distribution or use of liquor within the state.
It does not violate the commerce clause.
Cf. Ziffrin, Inc. v.
Reeves, 308 U. S. 132.
What we have said is restricted to the statute as applied under
the regulations in force at the time of petitioner's alleged
offense. It will be time enough to deal with abuses of the permit
system if and when they arise. Nor have we occasion to consider the
state's authority to regulate other
Page 314 U. S. 397
articles of commerce less susceptible to uses injurious to the
communities through which they pass.
Cf. Clark Distilling Co.
v. Western Maryland Ry. Co., 242 U. S. 311,
242 U. S. 332;
Ziffrin, Inc. v. Reeves, supra, 308 U. S.
138.
Affirmed.
* The regulations promulgated by the commissioner on February 3,
1941, after appellant's conviction, provided for the payment of a
license fee for the permit. It does not appear that there was any
prescribed fee at the time of appellant's offense. Moreover, his
sole contention is that the commerce clause precludes the state
from exacting any form of permit, either with or without a fee, for
the interstate transportation of liquor through the state.
MR. JUSTICE JACKSON, concurring in result.
I agree that this Court should not relieve Duckworth of his
conviction, but I would rest the decision on the constitutional
provision applicable only to the transportation of liquor, and
refrain from what I regard as an unwise extension of state power
over interstate commerce.
I
Appellant was convicted for transporting a load of intoxicating
liquor through Arkansas without permit from that State on the way
from Illinois to Mississippi. The owner of the liquor testified,
and his testimony was treated as a stipulation of fact, "that the
liquor was intended to be sold in the Mississippi in violation of
the state laws of Mississippi."
The Twenty-first Amendment 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."
Duckworth now contends that it is our duty to assure him safe
conduct as against the action of Arkansas, although his goal is to
violate both the laws of Mississippi and the Federal Constitution.
He asks us to hold that one provision of the Constitution
guarantees him an opportunity to violate another. The law is not
that tricky.
Whether one transporting liquor across Arkansas to a legal
destination might not have some claim to federal protection we do
not need to consider. One who assails the constitutionality of a
statute must stand on his own
Page 314 U. S. 398
right to relief.* Since this appellant had no rightful claim to
constitutional protection for his trip, the whole purpose of which
was to violate the Constitution which he invokes, we should leave
him where we find him, and for this reason I concur in the judgment
of this Court affirming the conviction.
II
If we yield to an urge to go beyond this rather narrow but
adequate ground of decision, we should then consider whether this
liquor controversy cannot properly be determined by guidance from
the liquor clauses of the Constitution. These clauses of the
Twenty-first Amendment create an important distinction between
state power over the liquor traffic and state power over commerce
in general. The people of the United States knew that liquor is a
lawlessness unto itself. They determined that it should be governed
by a specific and particular constitutional provision. They did not
leave it to the courts to devise special distortions of the general
rules as to interstate commerce
Page 314 U. S. 399
to curb liquor's "tendency to get out of legal bounds." It was
their unsatisfactory experience with that method that resulted in
giving liquor an exclusive place in constitutional law as a
commodity whose transportation is governed by a special
constitutional provision.
Transportation itself presented no special dangers or hazards,
but it might be a step in evading and undermining a policy as to
use and sale of liquor which the state has a right to prescribe for
itself. Regulated transportation of liquor is a necessary incident
of regulated consumption and distribution. So the Twenty-first
Amendment made the laws as to delivery and use in the state of
destination the test of legality of interstate movement. This
obviously gives to state law a much greater control over interstate
liquor traffic than over commerce in any other commodity.
If the Twenty-first Amendment is not to be resorted to for the
decision of liquor cases, it is on the way to becoming another
"almost forgotten" clause of the Constitution.
Compare Edwards
v. California, ante, p.
314 U. S. 160. It
certainly applies to nothing else. We should decide whether this
Arkansas statute is sustainable under the Twenty-first Amendment.
Does it authorize a state to exact some assurance that all liquor
entering its territory either is imported for lawful delivery under
its own laws or will pass through without diversion? The Amendment
might bear a construction that would allow a state to prohibit
liquor from entering its borders at all unless by responsible
carrier under consignment to some lawful destination within or
beyond the state. I should not at all object to considering all of
the potential evils which the Court's opinion associates with the
liquor traffic, and some more that I could supply, to be sufficient
reasons for giving a liberal interpretation to the Twenty-first
Amendment as to state power over liquor. But the Court brushes
aside the liquor provisions of the Twenty-first Amendment.
Page 314 U. S. 400
III
The opinion of the Court solves the present case through a
construction of the interstate commerce power. It regards this
liquor as a legitimate subject of a lawful commerce, and then,
because of its special characteristics, approves this admittedly
novel permit system, and thus expands the power of the state to
regulate such lawful commerce beyond anything this Court has yet
approved.
The extent to which state legislation may be allowed to affect
the conduct of interstate business in the absence of Congressional
action on the subject has long been a vexatious problem. Recently,
the tendency has been to abandon the earlier limitations and to
sustain more freely such state laws on the ground that Congress has
power to supersede them with regulation of its own. It is a
tempting escape from a difficult question to pass to Congress the
responsibility for continued existence of local restraints and
obstructions to national commerce. But these restraints are
individually too petty, too diversified, and too local to get the
attention of a Congress hard pressed with more urgent matters. The
practical result is that, in default of action by us, they will go
on suffocating and retarding and Balkanizing American commerce,
trade, and industry.
I differ basically with my brethren as to whether the inertia of
government shall be on the side of restraint of commerce or on the
side of freedom of commerce. The sluggishness of government, the
multitude of matters that clamor for attention, and the relative
ease with which men are persuaded to postpone troublesome decisions
all make inertia one of the most decisive powers in determining the
course of our affairs, and frequently gives to the established
order of things a longevity and vitality much beyond its merits.
Because that is so, I am reluctant to see any new local systems for
restraining our national commerce
Page 314 U. S. 401
get the prestige and power of established institutions. The
Court's present opinion and tendency would allow the states to
establish the restraints and let commerce struggle for
Congressional action to make it free. This trend I am unwilling to
further -- in any event, beyond the plain requirements of existing
cases.
If the reaction of this Court against what many of us have
regarded as an excessive judicial interference with legislative
action is to yield wholesome results, we must be cautious lest we
merely rush to other extremes. The excessive use for insufficient
reason of a judicially inflated due process clause to strike down
states' laws regulating their own internal affairs, such as hours
of labor in industry, minimum wage requirements, and standards for
working conditions, is one thing. To invoke the interstate commerce
clause to keep the many states from fastening their several
concepts of local "wellbeing" onto the national commerce is a
wholly different thing.
Our national free intercourse is never in danger of being
suddenly stifled by dramatic and sweeping acts of restraint. That
would produce its own antidote. Our danger, as the forefathers well
knew, is from the aggregate strangling effect of a multiplicity of
individually petty and diverse and local regulations. Each may
serve some local purpose worthy enough by itself. Congress may very
properly take into consideration local policies and dangers when it
exercises its power under the commerce clause. But to let each
locality conjure up its own dangers and be the judge of the
remedial restraints to be clamped onto interstate trade inevitably
retards our national economy and disintegrates our national
society. It is the movement and exchange of goods that sustain
living standards both of him who produces and of him who consumes.
This vital national interest in free commerce among the states must
not be jeopardized.
Page 314 U. S. 402
I do not suppose the skies will fall if the Court does allow
Arkansas to rig up this handy device for policing liquor on the
ground that it is not forbidden by the commerce clause, but, in
doing so, it adds another to the already too numerous and
burdensome state restraints of national commerce and pursues a
trend with which I would have no part.
* Mr. Justice Holmes, speaking for a unanimous Court, laid down
the rule as to tax cases equally applicable to this if, indeed,
this is not itself something of a tax case. He pointed out that the
Court does not consider arguments on constitutional grounds
"unless the party setting up the unconstitutionality of the
state law belongs to the class for whose sake the constitutional
protection is given, or the class primarily protected. . . ."
Hatch v. Reardon, 204 U. S. 152,
204 U. S.
160.
Mr. Justice Cardozo has stated for the Court that those who
attack the constitutionality of state statutes "are not the
champions of any rights except their own."
Henneford v. Silas
Mason Co., 300 U. S. 577,
300 U. S.
583.
Mr. Justice Brandeis has given expression to the same view for
the Court in these terms:
"We have no occasion to consider the constitutional question,
because it appears that the plaintiff is without standing to
present it. One who would strike down a state statute as obnoxious
to the Federal Constitution must show that the alleged
unconstitutional feature injures him."
Premier-Pabst Sales Co. v. Grosscup, 298 U.
S. 226,
298 U. S.
227.