Schwedes v. State , 1 Okla. Crim. 245 ( 1909 )

It is insisted by the plaintiff in error that the portion of the prohibition article which provides that "any person, * * * who shall ship, or in any other way, convey such liquors from one place within this state to another place therein, except the conveyance of a lawful purchase as herein authorized, shall be punished, * * *" is repugnant to the third clause of section 8, art. 1, of the Constitution of the United States, commonly referred to as the "interstate commerce clause" of the Constitution, wherein the power is delegated to the Congress of the United States to regulate commerce with foreign nations and among the several states and with the Indian tribes.

Under the provisions of said prohibition article, there is an attempt to prevent all persons from shipping, or in any way conveying, intoxicating liquors from one place within this state to another place therein, except a purchase from the state agency. On the part of the defendant in error, it is insisted that that portion of the act of Congress approved August 8, 1890, entitled "An act to limit the effect of the regulations of commerce between the several states and with foreign countries in certain cases," otherwise known as the "Wilson Act" (Act. Aug. 8, 1890, c. 728, 26 Stat. 313 [U.S. Comp. St. 1901, p. 3177]), permits the adoption and enforcement of said provision in the prohibition article. It reads as follows:

"That all fermented, distilled, or other intoxicating liquors or liquids transported into any state or territory, or remaining therein for use, consumption, sale or storage therein, shall, upon arrival in such state or territory, be subject to the operation and effect of the law of such state or territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquors or liquids had been produced in such state or territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise."

In the case of Vance v. Vandercook Company, 170 U.S. 452, 18 Sup. Ct. 679, 42 L.Ed. 1100, Mr. Justice White, in delivering the opinion of the court, said:

"But the right of persons in one state to ship liquor into another state to a resident for his own use is derived from the Constitution of the United States, and does not rest on the grant of the state law. Either the conditions attached by the state law unlawfully restrain the right, or they do not. If they do, * * * then they are void. If they do not, then there is no lawful ground of complaint on the subject. We are thus brought to examine whether the regulations imposed by the state law on the right of the residents of other states to ship into the state of South Carolina alcoholic liquor to the residents of that state, when ordered by them for their own use, are so onerous and burdensome in their nature as to substantially impair the right; that is, whether they so hamper and restrict the exercise of the right as to materially interfere with or, in effect, prevent its enjoyment."

The court further said, on page 456 of 170 U.S., page 681 of 18 Sup. Ct. (42 L.Ed. 1100):

"Conceding, without deciding, the power of the state, where it has placed the control of the sale of all liquor within the state in charge of its own officers, to provide an inspection of liquors shipped into a state by residents of other states for use by residents within the state, it is clear that such a law to be valid must not substantially hamper or burden the constitutional right on the one hand to make, and on the other to receive, such shipment."

In the case of Heyman v. Southern Ry. Co., 203 U.S. 277, 27 Sup. Ct. 107, 51 L.Ed. 178, Mr. Justice White, in delivering the opinion of the court, said:

"And in this case we deal only with the power of the state to enforce its police regulations against goods of the character of those enumerated in the Wilson act, the subject of interstate commerce, before delivery. We must not be understood as in any way limiting or restricting the ruling made in Vance v.Vandercook Co., * * * upholding the right of a citizens of one state to bring from another state into the state of his residence, and keep therein, for his personal use, the merchandise referred to in the Wilson act. In other words, as in the case at bar, delivery had not taken place when the seizures were made, and the control of the state over the goods had not attached. We are not called upon to consider whether, if the power of the state had attached by delivery, the state might not have levied upon the goods on the charge that they had not beenbona fide brought into the state, and were not held by the consignees for their personal use, and therefore, were not within the ruling in Vance v. Vandercook. * * *"

The principle of law covered by the instructions was within the rule as announced by Mr. Justice White in Vance v. VandercookCo., and Heyman v. Southern Railway Co., supra, in construing said part of the Wilson Act and the interstate commerce clause of the Constitution.

It is not essential for the decision of this case that we pass upon the following questions: (1) After delivery has been made by the carrier to the consignee, under the laws in Oklahoma, can the state levy upon said goods on the charge that they have not been bona fide brought into the state, and held by the consignee for his personal use or that of his family? (2) Although such goods may not be brought into the state for the personal use of the consignee or his family, but for the purpose of sale, which is prohibited under the state law, can such consignee be prevented from receiving and transmitting the same to his home, place of business, or storage house? These questions are reserved.

The instructions are at all events sufficiently favorable to the state. It follows that the instructions numbered 7, 8, and 10, requested by the defendant in the trial court, should have been given.

All the Justices concur.