State v. Holleyman , 55 S.C. 207 ( 1898 )

The opinion of the Supreme Court was delivered by

Mr. Justice Pope.

The two above stated cases were heard together before Judge Benet and a jury, at the April term, 1897, of the Court of General Sessions for Chesterfield County, in this State, and both cases originated out of the same transaction and the same state of facts, and the indictments were similar in all respects excepting the names of the defendants. The defendants were convicted, and after sentence appealed ho this Court on twelve grounds.

Before considering these grounds of appeal, it may not be amiss to state briefly the facts underlying the controversy. On the nth December, 1897, in the night time, the defendants were arrested by the officers of the law, and were found to have in their possession twenty-one gallons of corn whiskey. The defendants claim that they purchased this whiskey from Hightower’s distillery, in the State of North Carolina, and that they were in Chesterfield County, in this State, with the said whiskey transported in two buggies, and that they were on their way to their homes at Lamar, in the county of Darlington, in this State, and also that the whiskey was purchased and so transported for the individual use of the defendants, appellants. Each keg and jug filled with this whiskey was claimed by one particular individual, so1 that there was no joint ownership thereof. The indictments alleged that said defendants “did unlawfully handle and haul contraband spirituous liquors in the night time, against the form of the statute in such case made and provided, &c.” The statute referred to' was what was known as the dispensary law of this State. It was admitted that no' tags were upon said liquors.

The grounds of appeal were as follows: Because his Honor, W. C. Benet, presiding Judge, erred in charging the jury that the dispensary law- — the act of 1896- — -is in all respects a lawful exercise of the police power by the General Assembly of South Carolina. Because he erred in charging the jury that a citizen of this State can bring into the State from without the State only one gallon of intoxicating liquors, without complying with certain requirements of the dispensary law, and then only when' he is accompanying the same as his personal baggage. Because he erred in instructing the jury that all liquors, except such as have been bought from a State officer authorized to sell the same, and having been tested by the chemist of the South Carolina College and found to be chemically pure, are contraband; and he erred in instructing the jury that all liquors in this State, except dispensary liquors, and liquors passing through the State in transit, going through the State consigned to1 points beyond this State, shall be deemed contraband ,and may be seized without warrant; and he erred in instructing the jury that all alcoholic liquors, other than domestic wines, which do not have on the package in which it is contained a label and certificate going to show that they have been tested by the chemist of the South Carolina College and purchased from a State officer authorized to sell them, are contraband, and upon seizure shall be forfeited to the State, except liquors held by owners of registered stills in bonded warehouses. Because he erred in instructing the jury that these defendants could have gotten certificates from the State dispensary commissioner by which the liquor purchased by these defendants without the State, while said liquor was without the State, could be protected under the dispensary law. Because he erred in refusing to instruct the jury whether a citizen of this State has the right to handle and haul liquor purchased from a dispensary in the night time; and in charging the jury that there is no such question as that in this case; and in further charging the jury that there is no evidence in this case to which that law can apply. Because he erred in refusing to charge the jury that “Liquors and wines are recognized as commodities which may be lawfully made, bought, and sold, and must, therefore, be deemed to be the subject of foreign and interstate commerce; and so, if the liquors for the handling and hauling of which the defendants herein were indicted were brought from the State of North Carolina into this State, the defendants had the right to carry them on to their destination unmolested, under the United States Constitution, and they were guilty of no breach of any valid State law in handling and hauling the same;” and in adding the following proviso thereto: “Provided, that the liquors were not contraband liquors in the sense of the dispensary law, and I have given you the definition which the law gives to contraband liquor in this State.” Because he erred in refusing to charge the jury that “It does not matter for what purpose an article is imported from another State or from a foreign country, the State cannot interfere with its bringing in or importation. It does not matter whether the importation is for personal use or for some other purpose. It is the importation, and not the use, which is protected by the Constitution of the United States, and the importation is general, and not confined to any pafticular class or kind of importation;” and in adding the following proviso' thereto: “I charge you that, with this addition: unless the liquor when seized is contraband liquor.” Because he erred in charging the jury that “if liquor is found in the possession of a person in the condition which makes it contraband, then, whether it comes from another State or inside the State, it would be liable to seizure, and the handling and hauling of it in the night time would be illegal.” Because he erred in refusing to charge the jury that “The only way that a State can interfere with the free importation of commodities or articles of commerce from one State to another is under an inspection law; but the act of South Carolina of 1896, known as the dispensary law, is not an inspection law.” Because he erred in refusing to charge the jury that “If the defendants were engaged in bringing in or importing liquors from the State of North Carolina into the State of South Carolina, at the time they were arrested, they were simply doing what they had a right h> do under the Constitution of the United States, and were violating no valid State law, the United States Supreme Court having declared so much of the dispensary law of South Carolina as relates to the importation of liquors from without the State into the State to be unconstitutional, null and void.” And he erred in charging the jury: “That is correct, except that if the liquors in their possession were contraband liquors, then they were not doing what they had the right to do in this State.” Because he erred in refusing to charge the jury that “when a State recognizes the manufacture, sale and use of intoxicating liquors as lawful, it cannot discriminate against the bringing of such liquors in and importing them from other States. Such legislation is void as a hindrance to interstate commerce;” and he erred in holding that this proposition did not apply to the dispensary law. Because he erred in charging the jury, “If you are satisfied beyond a reasonable doubt that they (the liquors) in the possession of the defendants were contraband liquors, you will find them (the defendants) guilty.”

At the beginning of our remarks upon the contention here presented, it is proper to state that the appellants concede that the dispensary law of this State, now to be reviewed, is conformable to the provisions of our State Constitution. So that our inquiries will be directed to the alleged want of conformity of such State law with the Constitution of the United States, or, to limit the inquiry to the precise part of the Federal Constitution, to' an alleged conflict with article 1., section 8, which declares: “The Congress shall have power to regulate commerce with foreign nations and among the several States and Indian tribes.” Our investigations are happily limited to that commerce between the States in the matter of intoxicating liquors. And here again it is our good fortune to find a line of decisions of the United States Supreme Court which relieve our labors of much tedium. Beginning with the cases of Bowman v. Railway Co., 125 U. S., 465; Leisy v. Hardin, 135 U. S., 100; In re Rahrer, 140 U. S., 545; Scott v. Donald, 165 U. S., 58; Rhodes v. Iowa, 170 U. S., 412, and Vance et al. v. Vandercook Co., 170 U. S., 438; the United States Supreme Court has had before it some very interesting phases of the liquor problem as it entwines itself about the interstate commerce provisions of the United States Constitution. Briefly stated, the results of these cases establish these propositions: (a) Bowman v. R. R. Co., supra, held that it was not in the power of a State by its legislation, exclusive of some action by Congress, to lay a restriction upon a common carrier (which was a railroad), to1 regulate commerce between its people and those of the other States of the Union, in order to effect its end, however, desirable that end might be. (b) Leisy v. Hardin, supra, held that a State law could not prevent the sale of liquors in unbroken packages which were received by the resident of the State from parties outside the State, (c) In re Rahrer, supra, held that after 8th August, 1890, at which date the Wilson bill became a law of the United States, it was in the power of a State to punish, under laws enacted under the police power of the State, any one who sold liquors in original packages from parties outside the State, (d) Scott v. Donald, supra, held that the dispensary law passed by the State of South Carolina, in those of its provisions which sought to discriminate between citizens of its own State against citizens of another State, in the privilege of receiving from parties outside the State spirituous liquors, were void, as violative of the interstate commerce provision of the Federal Constitution; or, to reproduce the language of Mr. Justice Shiras, who formulated the opinion of that Court: “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.” (e) Rhodes v. Iowa, supra, held that under the Wilson bill a State could not punish a common carrier, or its agent, for moving- an unbroken package of liquor from one point to another point in the State of Iowa before it delivered the same to the consignee, although the common carrier, or its agent, knew it was an unbroken package of liquor, and also held in construing the words of the act of Congress, usually called the Wilson bill, whose language is: “That all fermented, distilled and other intoxicating liquors or liquids transported into any State or Territory, or remaining therein, shall upon arrival in such State or Territory, be subject to the operation and effect of the laws 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 liquids or liquors 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;” that the word “arrival,” as used in this act, “by the light of all its provisions, it was not intended to and did not cause the power of the State to attach to an interstate commerce shipment, whilst the merchandise was in transit under such shipment and until its arrival at the point of destination and delivery there to the consignee.” (f) Vance v. Vandercook, supra, held in construing the dispensary law enacted in 1896, and the identical act now undergoing consideration, that, 1. Under the act of August 8, 1890, the restrictions and regulations of .State laws become operative on the original package of intoxicating liquors imported into a State before the sale thereof, and, therefore, such packages cannot be sold if the State law forbids the sale, or can be only so sold in the manner and form prescribed by the State regulations. 2. A State law cannot be void because in excess of State authority, when it is but the execution of a power lawfully vested in -'the legislature of the State to forbid the sale of liquors in the original packages. 3. From the fact that a State law permits the sale of liquor subject to particular restrictions and only upon enumerated conditions, it does not follow that the law is not a manifestation of the police power of the State. 4. The act of Congress of August 8, 1890, subjects the sale 'of original packages of intoxicating liquors to' State laws which restrict or regulate such sales, as well as to laws which forbid them. 5. Giving to State officers the exclusive right to purchase all the intoxicating liquors to' be sold in the State, does not make a State law regulating such sales inherently discriminatory, and, therefore, unconstitutional, on the ground that the officers have arbitrary discretion in determining where and from whom they will purchase liquor. 6. The fact that the provisions omitted, from a new law had been before its enactment declared to be unconstitutional, affords a conclusive demonstration of their inconsistency with the new law. J. Authorizing the use by a resident of wine or liquor made by him for such purpose, does not make an unconstitutional discrimination. 8. Compelling a resident of the State who desires to order intoxicating liquors from another State for his own use, first to communicate his purpose to a State chemist, and depriving any non-resident of the right to ship into the State any intoxicating liquors unless previous authority is obtained from State officers, are unconstitutional regulations of interstate commerce. 9. The right of a citizen to carry on interstate commerce is conferred by the Constitution of the United States, and its exercise depends solely upon the will of the person engaged therein, and cannot be in advance controlled or limited by the State in any department of its government. 10. An inspection law must not substantially hamper or burden the constitutional right, on the one hand, to make, and, on the other hand, to receive an interstate shipment. 11. A requirement that a sample shall be sent in advance for inspection before intoxicating liquors are brought into the State, cannot be supported as an inspection law, but such a law must, at least, provide for some inspection of the article imported.

Since all the questions presented except one, seem to be Federal questions, we very naturally turn to the decisions of the Supreme Court of the United States for their decision, and it is to the two latest decisions that we must turn, for the appellant, in common with many others, has given a force and meaning to the decision of Scott v. Donald, supra, which the Supreme Court of the United States in its last decision — Vance v. Vandercook, supra — has taken occasion to point out. The appellant, as before remarked, seems to attribute to< Scott v. Donald, supra, this meaning, namely, that the dispensary act of 1895 was not in any of its features a valid exercise of the police powers of the State, which the Court in the case just cited was careful to avoid. When the facts underlying the controversy in Scott v. Donald, supra, are considered, it will be seen that Scott, the appellee, had ordered three shipments of alcoholic liquors to be made to him from the States of California, Maryland and New York, respectively, which shipments when so made were seized while in the hands of a common carrier, and before delivery to the consignee could be made, and the judgment of the Supreme Court of the United States held that some features in the act of 1895, which the State could not, in the exercise of its police power, justly because invalid, were in violation of the Federal Constitution. Hence, when the latest decision — that of Vance v. Vandercook, supra — was rendered by the United States Supreme Court, it was held that the act of 1896, amendatory of the act of 1895, was a valid exercise of the police power of the State, except when it interdicted the delivery to consignee within the State of alcoholic liquors from outside the State for the use of the consignee, but not so as to liquors which were intended to be sold by the consignees, and in passing upon the first phase of this question, as to consignees for their own use, the said Court did hold that the inspection laws were invalid. So far as these latest decisions extend, it may be said: First. That no State can interdict the delivery by a common carrier of any alcoholic liquors from without the State to- a consignee within the State for his own use. Second. That when the word “arrival,” occurring- in the act of Congress, commonly called the Wilson bill, is to be construed, it must be held that such word means an arrival of such liquors into the hands of the consignee within the State. The trouble in connection with the cases we are now considering- is that the liquors were in the hands of their owners when they crossed the threshold of this State, coming from Hightower’s distillery, in the State of North Carolina, where these liquors were purchased by these three citizens of South Carolina. They may have been said to reach the consignees at the State line. As will be perceived, this is an entirely different question from that decided in the Raiirer case, the Scott v. Donald case, or the Vance v. Vandercook case, for in each of these cases the liquors had not reached the hands of the consignees. So now we are confronted with this difficulty in the cases now at bar, the owners of these packages of liquors have in their own hands such liquors, and are confessedly handling and hauling such liquors in the night time, in violation of sections 33 and 37 of the dispensary act, passed in 1896. Is not the police power of the State sufficently powerful to interdict the citizens of the State from handling and hauling in the night time alcoholic liquors when the same are the owners thereof? Is it in exact keeping with the laws of the State in relation to hauling and trading in seed cotton at night? Section 280 of the Criminal Statutes of South Carolina provides: “It shall not be lawful for any person to buy or sell, or receive by way of barter, exchange or traffic of any sort, any seed cotton between the'' hours of sundown and sunrise * * *” This is confessedly in the exercise of the police power. Why, therefore, may not a State, in the exercise of its police power, forbid the handling or hauling of spirituous liquors at night ? This also would be the exercise of the police power of the State, and cannot in any sense affect the interstate commerce laws. It should be noted, however, that these sections 33 and 37 by their terms affect “contraband liquors.” A question may arise as to whether a person purchasing for his own use liquors from persons outside this State, and carrying this property with him into his own State, may not justly claim that such liquors in his hands are not “contraband liquors,” and, therefore, not in violation of these sections. If a man may order for his own use spirituous liquors from another State, and have such liquors delivered to him at his own home in South Carolina,, without incurring any liability therefor under dispensary law, which forbids it, relying for freedom from airy such liability upon the interstate commerce provision of the United States Constitution, why may not a citizen take his buggy or wagon and go into another State and purchase spirituous liquors, and by his own buggy or wagon transport such liquors to his home, and claim immunity therefor under the interstate commerce clause of the Constitution? We are inclined to think he could, except for section 37 of the dispensary act of 1896, 22 Stat., 147, which provides: “Any person handling- contraband liquors in the night time, or delivering the same, shall be guilty of a misdemeanor, and on conviction * * *” The word contraband, used in this section, refers to any liquors other than dispensary liquors. The appellants admit that the liquors found in their possession were not dispensary liquors. When the exceptions here presented are taken up seriatim, it will be. found that they are untenable, in the light of our views hereinbefore expressed.

As to the 5th exception, when examined it will be found to ask of the Circuit Judge a ruling upon what would be the effect of hauling liqurs in the night time which had been purchased of the dispensary. The Circuit Judge declined to rule upon the matter, for the simple reason that the liquors here involved were admitted not to have come from the dispensary. This was not error.

I think, therefore, our judgment should be, “It is the judgment of this Court that the judgment of the Circuit Court be affirmed.” But the members of this Court are equally divided. Hence, under the Constitution of this State, the judgment of the Circuit Court stands affirmed.