The State has filed a lengthy and exhaustive motion for rehearing herein, but after carefully considering same our opinion in the premises is not changed.
We do not think section 4 of the Allison Act has any application to interstate shipments of intoxicating liquors, but that the Legislature in dealing with interstate shipments chose its language deliberately in accordance with the language of the Webb-Kenyon law, and meant for section 5 to apply exclusively to interstate shipments, and we think this is manifest by the plain provisions of the law. But had our Legislature intended otherwise, and by any possible construction the provisions of section 4 could be made to apply to interstate shipments, every court of last resort before which the interstate shipments of intoxicating liquors has come, has held that a State is powerless to prohibit interstate shipments of liquor for personal use. One of the most recent cases is a decision of the Supreme Court of Delaware, Van Winkle v. State, 91 Atl. Rep., 385, decided in June of this year, in which it clearly shows that those who contended that that court had held in Ex parte Grier that a State could prohibit shipments for personal use were mistaken — that the question involved in this case was not involved in the Grier case, which fact is manifest to anyone who will read the opinion — they held Grier had made an illegal sale, and the question of shipment was not involved except for an unlawful purpose. As the Delaware Supreme Court in the Van Winkle case reviews the history of this character of legislation, and disposes of every question raised by the State in the motion for rehearing, we adopt that portion of the opinion relating to the questions involved in this case. It says: *Page 292
"Propositions 4, 5, and 6 are as follows:
"`That beer, being an intoxicating liquor, is an article of commerce, and in this case is a lawful article of interstate commerce, and as such can not be subject to State law as to its transportation, and delivery as a part of such transportation, in Kent County.
"`That the Federal law of March 1, 1913, known as the "Webb-Kenyon Law," entitled "An Act divesting intoxicating liquors of their interstate character in certain cases," does not deprive the shipment in question of the protection of the interstate commerce law, in that the shipment in question was intended to be used for a lawful purpose.
"`That if the said Federal statute, known as the "Webb-Kenyon Law," is applicable by its terms to the case charged in the indictment in this case, yet that the said Federal statute is unconstitutional.'
"These propositions are nearly related in principle and present in different phases the same questions of law, and will therefore be considered together. They involve questions of the validity of a State law regulating or attempting to regulate and restrict commerce between the States in a specified commodity, and the validity of a Federal law delegating, permitting or acquiescing in the exercise of such a power by a State, in view of the provision of the Federal Constitution conferring upon the Congress of the United States supreme power to regulate commerce between the States, and thus prevent in new forms old questions which have been the basis of legislative and judicial conflicts between the State and Federal governments almost since their foundation.
"In our scheme of government, which contemplates the delegation of certain and defined powers to national control and the reservation of equally certain powers to State or local control, there is with respect to the existence and location of those powers no conflict between State and Federal sovereignties. But in a complicated system such as ours, wherein exists two governments over the same people, in which in different ways the laws first of one and then the other are supreme, according to the authority under which they are enacted, and with reference to the subjects to which they are addressed, conflicts in the exercise of those powers are inevitable.
"Among the powers reserved to each of the separate governments which, together form the general government of the United States, is what is termed `police power' of the State. This power is an attribute of sovereignty, and when exercised within its scope is supreme, to the exclusion of the power of the general government. Police power `is the power of government inherent in every sovereignty, that is to say, the power to govern men and things' (License Cases, 5 How., 504, 583, 12 L.Ed., 256), and when exercised by a State sovereignty extends to such restraints and regulations as are reasonable and proper to protect the lives, health, comfort and property of its citizens and to promote the order, morals, safety, and welfare of society.
"On the other hand, among the powers delegated to the Federal government is the power to regulate commerce between the States, and in *Page 293 the exercise of that power the authority of the Federal government is supreme to the exclusion of the powers of State government.
"When between these extremes of sovereignty there comes a thing, which from its nature as property is a subject of ownership, traffic and interstate commerce and over it the Federal government assumes supreme control, and which because of its nature is a menace to the health, morals and safety of society, and over it the State likewise attempts supreme control, there occurs a collision of powers, and from that collision one only can emerge supreme.
"In such a conflict it devolves upon the court to determine which sovereignty has been invaded and which power is supreme. To arrive at such a determination it is necessary for the courts to revert to the early laws, examine and ascertain the powers originally partitioned between the government of the States and the United States, and seek the foundation of the laws out of which such a controversy has arisen, by progressively following the legislative and judicial history of the matter down to the point of conflict. This is not merely a wise policy but it is a necessary one, as the only guides to a decision of a case like this are those afforded first by the language of the Constitution, and then the legal meaning of that language, and the legal effect of the statute enacted thereunder, as determined and illuminated by the judicial pronouncements upon the subject by the judicial tribunal having authority finally to decide the law. A decision by the court in this case that involves anything beyond this would be a decision without authority, for by the decisions of the Supreme Court of the United States, respecting the powers delegated to the general government and those reserved to the State government, are we not only guided but controlled, and until those decisions are modified or altered, or the language of the Constitution itself is changed, they constitute the supreme law, and we are bound by them.
"The conflict between the State and Federal governments for control and regulation of the sale and transportation of liquor has been waged since early times, and revolves around what is known as the commerce clause of the Federal Constitution (art. ___, sec. 8), and the meaning and legal effect of that clause as a supreme Federal power, taken in connection with or in opposition to the police powers of the States, which, when existing and defined, are in turn supreme in the States.
"The Constitution declares that the Congress has power `to regulate commerce with foreign nations, among the several States, and with the Indian tribes.' These words give all the authority which the United States has over commerce. The police powers of the States are not conferred by statute, but are powers reserved to the States for the regulation of their internal affairs, and are rather elastic in their scope and definition.
"The power to regulate commerce among the several States is granted to the Congress in the same clause and by the same words as the power to regulate commerce with foreign nations, and is co-extensive with it. *Page 294 The first judicial pronouncement by the Supreme Court of the United States upon the commerce clause of the Constitution, which has a bearing upon the matter now before us, was in the celebrated case of Brown v. State of Maryland, 12 Wheat., 419, 6 L.Ed., 678, and related to the right of the State of Maryland to levy a tax upon a commodity (not liquor) imported into that State from a foreign country. The question of the right of a State to enact a law that either in purpose or effect, directly or indirectly, regulates or restricts commerce with a foreign country, was fully presented to the Supreme Court for the first time by that case. The court held that an article authorized by a law of Congress to be imported continued to be a part of the foreign commerce of the country while it remained in the hands of the importer for sale in the original bale, package, or vessel in which it was imported; that the authority given to import necessarily carried with it the right to sell the imported article in the form and shape in which it was imported, and that no State, either by direct assessment or by requiring a license from the importer before he was permitted to sell, could impose any burden upon him or the property imported beyond what the law of Congress had itself imposed; but that when the original package was broken up for use or for retail by the importer, and also when the commodity had passed from his hands into the hands of a purchaser, it ceased to be an import, or a part of foreign commerce and became subject to the laws of the State, and might be taxed for State purposes, and the sale regulated by the State, like any other property. This was substantially the decision in the case of Brown v. State of Maryland, drawing the line between foreign commerce which is subject to the regulation by the Congress to the exclusion of the State, and internal or domestic commerce within each State, the regulation of which belongs to the State, to the exclusion of Congress.
"The case of Brown v. State of Maryland forms the basis of the subsequent decisions of the Supreme Court upon the matter of Federal regulation of commerce between the States with respect to the commodity of liquor. The first important cases before the Supreme Court of the United States which bore directly upon the subject were several cases thereafter known by the general name of the License Cases, 5 How., 504-633, 12 L.Ed., 256, heard and decided in 1847. In these cases the abstract question of law was: Is a State law, prohibiting the retail of imported spirits, except by license, on the ground that, for moral, medical, economical, or other reasons, the public good will not be promoted by such sale, repugnant to the Acts of Congress, and to treaties authorizing the importation of such spirits?
"On the part of those attacking the right of a State to regulate the retail of liquor authorized by the laws of Congress to be imported into the State and thereby ultimately to prohibit the resale thereof, it was contended that a congressional Act authorizing importation of spirits is a legislative determination that the foreign article may properly, and shall, enter into consumption of the State, and be sold in the interior market thereof; and that a State statute, limiting or restricting the *Page 295 resale, amounts to an interception in the hands of the first buyer, shuts the importer from the country as really as if he were prohibited to import, and therefore contravenes the determination of the Federal legislation upon a directly opposite policy.
"On the other hand, the State contended that the requirement that a purchaser of imported spirits be licensed under a State law, before resale, is a regulation of the internal commerce of the State, having for its object the preservation of order, morals and health and intended to discourage intemperance and to promote sobriety, and therefore falls with the class of laws, enacted under the powers reserved to the State, and generally called `police regulations.'
"The court held that a State could not by statute prohibit the importation of foreign spirits, as such a law would be repugnant to the commercial power of the Federal government, but the matter of the resale by the consignee of imported spirits in the original package, was one over which the Congress and the States had concurrent jurisdiction, to the extent that in the absence of regulation by Act of Congress, under the power conferred by the commerce clause of the Constitution, a State within its police power might regulate and thereby prohibit the sale of spirits in the original package in which they were imported, or in the presence of some regulating Act of Congress, a State might in turn regulate such a sale under a State law, if such State law was not inconsistent with or repugnant to the Act of Congress.
"The law as decided by the License Cases in 1847 was little disturbed by judicial decisions until the decade of 1880-1890, in which period the case of Mugler v. Kansas, 123 U.S. 623, 8 Sup. Ct. Rep., 273, 31 L.Ed., 205, was heard. In that case the Supreme Court held valid a statute of the State of Kansas, which prohibited the manufacture and sale of intoxicating liquors within the limits of that State, except for medical, scientific or mechanical purposes, but expressly avoided an opinion upon the power of a State to prohibit the sale of imported liquor within its limits, when such liquor was authorized by Congress to be imported, intimating, against the decision in the License Cases, that when the liquor is authorized to be imported from one State to another, the right of sale of the liquor would seem to follow the right to import it. The decision in this case has a relation to the matter under discussion only because it was an early expression of doubt by the Supreme Court of the right of a State to regulate or prohibit the resale of liquor after the importation, as decided in the License Cases.
"The point in the judgment of the License Cases was strictly confined to the right of the States to regulate or prohibit the sale of intoxicating liquor by the consignee after it has been brought within State limits. The right to transport liquor into the States was not questioned in those cases. Indeed, the reasoning which justified the right of a State to prohibit sales of imported liquor, admitted by implication, the right to transport liquor from one State into another as a commodity of lawful commerce, free from the control of the several States and subject to the exclusive power of Congress over commerce. *Page 296
"The case of Bowman v. Chicago, etc., Ry. Co., 125 U.S. 465, 8 Sup.Ct. Rep., 689, 1062, 31 L.Ed., 700, decided in 1888, represents the next important step in the progress of judicial interpretations of State and Federal powers over commerce that is interstate in character. This case involved the validity of a law of the State of Iowa, which prohibited the importation of liquor into Iowa from another State by common carriers, excepting under certain circumstances.
"With respect to the right of a State to act upon matters of commerce in the absence of action by the Federal Congress, the decision in this case did not go quite to the extent of the decisions in the License Cases, but held that the right of a State to regulate commerce by a State law, in the absence of a law of Congress upon the same subject, is a right to be determined from circumstances of each case as it arises; deciding that the statute of Iowa forbidding common carriers to transport intoxicating liquors into that State from another State, excepting under certain conditions, although adopted without a purpose of affecting interstate commerce, and while intended as a part of a general system designed to protect the health and morals of the people against the evils resulting from the unrestricted manufacture and sale of intoxicating liquors within the State, was neither an inspection law nor a quarantine law, nor a law confined to the regulation of purely internal and domestic commerce of the State, over which a State may properly exercise control, but was essentially a regulation of commerce among the States, affecting interstate commerce in an essential and vital part, and not being sanctioned by the authority of Congress, either expressed or implied, was repugnant to the Constitution of the United States; and concluding with a quaere as to the main point decided in the License Cases and questioned in Mugler v. Kansas, namely, whether the right of transportation of an article of commerce from one State to another includes by necessary implication the right of the consignee to sell it in the unbroken package at the place where the transportation ends.
"The question adverted to and not decided in the opinions in the Supreme Court in Mugler v. Kansas and Bowman v. Chicago, etc., Railway Co., supra, whether a State may withhold, from a consignee of imported liquor, the right to sell the same in the original package, as an essential and constituent part of commerce in that article, was presented to the Supreme Court for a decision in the case of Leisy v. Hardin, 135 U.S. 100, 10 Sup. Ct. Rep., 681, 34 L.Ed., 128, decided April 28, 1890.
"The court cited numerous decisions made by it in recognition of the undoubted right of the States to control their purely internal affairs, under the exercise of powers not surrendered to the national government; but held that wherever the law of a State amounts essentially to a regulation of commerce among the States, by prohibiting commerce with other States in an article recognized by the laws of Congress as a subject of interstate commerce, before the article has ceased to be an article of commerce between one State and another, it comes in conflict with a power which, in this particular, has been exclusively vested *Page 297 in the general government, and is therefore void. Fully admitting the police powers of the State, the court expressed itself to the effect that to extend the police power of a State over the subjects of commerce, nationwide in character, not purely local and of minor concern, like dams, harbor and pilot regulations, bridges over navigable rivers, piers, docks, etc., would make commerce subordinate to that power and would enable a State to bring within its police power any article of consumption that a State might wish to exclude, whether it belonged to that which was drunk, or to food which was eaten, or to clothing which was worn; that while a State under its police powers may by law resist and prevent the introduction of disease, pestilence or pauperism from abroad, yet disease, pestilence and pauperism are not subjects of commerce, although sometimes among its attendant evils. They are not things to be regulated and trafficked in, but to be prevented, and as long as liquors are the subject of ownership and property and therefore the lawful subjects of exchange, barter and traffic, not made by law unlike any other commodity in which a right of property and a right to traffic exists, then importation can not be prevented by a State law; and as sale thereof by the consignee in the destination State is a constituent of commerce itself, the sale can not be prevented by a State under claim of its control over the commodity under its police power. The court reviewed the position taken in the License Cases with respect to the silence of Congress, and in opposition thereto held, as it had previously held in the Bowman case, that:
"`The absence of any law of Congress on the subject is equivalent to its declaration that commerce in that matter shall be free. Thus the absence of regulations as to interstate commerce with reference to any particular subject is taken as a declaration that the importation of that article into the States shall be unrestricted.'
"The court overruled the decision in Pierce v. New Hampshire (License Cases), 5 How., 504, 12 L.Ed., 256, and held that liquor is a legitimate article of commerce, that an interstate commercial transaction in liquor is not complete upon delivery to the consignee, but extends to and includes the subject sale thereof by the consignee, and that, even when Congress is silent upon the subject, a statute of a State, prohibiting the sale of imported liquor by the consignee in an interstate transaction, where the sale is made in the unbroken original package, is unconstitutional and void, as repugnant to the commerce clause to the Constitution, granting to Congress alone the power to regulate commerce among the States.
"In this and in the preceding cases of the same decisional trend were vigorous dissenting opinions delivered in maintenance of the principle that the regulation of the sale and traffic in liquor is within the police power of a State, even to the prevention of sale after arrival and to the exclusion of liquor by importation.
"The decision in the Leisy case, extending to an interstate commercial transaction in liquor the right of sale in the original package by the consignee in the destination State, regardless of the laws of such *Page 298 State prohibiting such sale, was rendered April 28, 1890, and there was immediately introduced in Congress to meet that decision and to annul its force, which was enacted into law on August 8, 1890, and is known as the `Wilson Law.'
"The Wilson Act provides: `That all fermented, distilled or other intoxicating liquors or liquids transported into any State or territory or remaining therein for use, consumption, sale or storage therein, shall upon arrival in such State or Territory be subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.' Act of Aug. 8, 1890, c. 728, 26 Stat., 313 (U.S. Comp. St., 1901, p. 3177).
"It thus appears that the police power which the Supreme Court in the License Cases conceded to the States, in regulation or preventing a resale by consignee of an imported article in the original package, was denied to the States by the Supreme Court in the Leisy case, and that the right thus first conceded, and then denied, was determined by the Wilson law. The point of decision in the two named cases and the matter contemplated as the subject of the Wilson law, as finally defined, was restricted to the right of a State to regulate or prevent a resale of liquor upon delivery, and did not extend to the right of a State to regulate or prohibit the importation of liquor, the law upon the latter point remaining as decided in Bowman v. Chicago Railway Co., supra.
"Upon the enactment of the Wilson law two questions immediately arose: First, the constitutionality of the law in depriving the consignee of liquor in an interstate transaction of his theretofore recognized right to sell the liquor in the original package in the destination State, as an ingredient or constituent element of commerce; and, second, if constitutional, when and at what point in the interstate transaction did liquor lose its interstate characteristic, and become `subject to the operation and effect of the laws' of the destination State, under the terms of the statute that `liquors transported into any State . . .shall upon arrival in such State be subject to the operation and effect of the laws of such State.'
"These questions and such others as were related to them had been considered and decided by the Supreme Court in a number of cases, to the leading ones of which reference will be made, showing the law as it stood from the date of the enactment of the Wilson law in 1890 to the year 1913.
"By these decisions the sovereign powers of the States and of the United States over matters exclusively their own were again defined and asserted. In re Rahrer, 140 U.S. 545, 11 Sup.Ct. Rep., 865, 35 L.Ed., 572, the court said:
"`(a) The power of the State to impose restraints and burdens upon persons and property, in conservation, and promotion of the public health, good order and prosperity, is a power originally and always belonging *Page 299 to the States, nor surrendered by them to the general government nor directly restrained by the Constitution of the United States, and essentially exclusive.
"`(b) The power of Congress to regulate commerce among the several States, when the subjects of that power are national in their nature, is also exclusive. The Constitution does not provide that interstate commerce shall be free, but by the grant of this exclusive power to regulate it, it was left free except as Congress might impose restraint. Therefore, it has been determined that the failure of Congress to exercise this exclusive power in any case is an expression of its will that the subject shall be free from restrictions or impositions upon it by the several States. Robbins v. Shelby Taxing District,120 U.S. 489 (7 Sup.Ct. Rep., 592, 30 L.Ed., 694). And if a law passed by a State in the exercise of its acknowledged powers comes into conflict with that will, the Congress and the State can not occupy the position of equally opposing sovereignties, because the Constitution declares its supremacy and that of the laws passed in pursuance thereof. Gibbons v. Ogden, 9 Wheat., 1, 210 (6 Law Ed., 23). That which is not supreme must yield to that which is supreme. Brown v. Maryland, 12 Wheat., 419, 448 (6 L. Ed., 678).
"`(c) That Congress can neither delegate its own powers to a State nor enlarge the powers that belong to a State.'
"Recognizing these as firmly established principles, susceptible of dispute only in their application to the given facts of a case or to the precise terms of a statute, it was decided:
"`(1) That the right to have and use intoxicating liquor for personal purposes is denied no one by either State or Federal laws.
"`(2) That intoxicating liquors constitute a legitimate subject of interstate commerce. Vance v. Vandercook Co., 170 U.S. 438, 444, 18 Sup.Ct. Rep., 674, 42 L.Ed., 1100; L. N.R.R. Co. v. Cook Brewing Co., 223 U.S. 70, 32 Sup.Ct. Rep., 189, 56 L.Ed., 355.
"`(3) That liquor, as a designated subject of interstate commerce, may be governed by a regulation which divests it of that character, when that regulation is promulgated by a law of the Federal government, prescribing one common rule, the uniformity of which is not affected or disturbed by variations in State laws dealing with the same subject. In re Rahrer,140 U.S. 545, 461, 11 Sup.Ct. Rep., 865, 35 L.Ed., 572.
"`(4) That the right of a consignee to sell imported merchandise in the original package is not a right conferred or protected by the Constitution. In re Rahrer, 140 U.S. 545, 11 Sup.Ct. Rep., 865, 35 L.Ed., 572.
"`(5) That by the Wilson law Congress divested interstate commerce in liquor of one of its theretofore interstate characteristics, namely, the right of sale by the consignee, not by delegating the Federal power over the subject to the States, nor by permitting the commerce in the commodity to be regulated by the States, but by bringing to bear directly upon interstate commerce itself, the force of its own rule applicable to all interstate transactions in liquor without regard to local laws of *Page 300 the destination States, that the interstate commercial transaction in liquor shall terminate upon the arrival of the liquor in the destination State, and with the termination of the interstate transaction terminates the Federal control, and thereafter brings the State control thereover. In re Rahrer,140 U.S. 545, 564, 11 Sup.Ct. Rep., 865, 35 L.Ed., 572.
"`(6) That the Wilson law, in so far as its purpose or operation is to divest liquor of its interstate commercial quality upon arrival in a destination State, and to prevent resale or other disposition thereof, except under the laws of the State in which it has arrived, is a valid exercise of the power conferred upon Congress by the commerce clause of the Constitution. In re Rahrer, 140 U.S. 545, 564, 11 Sup.Ct. Rep., 865, 35 L.Ed., 572; Rhodes v. Iowa, 170 U.S. 412, 420, 18 Sup. Ct. Rep., 664, 42 L.Ed., 1088.
"`(7) That the expression of the Wilson Act, that liquor `shallupon arrival in (the destination) State be subject to the operation and effect of the laws of such State,' did not mean arrival within State territory merely, but meant arrival at the point of completion of the interstate transaction, namely, in the hands of the consignee; that the Wilson law conferred no right upon a State to forbid a common carrier to transport liquor from one State into another State, or to stop at the State line an interstate shipment of liquor, or otherwise to interfere with or apply its laws to such interstate shipment until the transportation was concluded by delivery to the consignee. Rhodes v. Iowa, 170 U.S. 412, 18 Sup.Ct. Rep., 664, 42 L.Ed., 1088; Vance v. Vandercook Co., 170 U.S. 438, 18 Sup.Ct. Rep., 674, 42 L.Ed., 1100; Heymann v. Southern Ry. Co., 203 U.S. 270, 27 Sup. Ct. Rep., 104, 51 L.Ed., 178, 7 Ann. Cas., 1130; Adams Express Co. v. Kentucky, 214 U.S. 218, 29 Sup.Ct. Rep., 633, 53 L.Ed., 972; L. N.R.R. Co. v. Cook Brewing Co., 223 U.S. 70, 32 Sup. Ct. Rep., 189, 56 L.Ed., 355.
"`(8) That a common carrier is not forbidden by the Wilson law to transport liquor from one State into another State, even when by the laws of the latter State the shipment as well as the sale of liquor is prohibited, and that, on the contrary, such shipment, when it constitutes an interstate commercial transaction, is not only protected, but may be compelled, by the commerce clause of the Constitution, notwithstanding such a shipment may be in open violation of the laws of the State into which the shipment is made, or notwithstanding the carrier might have notice that the consignee intended to sell the liquor, when received, or in some other way to dispose of it in violation of the State law. L. N.R.R. Co. v. Cook Brewing Co., 223 U.S. 70, 32 Sup.Ct. Rep., 189, 56 L.Ed., 355; Adams Express Co. v. Commonwealth, 154 Ky. 462, 157 S.W. 908, 48 L.R.A. (N.S.), 342.
"`Thus stood the law with respect to State and Federal control over the sale and shipment of liquor until the year 1913, when Congress enacted a statute known generally by the name of its authors as the "Webb-Kenyon Law."'
"The Webb-Kenyon bill, after its introduction, was subjected to vigorous debate and important amendment, with the result that the *Page 301 popular impression of that legislation has been gathered more from the controversy that revolved about it than from knowledge of the measure itself. It is not unnatural, therefore, that the popular conception of the law is that it confers upon a State the power absolutely and totally to prohibit the importation of liquor for any purpose, while an examination of the precise terms of the law shows a very different purpose and a very different power.
"The history of contemporaneous legislation, as well as legislative debates, may in rare instances be resorted to and considered by courts in searching for the meaning of a law when the meaning is obscure, and in discovering the evils intended to be remedied when those evils are in doubt or unknown. In view of the plain language and intent of the Webb-Kenyon law, however, the court would not be justified in employing that means to aid it in reaching its conclusion, but in view of the popular misunderstanding of the law and of the purpose and extent of its provisions, entertained not by its authors and supporters in Congress, as disclosed by such of the debates as were presented to us in the briefs, but by those who have not studied and in some instances have not read the law, the court feels it to be within its province to correct this popular misconception, by adverting to the history of the legislation that surrounded the bill, and that resulted in its enactment.
"The Webb-Kenyon bill, as introduced into Congress, consisted of two sections. The first section of the bill provided, in substance, that the shipment or transportation of liquor from one State into any other, which liquor `is intended by any person interested therein, directly or indirectly, or in any mannerconnected with the transaction' to be received, possessed, or kept, or in any manner used, in violation of any law of such State, `enacted in the exercise of the police power of such State,' is prohibited, and any `contracts pertaining to such transactions are declared to be null and void,' and `no suit or action shall be maintained . . . upon any such contract, or forthe enforcement or protection of any alleged right' based upon such contract, `or for the protection in any manner whatsoever of such prohibited transaction.'
"The expression `by any person . . . in any manner connected with the transaction' may have meant transaction of shipment, in which event the expression included common carriers; and the concluding expression, prohibiting the enforcement, by suit, of rights growing out of a contract and of `protection in any manner whatsoever of such prohibited transactions,' manifestly contemplated the protection of the commerce clause of the Constitution.
"The second section of the bill provided that any liquor transported in any State, or remaining therein for use, consumption, sale or storage, shall upon arrival within theboundaries of such State, and before delivery to the consignee, be subject to the operation and effect of the laws of such State enacted in the exercise of its reserved police powers, to the same extent and in the same manner as though such liquor had been produced in such State. H.R. 17593, 62d Congress, introduced January *Page 302 10, 1912, Congressional Record, February 8, 10, 11, 14, 1913, p. 2919.
"The effect of the last section, which represents the popular conception of the law, would have been to overcome the decision in Bowman v. Chicago, etc., Ry. Co., and to prohibit the transportation of liquor into any State that prohibited such transportation, and stopped the shipment at the frontier, as it were, or, if it got in, then to apply to it the law which the Supreme Court in Mugler v. Kansas established as to the right of a State, under its police powers, to prohibit the sale of liquor within its borders. This is the bill and the legal effect of its provisions as it started on its passage.
"The first thing that was done was the offer and rejection of an amendment to make criminal the transportation of liquors in interstate commerce intended to be used contrary to the law of the destination State. Congressional Record, February 12, 1913, p. 3081.
"The next step was to eliminate from the bill the second section thereof. This is the section that in effect conferred upon States the right to prohibit the importation of liquor by subjecting imported liquors to the operation of State laws upon arrival at State boundary. The last step was to withdraw from the last part of the first section that part of the section avoided contracts of transportation of liquor and withheld protection for prohibited transactions, and to strike out in the middle of the section the broad language, by which common carriers might be included among those connected `with the transaction,' leaving to be enacted into law the remainder of the first section of the bill. The law as enacted is as follows:
"`That the shipment or transportation, in any manner or by any means whatsoever, of any spirituous, vinous, malted, fermented or other intoxicating liquor of any kind, from one State, Territory or district of the United States, or place non-contiguous to but subject to the jurisdiction thereof, into any other State, Territory or district of the United States, or place non-contiguous to but subject to the jurisdiction thereof, or from any foreign country into any State, Territory or district of the United States, or place non-contiguous to but subject to the jurisdiction thereof, which said spirituous, vinous, malted, fermented or other intoxicating 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 of any law of such State, Territory, or district of the United States, or place non-contiguous to but subject to the jurisdiction thereof is hereby prohibited.'
"The bill in its entirety was attacked in both houses of Congress, and upon its first passage was vetoed by the President of the United States, upon the ground that it was unconstitutional and was passed over the President's veto on the 1st day of March, 1913.
"Under authority of this Act the General Assembly of the State of Delaware enacted a statute, approved by the Governor on the 8th day of the following month, entitled `An Act regulating the shipment or carrying of spirituous, vinous or malt liquor into local option territory, *Page 303 or the delivery of the same into such territory' (chapter 139, volume 27, Laws of Delaware), the provisions of which so far as they relate to the phase of the case now under consideration, are:
"`Section 1. That it shall be unlawful for any common carrier, knowingly to accept or receive for shipment, transportation or delivery to any person or place within local option territory, or to carry, bring into, transfer to any other person, carrier or agent, handle, deliver or distribute in local option territory, any spirituous, vinous or malt liquor, regardless of the name by which it may be called. . . .
"`Section 4. This Act shall apply to all packages of spirituous, vinous or malt liquors, whether broken or unbroken. . . .
"`Section 6. That it shall be unlawful for any person to carry, bring or have brought any quantity of spirituous, vinous or malt liquor from any point within the State of Delaware into local option territory within said State greater than one gallon within the space of twenty-four hours.'
"In the case of L. N.R.R. Co. v. Cook Brewing Co.,223 U.S. 70, 82, 32 Sup.Ct. Rep., 189, 56 L.Ed., 355, decided after the enactment of the Wilson law and before the enactment of the Webb-Kenyon law, Mr. Justice Lurton, in reasserting the law pertaining to the control of Congress over interstate commerce, said:
"`By a long list of decisions beginning even prior to Liesy v. Hardin, 135 U.S. 100, 10 Sup.Ct. Rep., 681, 34 L.Ed., 128, it has been indisputably determined:
"`(a) That beer and other intoxicating liquors are recognized and legitimate subjects of interstate commerce.
"`(b) That it is not competent for any State to forbid any common carrier to transport such articles from a consignor in one State to a consignee in another.
"`(c) That until such transportation is concluded by delivery to the consignee, such commodities do not become subject to State regulation, restraining their sale or disposition.'
"Before the enactment of the Webb-Kenyon law, therefore, there was no question that the State of Delaware was without power to enact into law the provisions of the Hazel Act so far as they relate to and affect interstate commerce. After the enactment of the Webb-Kenyon law, and in the exercise of the power assumed to have been conferred upon it by that statute, the State of Delaware did what admittedly it could not have done before, and by the Hazel law prohibited commerce in liquor between other States and prohibition districts in this State, when the liquor was to be used for any purpose, other than medicinal and sacramental.
"Under this state of the law, the first question therefore is: How far and to what extent are the prohibitions of the Hazel Act authorized, aided or validated by the Webb-Kenyon law, when considered with especial reference to the offense for which the defendant below was indicted? The defendant below, acting as agent for a common carrier, completed a shipment of liquor from the State of Pennsylvania to a *Page 304 prohibition district in the State of Delaware by receiving the same and delivering it to the consignee in that district. It is admitted in the case stated that the liquor `was intended' by the consignee `to be used by him for his own consumption,' and `he did not intend to sell or otherwise unlawfully dispose of the same.' The Hazel Act prohibits the shipment of liquor into the prohibition district of this State for any purpose (excepting the two designated), whether the liquor be intended to be used in violation of law or not. The Webb-Kenyon law prohibits the shipment of liquor only when the liquor is intended to be used in violation of the law of the State. There is thus presented a caseof a shipment of liquor for a lawful purpose, in violation of aState statute prohibiting the shipment of liquor for any purpose,enacted under authority of a Federal statute, prohibiting theshipment of liquor for an unlawful purpose. The first question for our determination, therefore, is whether the Webb-Kenyon law prohibits the act with which the defendant below is charged, or makes valid the prohibition of such an act by a statute. In other words, does the Webb-Kenyon law apply to this case, and, if not, is the Hazel law valid in so far as it prohibits the act committed by the defendant below? The answer to this question depends upon the meaning of the Webb-Kenyon law and the meaning given to that law by the court below constitutes the chief ground of error upon which this case is brought before us for review.
"In the division of powers under our system of government it is the function of the legislative department to make the laws and the function of the judicial department to enforce them. The courts are no more responsible for what a law may contain, so long as it is a valid enactment, than is the Legislature responsible for the manner in which the courts may enforce the law. The responsibilities of these departments are as separate as their functions.
"When a law is validly enacted and its meaning plainly expressed, the one duty of the courts with respect to it is to enforce it. It is only when, by infirmity of expression, a statute is so framed that its meaning is in doubt, that courts are required first to construe a statute in order to know how to enforce it, and in so doing the one thing they seek is the intention of the Legislature, and when they have found it, they then enforce the law which the Legislature, and not the judiciary, has made.
"In the judicial interpretation of laws, courts are guided by well recognized rules. When the language of a statute is plain and conveys a clear and definite meaning, courts give to the statute the exact meaning conveyed by the language, adding nothing thereto and taking nothing therefrom. Another meaning, that by inference or implication might otherwise be gathered from it, is avoided. When the expression is confused and the meaning obscure, then the courts seek the intention of the Legislature by the light of the fundamental rule of looking for the purpose and object of the law, searching for the mischief intended to be abated and finding the remedy intended to be afforded.
"Thus the Webb-Kenyon law means exactly what its language *Page 305 conveys, and the meaning of the law fits precisely the situation it seems intended to remedy, and but for the fact that its meaning is questioned, it would receive from us neither interpretation nor exposition. But as the Webb-Kenyon law was applied by the court below to the given facts of a case there cited, it becomes necessary on review to ascertain the meaning of the law in order to ascertain whether the law is applicable to this case.
"Undoubtedly the purpose of the Webb-Kenyon law, as finally enacted, was to enable the States more effectually to enforce their own laws in preventing and reducing the illicit sale of liquor by restricting the supply to a point that discourages infractions of the law. Of this there is no doubt, but the question is how far in effectuating this purpose does the Webb-Kenyon law go, namely, to the point of permitting a State to prohibit the importation of liquor for all purposes, or to the point of permitting a State to prohibit the importation when the liquor is intended for an unlawful purpose?
"At the outset it is conceded that, before the enactment of the Webb-Kenyon law, it was unlawful to sell liquor in certain prohibition districts in the State of Delaware; yet under the Federal law as it then stood, notwithstanding the State law, a common carrier was protected by the commerce clause of the Federal Constitution in transporting liquor into those districts, even when it had full knowledge that the liquor carried by it was intended to be used in violation of law.
"It is fair to say that the plain intent of the Webb-Kenyon law was to withdraw this protection from the carrier and thereby aid the State in enforcing its law against the illegal sale of liquor, for the carefully chosen language of the Act fits precisely this interpretation.
"So also it must be conceded that before the enactment of the Webb-Kenyon law, it was (as it still is) lawful in any part of the State of Delaware to possess and use intoxicating liquors, in the sense of having and consuming them, and a common carrier was protected in transporting liquor into those districts for that lawful purpose. If it was the purpose of the Webb-Kenyon law to meet this latter situation, change this law and withdraw this protection from the carrier, in the face of the lawfulness of the use to which the liquor was to be put, as recognized by the laws of both the State and Federal government, then such purpose must be disclosed by the law.
"The language of the law is:
"`That the shipment or transportation (of liquor) from one State . . . into any other State . . . which said . . . liquor is intended, by any person interested therein, to be received, possessed, sold, or in any manner used, . . . in violation of any law of such State, . . . is hereby prohibited.'
"By this language it is apparent, first, that the thing prohibited is the shipment or transportation of liquor; second, that such shipment or transportation of liquor is prohibited (a) when the liquor so shipped is intended to be received, possessed, sold or used in violation of the *Page 306 laws of a State, and (b) when that intention is entertained by any person interested in the liquor. From this analysis of the law it is likewise apparent, first, that all shipments of liquor are not by express language prohibited; and, second, that the test of a shipment of the kind prohibited is the intent of a person, not interested in the shipment, but interested in theliquor, to receive, possess, sell or use the liquor in violation of the State law.
"But it was urged at the argument, and it was held by the court below, that the effect of the Webb-Kenyon law, was to divest liquor of its interstate character in all cases and to prohibitall shipments of liquor into a State, when by State law all shipments for all purposes are prohibited, without regard to the lawfulness or unlawfulness of the purpose to which the liquor was intended to be put, upon the theory that the interest of the carrier in a contract and act of carriage of the liquor makes it a `person interested therein,' within the language of the Act, and being interested in the liquor it is transporting into a State against the laws of such State forbidding such transportation, it must intend by the shipment to violate the State law against shipment, and thereby does the act prohibited by the Webb-Kenyon law; in other words, a carrier can not ship liquor without being interested in the liquor, nor can it ship liquor without intending to ship it, and without thereby intending to violate the State law against such shipment.
"The Webb-Kenyon law by its title purports to divest liquor of its interstate character only `in certain cases,' and the law prohibits shipment of liquor into prohibition territory only in certain cases.
"The Webb-Kenyon law makes unlawful the thing it prohibits, and conversely it is fair to say that a thing not by it prohibited is not by it made unlawful. The statute says:
"`That the shipment or transportation' of liquor into a State, `which said . . . liquor (meaning when said liquor) is intended by any person interested therein, to be received, possessed, sold or in any manner used, . . . in violation of any law of such State, . . . is hereby prohibited.'
"That is what the law prohibits. Then conversely the law must mean that the shipment or transportation of liquor into a State, when said liquor is not intended, by any person interested therein, to be received, possessed, sold or in any manner used, in violation of any law of such State, is not thereby prohibited. This seems to us a necessary deduction from the language used, for if the statute does not contemplate as an exception the shipment that might be lawful, then it prohibits all shipments, and if this is what was intended, it is hard to conceive why the intention was left to be deduced and construed from the language used, when simple and direct language might have been used, prohibiting outright any shipment for any purpose, as was used in the statutes of Kentucky, Tennessee, Iowa and Delaware. Before we could hold that Congress intended or attempted to part with any of its constitutional control over interstate commerce, Congress would have to grant or permit or otherwise validly confer upon the States such control *Page 307 by language that conveys a precise and unmistakable meaning to that effect, and not by language from which the meaning must be sought by argument, inference or deduction.
"It was held by the court below that if the Webb-Kenyon law did not enable a State absolutely to prohibit all shipments of liquor into its territory, when the liquor was intended for any purpose, the Webb-Kenyon law was but a re-enactment of the Wilson law. With this view we do not concur. By the Wilson law the resale by the consignee was the only thing prohibited, leaving the carrier free to transport liquor into the territory of a prohibition State, either for purposes made lawful or unlawful by the laws of such State. The Wilson law affected interstate commerce, and divested commerce in liquor of its interstate character only to the extent of subjecting it to the State law and of depriving it of its right of resale after delivery to the consignee, and left the carrier under the protection of the commerce clause of the Constitution for the rest of the interstate transaction. Under this protection the carrier could import liquor into a prohibition State, whether the intended use of the liquor was lawful or unlawful. In fact, under this protection a carrier could import liquor into a prohibition State, with full knowledge that upon arrival at destination and delivery to the consignee it was intended by him to be received, possessed, sold or otherwise used in violation of the laws of that State. This was the mischief intended to be remedied by the Webb-Kenyon law, as this was the state of the law after the enactment of the Wilson law and after the decision of the Supreme Court in L. N.R.R. Co. v. Cook Brewing Co., 223 U.S. 70, 32 Sup.Ct. Rep., 189, 56 L.Ed., 355, decided January 22, 1912, and the state of the law when the Webb-Kenyon bill was introduced in Congress and finally enacted on March 1, 1913.
"To remedy this evil and to aid the States in preventing the shipment of liquor for unlawful purposes, the Webb-Kenyon law attempted a very different thing from what the Wilson law did, and by clear expression withdrew or attempted to withdraw from the carrier of liquor intended for unlawful purposes the protection it theretofore had, and afforded the States a means by which they could more effectively reach and prevent the violation of their liquor laws, when liquors were imported for the purpose of the violation of those laws. . . .
"The great volume of cases that record the controversies that for nearly a century have revolved about the commerce clause of the Federal Constitution disclose that, whatever deviation there may have been in some of its rulings, to one principle the Supreme Court of the United States has uniformly, consistently and steadfastly adhered, as a fixed and established principle of constitutional government, extending to and binding alike upon the governments of the States and of the United States, and that principle is that, under the commerce clause of the Federal Constitution, the Federal government has absolute and exclusive control over commerce between the States, that over interstate commerce the Federal government is supreme, and that any interference by State government, that amounts essentially to a regulation of commerce *Page 308 among the States, is repugnant to the Federal Constitution and is void. In the exercise of its control over interstate commerce, the Federal government, through Congress, may limit commerce between the States, which otherwise shall be free, or it may restrict it in certain features, or prohibit it altogether in certain commodities. When this is done by Congress it is valid. If attempted by a State, it is void. For these reasons it is admitted that, prior to the enactment of the Webb-Kenyon law, the State of Delaware could not have validly enacted a statute making it unlawful to ship liquor from another State into a prohibition district of this State for any purpose, such an act being beyond its own power and not being sanctioned by Congress either express or implied. But by the Webb-Kenyon Act, Congress expressed its sanction to such a law as the State of Delaware might desire to enact, prohibiting the shipment of liquor from other States into certain districts of this State when it was there to be received, possessed, sold or used in violation of the law of this State. Upon authority of this Act the State of Delaware enacted the Hazel law prohibiting with like intent the shipment of liquor from other States into prohibition districts of this State, there to be used for unlawful purposes. To this extent the Hazel law is valid, if the Webb-Kenyon law is valid. But the State of Delaware went further, and by the same law prohibited the shipment of liquor from other States into prohibition districts of this State, there to be used for purposes recognized by the Act itself to be lawful. For this much of the Hazel law the State of Delaware was without authority of its own and without the aid of the Webb-Kenyon Act, for the Webb-Kenyon Act did not prohibit, nor did it authorize the State to prohibit the importation of liquor into a prohibition territory, when the liquor was intended for a lawful purpose. The Hazel Act, therefore, in so far as it prohibits the shipment of liquor from another State into a prohibition district of this State, when the liquor is not intended to be received, possessed, sold or in any manner used in violation of the laws of this State, but is intended for a lawful purpose, is an enactment without constitutional authority, and when invoked in such cases, amounts to an interference with interstate commerce, and is therefore void."
If section 4 of the Allison law should be held to apply to shipments of liquor from one State to another State for personal use, then the opinions of every court of last resort which have been called upon to pass on that question, would hold that section inoperative and void; but we did not at the time of writing the original opinion, and do not now think the Legislature intended that section 4 should apply to interstate shipments, but they adopted a separate and distinct section as applicable to such shipments and legalized and authorized such shipments for personal use.
The motion for rehearing is overruled.
Overruled.