Welborn v. Morley, 4-9650

• Citation: 219 Ark. 569,243 S.W.2d 635
• Decision Date: 19 November 1951
• Docket Number: No. 4-9650,4-9650
• Parties: WELBORN v. MORLEY, Commissioner of Revenues.
• Court: Supreme Court of Arkansas

Page 635

243 S.W.2d 635

219 Ark. 569

WELBORN v. MORLEY, Commissioner of Revenues.

No. 4-9650.

Supreme Court of Arkansas.

Nov. 19, 1951.

Ted Goldman, Texarkana, for appellant.

O. T. Ward, Little Rock, for appellee.

HOLT, Justice.

This action involves the seizure and confiscation of fifty-two cases of intoxicating liquor in the town of Ft. Lynn, Miller County, Arkansas, while appellant was attempting to transport this liquor from Shreveport, La., to Seneca, Kansas.

It was stipulated: 'That on February 12, 1951 John L. Welborn was arrested in Miller County, Arkansas and charged under Section 48-404 of the Arkansas Statutes of 1947 with transporting a cargo of liquor and wine into and through the State of Arkansas without a legal permit so to do from the Arkansas Commissioner of Revenues; that John L. Wellborn was tried and convicted in Municipal Court of Texarkana, Arkansas under said Section 48-404 and fined $500.00; that the cargo of liquor taken from the possession of the said John L. Welborn was delivered by the sheriff's department of Miller County, Arkansas to the Arkansas Revenue Commissioner and the cargo received by the Arkansas Revenue Commissioner consisted of 47 cases of whiskey and 5 cases of wine; that affixed to said whiskey and wine received by the Revenue Commissioner were the Federal Stamps and the Louisiana Export Stamps; that none of the liquor or wine had the Arkansas Tax Stamps affixed thereto; that the said John L. Welborn did not have a permit to transport liquor into and through Arkansas and never applied for such a permit; that at the time of his arrest 3 invoices were taken from his person by the Miller County sheriff's department; that John L. Welborn has made a part of his petition photostatic copies of said invoices and that they may be considered as evidence for the said John L. Welborn.'

It also appears from the invoices of the liquor in evidence that public Highway No. 80 was the designated route over which the whiskey was to be transported and the drivers were listed as L. Lewis and John Lewis, but when appellant, Welborn, was apprehended by officers at Ft. Lynn in Miller County, he was driving (accompanied by his wife) on public Highway No. 71. Highway 80 out of Shreveport, La., runs through north Louisiana, east and west through Texas on to El Paso, and does not touch Arkansas or Kansas. It further appears that when appellant began his journey, he had sixty cases of liquor on the truck, but when arrested, he had only fifty-two cases in his possession. What became of the other eight cases was not disclosed.

As indicated, appellant was attempting to transport the liquor here involved into and through Arkansas to Kansas without proper permits in violation of law.

From a judgment of the Pulaski Circuit Court affirming the order of the State Revenue Commissioner, condemning and confiscating this liquor, comes this appeal.

Proceedings were had under § 48-404, § 5(a), Act 109 of the 1935 Legislature, and sections 48-925, 48-926 and 48-930, Ark.Stats.1947.

For reversal, appellant contends that '(1) Sections 48-404 and 48-925 are invalid under the Commerce Clause (U.S.C.A.Const. Art. 1, § 8, Cl. 3) and the 21st Amendment (U.S.C.A.); (2) If the court upholds the validity of § 48-404 as applicable to the facts in this case, § 48-925 is invalid for the reason that confiscation, under facts of this case, is unreasonable and an undue burden on interstate commerce, and a denial of due process under the Constitution of Arkansas (Art. 2, § 8); and (3) By forfeiture and confiscation and failure and refusal to permit appellant to transport the cargo on to Kansas or back to Louisiana when he discovered necessity for the permit, the Commissioner overstepped and went beyond local police power of a State to regulate interstate liquor traffic.'

We hold that all of the above contentions have been answered against appellant in our decisions.

The 21st Amendment of the Constitution of the United States provides: 'Sec. 2. The transportation or importation into any State * * * for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.'

It appears that Congress has enacted no laws governing the transportation of whiskey, but has left this question to the separate states. Arkansas, by the above permit law, § 48-404, has not sought to prohibit whiskey from being transported across its borders, but does seek to regulate same through a permit requirement. As to the validity of such a permit law, in the case of Jones v. State, 198 Ark. 354, 129 S.W.2d 249, 251, where the defendant while attempting to transport a cargo of whiskey through Arkansas to Oklahoma, without a permit, was criminally charged, found guilty, and fined, we said: 'It would serve no useful purpose to review all the authorities on the question of the right of the State to Prohibit or condition the transportation of intoxicating liquors throughout the state.

'We think the case of Dunn v. United States, supra [98 Fed.2d 119, 117 A.L.R. 1302], and the Tennessee case above cited, [Haumschilt v. State, 142 Tenn. 520, 221 S.W. 196] settle this question. Arkansas had not undertaken to prohibit the transportation, but conditions it. That is, liquor may not be transported without a permit, as provided by law. Under the facts in this case there can be no question but that the appellant violated the law as stated in Section 14177 of Pope's Digest, [§ 48-404 Ark.Stats.1947] and that his conviction was proper.'

We point out that at the time of our decision in this Jones case, the Arkansas law made no provision for the confiscation of whiskey being transported in violation of our permit statute above.

In the more recent case of Duckworth v. State, 201 Ark. 1123, 148 S.W.2d 656, 659, in which defendant, Duckworth, while transporting whiskey from Illinois to Mississippi, was arrested in Arkansas and charged with violation of the Arkansas law by transporting whiskey without a permit, we said: 'Other than Act 109 there is no statute dealing with...