Cormick Co v. Brown

• Decision Date: 16 May 1932
• Docket Number: No. 599,599
• Citation: 52 S.Ct. 522,87 A.L.R. 448,76 L.Ed. 1017,286 U.S. 131
• Parties: McCORMICK & CO., Inc., et al. v. BROWN, State Com'r of Prohibition, et al
• Court: U.S. Supreme Court

286 U.S. 131

52 S.Ct. 522

76 L.Ed. 1017

McCORMICK & CO., Inc., et al.

v BROWN, State Com'r of Prohibition, et al.

No. 599.

Argued April 22, 1932.

Decided May 16, 1932.

[Syllabus from pages 131-133 intentionally omitted] Messrs. Philip C. Friese, of Baltimore, Md., and H. D. Rummel, of Charleston, W. Va., for appellants.

Messrs. W. G. Brown, of Summersville, W. Va., and R. Dennis Steed, of Charleston, W. Va., for appellees.

Mr. Chief Justice HUGHES delivered the opinion of the Court.

This suit was brought by nonresident manufacturers and wholesale dealers to restrain state officers of West Virginia, from requiring the complainants to obtain permits from the state commissioner of phohibition, and to pay an annual license fee of $50, before shipping certain products into the state to purchasers there for resale.

The bill alleged that, while these products contained ethyl alcohol, they were used and usable solely for medicinal, mechanical, toilet, and culinary purposes, and were not intoxicating liquors or fit for beverage purposes within the meaning of the laws of the United States; that the products were covered by permits issued to the complainants respectively under the National Prohibition Act (27 USCA); and that the shipment and sales in question were to dealers in West Virginia holding state permits. The bill charged that the requirements of the state officers, purporting to act under state legislation, constituted an interference with interstate commerce in violation of the commerce clause of the Federal Constitution, and that the complaints were without remedy at law. In their answer, defendants (appellees) denied that the products in question were used and usable solely for the purposes alleged, and that none of the products were 'intoxicating liquors' or that they were nonintoxicating in fact; and, while admitting that the complainants held permits under the National Prohibition Act, defendants asserted the validity of the state laws and regulations by which state permits and the payment of the license fee were required.

The District Court, composed of three judges (Judicial Code, § 266, 28 U. S. C. § 380 (28 USCA § 380)), heard and denied, upon the pleadings and affidavits, an application for an interlocutory injunction. Upon final hearing no further evidence was introduced, and from the final decree, dismissing the bill, this appeal has been taken.

The Constitution of West Virginia (Art. 6, § 46) prohibits 'the manufacture, sale and keeping for sale of malt, vinous or spirituous liquors, wine, porter, ale, beer or any intoxicating drink, mixture or preparation of like nature,' except 'such liquors for medicinal, pharmaceutical, mechanical, sacramental and scientific purposes' and 'denatured alcohol for industrial purposes,' dealings in which are permitted under legislative regulations. The Legislature was directed to enact such laws as might be necessary to carry these provisions into effect.

The legislative act now in force is chapter 60 of the West Virginia Official Code (1931). The definition of 'liquors' in section 1 of article 1 embraces 'all liquids, mixtures or preparations, whether patented or not, which will produce intoxication.'¹ By section 4, sell- ing or soliciting or receiving orders for 'any liquors' is penalized, 'except as hereinafter provided'; and, 'in case of a sale in which a shipment or delivery of such liquors is made by a common or other carrier,' the sale is deemed to be made in the county of delivery.² Exceptions, found in section 5³, include sales of wine for sacra- mental purposes or of 'any United States pharmacopoeia or national formulary preparation in conformity with the West Virginia pharmacy law, or any preparation which is exempted by the provisions of the national pure food law,' and this section contains a proviso that no one 'shall manufacture, sell, keep for sale, purchase or transport any liquors, as defined in section one of this article and as herein excepted, without first obtaining a permit from the commissioner of prohibition so to do.' Permits are to be issued for the calendar year, and fees for each permit are prescribed, being $50 in the case of manufacturers and wholesale dealers, $10 in the case of purchasers in wholesale quantities of ethyl alcohol, whether pure, medicated, or denatured, for use as provided, and $2 in the case of purchasers, except licensed druggists, in wholesale quantities of liquors, as defined in section 1, for sale at retail. By section 9, common carriers are forbidden to carry into the state, or within the state, intoxicating liquors, except 'pure grain alcohol and wine, and such preparations as may be sold by druggists for the special purposes and in the manner as set forth in section five.'⁴ Section 11 makes it unlawful for nonresident dealers to sell to persons within the state intoxicating liquors or any of the preparations described, when they 'are intended by any person interested therein to be received, possessed, sold, or in any manner used, either in use original package or otherwise, in violation of the prohibition laws of this State'; and, in case of shipment or delivery by a carrier, the county in which the delivery is made is to be taken as the place of sale.⁵

Section 3 of article 2 of chapter 60 provides that the manufacture and sale of 'liquors' by wholesale druggists and other dealers shall be under the supervision of the commissioner of prohibition and governed by the regulations he may from time to time prescribe. The commissioner's regulations place nonresident manufacturers in the category of 'wholesale dealers' and define the business of such dealers as 'that of selling at wholesale ethyl alcohol in any form * * * and wine as permitted and supervised by the Federal Government; or selling * * * any liquid, mixture, or preparation * * * which will produce intoxication, or coming within the definition of 'liquors' in section one' of the statute. These dealers, it is provided, upon obtaining a permit from the state commissioner, may sell such liquors at wholesale for medicinal, pharmaceutical, scientific and mechanical purposes to persons holding permits to purchase. The regulations also classify alcoholic preparations, as those regarded as beverages, the sale of which is forbidden, and those which comprise articles having a recognized legitimate use and which can be sold under permits, the latter including a large variety of preparations with a described alcoholic content, such as proprietary medicines, tonics, cordials, elixirs, lotions, extracts, and flavors, and various compounds bearing trade-names.

Complainants' products fall within these regulations. They contain ethyl alcohol, ranging, according to the allegation of the bill as to the foodstuffs and toilet articles of one of the complainants, 'from four per cent to ninety per cent ethyl alcohol by volume.' There is no charge that applications by complainants for permits have been denied. On the contrary, the bill of complaint alleged that complainants have either procured the required permits from the state commissioner, on the payment of the prescribed fee, or 'have refused to procure such permits and refrained from shipping said products into said State.' The question is simply one of the authority of the state officers to demand that state permits be obtained.

The District Court found that the products in question are 'liquors' within the meaning of the state statute, and we see no ground for a contrary conclusion. State v. Muncey, 28 W. Va. 494; State v. Good, 56 W. Va. 215, 49 S. E. 121; State v. Durr, 69 W. Va. 251, 71 S. E. 767, 46 L. R. A. (N. S.) 764; State v. Henry, 74 W. Va. 72, 81 S. E. 569, 4 A. L. R. 1132. Nor do we think that the regulations of the commissioner go beyond the authority which the statute confers. No state decision to that effect has been cited, and examination of the statutory provisions we have quoted gives no support to the contention that the commissioner has misconceived his duty. On the application for injunction the complainants presented affidavits to show that their products, as required by federal law and regulations, were unfit for beverage purposes, and that consumption of them as a beverage 'would involve serious gastric irritations or disorders, or nausea, and, in some cases, if persisted in, serious illness,' and that the products were sold strictly 'for medicinal, toilet, and culinary purposes.' Defendants denied the unfitness for beverage use, and, in support, submitted an affidavit of the chemist who had been employed by the state department to examine preparations covered by the commissioner's regulations, including products of this sort submitted by one of the complainants on its application for a state permit. This witness testified that these various preparations, falling within the above-mentioned classes of the regulations, are such as 'will produce intoxication and drunkenness,' and he based this statement on the 'alcoholic content, the potability and the physiological effect of the final product, and upon his actual experience and observation that said preparations are intoxicating in fact.'

We may lay the controversy of fact on one side, so far as it relates to the particular products of complainants, as the question is not merely that of the normal uses and purposes of these preparations which have alcoholic content and come within the state law, but whether, in view of that content and of possible abuses, the state has the power to put the sale of such products under the prescribed administrative supervision. There is no basis for objection because of any arbitrariness in the state's requirements as they are appropriately directed to the enforcement of its prohibitory legislation. Purity Extract Company v. Lynch, 226 U. S. 192, 204, 33 S. Ct. 44, 57 L. Ed. 184; Eberle v. Michigan, 232 U. S. 700, 706, 34 S. Ct. 464, 58 L. Ed. 803; Vigliotti v. Pennsylvania, 258 U. S. 403, 407, ...