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    U.S. Supreme Court


    245 U.S. 298

    No. 18.

    Submitted Nov. 7, 1917.
    Decided Dec. 10,

    Mr. Murray Allen, of Raleigh, N. C., for plaintiff in error. [245 U.S. 298, 299]   Messrs. James S. Manning, of Raleigh, N. C., and Robert H. Sykes, of Durham, N. C., for the State of North Carolina.

    Mr. Justice McREYNOLDS delivered the opinion of the court.

    Pertinent provisions of 'An act to secure the enforcement of the laws against the sale and manufacture of intoxicating liquors' established by the General Assembly of North Carolina March 3, 1913 (Pub. Laws 1913, c. 44, p. 76), are copied in the margin. 1 Section 5 requires rail- [245 U.S. 298, 300]   road companies to keep a separate book in which shall be entered the name of every person to whom intoxicating liquor is shipped, together with amount, kind, date of receipt, etc., to be followed by the consignee's signature acknowledging delivery. And it further provides that the [245 U.S. 298, 301]   book shall be open for inspection by any officer or citizen, and makes failure so to do a misdemeanor.

    Plaintiff in error was indicted at the May term, 1914, superior court, Wake county, upon a charge of violating section 5 by refusing, in the preceding January, to permit a citizen to inspect its record showing shipments of spirituous and malt liquors transported from Virginia into that county, 'said record containing the names of the consignee, consignor, date of receipt and delivery of said shipments, and to whom delivered.'

    The jury returned a special verdict in which they found:

    Upon this special verdict the state Supreme Court adjudged plaintiff in error guilty as charged, 169 N. C. 295, 84 S. E. 283, and it now maintains the judgment is erroneous, for reasons following:

    I. Section 5, c. 44, is void because an attempt by the state to regulate interstate commerce, in that it imposes as a condition precedent to delivery that the carrier shall keep a separate book containing name of person to whom liquor is shipped, amount and kind received, date of receipt and delivery, by whom and to whom delivered; and the consignee is required to receipt therefor before delivery.

    II. In order to comply with section 5 by permitting records of interstate shipments of liquor to be inspected by a mere citizen, the carrier would necessarily violate the provisions of section 15, Act to Regulate Commerce, as amended June 18, 1910 (36 Stat. 539, 551, 553 [Comp. St. 1916, 8583, pars. 6, 7]), which prohibit such action exdept under circumstances specified. (These are copied below.)2 [245 U.S. 298, 303]   III. The Webb-Kenyon Law (Act of Congress March 1, 1913, entitled 'An act divesting intoxicating liquors of their interstate character in certain cases,' 37 Stat. 699) cannot affect the application of these principles to shipments destined to points in Wake county, because it relates to liquors intended to be received, possessed, sold or used in violation of state law; and to receive or possess liquor in any quantity in that county is not unlawful.

    For some years it has been the established policy of North Carolina 'approved by popular vote and expressed and enforced by the general and many local statutes, that, except in very restricted instances, the manufacturing and sale of intoxicating liquors shall not be allowed.' Smith v. Express Company (1914) 166 N. C. 155, 157, 82 S. E. 15, 16. Since our decision in Clark Distilling Co. v. Western Maryland Ry. Co., 242 U.S. 311, 320 , 324 S., 37 Sup. Ct. 180, 184 (61 L. Ed. 326, L. R. A. 1917B, 1218, Ann. Cas. 1917B, 845), it has not been open to serious question that the Webb-kenyon Law is a valid enactment; that 'its purpose was to prevent the immunity characteristic of interstate commerce from being used to permit the receipt of liquor through such commerce in states contrary to their laws, and thus in effect afford a means by subterfuge and indirection to set such laws at naught'; and that under it a state may inhibit ship- [245 U.S. 298, 304]   ments therein of intoxicating liquors from another by a common carrier although intended for the consignee's personal use where such use is not actually forbidden. Plainly, therefore, after that enactment nothing in the laws or Constitution of the United States restricted North Carolina's power to make shipment of intoxicants into Wake county a penal offense irrespective of any personal right in a consignee there to have and consume liquor of that character.

    The challenged act instead of interposing an absolute bar against all such shipments, as it was within the power of the state to do, in effect permitted them upon conditions intended to secure publicity, to the end that public policy might not be set at naught by subterfuge and indirection. The greater power includes the less.

    The provisions of section 15, Act to Regulate Commerce, here relied on were intended to apply to matters within the exclusive control of the federal government; and when by a subsequent act Congress rendered interstate shipments of intoxicating liquors subject to state legislation, those provisions necessarily ceased to be paramount in respect of them.

    The judgment of the court below is Affirmed.

    Mr. Jstice VAN DEVANTER dissents.


    [ Footnote 1 ] Public Laws of North Carolina 1913, c. 44, p. 76:

    it is directed to search the place or places described in such complaint or information. ...

    [ Footnote 2 ] 'An Act to Regulate Commerce,' as amended June 18, 1910 (36 Stat. 539, 551, 553).

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