Southern Express Co. v. City of High Point

Clark, C. J.,

concurring in result: I concur that an injunction does not lie to restrain the State against executing its criminal laws. The defendant has a full remedy by raising any objection to the validity of the law upon the trial of the indictment for the criminal offense. Equity never interferes, especially by injunction, when there is a full remedy at law. Further, it is settled beyond controversy that the State has the power to prohibit within its boundaries the manufacture and sale of intoxicating liquors, and that under the "Webb-Kenyon law it has the same police power in regard to intoxicating liquors imported from another Státe as if manufactured here.

I do not concur, however, in the construction of chapter 1014, Laws 1907. That chapter (sec. 1) makes it “unlawful for any person, firm, or corporation to sell or dispose of fox gain, or keep for sale, within High Point Township, any spirituous wines, malt, or other intoxicating liquors.” . A separate paragraph (sec. 5) makes it a misdemeanor for “any person, firm, or corporation to bring into High Point Township for delivery to any person, corporation, company, or firm any liquors the sale of which is prohibited by this act.” The liquors the “sale of which is prohibited by this act” are “any spirituous wines, malt, or other intoxicating liquors.” There is in this no intimation that such liquors, if to be used by the receiver for his own purposes, are permitted to be brought in. There is no discrimination in this act permitting the bringing in of liquors by reason of the use to which the liquors are to be applied.

There is nothing in the State or Federal constitutions which prohibits the people of North Carolina, speaking through their Legislature, to prohibit the manufacture of intoxicating liquors even solely for one’s own use. This is held in Mugler v. Kansas, 123 U. S., 623. It follows that the Legislature can equally prohibit the importation of such liquors by any person for his own use, and a fortiori it can forbid a common carrier to bring in or import such liquors, irrespective of whether it is for the consignee’s own use or not.

It was once contended that liquor was a necessity for medical purposes. But it has never been held to be such as a matter of law, and as a matter of fact it is public knowledge that the State Medical *107Society, comprising a large number of the ablest medical practitioners of this State, at their recent State Convention in Ealeigh, held, by a unanimous vote, that intoxicating liquors were not necessary for use in . illness or for other medical purpose. Besides, there is no evidence in this case that these liquors are imported for the consignee’s own use or for medical purposes. Even conceding that they were, the public policy of the State is determined by its people, speaking through their Legislature, and not by the courts. Those who would like for liquors to be either manufactured or imported by a consignee, if for his own use, should apply to the Legislature and not to the courts.

If the law can prohibit a man from bringing liquor into the State by manufacturing it, solely for Ms own use, it can prohibit him from importing it from another State solely for his own use, and prohibit the common carrier from bringing it. If the law can forbid a barkeeper from selling half a gill of whiskey, it can forbid the purchaser from buying that half a gill. If the law can prohibit, as we have held, any one to have on hand more than a gallon of whiskey at a time, it can forbid him from .having any at all. These are matters of public policy which must be determined by the Legislature and which the courts cannot meddle with.

It was formerly held that the State police powers do not attach to intoxicating liquors brought in from another State until after delivery to the consignee. But the Webb-Kenyon law, ratified 1 March, 1913, 37 U. S. Statutes, 699, has taken intoxicating liquors out of the domain of interstate commerce when shipped into a Prohibition State. In U. S. v. R. & N. Co., 210 Fed., 318, Bean, United States District Judge, held that the Idaho statute of 1909, page 9, which forbade the shipment of liquor, even when the liquor is intended for the personal use of the consignee, “is not unconstitutional, but was a valid exercise of the police powers of the State.” He quoted that the Webb-Kenyon act prohibits “the shipment or transportation of intoxicating liquors of any kind, in any manner, or by any means whatever, from one State into another, which liquor is intended by any person interested therein to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation bf 'any law of such State,” and further held that the Idaho statute being “broad enough to make unlawful all intrastate shipments of intoxicating liquors, although intended for the personal use of the consignee,” that since the passage of the Webb-Kenyon law it is unlawful for any common carrier to carry liquors into Idaho, even though they are for the personal use of the consignee. The same ruling has been made by the Delaware Supreme Court, S. v. R. R., 88 Atl., 571, which is cited by Judge Bean.

*108In tbe Delaware case Chief Justice Pennewill refused to follow tbe only case on tbe other side of tbis question in wbicb tbe Kentucky Court of Appeals, in Express Co. v. Kentucky, 157 S. W., 908, beld tbat tbe express company was not guilty in carrying from Tennessee into local option territory in Kentucky liquors wbicb “were intended by said consignees respectively for tbeir personal use and were so used by them, and were not intended by tbem to be sold contrary to law, and were not so sold by tbem.” Tbe Chief Justice says: “We tbink tbe person to wbom tbe liquor is given for transportation and delivery is interested therein within tbe meaning of tbe Federal law, and tbat if be intends when be receives, or has in bis ^possession, tbe liquor to carry it from a point in one State to local-option territory in another State, into wbicb tbe carrying is unlawful, tbe transaction is not protected by the commerce laws of tbe Federal Constitution and is prohibited by the Webb-Kenyon law, it being a violation of the law of tbe State into wbicb tbe liquor is carried. And it may also be said tbat if such person carries or delivers tbe liquor into a local-option territory where such carrying or delivery is unlawful, it is used by him 'in violation of tbe law’ of tbis State within tbe meaning of tbe Federal statute. If tbis conclusion is not correct, then tbe Webb-Kenyon law furnishes no remedy at all for tbe evils it was designed to cure.” He further adds: “If no one is interested in an interstate shipment of liquor, within tbe meaning of tbe Federal statute, except tbe consignee or a consignor who ships it for tbe purpose of sale, then, in effect, tbe Webb-Kenyon act is but a reenactment of tbis law passed by Congress in 1890, and nothing lias been accomplished by tbe later act, because, in order to show tbat it applies in any case, it would be necessary, as already said, to prove a sale of tbe liquor by tbe consignor or consignee upon or after delivery at destination. How, otherwise, would it be possible to establish tbe fact tbat tbe liquor was intended by tbe consignor or consignee to be received, possessed, or used in violation of tbe State law? Tbe mere possession is not unlawful, and if transportation is not contemplated by tbe Webb-Kenyon act, nothing but a sale would prove an intention to violate sucb law. It may be argued tbat it is only necessary to prove tbat it was tbe intention of tbe consignor or consignee to sell tbe liquor, to bring tbe shipment within tbe provisions of tbe act; but, practically, bow can tbe purpose of tbe intention be shown without proving tbe consummated act — the sale ?”

Tbe same view of tbe Webb-Kenyon law is taken by tbe Supreme Court of Iowa in S. v. Express Co., 145 N. W., 451, in wbicb are cited many other instances in wbicb Congress has withdrawn articles from tbe protection of interstate commerce or forbidden interstate shipments, as the act of 1803, while Jefferson was President, forbidding tbe *109transportation of free negroes from one State into any other in wbiob they were forbidden to reside. 2 U. S. Statutes, 205; the White Slave Act, Hoke v. U. S., 227 U. S., 308; the Lacy Act forbidding transportation in interstate commerce of game killed in violation of State law, TJ. S. Criminal Code, sec. 242; the Wilson Act which, even as construed, prohibited interstate shipment of liquors in the original package, and others. To these may be added the prohibition of interstate 'carriage of lottery tickets, 188 U. S., 358, and Plumley v. Mass., 155 U. S., 474, sustaining the prohibition of the sale of oleomargarin not colored yellow, although it had been brought in from another State. These latter two cases are cited in the Delaware case above quoted. Another late case sustaining the same view of the Webb-Kenyon law and its constitutionality is S. v. Doe, 139 Pac., 1169, rendered by the Supreme Court of Kansas.

Whether it shall be unlawful for a barkeeper to sell a drink to a man for his own use, or for a common carrier to bring him a larger quantity for the same use, are equally matters for the Legislature alone to determine.

The Legislature might in this act have excepted liquors “brought in for medicinal, scientific, and mechanical purposes, or for personal use of the consignee.” But it did not see fit to do so. These are not, therefore, valid defenses, and the common carrier bringing liquor into High Point for any purpose is, in the language of the Webb-Kenyon law, “possessed” of such package to be delivered “in violation of the law of this State.”