State v. Holleyman

Mr. Justice Jones

dissents, with whom concur Mr. Justice Pope and Circuit Judges Tozvnsend' and Klugh. Being unable to concur in reversing the judgment of the'Circuit Court in these cases, I will briefly state my reasons therefor. The indictments were brought under section 37 of the dispensary act of 1896, 22 Stat., 147, which provides that “any person handling contraband liquor in the night time or delivering the same shall be guilty of a misdemeanor, *241&c.” This act, in sections i ancl 35, defines what is meant by “contraband liquors” as follows: Sec. 1. “All such liquors, except when bought of a State officer authorized to sell the same, or in possession of one, and having been duly tested by the chemist of the South Carolina College and found to be chemically pure, are declared to be contraband, and against the morals, good health and safety of the State, and all alcoholic liquors in the State not having been tested by the chemist of the South Carolina College and found to be chemically pure, are hereby declared to be of a poisonous and detrimental character, and their use and consumption as a beverage are against the morals, good health and safety of the State, &c.” Sec. 35. “All alcoholic liquors, other than domestic wine, which do not have on the packages in which they are contained the label and certificate going to1 show that they have been tested by the chemist and purchased from a State officer authorized to sell them, are hereby declared contraband, and on seizure will be forfeited to the State, as provided in section 31: Provided, that this section shall not apply to liquors held by the owners of registered stills in bonded warehouses. Persons having liquors which they wish to keep for their own use may throw the protection of the law around the same by furnishing an inventory of the quantity and kinds to the State commissioner, and applying for certificates to affix thereon.” The Circuit Judge in his charge to the jury defined the term “contraband” in the language of the statute, and substantially charged the requests of the appellants, except that he added a proviso as to “contraband liquor,” in accordance with the statute. The charge of the Circuit Judge should be officially reported along with the exceptions, in order to show the precise points in issue. It is not accurate to state as a fact that defendants purchased the liquors in question for personal use. They did so state in their testimony, but there were other circumstances in the case from which a different conclusion might have been reached if the jury had been called on to decide such an issue. The contention of the defend*242ants in the Circuit Court was that they had the right to import intoxicating liquors for any purpose, as shown by the sixth request to charge.

Appellants admit- that they violated the terms of the dispensary act. The main contention here is that the legislation concerning the offense charged is void and inoperative, as applied to the conduct of appellants in this case, because the liquors which they confessedly were handling and hauling in the night time, were, at the time of the alleged offense, within the protection of the interstate commerce power of the United States, and not subject to the police power of the State. Mr. Justice Gary in his opinion takes this view. Two reasons are assigned: first, that at the time of the alleged hauling of the liquors, the same were under transportation, within the meaning and protection of the interstate commerce clause of the United States Constitution, to-the exclusion of the police power of the State; and second, because the legislation requiring certificates as to the chemical purity of liquors imported, is a discrimination against such imported liquors in favor of dispensary liquors. I will notice this second ground first. The dispensary act of 1896 ekpressly provides, in section 2, that the State board of control shall purchase all liquors for lawful use in this State, and shall have the same tested and declared to- be pure; and in section 3 it is provided that the State commissioner shall not furnish to county dispensers 'any intoxicating or fermented liquors except such as have been tested by the chemist of the South Carolina College, and declared to be pure; and further provides that the certificate of the said chemist shall be attached to the packages of liquors sold in the dispensaries. It thus appears that liquors kept for sale and sold under the dispensary law must have such certificate attached. This at once dispels the idea that there is any discrimination against imported liquor in favor of dispensary liquor, in reference to the matter of certificate as to purity. There is no discrimination whatever in this regard, whether the liquor be made in this State, or sold in the dispensaries, *243or imported for personal use. The design of the dispensary law is to restrict the use of intoxicating liquors to such liquors as are chemically pure. To allow liquor imported for personal use to be kept and used without such test of purity, while requiring such tests as to liquors produced in the State, or sold in the dispensaries, would be a discrimination in favor of the liquor imported for personal use and against all other liquors in this State, and would tend to defeat the police regulation designed to prevent the use of impure and poisonous liquors. The legislation in question does not seek to have any extra territorial effect. It is local, operating on all intoxicating liquors within the State belonging to the class of liquors not tested, and found to be pure. It does not burden commerce by operating materially on any interstate contract, involving interstate transportation. It does not discriminate against non-resident producers and sellers. It does not prohibit the right to receive an interstate shipment or consignment of liquors for personal use. It is on its face a mere police regulation, defining the circumstances under which intoxicating liquors within this State shall be deemed contraband, and forbidding the handling of the same in the night time. Intoxicating liquors are universally held to be peculiarly subject to police control. Surely it is within the police power of the State to declare when such liquors, if within the State in the hands of citizens of this State, shall be deemed contraband, and to interdict the hauling thereof about 'the country under cover of night, as a means to prevent or make more difficult illicit traffic.

In reference to the question whether the liquors at the time of the alleged offense were exclusively within the protection of interstate commerce and exempt from State regulations, it is not easy to define with exactness the domain of the commercial power from which the police power is excluded. 1 While the States did surrender to the federal government'the right to regulate commerce with foreign nations and between the States, the police powers of the States were never surrendered, and ought to be zealously guarded by the *244Courts of the State. Cases falling clearly within either domain are easy of solution, but much difficulty is experienced in the proper solution of those matters that lie near the dividing line between these great powers. Such is the case before us. I understand the settled rule of the United States Supreme Court is this, that State regulations enacted in the exercise of the police power are not void unless they directly and substantially interfere with or burden interstate commerce. Numerous instances might be cited in which the Supreme Court of the United States has held police regulations valid, notwithstanding they remotely, or indirectly, or for a limited time, or to a limited extent, affected interstate commerce. I will cite two- cases recently decided, Hennington v. Georgia, 163 U. S., 299, and Lake Shore &c. R. R. Co. v. Ohio, 19 Sup. Ct. Rep., 465. In the first mentioned case the Court held that a statute of Georgia making it a misdemeanor to run a freight train on the Sabbath day, was within the police power of the State, even as applied to a freight train engaged in interstate commerce. The Court said: “Local laws of the character mentioned have their source in the powers which the States reserved and never surrendered to Congress, of providing for the public health, the public morals and the public safety; and are not within the meaning of the Constitution; and considered in their own nature regulations of interstate commerce, simply because for a limited time or to a limited extent they cover the field occupied by those engaged in such commerce. The statute of Georgia is not directed against interstate commerce. It establishes a rule of civil conduct applicable alike to all freight trains, domestic as well as interstate. It applies to the transportation of interstate freight the same rule precisely that it applies to the transportation of domestic freight.” In the second case mentioned, the Court held that an Ohio statute requiring all railroad companies, operating lines within the State, to cause three, each way, of its regular passenger trains, if so many are run daily, to stop at a city or town with over 3,000 inhabitants, to receive and *245discharge passengers, is a valid exercise of the police power of the State, and applies to an interstate railroad operating through such State, Congress not having taken affirmative action under its power to regulate interstate commerce in reference to that matter. The Court adjudged that the Ohio statute was not in itself a regulation of interstate commerce, but was designed to subserve public convenience, and was within the police power of the State, notwithstanding such regulation incidentally or remotely affected interstate commerce.

It must be noted here that the legislation in question here is not the legislation that was condemned in Vance v. Vandercook, 170 U. S., 438. The obnoxious regulation in that case considered was an amendment to the act of 1897, 22 Stat., 535, which expressly regulated the importation of liquors for personal use, which was held void as a substantial interference with interstate commerce, because the resident desiring to import liquors was required to first communicate his purpose to a State chemist, and because the non-resident was deprived of his right to ship by means of interstate commerce any liquor into South Carolina without previous authority obtained from a State officer. This was a practical prohibition on the non-resident’s right to ship, directly affecting the interstate contract or transaction. This question before us now is quite different, and is not at all concluded by the decision in Vance v. Vandercook; in fact, as I shall presently attempt to show, the case of Vance v. Vandercook leads logically to a different conclusion from that reached in the opinion of Mr. Justice Gary. ,

I come now to the act of Congress known as the “Wilson Act.” This act in express terms places intoxicating liquors within the police power of the State upon “arrival” in the State. In the case of Rhodes v. Iowa, 170 U. S., 412, the Supreme Court of the United States construed “arrival” to mean “arrival at the point of destination and delivery to the consignee.” It clearly appears from the extract from this case, in the opinion of Mr. Justice Gary as well as from the *246whole case, that “arrival at destination and delivery to consignee” involves an interstate shipment pursuant to- an interstate contract. In such case the interstate commerce transaction is consummated by delivery to consignee. In the case before us, the delivery was made at Hightower’s distillery, in North Carolina. The destination and delivery, so far as the non-resident seller was concerned, was the actual custody of the buyers in North Carolina. There could not possibly be any further delivery by the buyers to themselves, either at the State line or at their homes in Darlington, So it is impossible to- entertain in this case the idea of delivery in South Carolina at the defendants’ homes. I concede, of course, that transportation is included in interstate commerce, but it must be, as I conceive, under the Wilson act and the construction placed upon it, a commercial transportation pursuant to- an interstate contract involving an interstate shipment and delivery at the end of the transportation. There is, it is true, a constructive delivery to- the consignee when the goods are delivered for shipment to a common carrier, but in such case interstate commerce protects the goods before actual delivery, because the carrier is an agent of interstate commerce, and holds the goods under interstate contract for shipment and delivery. But when the carrier delivers intoxicating liquors at the place of consignment, it surely cannot be successfully maintained that the liquors are protected by interstate commerce until consumed in the use. Interstate commerce yields its grasp when the interstate transaction is consummated by actual delivery of the intoxicating, liquors. The liquors become subject to the police power of the State when they enter the territory of the State, in the absence of any contract by or with a carrier involving shipment and delivery at a destination within the State. The police power extendsto-persons and things within the territory of the State, and is operative thereon unless the commercial power shields to the exclusion of the police power, which cannot'be, when the interstate commerce transaction is completed by actual delivery of the liquors. To hold that intox*247leafing liquors imported for personal use are protected by the commercial power until consumed in the. use, is to' hold that such liquors never became subj ect to the police power of the State, which carries the argument on the question when intoxicating liquors “arrive” in the State to the unreasonable length of saying that liquors imported for personal use never arrive in the State. Note the language of the “Wilson Act:” liquors “transported into any State or remaining therein for use, consumption, sale or storageIn Vance v. Vandercook, it was held that police regulations attached as to imported liquors after delivery and before sale under this act. How can the conclusion be escaped that police regulations attach as to imported liquors before use, before consumption, before storage? The act makes no distinction.

The judgment of the Circuit Court should be affirmed.