This case involves the proper construction of what is known as the "Allison Law," being chapter 31 of the Acts of the First Called Session of the Thirty-third Legislature. This Act became effective on the 19th day of last November, and soon thereafter this cause was instituted, and on appeal was filed in this court in December. Oral argument was heard, and thereafter time was given both the Attorney General and counsel for relator to file briefs herein, and both have filed able and exhaustive briefs, discussing in almost all its phases legislation relating to the regulation and prohibition of intoxicating liquors. That portion of the law which may be said to be involved in this decision are sections 2, 3, 4 and 5 of the Act, which read as follows:
"Sec. 2. Except as otherwise provided in this Act it shall be unlawful for any person, firm or corporation, or any officer, agent or employe
thereof in this State to deliver to any other person, firm or corporation, or any agent, officer or employe thereof, any intoxicating liquor for shipment, transportation, carriage or delivery within this State.
"Sec. 3. Except as otherwise provided in this Act, it shall be unlawful for any person, firm or corporation, or any agent, officer or employe thereof in this State to receive from any other person, firm or corporation, or any agent, officer or employe thereof, any intoxicating liquor for shipment, transportation, carriage or delivery within this State.
"Sec. 4. Except as otherwise provided in this Act, it shall be unlawful for any person, firm or corporation, or any agent, officer or employe thereof to ship, transport, carry or deliver any intoxicating liquor to any other person, firm or corporation, or any agent, officer or employe thereof in this State.
"Sec. 5. It shall be unlawful for any person, firm or corporation, or any officer, agent or employe thereof to ship or transport in any manner or by any means whatsoever any spirituous, vinous, malted, fermented or other intoxicating liquor of any kind from a point within any other State or Territory or district of the United States to any person, firm or corporation, or agent, officer or employe thereof in this State residing or living within any territory within this State where the sale of intoxicating liquors has been prohibited under the laws of this State, which such spirituous, vinous or malted, fermented or other intoxicating liquor is intended by any person interested therein to be received, possessed, sold or in any manner used in violation of any law of this State."
It will be noted that section 5 of the Act is the one that deals with the shipment of intoxicating liquors from one State to another State — what is termed interstate commerce. It will be further noted that this section does not absolutely prohibit the interstate shipment and transportation of intoxicating liquor, but only such "as are intended by any person interested therein to be received, possessed, sold or in any manner used in violation of any law of this State." Had the Legislature intended to prohibit altogether the interstate shipment of intoxicating liquors, it would have been easy to have had the Act so read. If when enacting section five (5) it had stopped when reaching the word "which" in line 8 of the Session Acts, said section would have read:
"Sec. 5. It shall be unlawful for any person, firm or corporation, or any officer, agent or employe thereof to ship or transport in any manner or by any means whatsoever any spirituous, vinous, malted, fermented or other intoxicating liquor of any kind from a point within any other State or Territory or district of the United States to any person, firm or corporation, or agent, officer, or employe thereof in this State residing or living within any territory within this State where the sale of intoxicating liquors has been prohibited under the laws of this State."
The language then would have needed no construction, for it would have, in clear and unequivocal terms, prohibited the interstate shipment and transportation of intoxicating liquors into prohibition territory. But for some reason the Legislature did not elect to so declare the law. Instead of so doing it elected to prohibit only such shipments
as were intended "to be used or possessed in violation of the laws of this State." When they added to section 5 the qualifying words "which such spirituous, vinous, or malted, fermented or other intoxicating liquor is intended by any person interested therein to be received, possessed, sold or in any manner used in violation of any law of this State," it becomes an issue of fact in each and every case of interstate shipment and transportation of intoxicating liquor whether or not such liquors were "intended by any person interested therein to be received, possessed, sold or in any manner used in violation of any law of this State."
In this case there is a statement of facts, and it may be said to conclusively show that, after the Allison law became effective, H.A. Laird, who resides in Kaufman County, Texas, ordered from Rush Distilling Company of Fort Smith, Arkansas, four quarts of whisky, sending the money therefor along with his order. When the Rush Distilling Company received the order at Fort Smith, Arkansas, it delivered to the Wells Fargo Express Company, at its office in Fort Smith, Arkansas, the four quarts of whisky to be shipped and transported to Mr. Laird at Kaufman, Texas, and said liquor was transported by the express company to Kaufman, Texas. Relator, Elmer Peede, is agent of the express company at such point, and he refused to deliver the whisky to Mr. Laird unless Mr. Laird would make an affidavit that such liquor was not intended to be received, possessed, sold or in any manner used in violation of any law of this State, Kaufman, Texas, being situate in prohibition territory. Mr. Laird made this affidavit before Will A. Hindman, a notary public, and delivered it to the express agent, relator Peede, who then delivered to him the liquor. For making such delivery he is being prosecuted in this case.
The affidavit made by Mr. Laird and delivered to the express agent reads:
"Before the undersigned authority, a notary public in and for Kaufman County, Texas, on this day personally appeared H.A. Laird, known to me to be a credible citizen of Kaufman County, Texas, and over the age of 21 years, and after being by me duly sworn on his oath deposes and says: That he is the consignee of a certain package of whisky shipped from Fort Smith, Arkansas, that the consignor of said package is the Rush Distilling Company and that said package of whisky was ordered by affiant for his own personal use, and that of his family only, that said package of whisky was shipped to affiant from Fort Smith, Arkansas, since Dec. 1st, 1913, and was duly received by the Wells Fargo Co. Express at Kaufman, Texas, and that said whisky is intended by me to be used by me for my own personal use and the use of my family only, and that no other person than this affiant is interested in such shipment, and said whisky was not ordered, shipped, received or possessed by me or delivered to me for the purposes of sale, or in any manner to be used by me for any other purpose or in violation of any law of the State of Texas, or of any law of the United States."
Mr. Terry, the county attorney of Kaufman County, testified: "This
prosecution was not instituted upon the theory that the liquor delivered to Laird was ordered, possessed, or delivered for any unlawful purpose; this prosecution was instituted upon the theory that any delivery of intoxicating liquors in a local option county under an interstate shipment is unlawful; there was no evidence upon the examining trial whatever, or suspicion that the liquor was intended to be used for any unlawful purpose and I know of no such evidence now."
It is thus seen that no contention was made that the whisky shipped, transported and delivered to Mr. Laird was intended to be received, possessed, sold or in any manner used in violation of the law, but it is frankly admitted and proven that such was not the case, and this prosecution was instituted upon the theory that all interstate shipment and transportation of intoxicatingliquors was prohibited by the above quoted Act. Such construction would do violence to the language used in section 5 of the Act relating to the interstate shipment of intoxicating liquors, and would make it necessary for the court to strike from said section the words, "which such spirituous, vinous or malted, fermented or other intoxicating liquor is intended by any person interested therein to be received, possessed, sold or in any manner used in violation of any law of this State," and this the court is not authorized to do. It is immaterial whether, in the wisdom of the court, it would be best that such words had been omitted from the law. The court is not the law enacting agency of the government — that function is conferred upon the Legislature, and all the courts can do is to declare and enforce the law as written and passed by the legislative branch of the government. It is not for us to question or conjecture why the Legislature so provided in that section dealing with the interstate shipment of intoxicating liquors. It may be they questioned their authority to prohibit all interstate shipments of intoxicating liquors, or it may be they thought it not wise to do so, but whatever may have been their reason, the law as written by them must govern, and they have in unquestionable terms provided that in so far as interstate shipments of intoxicating liquors (at least) are concerned that the shipment and transportation into prohibition territory is only prohibited when intended to be received, possessed, sold or in some manner used in violation of the laws of this State. And the right of a common carrier to accept for shipment and transport for hire, would necessarily carry with it the right to deliver the consignment to the consignee.
In the statement of facts it is conceded that the liquor was intended only for the personal use of Mr. Laird and members of his family, and the county attorney says, "there was no evidence or suspicion that the liquor was intended for any unlawful purpose." There is no law of this State that makes it a criminal offense for a person to drink intoxicating liquors or to give it to members of his family. In fact, section 9 of the Act specifically recognizes a man's right, and makes it legal for one to have intoxicating liquor in his possession for his own use and the use of members of his family. That section reads:
"Sec. 9. Nothing in this Act shall make it unlawful for any person
for the use of himself or the members of his family residing with him, to personally carry such liquor to any point within this State."
Thus it is made clear that it is not unlawful for a man to possess liquor in prohibition territory, and the use of it by himself and the use of it by members of the family of a person having it in his possession in prohibition territory is not unlawful, for the statute so declares.
But it is contended that sections 2, 3 and 4, which relate to intrastate shipments, or shipments from one point in this State to another point in the State, absolutely prohibit the transportation, shipment and delivery of intoxicating liquors, and that such sections do not contain the qualifying clause in section 5, "which such spirituous, vinous or malted, fermented or other intoxicating liquor is intended by any person interested therein to be received, possessed, sold or in any manner used in violation of any law of this State," and therefore it was intended to render unlawful all shipments, transportation and delivery of intoxicating liquors in prohibition territory. However, those making such contention must have overlooked the qualifying clause in sections 2, 3 and 4, which reads: "Except as otherwise provided in this Act," for in section 5, when dealing with interstate shipments, the law "otherwise provides," for it then recites that it only shall be unlawful to "ship and transport from a point without the State to a point within the State when such liquors are intended by some person interested therein to be received, possessed, sold or in some manner used in violation of any law of this State," and the provisions of sections 2, 3 and 4 can not be made to annul and render void the language of section 5, which is the only section of the law that relates to interstate shipments, and if the Legislature has provided one rule of law as it relates to interstate shipments, and another as it relates to intrastate shipments, if they have done so, it is not for us to question their wisdom in so providing. However, the question of intrastate shipments is not involved in this case, and we do not wish to be understood as expressing any opinion as to whether or not by the terms of the Allison law such shipments are prohibited when intended for one's own use, from one point in this State to another point in this State. That question will be decided when it properly arises in a case before the court. What we do hold, that section 5, which is the only section that deals with shipping liquors from without the State to a point within the State, is the section that must govern in this case, for it is an undisputed fact that the shipment originated in Arkansas, to be carried to a point in Texas, and any prosecution had must be under the provisions of that section, and as it only prohibits shipments when intended to be sold or used in violation of a law of this State, the facts in this case show no offense to have been committed, for as before stated as the carrier was authorized under this section to accept the shipment and transport it, it certainly had a right to make a delivery of the shipment to the consignee, for under all the authorities the transportation is not complete until delivery is made to the consignee.
Having this view of the law, renders it wholly unnecessary to discuss
the various constitutional questions raised in the briefs on file, and we would not do so, only our associates on the bench, taking a somewhat different view as to the effect of the testimony and law in the various and numerous consultations we have had over this case since it has been submitted to us for consideration, perhaps renders it necessary to express our views, as they may do so in the opinions they are preparing. Under such circumstances we do not think it improper to briefly review the history of legislation relating to the prohibition of the manufacture and sale of intoxicating liquors. When some of the States first adopted laws absolutely prohibiting the manufacture and sale of intoxicating liquors, their constitutionality was vigorously assailed in the Supreme Court of the United States, but that the State possessed such power and that such a law was valid was forever settled in the case of Mugler v. Kansas,123 U.S. 623, where there is a learned and able discussion of the question. This decision has been reaffirmed by the Supreme Court of the United States in all later cases, and has been followed by the Supreme Court of every State where the question has been raised. However, the Supreme Court of the United States, in the case of Bowman v. Chicago Northwestern Ry. Co., 125 U.S. 465, and Leisy v. Hardin, 135 U.S. 100, did very much to render ineffectual the State prohibitory laws, for it was held in those cases that any person had the right to import intoxicating liquors in unlimited quantities, and sell such liquors in the original packages, even though a State had prohibited its manufacture and sale within its borders — the holding being that intoxicating liquors were articles of commerce, and Congress had control over interstate commerce, and any state law which had for its purpose the prohibition of the importation of intoxicating liquors from other States, or to prohibit the sale in the original package, was void as a restraint upon interstate commerce. After the decisions in those two cases, authorizing the sale of whisky in original packages in prohibition territory, Congress felt called upon to remedy that evil, and protect the States in their right to prohibit the sale of intoxicants within their own States and passed in August, 1890, what is known as the "Wilson bill." That Act reads: "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 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."
In the case of In re Rahrer, 140 U.S. 545, the Supreme Court of the United States held that under this Act liquors imported from one State into another State could not be sold in prohibition territory in the original package or otherwise, and that the State laws prohibiting the sale of intoxicating liquors would also prohibit the sale of imported liquors in the original package, and since that decision no liquor can
be sold in prohibition territory in original packages or otherwise. But in construing the Wilson law, the court held that the interstate commerce clause of the Federal Constitution protected interstate shipments of intoxicating liquors until its delivery to the consignee, and that all the Wilson law did was to authorize a State to prohibit its sale in the original package by the consignee after its delivery to him.
And in further construing the above Act of Congress the Supreme Court of the United States in Vance v. Vandercook Co.,170 U.S. 438, held that while under the Wilson Act the States could prohibit the sales of liquor imported from one State to another, yet a State had no authority to prohibit the importation of liquor from one State into another State. The court held: "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. 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." And in Rhodes v. Iowa, 170 U.S. 412, the court held: "That the States' power under the Wilson law to forbid the sale of intoxicating liquors does not carry with it the power to prevent its importation." Under these two decisions, and others that might be quoted, the right to import liquors from another State into prohibition territory in any quantity and under any circumstances has been upheld, thus allowing the bootlegger and other violators of the law to obtain intoxicating liquors in unlimited quantities. Having this right under the Federal Constitution and laws (which are supreme) the enforcement of the State prohibitory laws was rendered difficult, for being allowed to import liquors in unlimited quantities for any and all purposes, sales would be made in violation of law, and other unlawful uses made thereof, and in order to aid the States to more successfully and completely enforce their prohibitory laws Congress felt called upon again to act, and to restrict and restrain this unlimited right to import intoxicating liquors into prohibition territory, resulting in the passage of what is known as the Webb-Kenyon bill. This bill reads:
"An Act divesting intoxicating liquors of their interstate character in certain cases," and provides: "That the shipment or transportation, in any manner or by any means whatsoever, of any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, from one State, Territory or district of the United States, or place non-contiguous to but subject to the jurisdiction thereof, into any other State, Territory or district of the United States, or place non-contiguous to but subject to the jurisdiction thereof, or from any foreign country into any State, Territory or district of the United States, or place noncontiguous to but subject to the jurisdiction thereof, 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."
It is thus seen that Congress, although it had the right to do so, does not prohibit, nor authorize the States to prohibit, interstate shipments of intoxicating liquor, but only prohibits the interstate shipment when intended to be received or possessed to be sold or used in violation of a law of the State. It removed the protecting arm of the interstate commerce clause of the Federal Constitution thus far and no further, and to hold otherwise, in our opinion, would render, under the decisions of the Supreme Court of the United States, section 5 of the Allison law violative of the interstate commerce clause of the Constitution of the United States, and open wide the door to the interstate shipment of intoxicating liquors for both legal and illegal purposes. Congress closed and authorized the State to close the door to interstate shipments when such liquors are intended for sale in violation of the law of the State, or to be in any manner used in violation of a law of the State. Thus far Congress saw proper to go and no further. This is made manifest by the remarks of Mr. Webb, the author of the bill, when it was pending in Congress. While considering the bill the following colloquy took place:
"Mr. Carlin. The purpose of this bill is not to interfere with shipments, but simply to prohibit the shipment of liquor for sale where such sale would be illegal?
"Mr. Webb. Yes, sir; that is the object. The bill has been criticised by some of our temperance friends because it does not undertake to prohibit the whisky for individual use. As long as our Supreme Court holds that liquor is a legitimate subject of commerce, and as long as men have an appetite for liquor, and as long as the State does not prohibit the drinking of whisky, I do not think a law will be passed prohibiting the shipment of whisky for a man's personal use."
If the language of the bill was obscure or ambiguous this would be material in construing it. But the language is plain and unambiguous, and that the author used the language he did intentionally and he had not sought, and did not intend to prohibit interstate shipment of intoxicating liquors when intended for one's own use, but only when intended to be sold or used in violation of the law in prohibition territory is manifest.
It will be noticed that section 5 of the Allison law relating to interstate shipments is a literal copy of the provisions of the Webb-Kenyon Act. So if the Webb-Kenyon law is violative of no provision of the Constitution, then certainly that section of the Allison law is valid. But the constitutionality of the Webb-Kenyon Act is assailed. This Act has not been before the Supreme Court of the United States in so far as we have been able to ascertain, but it has been before the courts of last resort in a number of the States, and wherever the question has been passed on the validity of the law has been sustained, and to our mind, there is no question as to its validity. (Southern Express Co. v.
State, 66 So. Rep. (Ala.), 115; American Express Co. v. Beer, 65 So. Rep. (Miss.), 575; State v. United States Express Co., 145 N.W. Rep. (Iowa), 451; Palmer v. So. Express Co., 165 S.W. Rep. (Tenn.), 236; State v. Grier, 88 Atl. (Del.), 579; Adams Express Co. v. Commonwealth, 157 S.W. Rep. (Ky.), 908; Atkinson v. So. Express Co., 78 S.E. Rep. (S.C.), 516; State v. Cardwell, 81 S.E. Rep. (N.C.), 628; State v. Doe, 139 Pac. Rep. (Kan.), 1169.)
While this identical law has not been before the Supreme Court of the United States, yet similar statutes have been passed on by that court and their validity upheld. In the case of Hoke v. United States, 227 U.S. 308, it was held that Congress, in the exercise of its power to regulate commerce, could prohibit the transportation of women from one State to another State for immoral purposes. In the case of Champion v. Ames, 188 U.S. 321, it was held that the shipment and transportation of lottery tickets from one State to another State by an express company may be prohibited by Congress under its power to regulate interstate commerce. In that case it is said: "That regulation may sometimes appropriately assume the form of prohibition is also illustrated by the case of diseased cattle, transported from one State to another. Such cattle may have, notwithstanding their condition, a value in money for some purposes, and yet it can not be doubted that Congress, under its power to regulate commerce, may either provide for their being inspected before transportation begins, or, in its discretion, may prohibit their being transported from one State to another. Indeed, by the Act of May 29, 1884, chapter 60 (23 Stat. at L., 32), sec. 6, U.S. Comp. Stat., 1901, p. 3184, Congress has so provided." By this Act all cattle are not prohibited from being shipped from one State to another, but only certain diseased cattle, and some agency of government must be given the authority under the law to determine what cattle are so diseased. So by the Webb-Kenyon Act the shipment of all intoxicating liquors from one State to another is not prohibited, but only such liquors as are intended to be received, possessed, sold or in some manner used in violation of the law of a State.
Again Congress has prohibited by law the carrying of obscene literature and articles designed for immoral use from one State to another. (29 Stat. at L., 512; chap. 17, U.S. Comp. Stat., 1901, p. 3180.) This law was upheld in United States v. Popper, 98 Fed., 423. And if Congress can prohibit the transportation of women from one State to another for an immoral purpose, and can prohibit the shipment and transportation of obscene literature, etc., by what rule of law can it be denied the right to prohibit the shipment and transportation of intoxicating liquors from one State to another State when intended to be received, possessed, sold or used in violation of law, or sold contrary to the law of the State? We are of the opinion, as hereinbefore stated, that neither the Webb-Kenyon law nor section 5 of the Allison law (under which this prosecution must be maintained under the facts, if maintained at all) is violative of any provision of the Constitution of this State or the United States, and are valid laws.
As to whether or not, since the passage of the Webb-Kenyon law, the Legislature could pass a law prohibiting the interstate shipment and delivery of intoxicating liquors into a State for any and all purposes, even the individual use of the person to whom it was shipped, is not now before us, and it is not now necessary to discuss that question, for the State law (sec. 5 of the Allison bill) in so far as it relates to interstate shipments, does not seek to do so; it only prohibits the transportation, shipment and delivery of intoxicating liquors from a point without this State to a point within this State when such liquors are intended to be received, possessed, sold or used in violation of a law of this State, according to its plain language, and we hold that since the passage of the Webb-Canyon law a State may prohibit the transportation and shipment of liquors into prohibition territory within the State when intended to be received, possessed, sold or used in violation of any law of the State. Intoxicating liquors can not be shipped to be delivered to minors, for the laws of this State make it an offense to deliver intoxicating liquors to minors; it can not be shipped to be stored for others, for the law makes that an offense; it can not be shipped to be sold to any person in prohibition territory, for that is a violation of a law of the State, and in no instance can it be shipped into prohibition territory for any purpose declared unlawful by the laws of this State; but the Legislature has not yet declared the personal use of intoxicating liquors to be an offense in this State and this liquor, it is conceded, was only intended for the personal use of the consignee, Mr. Laird. On the other hand it has, in section 9 of the Allison law, declared the personal use of intoxicating liquors to be legal and lawful, and one is authorized to have and keep it in prohibition territory for the use of himself and members of his family.
As said by all the authorities, intoxicating liquors are peculiarly within the control of the police power of the State, and as to how far a State may or shall go in prohibiting its use is one within the wisdom and discretion of the legislative body of the State, unless inhibited by the Constitution. Regardless of the individual views of any member of the court, it is not their province to declare what the law should be, but we can only enforce the law as it is. If further restrictions are to be or should be placed around the interstate shipment of intoxicating liquors, this is a matter vested solely in the legislative branch of the government, and we can not engraft upon the plain letter of the law as written and enacted by the Legislature and Congress other provisions no matter how desirable we might deem them.
As it is admitted in the statement of facts on file in this case that this is a shipment from a point without the State to a point within the State, and that there is no evidence tending to show that Mr. Laird intended to receive, possess, sell or in any manner use this liquor in violation of any law of this State, we are of the opinion that relator Peede, as agent of the express company, violated no law in delivering the liquor shipped to Laird for his personal use from Fort Smith, Arkansas, and he is entitled to be discharged, and it is so ordered.
If the evidence had shown that Mr. Laird had received the liquor to sell same in prohibition territory, or use it in any manner in violation of any law of this State, relator would be guilty of an offense, for we are of the opinion that under such circumstances the agent who received it, the railroad or express company that transported it, and the agent who delivered it to the consignee, would each and every one violate the law and be subject to prosecution, and they and each of them should ascertain before accepting intoxicating liquors for interstate shipment, before transporting it, and before delivering it to the consignee, that such consignee did not intend to receive it to sell nor use in any manner in violation of any law of Texas, for if they do not adopt such rules and regulations as will enable them to ascertain such facts before receiving, shipping, transporting and delivering the same, the fact that they did not know it was to be sold or used in violation of law will not excuse them. It is only a mistake of fact that will excuse one that does not arise from a want of proper care, and the words "proper care" have been defined to be the use of all such diligence as the circumstances require and will admit of, and if a shipment is accepted, transported and delivered, and it should develop that the consignee had sold or intended to sell, or make any use of it that violated a law of this State, the fact such fact was not known at the time it was received, transported and delivered would be no defense, unless due diligence had been used prior to its acceptance for shipment, its transportation and delivery to ascertain that fact.
As hereinbefore stated, the writer had not thought a discussion of the constitutional questions called for in this case, as the facts did not show that relator had violated the law, but in deference to the views of the other members of the court we have done so to a limited extent.
The cause is reversed and the relator is discharged.
Relator discharged.
PRENDERGAST, PRESIDING JUDGE, dissenting.