Newspaper Page Text
One Gallon a Month Law
Before Supreme Court
Continued from Page Two.)
I'l'fcriittn ? -1 rlnill C l'A\ ( ( . A.). 210 I'cd. Rep.
^Oi ? V . - \ - ' . , k
is nothing" in the tern .- t the \\ ebb-Kenyon Act to
indicate that the State laws retY :vd to therein must constitute
a total prohibition of the recei; i, :-os-ess:r-n. sale, or use in
any manner, of intoxicating liquors.
A regulatory or restrictive measure short of total prohibition
is a police measure and has been held to be within the
terms of the Wilson Act of i8go.
Vancc v. I'andcrcook. 170 t\ S. (reversing on this point.
]'undercook v. I'ancc. 80 Fed. 786).
Revmann Brewing Co. v. Pristcr, 179 I*. S. 445.
Pabst Brcti'ing Co. <\ Crenshaw, k>8 l\ S. 17, 25.
Phillips v. City of Mobile. 208 I". S. 472.
Tinker v. State, go Ala. 638, 641.
Stevens r. State. 60 Ohio State, 605: 56 X. E. 479.
We submit that the Webb-Kenyon Act. viewed as a regulation
by Congress of interstate commerce, prevents any difficulty
as to shipments of liquor for personal use; that the language
is clearly broad enough to include such shipments, if a State
law against receipt or possession of liquors for personal use
offends 110 provision of the State constitution, nor the Four
teenth Amendment to the Federal Constitution. The WebbfOenyon
Act would accomplish very little if construed in such
a way that liquors for personal use, or liquors claimed to be
for such use. may continue to freely move in interstate
It must be noted that in Adams Express Co. v. Commonwealth
of Kentucky, 238 L\ S. 190, this Court held that the
shipment in question was not illegal in view of the laws of
Kentucky, "as construed by the highest court of that State''
in mi- u-nv mm mi tt i no- itself to the correctness of such
construction of the laws and Constitution of Kentucky. The
Kentucky statute was not by the Supreme Court subjected to
the test of the Fourteenth Amendment to the Federal Constitution
; nor did the Court declare that the result in the case
was one of general application and that no other State could
constitutionally forbid the receipt and possession by a citizen
of intoxicating liquors for personal use. j
The Webb-Klenyon Act is in the form of a prohibition
aorain^t- <hinmpnt of Honor in interstate commerce in defined
'* -?Jt - - ?1 ? / f
1 cases; it is well settled that Congress may regulate commerce
by adopting prohibitions excluding certain articles from the
right to be transported from one State into another.
Champion v. Aims, 188 U. S. 321. (Lottery tickets.)
- U. S. v., Freight Association, 166 U. S. 290.
U. S. v. Freight Association, 171 U. S. 505.
Addvstone P. & S. Co. v U. S., 175 U. S. 211. (Prohibitory
y S ~
clauses of Sherman Anti-Trust Act.)
Hoke v. U. S., 227 U. S. 308. (White slave traffic.)
Hipolitc Egg Co. v. U. S., 220 U. S. 45. (Adulterated articles
Re id v. Colorado, 189 U. S. 137. (Live stock having infectious
and contagious diseases.)
State v. JJ. S. Express Co. (Ia.), 145 N. W. 451.
U. S. v. Forty-three Gallons of Whiskey, 93 U. S. 188.
Perrin v. U. S.. 232 U. S. 478.
Buttficld v, Stranahan, 192 U. S. 470. !
U. S. v. Boppcr. 98 Fed, Rep, 423.
State v. Cardzvcll, 81 S. E. 628, 632. (Opinion of Chief
ft West Virginia v. Adams Express Co., r,. C. A.) 219 Fed
r Rep. 794.
Neither the Fourteenth Amendment to the Federal
Constitution nor the "due process'' clause of
State Constitutions guarantee to a citizen of a
State the right to receive and possess intoxicating
> liquors for personal use in unlimited quantities, or
in any quantity, as against the exercise of the
policc pozi'er by the State. There is no such
guaranty to a citizen of South Carolina in the
Constitution of this State.
We propose to develop the proposition just stated, in para-!
graphs to follow, under appropriate heads.
I. ALCOHOL AS A BEVERAGE IS INHERENTLY HARMFUL
At this point we quote an extract from an article on
"LEGAL ASPECTS OF PROHIBITION/' by Herbert C.
Shattuck. A. 15.. LL. B.. of the Xew York Bar. in "Case and
Comment" for December. 1913, page 64t, as follows:
"The basic fact underlying all agitation for the restriction
or prohibition of the traffic in intoxicating liquors is that alcohol.
the essential ingredient of' those liquors. is inherently harmful
* (7/f (/ dangerous when used as a here rage. The scientific accuracy
of this statement now seems t<> be generally recognized.
* ' m _ *
The public schools of the nation teach it. Alcohol is ? waste
product in the activity of the yeast plant (('. F. 1 lodge, Clark
University, 'Physiological Aspects of the Liquor Problem'),
an excrement of the yeast fungus, a parasite which is midway
between a plant and an animal.? (T. Alexander MacXicholl.
M. D., Xew York, Vice President American Medical Soc. for
the Study of Alcohol and other Xarcotics.) Alcohol is an
active poison to the nervous system.?(i Wharton & S. Med.
Jr., 5th Ed. Sec. 921.) It ranks with other poisons like strychnine,
arsenic and opium.? (Sir Andrew Clark, Physician to
Oueen Victoria.) If it is a food, it is a poisoned food.?(Dr. F.
Peterson. New York.)
"This dangerous character of alcoholic liquor? is recognized
also by the Courts. Thev have declared that intoxicating liquor
in its nature is dangerous to the morals, good order, health
and safety of the people, and is not to be placed on the same
footing with the ordinary commodities of life.?(State ex
rel George v. Aiken. 42 S. C. 222. 20 S. E. 221, 26 L. R. A.
345 Schwartz v. People. 46 Colo. 239, 104 Pac. 92.)
p 44If then alcohol is a dangerous drug", it is but natural that
the traffic in alcoholic liquors should not be considered in the
same light as business of other kinds, but should be separated
from them and be treated on its own merits. The Court?
positions upon it by several States, and if a law passed by a[ <
State in the exercise of its acknowledged powers comes in
! conflict with that will, the Congress and the State can not j
| occupy the portion of equal opposing sovereignties, because |
the Constitution declares its supremacy and that of the laws j
passed in pursuance thereof: and that which is not supreme j
juuisi yield to that which is supreme."
I 'nitcd States r. II. C. Knight Co., 150 I'. S.
Intersiau- commerce even in intoxicating liquors is national
i 111 c'-riHicter. and so long as Congress did not pass any laws to
1 ,?^^...1^4- 4*11,. ,, -1 c fr? fillnwr flip 1n?'? C\f flip I r
j it^uiau- :i ucau \ 111 miv.ii a vvci\ <i-> c?.' ~.. ....^ , ..
Stale to operate upon it. Congress indicated its will that com- t
merce therein should be free and untrammelled. Hence, in J t
the absence of Congressional action, laws prohibiting receipt j <
and sale in original packages were inoperative.
Ron",nan i\ R. R. Co., 125 V. S. 465.
Lcisy 7'. Hardin, 135 I*. S. too.
The Wilson Act of 1890 changed this situation in part.
Rhodes v. loiva, 170 U. ;S. 412.
1'ancc r. J'andcrcook, 170 l\ S. 438. f
The Webb-Ken yon Act extended the prohibition against 1
the introduction of liquors into a State by means of interstate <
Adams Express Co. r. Com, of Ky.. 238 U. S. 190.
(b.) "It may be said in a general way that the police
power extends to all the great public needs."
Can field v. U. S., 167 U. S. 518. <
"It may be put forth in aid of what is sanctioned by usage 1
! or held by the prevailing monlity or strong and preponderant
opinion to be greatly and immediately necessary to the public
Holmes, J., in Xoblcs State Bank r. Haskell, 219 U. S. 104.
"When a State, exerting its recognized authority, under- .
takes to suppress what it is free to regard as a public evil, it
recognize this fact. They say that intoxicating liquor is an
article conceded to be fraught with such contagious perils to
> society that it occupies a different status before the Courts and
the Legislatures from that of other kinds of property, and
traffic in it is thereby placed upon a different plane from that
of other kinds of business. There is therefore 110 question in ^
cases dealing with intoxicating liquor, of the power of the ^
Legislature to say generally what beverages men shall drink c
or what they shall eat or wear. The discussion in these cases e
must deal solely with a distinct article of trade.?(State v.
Diirien, 70 Kan. 1, and 135, 78 Pac. 152 and 80 Pac. 987.)" c
2.?THE POLICE POWER OF THE STATE, AND ITS EXTENT.
(a.) The police power belongs to the States, has not been ^
surrendered by them to the general government nor restrained
by the Constitution of the United (States, and is essentially ;/
Barbier v. Connolly, 113 U. S. 273. j
In Rc Rdhrcr. 140 U. S. 545.
"It can not be denied that the power of the iState to pro- ^
tect the lives, health and property ot its citizens ana to preserve
good order and the public morals. The power to govern men
and things within the limits of its dominion,' is a power orig- 11
inally and always belonging to the States, not surrendered by c'
them to the general government, nor directly restrained by ^
the Constitution of the United States, and essentially exclusive." 0
United States v. E. C. Knight Co156 U. S. 1. 1]
"On the other hand, the power of Congress to regulate commerce
anions: the several States is also exclusive. The Cone
stitution does not provide that interstate commerce shall be
~ ^ 1 ^ ? ? ~ ~ 4-r\ rnrrnlofn if
rree, uui, uy uic j41a.n1 ux una cahusivc jwwti iv.guian, it, ^
it was left free except as Congress might impose restraints.
Therefore it has been determined that the failure of Congress
to exercise this exclusive power in any case is an expression of 5
its will that the subject shall be free from restrictions or im- *
may adopt such measures having reasonable relation to that c
end as it may deem necessary in order to make its action ^
effective. It does not follow that .^because a transaction sep- 1
arately considered is innocuous, it may not be included in a h
Prohibition the scope of which is regarded as essential in the a
legislative judgment to accomplish a purpose within the ad- ^
mitted power of the government/'
Hughes, Justice, in Purity Extract & T. Co. v. Lynch, 226
U. iS. 192. t
To that same effect are: 51
Lau'ton v. Steele, 152 U. S. 133. ^
A 'civ York ex rel Silc v. Hesterbcrg, 211 U. S. 3T. /
Patsone v. Penn., 232 U. S. 138. '
#<70//z 7-. Illinois, 184 U. S. 426.
7'. Parker, 187 U. S. 607. s
Murphy v. California. 225 U. S. 623.
The foregoing" principle has been applied by the Supreme ]
Court to prohibitions against possession of certain thing's as j t
a proper means to accomplish an ulterior valid purpose. j $
AYti' York c.v rcl Sib v. Hcstcrbcrg, 2\\ V. S. 3r.
1. met on Steele, 152 l\ S. 133.
F'atsonc <\ Pen 11.. 232 V. S. 138. 1
(c.) Intoxicating licjuors are a subject of commercial in-1 v
tercourse between the States, yet State Prohibitory laws within a
State do not necessarily infringe any right, privilege or im- *
mimitv secured by the Constitution of the United States or
its amendments. The right of the States under the policc i
power to regulate, restrain or forbid the manufacture or sale s
of intoxicating liquors has been fully established by the e
Supreme Court. p
In Re Rahrer, 140 U. S. 545. c
Foster v. Kansas, 112 U. S. 201. t
Muglcr v. Kansas. 123 U. S. 623. u
Boston- Beer Co. v. Mass., 97 U. S. 25. ?
Ktdd v. Pearson, 128 U. b. 1. i
Crowley v. Christensen, 137 U. S. 91. t
A iState may prohibit the sale of non-intoxicating malt t
liquors if the Legislature deems it a necessary means to sup- z
press the trade in intoxicants. c
Purity Extract & Tonic Co. v. Lynch, 226 U. S. 192. and s
the cases cited. p
A State may constitutionally prohibit or regulate the receipt c
and possession of intoxicating liquors by a citizen even when i'
for his own use: and since the Webb-Kenvon Law this priw-j (
cipie will apply to such liquors moving into the State from j"
Southern li.vpress Co. v. Whittle (Ala.), fx) S. Rep. 652.
/:.r parte Crone ( Idaho), 151 Pac. 1006.
Glenn v. Southern li.vpress Co. (X. C.)? not yet reported,
decided December 1st, 1915.
C. S. Oregon-ll'. R. & A". Co., 210 Fed. 378.
Dreston r. Drew, 33 Me. 63*), 54 Am. Dec. 639.
Heytvard v. Henderson, 109 Cia. 373: 47 L. R. A. 36. per
The State may prohibit the solicitation of orders for intoxiating
liquors and also the advertising of such liquors, although
lie litjiu =r> ii" ]>urcha>t:d arc in another State and would have
o he brought into the State, making the prohibition, in interstate
Delamatcr r. South Dakota, 205 U. S. 93.
State z\ Delaye (Ala.), 68 So. Rep. 993.
Davis v. State (West Virginia), decided November 30th,
Prohibition State may make it unlawful for any person,
irm. association, or corporation, whether a common carrier or
lot. to convey or transport liquors over or along any public
street 01* highway for another, and may also prohibit the transudation
of liquors from one part of the State to another.
Williams v. State, t 79 Ala. 51.
Western of Alabama Railway v. Braving Co., 177 Ala. 149.
A Prohibition State may also prohibit the keeping or stor<
nf liz-nuvr^ in c/\r>n1 r\r t rofprn11 AirPn W/Vipn if ic fnr
W1 IU|UV? 3 111 KS1 Uttivium viuw^, v? vn ?? i?vi* *w *> *.
the personal use of the members thereof.
Wallace v. State, 8 (Ala.) App. Ct. Rep. 386, 62 So. Rep
Phillips v. State (Miss), 67 So. Rep 051.
State v. Topeka Club, 82 Kans. 756; 109 Pac. 183.
T11 Bowman's case, 125 U. ;S. 465, which was a case involving
intoxicating liquors. Field, Justice, in a concurring opinion
aid that the State may regulate or prohibit the sale or use
>f an article for the protection of the health, morals, and
afety of the people.
In the same opinion, Mr. justice Field further said:
"But those powers which authorize legislation touching the
lealth, morals, good order, and peace of their people were not
elegated, and are so essential to the existence and prosperity
>f the States, that it is not to be presumed that they will be
ncroached upon so as to impair their reasonable exercise.
"How can these reserved powers be reconciled with the
onceded power of Congress to regulate interstate commerce?
Ls said above, the State can not exclude an article from comlerce,
and consequently from importation, simply by declaring
bat its policy requires such expulsion; and yet its regulations
esfecting the possession, use and sale of any article of comicvce
may be as minute and strict as required by the nature
f the article and the liability of injury from it, for the safety,
ealth, and morals of its people/'
Further on in the opinion, (speaking of Mugler v. Kanas),
Judge Field said:
"Assuming, therefore, as correct doctrine that the right of
nportation carries tfoe right to sell the article imported, the
lecision in the Kansas ease may perhaps be reconciled with
he one in this case by distinguishing the power of the State
ver property created within it, and its power over property
i r /t v _
mported?its power in one case extending, lor tne proiecxion
f the health, morals, and safety of its people, to the absolute
prohibition of the sale or use of the article, and in the other,
xtending only to such regulations as may be necessary for the
ifety of the community until it has been incorporated into and
lecorne a part of the general property of the State."
This, of course, was said before the enactment of the Wilon
Act or of the Webb-Kenyon Act, it being the purpose of
he latter to allow the police power of the State to have full
peration over intoxicating liquors without being dominated
iy the "commerce clause" of the Federal Constitution; or,
n other words, to permit the States to as fully regulate or
>rohibit the possession, use and sale, of intoxicating' liquors
s if the "commerce clause" were not included in the Federal
If a State has the right to prohibit the manufacture of inoxicants
for one's own use, and the right to prohibit the sale
hereof to a citizenMor his own use, it must also, upon the
ame grounds and for the same reason, have the right to prolibit
the introduction into the .State, and ^ence. the use and
possession of such intoxicants, if the protection jf the Federal
Constitution be by Congress withdrawn from *uch shipments.
In Brown v. Maryland, 12 Wheaton 420, Chief Justice Marhall
"There is no difference in effect between the power to prolibit
the sale of an article and a power to prohibit its introinrtion
into the countrv. the one would be a necessary con
cqncncc of the other."
Congress would have the power, it it desired to exert it,
o exclude altogether ardent spirits from commerce among the
States. This is shown by a paragraph from the opinion of
dr. Justice Harlan, speaking" for the Court, in Champion v.
hues, 188 1*. S. 321, 362, as follows:
"T1-.nr. nn/1or i+c rimrpi' fn rr?o-ii1ntp mf-prctstp mtnninrrf
1 UlUiV.1 11.1 |/Vttvi IV^UIUIV. Miivwmkv v. ^ 1 . . * . . ^ i ~ I uu
nvolvcd in the transportation, in original packages, of ardent
pirits from one State to another, Congress by the necessary
ffect of the Act of 1890 made it impossible to transport such
>ackages to places within a Prohibitory State and there dispose
if their contents by sale; although it had been previously held
hat ardent spirits were recognized articles of commerce and,
intil Congress otherwise provided, could be imported into a
state and sold in the original packages, despite the will of the
state. If at the time of the passage of the Act of 1890, all
he States had enacted liquor laws prohibiting the sale of inoxicating
liquors within their respective limits, then the act
* ? * ? - J .? J.- -,7 ? i. .
i'OlllCl HCIZ'C naa llie neccssury eucu iu cacuiuc u/ucm zywu*
ilto aether from cotnmcrce anion? the States; for no one would
o ' ?
hip, for purposes of sale, packages containing such spirits to
joints within any State that forbade their sale at any time
>r place, even in unbroken packages. So that zee have in the
Rahyer Case' a recognition of the principle that the power of
Congress to regulate interstate commerce may sometimes be
(Continued in Next Issue..)
NQ Jh P)
3 8. s
9 |.s ?
> sr SS-T
w 2 Mrf
os 3* >*>
*3 ? ST
p f bs tr
d- 5 ?