(dissenting). In his oft-quoted opinion in Paul v. Gloucester County, 50 N. J. L. 585, 595 (E. & A. 1888), Justice Van Syekel pointed out that the sale of intoxicating liquor has always been dealt with by our Legislature in an exceptional way and that “It is a subject by itself, to the treatment of which 'all the analogies of the law, appropriate to other topics, cannot be applied.” Its inherent dangers are evident and need not be recounted here. While the federal prohibitory effort failed and each State was left with its own determination, our Legislature in the companion Alcoholic Beverage Control Act (L. 1933, c. 436) and Alcoholic Beverage Tax Act (L. 1933, c. 434) wisely and with impressive results made adequate provisions for rigid, curbs. Although many of their restrictive requirements would be unduly severe in other fields, they appear to be not without reason in this field.
*592One of the many troublesome problems which early confronted the authorities resulted from claims, often suspect, that liquor which had admittedly been in the possession of licensees had disappeared through theft or otherwise and should not be taxed as though sold within B. S. 54:43-l; that section comprehensively imposes the alcoholic beverage tax on every sale within New Jersey. The Legislature in an amendment of B. S- 54:41-2 dealt with the matter in unmistakable language by providing that the word “sale” as used in the Alcoholic Beverage Tax Act shall, in addition to its ordinary meaning, include an}? theft or other disposition and that in every case where alcoholic beverages are “stolen or otherwise disposed of, they shall be deemed to have been sold.” Another problem confronting the authorities resulted from situations in which alcoholic beverages possessed by licensees in New Jersey were claimed to have been shipped out of the State generally for taxable sale there. In B. S. 54:43-2 the Legislature has from time to time dealt with this problem by providing specifically for tax exemption where it satisfactorily appears that the alcoholic beverages which had been possessed within the State were actually shipped out of the State. Included is a provision to the effect that alcoholic beverages which are brought into New Jersey but are not intended for sale or delivery therein “and are delivered to a point outside of this State” shall be exempt from the tax imposed by the Act; this provision expressly states that if any transporter fails to consummate the delivery of the alcoholic beverages “to a point outside of this State” then the transporter shall be liable for the tax by reason of its delivery “or other disposition.” The legislative purpose seems clear; if the licensee simply transports the alcoholic beverages through the State and they actually leave the State, then they are exempt from taxation; if, however, the licensee fails to effect their removal from the State, then he is liable for the tax as though sold therein.
*593In construing the statutory language our function is to ascertain and give effect to the legislative meaning. See Board of National Missions v. Neeld, 9 N. J. 349, at p. 362 (1952). The statutory language, either considered alone or in the light of its history, purpose and context (Ablondi v. Board of Review, 8 N. J. Super. 71, 75 (App. Div. 1950)) leaves little doubt that the Legislature meant to impose the statutory tax where alcoholic beverages are brought into the State by any licensee, including a transporter, and are not taken out of the State because of alleged theft or other disposition. The wisdom of the State’s refusal to undertake the burden of differentiating between real and simulated thefts and losses with its occasional resulting severity is, of course, a matter of legislative rather than judicial concern.
The majority opinion asserts that the statute if thus construed would be “a clear denial to appellants of the equal protection of the laws in violation of the Fourteenth Amendment to the Federal Constitution.” It seems that this ignores the nature of the subject matter with which we are dealing. Apart from the commerce clause the Legislature may undoubtedly prohibit all possession of alcoholic beverages within New Jersey and may impose prohibitory taxation on such possession; that being so, what constitutional restriction may be said to forbid a much lesser restriction applied equally, namely, the payment of tax where any licensee voluntarily brings liquor within the State, no longer possesses it,'and fails to establish that he has taken it out of the State. See Ziffrin, Inc. v. Reeves, 308 U. S. 132, 138, 60 S. Ct. 163, 84 L. Ed. 128, 135 (1939), where the court said:
“Having power absolutely to prohibit manufacture, sale, transportation, or possession of intoxicants, was it permissible for Kentucky to permit these things only under definitely prescribed conditions? Former opinions here make an affirmative answer imperative. The greater power includes the less. Seaboard Air Line R. Co. v. North Carolina, 245 U. S. 298, 38 S. Ct. 96, 62 L. Ed. 299, supra. The state may protect her people against evil incident to intoxicants, Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed. *594205; Kidd v. Pearson, 128 U. S. 1, 9 S. Ct. 6, 32 L. Ed. 346, 2 Inters. Com. Rep. 232, and may exercise large discretion as to means employed.”
Cf. State Bd. of Equalization v. Young’s Market Co., 299 U. S. 59, 63, 57 S. Ct. 77, 81 L. Ed. 38, 41 (1936).
Finally, the majority opinion takes the position that as thus construed the legislation violates the commerce clause of the United States Constitution even as limited by the Twenty-First Amendment. It may be assumed that our Legislature would have no constitutional authority to forbid all through shipments of alcoholic beverages in interstate commerce; it has not attempted to do so. In effect, it has simply stated that such through shipments are permissible-upon condition that the licensed transporter be under absolute obligation to remove from the State liquor which he has brought into the State, and that if he fails to establish that the liquor was actually removed from the State it will be presumed that it was ultimately sold within New Jersey and he shall pay the tax thereon as though sold. The United States Supreme Court has gone to great lengths in sustaining sweeping restrictive regulations, short of prohibition, imposed by States on through shipments of liquor. See Carter v. Virginia, 321 U. S. 131, 64 S. Ct. 464, 88 L. Ed. 605 (1944); Duckworth v. Arkansas, 314 U. S. 390, 62 S. Ct. 311, 86 L. Ed. 294 (1941). Under its decisions it would seem that a dry state could, without offending the commerce clause, impose requirements designed to make certain that liquor on a through shipment actually leaves its borders; I incline- towards the belief that such requirements may properly include the exaction of a money payment from a transporter who brought liquor into the State but failed to establish its removal therefrom. Cf. Frankfurter, J., in Carter v. Virginia, supra. And if a dry state may do so why may not our Legislature do the same in the belief that its stringent requirement will not only eliminate spurious thefts but will also induce out-of-state motor carriers, such as the appellants, 'to provide extra precautions *595against real thefts which help feed illicit channels of liquor distribution within the State. In any event, the broad expressions by the Supreme Court supporting highly restrictive local policies in the liquor field lead me to the conclusion that our court should not reach out in the instant matter to strike down, under the commerce clause, the pertinent legislative requirement found in the Alcoholic Beverage Tax Act. Cf. Black, J., in Carter v. Virginia, supra:
“I am not sure that state statutes regulating intoxicating liquor should ever be invalidated by this Court under the Commerce Clause except where they conflict with valid Federal statutes. Cf. dissenting opinions, McCarroll v. Dixie Greyhound Lines, 309 U. S. 176, 183, 60 S. Ct. 504, 84 L. Ed. 683, 688; Gwin, White & Prince v. Henneford, 305 U. S. 434, 442, 59 S. Ct. 325, 83 L. Ed. 272, 278; J. D. Adams Mfg. Co. v. Storen, 304 U. S. 307, 316, 58 S. Ct. 913, 82 L. Ed. 1365, 1372, 117 A. L. R. 429. The Twenty-first Amendment has placed liquor in a category different from that of other articles of commerce. Though the precise amount of power it has left in Congress to regulate liquor under the Commerce Clause has not been marked out by decisions, this much is settled: local, not national, regulation of the liquor traffic is now the general constitutional policy. Ziffrin, Inc. v. Reeves, 308 U. S. 132, 60 S. Ct. 163, 84 L. Ed. 128; Indianapolis Brewing Co. v. Liquor Control Commission, 305 U. S. 391, 59 S. Ct. 254, 83 L. Ed. 243; State Bd. of Equalization v. Young’s Market Co., 299 U. S. 59, 57 S. Ct. 77, 81 L. Ed. 38.”
Chief Justice Vanderbilt has authorized me to state that he joins in this dissent.
For reversal — Justices Heiler, Olipi-iant, Waci-ieneeld, Burling and Brennan — 5.
For affirmance — Chief Justice Vanderbilt, and Justice Jacobs — 2.