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so far as interstate commerce is concerned. Apart from this, the purpose of Congress was simply to enable the states to enforce their already valid local laws, although in order to do this they would make procedural regulations, previously invalid, but possible when applied to what is not properly interstate commerce.

It must be concluded, therefore, that the word "received" is surplusage, except perhaps in one case: where the state forbids possession. Then, if a shipment were received from without the state, its acceptance would be such a part of, and so mingled with, the criminal possession that it would be competent for the local authorities to punish the consignee for receiving the liquors: the acceptance and possession would be practically the same act. But even this (which is a novel situation and has not come before the courts) would be possible irrespective of the Webb-Kenyon Law. Our conclusion is, therefore, that the Mississippi court was in error when it held that the state had the power to punish a consignee for "receiving" interstate shipments.

Two other sections of the Mississippi act came before the court incidentally. The first compelled the carrier to keep a record of every consignment of intoxicating liquor and to file with the clerk of the circuit court of the consignee's county his name, that of the consignor, the amount and kind of liquor delivered. A second section forbade delivery to other than the bonâ fide consignee or, in case of sickness, his agent with written authorization. The carrier was also required to make the consignee sign a statement giving the use for which the liquors were intended, and promising that there would be no violation of the law. The court held this latter section "clearly within the provisions of the Webb-Kenyon Act," since the conditions were "only such as must be complied with by the consignee before it becomes lawful for him to receive the liquor." But, as the foregoing argument of this paper has attempted to make clear, the Webb-Kenyon Act sanctions nothing of the kind; such legislation must be justified under the general police power of the state.

This was the attitude taken by the Supreme Court of Tennessee in Palmer v. Southern Express Company.16 The court held that an act of the legislature (subsequent to the Webb-Kenyon Law)

16 165 S. W. 236 (Tennessee, 1914).

"forbidding any interstate carrier of intoxicating liquor to deliver liquor to the consignee, unless the latter delivers a statement giving his name and address and stating the use for which the liquor was ordered, directly interferes with interstate commerce as imposing a condition precedent on the exercise by the carrier of the right to make delivery of an interstate shipment, and on the right of the consignee to receive delivery, and cannot be sustained as an exercise of the police power, or as authorized by the Wilson Act, which subjects liquor to state regulation, but which does not apply before actual delivery to the consignee." Under the facts of this case the shipment was intended for a lawful use, the possession of the liquors was not forbidden, and the Webb-Kenyon Act did not apply.

A question of somewhat different character was raised in Idaho.1 There the law, passed in 1909, made it a crime for any person or corporation within the state to accept for shipment to anyone in prohibition territory, "except as may be authorized by this act or the interstate commerce law of the United States.” A carrier promulgated the rule that shipments from without the state should be governed by the same rules as intrastate shipments, and the Federal District Court refused to issue a mandamus. compelling the carrier to accept liquors for shipment from points without the state to points within the prohibition districts. But it would seem that here also the court erred, the analogy to the Kentucky law being tolerably close: the regulations were valid as to intrastate commerce, but invalid as to interstate commerce; and in order to make the Webb-Kenyon Act apply there must be the intent to violate a local law. This was not present; hence, it is submitted, the mandamus should have been issued.

Three other state courts, however, seem to have reasoned correctly with regard to local legislation under the federal statute. In Alabama the so-called Fuller Law makes illegal all shipments of intoxicating liquors within the state, except to druggists, etc., and declares that its provisions shall be construed so as not to conflict with "that clause of the Constitution of the United States. which confers upon the Congress of the United States the power to regulate commerce." A proper construction of these provisions,

17 United States ex rel. Zimmerman v. Oregon-Washington R. & N. Co., 210 Fed. 378 (1913).

together with those relating to manufacture and sale, said the Alabama Supreme Court, "must lead to the conclusion that it was the purpose of the legislature in that bill to declare that it should be unlawful for any person to have in his possession, or to deliver to any other person at any point in the state, liquors not within interstate protection and which were intended for unlawful use. By the Webb-Kenyon Act, however, this interstate protection is removed, and so the court concluded:

"18

"When, therefore, a common carrier in this state is possessed of liquor for delivery to a person who intends to put it to an illegal purpose, such common carrier itself violates the law of the state and becomes amenable to the state laws for such violation, unless, indeed, it is without knowledge as to the unlawful purposes of the consignee." This, it is submitted, was a correct ruling.

Even simpler facts were involved in a Kansas case. A carload of beer was shipped from St. Louis, Missouri, to Corona, Kansas. On the arrival of the car it was placed on a siding where the liquor, before delivery to the consignee and before the original package was broken, was seized by the sheriff. The brewing company answered to notices of seizure and claimed the beer, but it was shown that the beer was destined for an unlawful purpose; under the WebbKenyon Act it was not legitimate interstate commerce, and the authority of the state could attach before the acceptance by the consignee or the breaking of the original package.19

In an Iowa case, also, there was clear intent to violate valid local regulations prohibiting the manufacture, sale, or keeping for sale of intoxicating liquors. Common carriers are forbidden to transport to consignees not holding permits to sell under the state law, and this applies to shipments with intent to violate the law against sale, etc. Under the Webb-Kenyon Law, therefore, the court issued an injunction to restrain an express company from bringing in and distributing such liquors. The law under which this relief was secured was inoperative as applied to interstate commerce before the act of Congress, but the court held that no reënactment was necessary,20

This, however, was not the view of the Supreme Court of South

18 Southern Express Co. v. State, 66 So. 115 (Alabama, 1914).

19 State v. Doe et al., 139 Pac. 1169 (Kansas, 1914).

20 State v. U. S. Express Co., 145 N. W. 451 (Iowa, 1914).

Carolina.21 Parts of the South Carolina "dispensary law were unconstitutional in so far as they attempted to prohibit the importation of liquor from another state for personal use, at the time of their adoption." The court held that "the removal of the constitutional objections to such statutes by the enactment of the Webb-Kenyon Act did not give them force and effect by operation of law, nor can they be validated by subsequent statute, since an unconstitutional statute is utterly void," but since the passage of the Webb-Kenyon Act "the legislature has the power to adopt a statute with provisions similar to those in the dispensary law, held unconstitutional prior to that enactment." It is settled, however, that no reenactment of inoperative state laws will be required.

The constitutionality of the Wilson Act 22 was considered by the Supreme Court of the United States on these facts: the petitioner (for a writ of habeas corpus) was arrested on the ninth of August, 1890, charged with selling imported liquor contrary to the laws of Kansas. The Wilson Act had gone into effect the day before, and the Supreme Court held that "the petitioner was thereby prevented from claiming the right to proceed in defiance of the law of the state, upon the implication arising from the want of action on the part of Congress up to that time." Prior to the passage of the Wilson Act, the police regulations of Kansas in respect to intoxicating liquors did not control imported articles until after the original package had been broken. The court said:

"[The state legislation attacked in Leisy v. Hardin,23] as construed to apply to importations into the state from without, and to permit the seizure of the articles before they had by sale or other transmutation become a part of the common mass of property of the state, was repugnant [to the commerce clause] in that it could not be given operation without bringing it into collision with the implied exercise of a power exclusively confided to the General Government. This was far from holding that the statutes in question were absolutely void, in whole or in part, and as if they had never been enacted. On the contrary, the decision did not annul the law, but limited its operation to property strictly within the jurisdiction of the state."

21 Atkinson v. Southern Express Co., 78 S. E. 516 (South Carolina, 1913). 22 In re Rahrer, 140 U. S. 545 (1891).

23 Supra.

And the present case is not one "of a law enacted in the unauthorized exercise of a power exclusively confided to Congress, but of a law which it was competent for the state to pass, but which would not operate upon articles occupying a certain situation until the passage of the act of Congress. The act in terms removed the obstacle, and we perceive no adequate ground for adjudging that a reenactment of the state law was required before it could have the effect upon imported, which it had always had upon domestic, property."

24

If the Supreme Court of the United States upholds the WebbKenyon Law, it will undoubtedly follow this ruling under the Wilson Act, and so the South Carolina court was in error. The proper construction was adopted by the Iowa and Kentucky courts, the latter holding that the state statute, which was inoperative as applied to interstate commerce, became operative when the commerce was with intent to violate the law. States, therefore, will not be compelled to reënact their regulations.

From the survey which has been made of the cases already decided, it is evident that, in order for the Webb-Kenyon Act to apply, there must be intent to violate a previously valid state law. Disregard of this has led to erroneous conclusions, particularly in the opinion of the Mississippi court.25 If the enactments making the intent unlawful are constitutional, irrespective of the WebbKenyon Act, the state is empowered under the federal statute to take proceedings hitherto impossible.

It would seem, however, that in order to make their prohibition regulations completely effective, the states will be compelled to forbid the possession of more than small quantities of intoxicating liquors for personal use, with perhaps a few exceptions, — licensed druggists, for example. Such legislation would not be designed to interfere with personal consumption or the liberty of the individual, but would simply make more difficult the evasion of laws whose validity is beyond question. While the state courts have differed as to the constitutionality of such action,26 there is little doubt, I think, that under the decisions of the Supreme Court of the United

24 In re Rahrer, supra, pp. 563, 565.

25 Adams Express Co. v. Beer, supra.

26 Black on Intoxicating Liquors, § 38; Edge v. Bessemer, 164 Ala. 599, 51 So. 246, 26 L. R. A. N. S. 394 and n. (1909); 24 L. R. A. N. S. 172 and n.

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