Judge Harper disposes of this case under section 5 of the Allison bill, which makes it unlawful for any person, firm, corporation, etc., to ship intoxicating liquors of any kind from without this State into this State where the sale of intoxicating liquors has been prohibited under the laws of this State, where such intoxicating liquors are "intended by any person interested therein to be received, possessed, sold or in any manner used in violation of any law of this State." The Webb-Kenyon Act is substantially the same. It prohibits the shipment of intoxicating liquors when the same are "intended to be received, possessed, sold or in any manner used either in original package or otherwise in violation of any law of this State." Judge Harper holds under the Webb-Kenyon Act that an interstate shipment of intoxicating liquors may be had from outside to the inside of Texas, provided it was not intended to be received, possessed, etc., for the purpose of violating the Texas laws. For the *Page 262 sake of what I shall have to say here, without touching constitutional questions, I am concurring with Judge Harper. Under Presiding Judge Prendergast's views, it would be a violation of the Texas law to ship intoxicating liquors into prohibited Texas territory, and a violation of the law for the common carrier to deliver it to the consignee. An inspection of the Webb-Kenyon Act, I think, makes it clear, first, that it is an interstate shipment; second, that that interstate shipment is not prohibited except for unlawful purposes; third, that interstate shipments, by the terms of that law, mean that same shall be delivered to the consignee at the point of destination. If the intoxicants were intended to be used in violation of the laws of the State, that would be another question, and if the Webb-Kenyon Act, in this respect, is constitutional, then the delivery of the intoxicants for illegal purposes might form the basis of a prosecution, but in this case that is an impossibility. It is conceded by the State that the intoxicants were shipped from Fort Smith, Arkansas, to H.A. Laird in Kaufman County, for his own use, and for no other purpose. The Webb-Kenyon Act, in my opinion, does not prohibit such shipments, and not only that but it authorizes this character of shipments, and only prohibits shipments when same are for unlawful purposes. It is not unlawful, nor is it illegal for a man to have whisky for his own use in local option territory. If Presiding Judge Prendergast is right, the shipment into the State by the common carrier would be illegal and the delivery wrong. If he is right the interstate shipment would stop at the State line, and if the consignee desires his intoxicants he would have to go to the State line and receive it. I do not believe that the Webb-Kenyon Act is susceptible of such construction, nor did Congress intend any such construction, nor was any such purpose included within the terms of that Act. If the shipment stopped at the State line, it would not be an interstate shipment at all. Such construction destroys the Webb-Kenyon Act under all the authorities. By the terms of the Federal Constitution interstate commerce means shipment from point of shipment in one State to place of consignment in another State. To say that the interstate shipment would stop at the State line, would destroy the very purpose of the interstate shipment. This would destroy the Webb-Kenyon Act, and under the construction placed upon the two Acts by our Presiding Judge it might be the result that the Allison bill in total would be unconstitutional. The object and purpose of the Allison bill, under Presiding Judge Prendergast's views, was to prevent absolutely the shipment — State and interstate — for any purpose, even for personal use, of intoxicants to such territory. The Webb-Kenyon Act authorizes the shipment for personal use, or for any purpose provided the purposes be not illegal. Presiding Judge Prendergast's views would so intermingle the two Acts that if the Webb-Kenyon bill was held unconstitutional, then by the reasoning in the cases of Pullman Car Co., 64 Tex. 274, and Ex parte Wood in52 Tex. Crim. 575, the Allison Act might be wholly unconstitutional.
It is clear under the interstate commerce clause of the Federal *Page 263 Constitution and by the terms of the Webb-Kenyon Act, a party has the right to ship intoxicants from one State to the other. Whether it was for an unlawful purpose or not would be a question of fact. The law does not make it, as my brother Prendergast contends, unlawful per se to ship it. If he is correct, then the Webb-Kenyon congressional Act would fail, because the shipment would cease at the State line. Shipping to a State line would not be interstate shipment and could not be. These questions are not novel, but have been decided frequently. Under the Wilson Act of Congress, 1890, the question arose upon a construction of what the words "upon arrival in such State" meant. This was construed in Rhodes v. Iowa, 170 U.S. 412. It was there held that the statute did not cause intoxicating liquors transported into a State to be subject to the police power of a State upon their arrival at the State line, or while in transit in the course of interstate transportation, but only after the consummation of the shipment; and that moving intoxicating liquors from the station platform to the warehouse or railroad depot on their arrival at their destination was part of the interstate commerce transportation when they were shipped from another State, and was not a violation of the State law making transportation of such liquors from one place to another an offense. In State v. Intoxicating Liquors, 94 Me. 335, a seizure of intoxicating liquors shipped from another State by virtue of the prohibition laws of Maine was held to be premature and unauthorized where they were taken from a car standing on a siding in another city than the place of their destination, upon the ground that the interstate commerce transaction had not ceased. In Fuqua et al. v. Pabst Brewing Co., 90 Tex. 298, it was intimated that liquor shipped from one State to another became subject to the operation of the State police laws immediately upon its arrival in the State, and it was held by the United States Supreme Court in Rhodes v. Iowa, supra, that if by that it was meant that the interstate shipment terminated upon crossing the State line, it was not correct. Considerable confusion seems to have arisen in regard to this matter, and further interpretation of the Federal statute became necessary, because the courts of some of the States held that liquor shipped from other States was subject to police power of the State after arrival at their destination and while in the office of the express company that had carried them there. It was held in American Express Co. v. Iowa, 196 U.S. 133, that intoxicating liquors shipped C.O.D. from one State into another could not be subject to seizure under the laws of the State to which they were shipped while in the hands of the express company, without infringing the commerce clause of the Constitution. That case overruled 118 Iowa 447. Heyman v. Southern Ry. Co.. 203 U.S. 270, reversed 122 Ga. 608, and118 Ga. 618, the Supreme Court of the United States holding that delivery of interstate shipments of intoxicating liquors to the consignee was essential to constitute their arrival in the State, within the meaning of the Act of August 8, 1890, and that the mere placing of such shipment in the carrier's warehouse to await delivery to the consignee did not constitute their arrival in the *Page 264 State within the meaning of that Act. That that means actual delivery to the consignee and not merely implied delivery seems to be the correct inference to draw from the decisions rendered in Adams Express Co. v. Kentucky, 206 U.S. 129; also American Express Company v. Kentucky, 206 U.S. 139. Those two cases reversed several Kentucky cases which held the contrary. The Supreme Court of the United States, overruling the Kentucky cases, held that the agreement of the local agent of the express company to hold for a few days the C.O.D. shipment of intoxicating liquors to suit the convenience of the consignee in paying for such liquor and taking it away, did not destroy the character of the transaction as interstate commerce. So upon these principles a seizure of liquor was held in State v. Intoxicating Liquors, 101 Me. 430, to be an interruption of interstate shipment, and, therefore, premature and unauthorized where it appeared that the package was seized at the office of the carrier and express company in such city, upon the ground that the transportation of the liquor from the office of the express company to the designated street and number was a part of the continuance of the interstate shipment, and that the package was, therefore, protected from the operation of the laws of Maine until the act of transportation was consummated by the delivery of the consignment to its ultimate place of destination.
Under these decisions of the Supreme Court it is clear that an interstate shipment governs the entire matter from the place of shipment to the place of consignment and delivery to the consignee, otherwise it could not be an interstate shipment. It would then become a question of fact as to whether the shipment was or was not for unlawful purposes, if the Webb-Kenyon Act is given full force and effect, for that Act authorizes interstate shipments, and only limits it by a prohibition of shipment for unlawful purposes. The State law only prohibits shipments by common carrier within the State. The State law could not, of course, affect interstate commerce law. It is unnecessary here to discuss the force and effect of the Allison bill with reference to interdicting shipments through common carriers from one point to another in this State. It is not in the case. That would be an intrastate shipment while this is an interstate shipment.
The Federal Congress is supreme, and to my mind, from a reading of the Webb-Kenyon Act, it was not intended to interdict shipments generally, but only where the shipment was for unlawful purposes. The Texas Legislature can not interrupt or interfere with interstate shipments, nor can it stop the interstate shipment at the State line.
As I have before stated, I am not here passing on the constitutionality of either the Webb-Kenyon law or the Allison bill, as it is never necessary to pass on the constitutionality of a law unless the facts in the case bring it within the inhibition of the law.
These are some of the reasons why I am concurring with Judge Harper discharging relator from custody. *Page 265