Duckworth v. State
| Decision Date | 10 March 1941 |
| Docket Number | 4205 |
| Parties | DUCKWORTH v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Mississippi Circuit Court, Chickasawba District; G. E Keck, Judge; affirmed.
Affirmed.
Cecil Nance and Harold R. Ratcliff, for appellant.
Jack Holt, Attorney General, and Jno. P. Streepey, Assistant Attorney General, for appellee.
Jim Duckworth was found guilty of transporting alcoholic liquors through Arkansas without having procured a permit from the commissioner of revenues. He was fined $ 500. [1]
The judgment recites that the cause was heard [2] "upon the stipulations of witnesses' testimony and the argument of counsel." Essentials of the agreed statement are in the margin. [3]
An appeal involving construction of § 14177 of Pope's Digest was before this court in 1939. Jones v State, 198 Ark. 354, 129 S.W.2d 249. In that case the defendant was charged with transporting fifty cases of "taxpaid liquor" [4] from Illinois to Oklahoma by way of Arkansas.
In the instant appeal it is insisted that in the Jones Case the right of Arkansas to tax, regulate, or condition interstate shipments was not properly presented. [5] It is also urged that the Jones Case was based upon Haumschilt v. State, 142 Tenn. 520, 221 S.W. 196, and that the Haumschilt Case has been overruled by the supreme court of Tennessee. [6]
Counsel for appellant say: "One question, and one only, is presented: that is, Does the state have power to regulate a shipment of liquor which is merely passing through Arkansas in interstate commerce?"
Our answer is that the state does have such right.
In McCanless, Commissioner, v. Graham, (Tennessee Supreme Court), the proceedings were not under the criminal code. The appellant, engaged in interstate transportation of liquors, was detained on a charge that the commodity was contraband. In the Tennessee chancery court it was held that the statutes [7] did not authorize confiscation of such property. The department of finance and taxation had issued a license permitting Graham to transport the liquor. After mentioning that the only act engaged in by Graham "which can in any wise be related to [the Tennessee statutes] was that of transporting intoxicating liquors through dry counties of the state," it was said.
[8]
Consonant with the Tennessee courts, this court has held (Jones v. State) that liquor in interstate transit is not subject to confiscation.
Since we determined in the Jones Case that the act of March 16, 1935 (Pope's Digest, § 14177), ". . . makes it unlawful for any person to ship or transport, or cause to be shipped or transported, into the state of Arkansas, any distilled spirits from points without the state, without first having obtained a permit from the commissioner of revenues, [9] but three questions are to be determined here: Is such regulation reasonable in view of the state's problem in dealing with the manufacture, sale, and transportation of liquor? Is it a burden on interstate commerce? Does "into" as used in act 109 mean "into and out of"?
Although in appellant's motion for a new trial it is alleged that application for permission to move the liquor was made of the commissioner of revenues, and refused, the agreed statement contains nothing to this effect. We must assume, therefore, that no such request was made.
Rules of the department of revenues, promulgated by the commissioner under authority of act 109 of 1935 (in effect during all of December, 1940), [10] provide that "It shall be unlawful for any person to ship, transport, cause to be shipped or transported into the state of Arkansas any distilled spirits from points without the state [11] without having first obtained a permit from the commissioner of revenues, or his duly authorized agent." This regulation is copied almost verbatim from § 5(a) of act 109. It must be conceded that the act is somewhat obscure regarding strictly interstate transportation of liquors; but there is a very definite requirement that before shipments may be brought "into the state" from points "without the state" permission of the commissioner of revenues must be obtained. But, it is argued, this section, and other sections of act 109 dealing with transportation, have reference to liquors brought from without the state intended for intrastate usage; hence, appellant contends, "into" does not mean into and through, but "into and at rest."
First.--Other than act 109 there is no statute dealing with transportation in the sense contemplated by that measure. It must be assumed, therefore, that the general assembly intended to cover all requirements, and that the term "into" as used in the act includes shipments entering the state, but consigned to points within or beyond. This construction is contrary to that of some courts dealing with related transactions, and we adhere to such definition only because it is our belief that the general assembly intended it so, although more appropriate language could have been used. [12]
Second.--The commissioner's regulation requiring those proposing to transport liquor through Arkansas to procure a permit is not in excess of authority conferred by the legislature.
Third.--The state relies upon Ziffrin, Inc., v. Reeves [13] to support the commissioner's action, and to sustain the assertion that the regulation does not impose a burden on interstate commerce. In that case it was said by Mr. Justice MCREYNOLDS, who wrote the opinion:
Facts before the court were that the appellant, an Indiana corporation, had continuously received whiskey from distillers in Kentucky for direct carriage to consignees in Chicago. The Kentucky Alcoholic Beverage Control Law of 1938 restricted the agencies by which whiskey might be transported. [15]
After commenting upon the power of states to prohibit manufacture, sale, and transportation of liquors, and affirming Kentucky's right to condition transportation, the opinion says:
"We cannot accept appellant's contention that because whiskey is intended for transportation beyond the state lines the distiller may disregard the inhibitions of the statute by delivering to one not authorized to receive; that the carrier may set at naught inhibitions and transport contraband with impunity."
It will be observed that § 2 of the Twenty-first Amendment prohibits the transportation or importation of intoxicating liquors into any state, territory, etc., for delivery or use therein [16] in violation of the laws of the state.
The agreed statement in the case at bar concedes that the liquor carried by Duckworth was not intended for delivery or use in Arkansas.
It is our view that the Ziffrin Case is not altogether in point with the controversy here. The Ziffrin corporation proposed to transport into Illinois liquors manufactured in Kentucky. The Supreme Court of the United States predicated its holding upon the fact that inasmuch as Kentucky had the right to prohibit the manufacture, transportation, and sale of whiskey, it had, as an incident to its power to prohibit, the right to designate the agencies of transportation, as a class, and to prohibit transportation by any other class. This, it was thought, was not a burden upon interstate commerce. Expressed differently, Illinois had no fundamental right to receive liquors from Kentucky; and lacking that right it could not complain of conditions under which limited transportation was permitted.
In the case at bar the commodity originated in Illinois, and its destination was Mississippi. Arkansas was a mere transportation conduit through which it passed. Appellant might have received a permit if he had applied for it; but, more than eighteen months after this court had held such transportation to be unlawful, he arrogated to himself the right to disregard reasonable legal prerequisites, and now complains that our decision places a burden on interstate commerce.
If we concede that some burden has been placed upon such commerce, the answer is that it may be done.
In the recent case of South Carolina Highway Department v Barnwell Bros., 303 U.S. 177, 58 S.Ct. 510, 82 L.Ed. 734, [17] it was said: "While the constitutional grant to Congress of power to regulate interstate commerce has been held to operate of its own force to curtail state power in some measure, it did not forestall all state action affecting interstate commerce. Ever since Willson v. Black Bird Creek Marsh Co., 27 U.S. 245, 2 Peters 245, 7 L.Ed. 412, and Cooley v. Board of Port Wardens, 53 U.S. 299, 12 HOW 299, 13 L.Ed. 996, it has been recognized that there are matters of local concern, the regulation of which unavoidably involves some regulation of interstate commerce but which, because of their local character and their number and diversity, may never be fully dealt with by Congress. Notwithstanding...
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Duckworth v. State of Arkansas
...Supreme Court sustained the requirement of the permit as a local police regulation permissible under the commerce clause. 201 Ark. 1123, 148 S.W.2d 656. The case comes here on appeal under the provisions of § 237(a) of the Judicial Code, 28 U.S.C. § 344(a), §§ 861a, 861b, 28 U.S.C.A. § 344(......
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...interstate commerce that it cannot be justified as a reasonable exercise of the police power of the state. In Duckworth v. State of Arkansas, 201 Ark. 1123, 148 S.W.2d 656 (1941), the court held, in essence, that "into" includes "through." The case was reviewed by the Supreme Court of the U......
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... ... contract such that its obligations may not be impaired. It is ... familiar law that the state cannot part with its right to ... exercise the inherent attributes of sovereignty, among which ... undoubtedly is the police power. The retention ... the inhabitants thereof." ... This ... court, in the case of Duckworth v. State, ... 201 Ark. 1123, 148 S.W.2d 656, quoted with approval a ... statement of the Supreme Court of the United States in the ... case of ... ...
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Chambless v. Cannon
...of the act is declared to be a misdemeanor and is punishable by a fine of not less than $500 or more than $1,000. In Duckworth v. State, 201 Ark. 1123, 148 S.W.2d 656, it was held that this statute covers a through shipment. Hence, since plaintiffs did not have a permit to transport the sei......