Brennen v. Southern Exp. Co.

• Decision Date: 14 October 1916
• Docket Number: 9545.
• Citation: 90 S.E. 402,106 S.C. 102
• Parties: BRENNEN v. SOUTHERN EXPRESS CO.
• Court: South Carolina Supreme Court

90 S.E. 402

106 S.C. 102

BRENNEN v. SOUTHERN EXPRESS CO.

No. 9545.

Supreme Court of South Carolina

October 14, 1916

Appeal from Common Pleas Circuit Court of Richland County; I. W Bowman, Judge.

Application for mandamus by Thomas F. Brennen against the Southern Express Company.From a judgment dismissing the complaint plaintiff appeals.Judgment modified.

Watts J., and Shipp, Prince, and De Vore, Circuit Judges dissenting.

Logan & Graydon, of Columbia, for appellant.

Thos. H. Peeples, Atty. Gen., Fred H. Dominick, Asst. Atty. Gen., and W. H. Townsend, of Columbia, for respondent.

HYDRICK J.

The plaintiff, who is a citizen of this state, residing in the city of Columbia and county of Richland, sought by mandatory injunction to require defendant, a common carrier in interstate commerce, to deliver to him a certain consignment of whisky, and also to receive, transport, and deliver to him other consignments thereof, as orderd by him.He alleges that on May 6, 1915, he ordered one gallon of whisky from a licensed dealer in Richmond, Va., which defendant received, transported, and delivered to him; that on May 10, 1915, he ordered from the same dealer another gallon, which defendant received and transported to Columbia, but refused to deliver to him; that on May 12, 1915, he ordered from the same dealer two gallons, the tender of which to defendant at Richmond was refused; that all the liquor so ordered was intended for his personal use, and was not intended by him, or any one interested therein, to be received, possessed, sold, or in any manner used in violation of any law of this state; that delivery of the second and acceptance of the third consignment were refused by defendant on the sole ground that the same would be in violation of the statute of this state approved February 20, 1915, which makes it unlawful for any carrier to bring into this state and deliver to any person for his own use more than one gallon of intoxicating liquor in any calendar month; that at the times stated it was lawful for a citizen of those counties having dispensaries, Richland being one, to buy such liquors from the dispensaries for personal use without limit as to time or quantity; that the sale thereof, through the dispensaries, was not solely as a police regulation, but also for profit.The facts alleged were admitted by a demurrer to the complaint, which was sustained by the circuit court, and the complaint was dismissed.

The Legislature passed an act, which was approved February 16, 1915(29 Stat. 88), to submit to the qualified electors of the state the question of the prohibition of the manufacture and sale of alcoholic liquors and beverages in this state, and to provide for carrying into effect the provisions thereof.Under the provisions of that act an election was held on September 14, 1915, which resulted in favor of the prohibition of the manufacture and sale of alcoholic liquors and beverages in the state, and the dispensaries were closed on December 31, 1915, and the law now prohibits the manufacture and sale of such liquors as a beverage in this state.At the same session another act was passed, which was approved February 20, 1915(29 Stat. 140), to regulate the shipment of such liquors into this state.The first two sections of that act, which contain all the provisions of it that are pertinent to the questions involved in this case, read:

"Section 1.That it shall be unlawful for any person, firm, corporation or company to ship, transport or convey any intoxicating liquors from a point without the state into this state, or from one point to another in this state, for the purpose of delivery, or to deliver the same to any person, firm, corporation or company within this state, or for any person, firm, corporation or company to receive, or be in possession of, any spirituous, vinous, fermented or malt liquors or beverages containing more than one per cent. of alcohol, for his, her, its or their own use, or for the use of any other person, firm or corporation, except as hereinafter provided.

Sec. 2.Any person may order and receive from any point without the state not exceeding one gallon within any calendar month, for his or her personal use, of spirituous, vinous, fermented or malted liquors or beverages."

The first question to be decided is: Did the statute law of this state, as it stood at the date of the transactions alleged in the complaint, and at the time of the decision in the circuit court, which was before the prohibition law became effective, violate the federal Constitution by making an unlawful discrimination against liquors shipped into the state in interstate commerce?That question must be answered in the affirmative.At that time the state recognized liquor as a legitimate article of commerce by engaging in the importation and sale of it for profit.And there was no limit to the quantity which a citizen who patronized the dispensaries might buy and keep in his possession for personal use, and no limit to the number of purchases that might be made within any specified time.There was therefore clearly a discrimination made in favor of liquors bought from the dispensaries and of persons who patronized the dispensaries.The point was squarely decided in Scott v. Donald,165 U.S. 58, 101, 17 S.Ct. 265, 272(41 L.Ed. 632), where the court said:

"It is sufficient for the present cases to hold, as we do, that when a state recognizes the manufacture, sale, and use of intoxicating liquors as lawful, it cannot discriminate against the bringing of such articles in and importing them from other states; that such legislation is void as a hindrance to interstate commerce and an unjust preference of the products of the enacting state as against similar products of the other states."

The act of Congress of March 1, 1913, known as the Webb-Kenyon Act, does not affect the decision of the question; for, while that act does divest intoxicating liquors shipped into a state in violation of its laws of their interstate character and withdraw from them the protection of interstate commerce, it evidently contemplated the violation of only valid state laws.It was not intended to confer and did not confer upon any state the power to make injurious discriminations against the products of other states which are recognized as subjects of lawful commerce by the law of the state making such discriminations, nor the power to make unjust discriminations between its own citizens.Substantially the same thing was said in Scott v. Donald of theWilson Act(ActAug. 8, 1890, 26 Stat. 313, c. 728[Comp. St. 1913, § 8738]), by which Congress made liquors shipped into a state subject to its laws after delivery thereof to the consignee.The principle there decided was reaffirmed in Vance v. Vandercook,170 U.S. 438, 18 S.Ct. 674, 42 L.Ed. 1100.

It follows that the circuit court erred in refusing the relief prayed for.It does not follow, however, that the relief prayed for should now be granted, further than to require delivery of the second shipment, if it has not already been delivered, because, as has been stated since the trial in the court below, the discriminating feature of the state law has been removed by the prohibition of the sale of liquor in the state and the closing of the dispensaries, and, as the law now stands, the obtaining of liquor for personal use is regulated solely by the act of February 20, 1915.The validity of that act depends upon the constitutionality of the Webb-Kenyon Act, and the construction of it with respect to the extent that Congress intended to prohibit the shipment and transportation of liquors in interstate commerce, and thereby allow a correspondingly greater extent and effect to be given to the laws of the states prohibiting or regulating their importation.

The constitutionality of the Webb-Kenyon Act is attacked on the ground, as alleged, that it attempts to confer upon the states the power to regulate interstate commerce, a power that was conferred by the Constitution upon Congress, and therefore one which Congress alone can exercise.The title of the act is:

"An act divesting intoxicating liquors of their interstate character in certain cases."

Its pertinent provisions are in substance:

"That the shipment or transportation of any intoxicating 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 prohibited."

There is nothing in the title or body of the act upon which the attack can be sustained.The regulation is made by Congress itself in excluding from interstate commerce liquor that is intended to be received, possessed, sold, or used in violation of any state law.

The power to regulate commerce includes by necessary inference the power to exclude, absolutely or conditionally, from its operations injurious things and pernicious practices, and that has been done by Congress in numerous instances, which have been sustained by the Supreme Court.Champion v Ames,188 U.S. 321, 23 S.Ct. 321, 47 L.Ed. 492(lottery tickets);Hipolite Egg Co. v. United States,220 U.S. 45, 31 S.Ct. 364, 55 L.Ed. 364(adulterated foods and drugs);Hoke v. United States,227 U.S. 308, 33 S.Ct. 281, 57 L.Ed. 523, 43 L. R. A. (N. S.) 906, Ann. Cas. 1913E, 905(white slave traffic).The Wilson Act, which was of similar, though less extended, effect, was attacked on the same ground.It provided that liquors transported in interstate commerce should be subject to the law of the states upon arrival therein.In Rahrer's Case, 140 U.S. 545, 11 S.Ct. 865, 35 L.Ed. 572, the Supreme Court affirmed its constitutionality as a valid exercise by Congress itself of the...