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that the inspector or his deputies shall keep It is provided by the act of Congress, a record of those engaged in the manu- commonly styled the Wilson act (26 Stat. facture, brewing, and sale of malt liquors at L. 313, chap. 728, U. S. Comp. Stat. 1901, within the state, and of the quantity manu- p. 3177), as follows: factured or sold, and shall make a full re- "That all fermented, distilled, or other inport to the governor concerning the same, toxicating liquors or liquids transported and imposes upon the officials named the into any state or territory, or remaining duty of inspecting all beer or other malt therein, for use, consumption, sale, or liquors manufactured or sold within the storage therein, shall, upon arrival in such state, to see that they conform to the state or territory, be subject to the operastandard of purity which the law requires. tion and effect of the laws of such state or The act further imposes an inspection fee, territory enacted in the exercise of its police charge, or license, accompanied with pro- powers, to the same extent and in the same visions for a label or stamp to be affixed nanner as though such liquids or liquors upon the packages containing the beer or had been produced in such state or territory, other malt liquor so manufactured or of- and shall not be exempt therefrom by reason fered for sale within the state.
of being introduced therein in original Concerning beer or other malt liquors packages or otherwise.” manufactured outside of the state of Mis- The scope of this act and the power of souri and shipped into that state for sale Congress to adopt it was passed upon in Re and consumption within the state, after de. Rahrer (Wilkerson v. Rahrer) 140 U. S. livery and receipt under the shipment, the 545, 35 L. ed. 572, 11 Sup. Ct. Rep. 865. act provides as follows:
The scope of the act was thus stated (p. “Sec. 5. Every person, persons, or corpora- 560, L. ed. p. 576, Sup. Ct. Rep. p. 868): tion, who shall receive for sale, or offer for "Congress has now spoken and declared sale, any beer or other malt liquors other that imported liquors or liquids shall, upon than those manufactured in this state, shall, arrival in a state, fall within the category upon receipt, of same, and before offering of domestic articles of a similar nature." for sale, notify the inspector, who shall be It was decided that, although the act had furnished with a sworn affidavit, subscribed the effect thus stated, it was not repugnant by an officer authorized to administer oaths, to the Constitution of the United States, from the manufacturer thereof, or other the court saying (p. 562, L. ed. p. 576, Sup. reputable person having actual knowledge of Ct. Rep. p. 869): the composition of said beer or other malt “No reason is perceived why, if Congress liquors, that no material other than pure chooses to provide that certain designated hops, or the extracts of hops, or pure barley, subjects of interstate commerce shall be gove malt, or wholesome yeast, or rice, was used erned by a rule which devests them of that in the manufacture of same; upon the re- character at an earlier period of time than ceipt of said affidavit the inspector shall in would otherwise be the case, it is not withspect and label the packages containing said in its competency to do so." beer or malt liquors, for which services he
In Rhodes v. Iowa, 170 U. S. 412, 42 L. shall receive like fees as those imposed upon ed. 1088, 18 Sup. Ct. Rep. 664, the purport the manufacturers of beer and malt liquors of the act was again passed upon. Reiterin this state."
ating the ruling made in the Rahrer Case, In the printed and oral argument at bar it was decided that, whilst the Wilson act all the contentions concerning discrimination are waived, and the sole ground relied other state to be devested of their character
caused liquors shipped into Iowa from anupon is the assertion that the statute constitutes a regulation of commerce, and as articles of interstate commerce after is, hence, repugnant to the commerce clause their delivery in Iowa to the person to of the Constitution of the United States.
whom consigned, nevertheless the act did Brevity and clearness in the considera- not authorize the laws of Iowa to be aption of the propositions relied upon to sus-plied to such merchandise whilst in transit tain the contentions made will be subserved from another state and before delivery in by fixing at the outset exactly what the
Iowa. statute does, and by stating the legal
In Vance v. W. A. Vandercook Co. 170 U. principles which are controlling.
S. 438, 42 L. ed. 1100, 18 Sup. Ct. Rep. 674, The subject with which the statute deals the operation of a liquor law of South is beer and other malt liquors. Plainly, it Carolina was considered. By the act in operates upon such liquors only when question the state of South Carolina took manufactured in the state, or, if shipped exclusive charge of the sale of liquor within from other states, after their arrival in the the state, appointed its agents to sell the state, and when they are held there for sale same, and empowered them to purchase the and consumption therein.
liquor, which was to be brought into the
state for sale. The fact was that by the assumption that the law of Missouri was act in question the state of South Carolina, not enacted in the exercise of the police instead of forbidding the traffic in liquor, power of that state. Certainly the reguauthorized it, and engaged in the liquor busi- lation of the sale of liquor is essentially a ness for its own account, using it as a police power. Surely, also, provision made source of revenue. The act, in addition, af- in a state law tending to determine the fixed prerequisite conditions to the ship- purity of malt liquors offered for sale and ment into South Carolina from other states consumption within a state is likewise an of liquor to a consumer who had purchased exertion of the same power. Conceding that it for his own use, and not for sale. Con the law in question may be inadequate to acsidering the Wilson act and the previous complish the purpose designed, and prodecisions applying it, it was decided that duces a large revenue to the state over and the South Carolina law, in so far as it took above the cost of inspection, this affords no charge in behalf of the state of the sale of Federal ground upon which to hold that liquor within the state, and made such sale the police power of the state was not a source of revenue, was not an interference brought into play in making the enactment with interstate commerce. In so far, how where the law does not operate upon a subever, as the state law imposed burdens on ject within Federal control. This becomes the right to ship liquor from another state evident when it is borne in mind that, to a resident of South Carolina intended for whether the statute be regarded as a prohis own use, and not for sale within the hibition, as a regulation, as a license, or as state, the law was held to be repugnant to an inspection law, if it encroached upon the the Constitution, because the Wilson act, Federal authority it would be void, and, on whilst it delegated to the state plenary the contrary, in all or any of these aspects, power to regulate the sale of liquors in the law would be valid, so far as the Federal South Carolina shipped into the state from Constitution is concerned, if it did not so other states, did not recognize the right of encroach. The purpose of the Wilson act a state to prevent an individual from order was to make liquor after its arrival a doing liquors from outside of the state of his mestic product, and to confer power upon residence for his own consumption, and not the states to deal with it accordingly. The for sale.
police power is, hence, to be measured by Quite recently, at this term, in American the right of a state to control or regulate Exp. Co. v. Iowa, 196 U. S. 133, 25 Sup. Ct. domestic products, a state, and not a FedRep. 182, 49 L. ed. 424, and Adams Exp. Co. eral, question as respects the commerce v. Iowa, 196 U. S. 147, 25 Sup. Ct. Rep. 185, clause of the Constitution. So far as the 49 L. ed. 424, the construction affixed to the state aspect is concerned, the matter is foreWilson act in the previous cases was ap-closed by a decision of the supreme court of plied, and the power of the state of Iowa Missouri passing upon the validity, under to control the sale of liquors shipped from the state Constitution, of the law now another state into that state, after their de- under consideration. State v. Bixman, 162 livery to the consignee, was upheld.
Mo. 1, 62 S. W. 828. In that case a person Applying the Wilson act and the de- was proceeded against for selling malt liquor cisions thereunder to the statute here as-made within the state of Missouri without sailed, we think it clear that the contention complying with the statute. The validity of that it is repugnant to the commerce clause the statute was assailed, among others, on of the Constitution is without merit, unless the ground that it was a revenue law and the reasons urged to show that the present repugnant to the uniformity clause of the case is not within the scope of the Wilson state Constitution; that it was not an inact be well founded.
We proceed to con- spection law because it did not provide for sider the contentions relied on to establish an adequate inspection, and because the that proposition.
burden which it imposed was obviously out 1st. The Wilson act, it is argued, sub- of all proportion to the cost of inspection, jects liquors shipped from one state into since the charge which was exacted copiousanother, after their arrival at their desti- ly enriched the state treasury. The state nation, only to the "laws of such state or court, after an elaborate review of its previterritory enacted in the exercise of its police ous decisions, held that the mere fact that powers... .” As, it is said, the law of a revenue was produced by the execution of Missouri was not enacted in the exercise of the statute did not cause the statute to be the police power, hence malt liquor received merely a revenue measure, and that, alfrom another state, and held in Missouri though the inspection which the law providfor sale, retained its character as an article ed might be inadequate, nevertheless the of interstate commerce until sold in the statute did not violate the state Constituoriginal package.
tion. These views were sustained upon the But the proposition rests upon the mere 'ground that the statute dealt with a subject which was peculiarly within the police | is not open to discussion, as a similar conpower of the state. Summing up its contention was expressly ruled upon in Vance clusions as to the validity of the statute, v. W. A. Vandercook Co. 170 U. S. 438, 42 the court declared :
L. ed. 1100, 18 Sup. Ct. Rep. 674. In that “In our opinion it [the law] is a police case, as has already been said, the state of regulation imposing conditions upon the South Carolina had, by law, taken charge business of manufacturing and selling beer of the sale of liquors in the various counties and malt liquors in this state, which busi- of the state, no liquor being allowed to be ness the state may absolutely suppress, or sold except through the state agencies. The permit upon such terms as the legislature law by which this system was put in force may prescribe. We construe the act, in had been upheld by the state courts as a view of all its parts and in connection with lawful exertion of the police power. The other license laws of this state, and hold validity of the act was assailed in the that the fee exacted is the price which the circuit court of the United States on the state demands for the privilege of doing the ground of its repugnancy to the commerce business of brewing and selling beer and clause of the Constitution, and the lower malt liquors in this state, and it is im- court sustained the contention. Among the material by what name it is called.”
grounds relied upon in this court was that As, then, the supreme court, of Missouri the law in question was not within the Wilhas determined that the statute does not son act, because it was not an exertion of conflict with the state Constitution, and is the police power of the state, since it did valid because it is a police regulation im- not forbid the sale of liquor, but, on the posing conditions upon the business of contrary, fostered and encouraged it and manufacturing and selling beer in Missouri, made it a source of revenue. In holding a traffic which it is conceded the state had this proposition to be untenable the court the power to prohibit entirely, it follows said (p. 447, L. ed. p. 1104, Sup. Ct. Rep. that we are without power, from a con- p. 677): sideration of the state Constitution, to "The confusion of thought which is intreat the law as invalid because of the reve- volved in the proposition to which we have nue provisions of the state Constitution or just referred is embodied in the principle other limitations imposed by that Consti- upon which the court below mainly rested tution upon the state government. It its conclusion. That is, 'if all alcoholic necessarily results from this that the as- liquors, by whomsoever held, are declared sailed law comes directly within the .ex- contraband, they cease to belong to compress terms of the Wilson act. The determi-merce, and are within the jurisdiction of nation of this question by the supreme court the police power; but so long as their of Missouri, as to liquor manufactured in manufacture, purchase, or sale, and their Missouri, in the absence of discrimination, use as a beverage in any form, or by any is necessarily conclusive, also, as to the person, are recognized, they belong to comcharacter of the law when applied to a merce, and are without the domain of the similar article shipped from other states police power.' But this restricts the police into Missouri after arrival at its destina- power to the mere right to forbid, and detion, and when held for sale and consump-nies any and all authority to regulate or tion in that state. This must be the case, restrict. The manifest purpose of the act since, as we have seen, the Wilson act, to of Congress was to subject original packages use the words of Re Rahrer, places liquor to the regulations and restraints imposed coming from another state after its arrival by the state law. If the purpose of the act "within the category of domestic articles of had been to allow the state law to govern a similar nature.”
the sale of the original package only where To decide that an exertion by a state of the sales of all liquor were forbidden, this its power to regulate the sale of malt object could have found ready expression, liquors manufactured within the state was whilst, on the contrary, the entire context an exercise of its police authority, and yet of the act manifests the purpose of Conto say that the same, when applied to gress to give to the respective states full liquor shipped into the state from other legislative authority, both for the purpose states, after delivery, was not an exertion of prohibition, as well as for that of reguof the police power, would be to destroy the lation and restriction with reference to the Wilson act, and frustrate the very object sale in original packages of intoxicating which it was intended to accomplish, and, liquors brought in from other states.” besides, would overrule the previous de- 2d. Conceding, it is argued, that the Mis cisions of this court upholding and enfor- souri statute attached to the liquor after cing that statute.
delivery at its destination in Missouri, We need not, however, further consider nevertheless, as the burdens which the the subject, since the proposition relied upon' statute imposed were of such a character as
to affect traffic in the article, and hence The opinion of the court is put upon the operated to deter shipments into Missouri, ground that the Wilson act subjects liquors therefore the statute must be treated as if shipped from one state into another, after it bore upon the liquor while still in transit their arrival at their destination, to the as a subject of interstate commerce. This laws of the state or territory enacted in the proposition simply amounts to contending exercise of its police powers; and that, as that the Wilson act should be disregarded, an inspection law is a law enacted in the since to enforce it would give the states exercise of its police powers, the law in power to regulate interstate traffic in liquor. question is within the act; and we If, when a state has but exerted the power consequently precluded from
from inquiring lawfully conferred upon it by the act of whether such law is a legitimate exercise Congress, its action becomes void as an of the police powers or a mere revenue law interference with interstate commerce be to which the name of an inspection law is cause of the reflex or indirect
or indirect influence given for the purpose of obviating the diffiarising from the exercise of the lawful au- culty, under the state Constitution, of upthority, the result would be that a state holding it as a revenue measure. might exert its power to control or regulate be conceded at once that, if the law in quesliquor; yet if it did so its action would tion be a legitimate inspection law, it necesamount to a regulation of commerce and be sarily follows that, as it was enacted in the void. And this would be but to say at one exercise of the police power of the state, it and the same time that the power could and applies to foreign liquors “to the same excould not be exercised. But the proposition tent and in the same manner as though would have a much more serious result, such liquors or liquids had been produced since to uphold it would overthrow the dis- in such state or territory, and shall not be tinction between direct and indirect burdens exempt therefrom by reason of being introupon interstate commerce, by
by means of duced in original packages or otherwise." which the harmonious workings of our The opinion practically concedes that the constitutional system has been made pos-act must, if constitutional, be supported as sible.
an inspection law, passed under the police 3d. It is further insisted that, as the Mis- power of the state; and such was the posisouri law is denominated in its text as an tion taken by the supreme court of Misinspection law, and does not provide an souri. It was admitted in that case, both adequate inspection, and, besides, imposes by the majority and minority judges, that a burden beyond the cost of inspection, the the act could not be supported as a revenue law is repugnant to the Constitution of the measure, because in conflict with the ConstiUnited States when tested by previous de- tution of the state. cisions of this court determining when par- To determine the question whether it can ticular inspection laws amounted to a be supported as an inspection law it is regulation of commerce, citing Atlantic & P. necessary to consider at some length the Teleg. Co. v. Philadelphia, 190 U. S. 160, 47 nature of its provisions. L. ed. 995, 23 Sup. Ct. Rep. 817, and Postal The agreed statement of facts shows that Teleg. Cable Co. v. New Hope, 192 U. S. 55, the plaintiff manufactures in the state of 48 L. ed. 338, 24 Sup. Ct. Rep. 204. These Wisconsin ten different kinds or grades of cases, however, simply considered state laws beer and malt liquors, each kind being sepwhich operated upon interstate commerce. arately manufactured and requiring special To apply them to the Missouri law neces- treatment; that it ships into the state of sarily involves deciding that the malt Missouri annually not less than 15,000 barliquors to which that law applied had not rels of malt liquors, of 31 gallons each, of ceased to be articles of interstate com- the aggregate value of $100,000; that there merce; and, therefore, again, merely disre are a large number of domestic manufacgards the Wilson act and the decisions of turers of malt liquor in the state of Misthis court concerning it. Indeed, the whole souri, whose annual productions amount to argument upon which the entire case of the over 2,250,000 barrels of beer of the aggreplaintiff in error proceeds rests upon this gate value of $12,250,000, of which 1,275,000 fallacious assumption, since it admits on are sold within the state; that there are the one hand the validity of the Wilson law, other manufacturers outside of the state and yet seeks to take this case out of the standing in the same position as the plainreach of its provisions by distinctions which tiff, who annually ship into the state not have no foundation in reason, unless it be less than 165,000 barrels of the aggregate that that law is to be disregarded or held to value of $10,725,000, beside that imported be unconstitutional.
from abroad; that plaintiff is licensed to Decree affirmed.
carry on business in Missouri; that such
business consists of shipping into the state, Mr. Justice Brown, dissenting:
for the purposes of selling therein or reshipping therefrom, the product of its man have contemplated that
contemplated that the inspectors ufacture in Wisconsin; that in the usual should visit breweries outside of the state course of its business it is compelled to and inspect the mash, or that they should maintain large warehouses in the state, as open the packages after their receipt in the well as an office, as a necessary adjunct to state, and thus spoil the beer, it would the conduct of its business; that it main- seem that the inspectors have no alternative tains no manufactory in Missouri, and that but to accept the affidavit as a basis of their it disposes of its beer in the original pack- inspection. This is said to be the manner ages in which it is shipped.
in which the law is practically administered. There are insuperable difficulties in the Indeed, the agreed facts show that the beer way of the maintenance of this act as an involved in this case was inspected while inspection measure.
still in the hands of the plaintiff, that the To inspect, as defined by Webster, is to packages were never opened, but the affiexamine, to view closely and critically, es-davit was accepted as a sufficient compliance pecially in order to ascertain quality and with the act. condition, to detect errors, etc.
While this may be the only inspection The object of the act is declared by § 4 practicable, it is really no inspection at all, to be to exclude the use of any substance, since it is dependent entirely upon the material, or chemical, in the manufacture veracity of the person making the affidavit. of malt liquors, other than pure hops, or There is no power given to these inspectors pure extract of hops, or pure barley, malt, to investigate the truth of the statements or wholesome yeast or rice. So far as beer contained in these affidavits, except, possimanufactured within the state is concerned, bly, by tasting or analyzing the beer. There the inspection is made, or at least may be is no penalty provided for making a false made (State v. Biwman, 162 Mo. 1, 34, 62 affidavit, nor can the state proceed against S. W. 828), of the ingredients of the beer the manufacturer who is beyond the jurisin the mash tub and before the beer is actu- diction of the court. There is no assurance ally brewed. The inspector goes to the that the affidavit, which may be made in brewery and makes his test by taking a the state of manufacture as well as in Missample of the mash of the beer there fer-souri, has any relation to the particular menting, and, although thousands of gal shipment to which it is sought to apply it, lons may be made from one mash, a single and there is no power given even to open inspection is sufficient. With respect to the boxes in which bottled liquors purport beer manufactured outside of the state, $ 5 to be inclosed, to examine their contents. requires that the consignee of the beer shall | The object of inspection laws is to require notify the inspector, who shall be furnished such examination of the thing inspected as with a sworn affidavit, subscribed by an will insure to the public a safe and wholeofficer authorized to administer oaths, from some article. Obviously to secure this the the manufacturer thereof or other reputa- inspection must be made by officers apble person having actual knowledge of the pointed for that purpose; at least, it cannot composition of said beer or malt liquors, be delegated, as it virtually is in this case, that no material other than pure hops, or to the manufacturer. The requirement of the extract of hops, or pure barley, malt, or an affidavit, and the acceptance of this in wholesome yeast or rice, was used in the lieu of an actual inspection, make the affimanufacture of the same. “Upon the re- ant, who is the manufacturer or his agent, ceipt of said affidavit the inspector shall the sole judge of the fact whether the liquor inspect and label the packages containing contains only the ingredients allowed by said beer or malt liquors, for which services law. We cannot treat this as a bona fide he shall receive like fees as those imposed inspection. To justify an inspection in law upon the manufacturers of beers and malt there must be an inspection in fact. liquors in this state."
We had occasion in Vance v. W. A. TmIt is true this section seems to require dercook Co. 170 U. S. 438–456, 42 L. ed. that upon receipt of such affidavit the in- 1100-1107, 18 Sup. Ct Rep. 674, to pass spector shall inspect and label the packages. upon a law requiring sample of alcoholic But similar words used in § 7 with regard liquor proposed to be shipped, to be sent to domestic beer were interpreted by the to the state officer in advance of the shipsupreme court in State v. Bixman, 162 Mo. ment, and as a prerequisite to making a 1, 62 S. W. 828, as requiring only an in- subsequent shipment. We held that the spection of the mash at the brewery, since inspection of a sample so sent in advance the actual inspection of the beer would re- was not in the slightest degree an inspection quire the opening of each package, or at of the goods subsequently sent in to the least a sample package, which would prac- state. “The sample may be one thing and tically ruin the contents. As it is impos- the merchandise which thereafter comes in sible to suppose that the legislature should ' another.” This is a much stronger case for