part of 1913, when Congress passed the so-called Webb-Kenyon Act, which prohibits interstate shipments of liquor intended to be used in violation of the law of destination, the theory being that the states may constitutionally interfere with what is not lawful interstate commerce, and there will be no federal impediment to the enforcement of their local regulations.1

The constitutional questions involved in the Webb-Kenyon Act itself have been discussed at length. Several of the state courts, moreover, have justified the law (although on varying theories), and while the issues have not been passed upon by the Supreme Court of the United States, little doubt exists, I take it, that the decision there will be favorable. The difficult questions will arise when the attempt is made to determine just what local regulations are valid, and the state courts, in the several cases which have come before them, seem to have had considerable difficulty in resting their decisions on rational principles. In fact, it does not appear that the legislation thus far passed is very well adapted to operate under the federal statute.

When congressional committees were holding hearings on the Webb-Kenyon Bill, its advocates were not very explicit in explaining just how they expected the police power of the states to be made more effective. But it was perhaps the following that they chiefly had in mind: under search and seizure proceedings, intoxicating liquors intended to be used in violation of the law in

may,

4 Act of March 1, 1913, 37 Stat. at L. 699. It provides that the transportation of intoxicating liquor between the states, "which said spirituous, vinous, malted, fermented, or other intoxicating liquor is intended, by any person interested therein, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such state, territory, or district of the United States, or place non-contiguous to but subject to the jurisdiction thereof, is hereby prohibited."

5 See the veto message of President Taft and the opinion of Attorney-General Wickersham, 63d Congress, 1st Sess., Sen. Doc. 103; my paper, "The Constitutionality of the Webb-Kenyon Bill," Cal. L. Rev., September, 1913; A. H. Kerr, "The Webb Act," Yale L. J., June, 1913; W. T. Denison, “States' Rights and the Webb-Kenyon Liquor Law," Col. L. Rev., April, 1914; and the valuable notes, 26 HARV. L. REV. 78 and 533, and 27 HARV. L. REV. 763.

• See, inter alia, State v. Grier and State v. U. S. Express Co., infra.

7 See Hearings before a Subcommittee of the Committee on the Judiciary, U. S. Senate, 62d Congress, 2d Sess. (particularly the argument of F. S. Caldwell, pp. 130 ff.), and Hearings before the Committee on the Judiciary (Subcommittee III), House of Representatives, 62d Congress, 2d Sess.

several of the states, be declared a nuisance and destroyed. Up to March 1, 1913, these proceedings were impossible as applied to interstate shipments, since any interference with the liquor before it completed its journey and reached the consignee was an interference with valid interstate commerce. Now, however, liquors may be seized, in certain cases, before reaching the consignee, if the state by appropriate enactment so permits, and there can be no valid objection that a federal right is involved: if the liquor is declared a nuisance, it will be because intended for an unlawful purpose and the Webb-Kenyon Act will apply; if not a nuisance, the courts will so judge on the basis of lawful intent, which will make the proceedings an interference with legitimate interstate commerce. There would seem, then, to be little difficulty in this method of enforcement, since, if sufficiently large quantities of liquor are shipped into dry territory, it is manifest that the law is to be violated. But many of the states have no legislation of this character, and, furthermore, declaring the liquor a nuisance is not a penal proceeding. Hence in some jurisdictions difficulty has been experienced in justifying legislation under the WebbKenyon Act.

9

For example, the Delaware Court of General Sessions and the Supreme Court of Delaware differ as to the interpretation of the so-called Hazel Law regulating the shipment, carrying, and delivery of liquors in local-option territory. The portion of the law called into question made it unlawful for any common carrier or liquor dealer to take into dry territory any spirituous liquor, under penalty for conviction, and the same inhibition was extended to any person bringing more than one gallon within twenty-four hours into local-option territory from any point within the state. In the first case under the law the defendant was a Philadelphia liquor dealer who took some liquor across the state line into local-option territory for the personal use of the consignee. The Court of General Sessions held that:

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. as the defendant was interested in the liquor, for the carrying of which he was indicted, and the same was intended by him when received

8 This is the case, for example, in South Carolina. See "Laws of the Various States Relating to Intoxicating Liquors," compiled for the use of the House Committee on the Judiciary, 1913, p. 383.

9 Act of April 8, 1913 (27 Del. Laws, c. 139).

to be carried from the state of Pennsylvania into local-option territory in the state of Delaware, that the Webb-Kenyon Act does apply, the said liquor being received, possessed, or used by the defendant in violation of the law of this state. Even though the liquor was received in another state, its possession, as well as the intention with which it was originally received, continued until delivery was made in Delaware." 10

If it had been established that the sale took place in Delaware, was prohibited by law, and was not valid as being a part of legitimate interstate commerce, the decision would have rested on different grounds; but the court went so far as to say that:

"... the carrying of liquor by a liquor dealer from one state into localoption territory of another state, for a purpose not in itself unlawful, is within the prohibition of the Webb-Kenyon Law, when the carrying or delivery of liquor into such territory is prohibited by the laws of the destination state."

But in Van Winkle v. State 11 the Delaware Supreme Court took the opposite view and declared the Hazel Law inoperative so far as it applied to interstate shipments for valid purposes.

The latter, it seems to me, is the correct ruling. The Hazel Law prohibits all importations into local-option territory, regardless of intent to violate state enactments, and is thus broader than the Webb-Kenyon Act. It would be competent, however, for the state to pass legislation similar to the federal statute and penalize the importation of intoxicants with unlawful intent. If the WebbKenyon Law is constitutional, then penal legislation to the same effect is within the power of the state. And if, in the Delaware cases, the consignments had been destined to be sold by the consignees in violation of valid local laws, the Webb-Kenyon Act would have applied; but the Hazel Law, directed at all interstate shipments, certainly valid before Congress acted on March 1, 1913, is void so far as it interferes with the freedom of commerce between the states and cannot be sustained as an exercise of a state's increased powers of police, unless there is illegal intent under a law which the local legislature has the power to enact. This is the view which was adopted in considerable measure by the Ken

10 State v. Grier, 88 Atl. 579 (Delaware, Court of General Sessions, 1913). 11 91 Atl. 385 (Delaware, Supreme Court, 1914).

tucky Court of Appeals when it considered a statute of very similar tenor.12

In Louisville & Nashville R. R. Co. v. Cook,13 the Supreme Court of the United States held inoperative, when attempted to be applied to interstate shipments, a statute of Kentucky prohibiting the introduction into local-option territory of intoxicating liquors, with a few exceptions.14 This, however, the Kentucky Court of Appeals said, did not prevent the statute from "becoming operative to a transaction withdrawn from the protection of the commerce clause by the Webb-Kenyon Act," and the carrier would therefore be "liable when it delivers liquor in a local-option territory to one who intends to use it in violation of the law of the state." The facts showed that the liquor was intended for personal consumption, a lawful use under the state law, and so the statute which was validated under the Webb-Kenyon Act did not apply.

The mistake of the Delaware Court of General Sessions seems also to have been made by the Supreme Court of Mississippi." The legislature of that state passed a law, certain portions of which followed the Webb-Kenyon Act very closely, and made it illegal to ship into the state any intoxicating liquor to be sold or possessed "either in the original package, or otherwise in violation of any law of this state now in force or hereafter to be enacted." The importation in small quantities for personal use was permitted, but, as the state court held, the net result of the statute was to make it "unlawful for any person to order and have shipped to him, or for him to receive, from without the state, intoxicating liquors in quantities in excess of one gallon." In this case the shipment was in excess of one gallon, and the court considered it clearly within the terms of the Webb-Kenyon Act, as a mere inspection thereof will demonstrate, for it [the act] expressly divests intoxicating liquor of its interstate character when it is intended, by any person interested therein, to be received in violation of the laws of the state into which it is being transported."

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Counsel contended that the liquors shipped were not "intended

12 Adams Express Co. v. Commonwealth, 157 S. W. 908 (Kentucky, 1913).

14 A number of state statutes make immaterial exceptions in regard to druggists,

etc., but these I do not need to consider.

15 Adams Express Co. v. Beer, 65 So. 575 (Mississippi, 1914).

to be sold or used in violation of any law of the state," and therefore that the Webb-Kenyon Act did not apply. (In this case also the liquors were for personal consumption.) But this contention, if valid, the court said, would have the effect of taking the word "received" from the Webb-Kenyon Law, or "interpolating between the words 'received' and 'possessed' the words 'for the purpose of being,"" and this would make the act read: "Which liquor is intended by any person interested therein to be [received] for the purpose of being possessed, sold or in any manner used . . . in violation of any laws of any such state." This amendment the court declined to make.

The question is thus raised as to the meaning of the word "received." Acceptance by the consignee of a shipment from without the state is undoubtedly a part of interstate commerce, but may it be made a crime when possession is lawful? In other words, does the Webb-Kenyon Act so enlarge the powers of the states that they can exclude intoxicating liquors from their borders by making it a crime for the consignee to receive interstate shipments? If the state has such power, two facts are evident: (1) there has been a delegation of legislative power over interstate commerce, since before the passage of the federal law the states could not interfere with the "receiving" of shipments from without their borders, although they could regulate the possession and sale; and (2) the intent, which is the sine qua non for the WebbKenyon Act to operate, becomes unlawful under a state statute which would be invalid as oppressing interstate commerce, had not the Webb-Kenyon Law been passed.

In the first case the law, so far as the word "received" is concerned, would be an unconstitutional delegation of legislative power, and the second interpretation would be absurd, — a perfect example of reasoning in a circle, since an intent to violate unconstitutional regulations would make the Webb-Kenyon Act apply in order to validate these very regulations. An intent to violate laws which the states have not the power to pass is not sufficient to make the Webb-Kenyon Act operate; in other words, the Mississippi court's interpretation would have the federal law make possible state enactments before the conditions for its own application were complied with. It follows, therefore, that state laws like the one in Mississippi must remain unconstitutional