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 laws of such State or Territory, enacted in the exercise of its police power 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." The constitutionality, if not the desirability, of such a measure as this had been suggested by the court by Justice Matthews in the opinion in the Bowman case in which he had said: "So far as these regulations made by Congress extend, they are certainly indications of its intention that the transportation of commodities between the States shall be free, except where it is positively restricted by Congress itself, or by the States in particular cases by the express permission of Congress." And in Leisy v. Hardin, Chief Justice Fuller had said: "Hence inasmuch as interstate commerce is national in its char

acter and must be governed by a uniform system, so long as Congress does not pass any law to regulate it, or allowing the States to do so, it thereby indicates its will that such commerce shall be free and untrammeled."

In Re Rahrer10 the Wilson Act was held constitutional, but not, as had been suggested by Justices Matthews and Fuller, as a delegation by Congress to the States of a power to regulate interstate commerce to the extent provided. This, the court held, Congress might not do, the principle delegatus non potest delegare governing. The law might, however, it was declared, be construed as an express negation by Congress of the conclusion to be presumed from its previous silence that interstate commerce, to the extent covered by the Wilson Act, should be free from state interference or control.11

10 140 U. S. 545; 11 Sup. Ct. Rep. 865; 35 L. ed. 572.

11"It does not admit of argument that Congress can neither delegate its own powers nor enlarge those of a State. This being so, it is urged that the act of Congress cannot be sustained as a regulation of commerce, because the Constitution, in the matter of interstate commerce, operates ex proprio vigore

In short, it was held that the state liquor prohibition laws, in their application to interstate commerce, previously declared void, had been so declared not because of the inherent constitutional incompetence on the part of the States to enact them, but because Congress, by its silence, had declared that interstate commerce as to intoxicating liquors should be free from state interference.

The reasoning employed by the court in the Rahrer case has been severely criticized as casuistical, but no disposition has been since exhibited by the court to repudiate it.

§ 320. Construction of the Wilson Act.

The Wilson Act permits the State to control the sale of imported. intoxicating liquors only when such control is exercised as a police

ineasure.

as a restraint upon the power of Congress to so regulate it as to bring any of its subjects within the grasp of the police power of the State. In other words, it is earnestly contended that the Constitution guarantees freedom of commerce among the States in all things, and that not only may intoxicating liquors be imported from one State into another, without being subject to regulation under the laws of the latter, but that Congress is powerless to obviate that result. Thus the grant to the General Government of a power designed to prevent embarrassing restrictions upon interstate commerce by any State would be made to forbid any restraint whatever. We do not concur in this view. In surrendering their own power over external commerce the States did not secure absolute freedom in such commerce, but only the protection from encroachment, afforded by confiding its regulation exclusively to Congress. By the adoption of the Constitution the ability of the several States to act upon the matter solely in accordance with their own will was extinguished, and the legislative will of the General Government substituted.

. But this furnishes no support to the position that Congress could not, in the exercise of the discretion reposed in it, concluding that the common interests did not require entire freedom in the traffic in ardent spirits, enact the law in question. In so doing Congress has not attempted to delegate the power to regulate commerce, or to exercise any power reserved to the States, or to grant a power not possessed by the States, or to adopt state laws. It has taken its own course and made its own regulation, applying to these subjects of interstate commerce one common rule, whose uniformity is not affected by variations in state laws in dealing with such property. Congress did not use terms of permission to the State to act, but simply removed an impediment to the enforcement of the state laws in respect to imported packages in their original condition, created by the absence of a specific utterance on its part. It imparted no power to the State not then possessed, but allowed imported property to fall at once upon arrival within the local jurisdiction."

In Scott v. Donald 2 the court held that the South Carolina Dispensary law did not come within the permission of the Act, because, while not forbidding the manufacture, sale, or use of intoxicating liquors, it yet attempted to restrain the introduction of such liquors into the State from other States and Territories. This, the court declared, could not properly be described as a police measure.13

Nor, said the court, could the measure be upheld as an inspeetion law; for "the prohibition of the importation of wines and liquors of other States by citizens of South Carolina for their own use is made absolute and does not depend on the purity or impurity of the articles."

In Rhodes v. Iowa' it was held that the terms of the Wilson Act subjecting articles of interstate commerce to state police authority "upon arrival" in such State meant, not upon crossing the state lines, but upon the consummation of their shipment, that is, delivery to the parties to whom consigned. In this case it was, therefore, held that the moving of certain consignments of liquor from the platform of the railway station to the freight warehouse, was a part of interstate commerce transportation and done before the state law could constitutionally attach to the goods thus moved.

12 165 U. S. 58; 17 Sup. Ct. Rep. 265; 41 L. ed. 632.

13"It is not a law purporting to forbid the importation, manufacture, sale or use of intoxicating liquors as articles detrimental to the welfare of the State and to the health of the inhabitants, and hence it is not within the scope and operation of the act of Congress of August, 1890. That law was not intended to confer upon any State the power to discriminate injuriously against the products of other States in articles whose manufacture and use are not forbidden, and which are therefore the subjects of legitimate comThe question whether a given state law is a lawful exercise of the police power is still open, and must remain open, to this court. Such a law must forbid entirely the manufacture and sale of intoxicating liquors and be valid. Or it may provide equal regulations for the inspection and sale of all domestic and imported liquors to be valid. But the State cannot, under the congressional legislation referred to, establish a system which, in effect, discriminates between interstate and domestic commerce in commodities to make and use which are admitted to be lawful."

merce.

14 170 U. S. 412; 18 Sup. Ct. Rep. 664; 42 L. ed. 1088.

In Scott v. Donald the court had said that the Dispensary law "is not a law purporting to forbid the importation, manufacture, sale, and use of intoxicating liquor, as detrimental to the welfare of the State and to the health of the inhabitants, and hence it is not within the scope of the operation of the Wilson Act." This had generally been understood as intimating that only state laws totally prohibiting the manufacture and sale of intoxicating liquors within the State would be held to come within the provisions of the Wilson Act. In Vance v. Vandercook,15 however, the court held that because a state law permits the sale of liquors subject to particular restrictions it does not follow that the law is not a police measure and, therefore, beyond the permissive provisions of the Wilson Act. Also it was held that the state law was not discriminative against interstate commerce because it gave to state authorities an exclusive right to purchase all liquor sold in the State, which right they might employ to purchase from whomsoever they might please.

The state law was, however, held invalid in so far as it attempted to prevent the residents of the State from importing liquors for their own use, the permission of the Wilson law being held to extend only to the prohibition of the sale in original packages of importations of intoxicating liquors. And, in fact, it is declared that Congress could not constitutionally give to the States this power to prohibit importation of goods for the importer's own use, because, as the opinion declares, this right "is derived from the Constitution of the United States and does not rest on the grant of the state law." 16

15 170 U. S. 438; 18 Sup. Ct. Rep. 674; 42 L. ed. 1100.

16 Commenting upon this last statement, Justice Shiras, Chief Justice Fuller, and Justice McKenna declare that, once concede that Congress may authcrize the States to forbid the sale of original packages, it would, by a parity of reasoning, follow that Congress might permit the States to forbid importation for use. As a matter of fact, however, these justices denied that Congress could do either and asserted that the permission of the Wilson Act was intended to apply only to those cases in which the States, as a police measure, should find it necessary to declare that the use of intoxicating liquors of any kind is against morality, good health and the safety of the community, and wholly to prohibit their manufacture and sale.

The court having decided that a State could not, even when aided by the provisions of the Wilson Act, prevent its inhabitants from importing liquors for their own use and consumption, the question soon arose whether this principle would, notwithstanding state prohibition laws, validate C. O. D. shipments of liquors, that is, express consignments of liquors which were to be paid for on delivery. It was argued that as to these the nature of the contract fixed the place of sale at the residence of the consignees and made the express company the agent of the consignors, and that the sale of liquor being within the control of the State, the express company thereby became liable to the penalties of the state prohibition laws.

In Adams Express Co. v. Iowa," however, the court declared the question as to when title to the liquors passed to be irrelevant, the material point being whether, in point of fact, interstate commerce could be said to be interfered with. This they declared would result from an attempt on the part of the States to restrain or punish the delivery of such C. O. D. shipments. After observing that there was a diversity of opinion as to when title to C. O. D. shipments passes, the court say: "But we need not consider this subject. Beyond possible question, the contract to sell and ship was completed in Illinois. The right of the parties to make a contract in Illinois for the sale and purchase of merchandise, and, in doing so, to fix by agreement the time when and condition on which the completed title should pass, is beyond question. The shipment from the State of Illinois into the State of Iowa of the merchandise constituted interstate commerce. To sustain, therefore, the ruling of the court below would require us to decide that the law of Iowa operated in another State so as to invalidate a lawful contract as to interstate commerce made in such other State; and, indeed, would require us to go yet further, and say that, although, under the interstate commerce clause, a citizen in one State had a right to have merchandise consigned from another State delivered to him in the State to which the shipment was made, yet that such right was so illusory that it only obtained in 17 196 U. S. 147; 25 Sup. Ct. Rep. 185; 49 L. ed. 424.