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that the inspector or his deputies shall keep a record of those engaged in the manufacture, brewing, and sale of malt liquors within the state, and of the quantity manufactured or sold, and shall make a full report to the governor concerning the same, and imposes upon the officials named the duty of inspecting all beer or other malt liquors manufactured or sold within the state, to see that they conform to the standard of purity which the law requires. The act further imposes an inspection fee, charge, or license, accompanied with provisions for a label or stamp to be affixed upon the packages containing the beer or other malt liquor so manufactured or offered for sale within the state.

Concerning beer or other malt liquors manufactured outside of the state of Missouri and shipped into that state for sale and consumption within the state, after de livery and receipt under the shipment, the act provides as follows:

"Sec. 5. Every person, persons, or corporation, who shall receive for sale, or offer for sale, any beer or other malt liquors other than those manufactured in this state, shall, upon receipt, of same, and before offering for sale, notify the inspector, who shall be furnished with a sworn affidavit, subscribed by an officer authorized to administer oaths, from the manufacturer thereof, or or other reputable person having actual knowledge of the composition of said beer or other malt liquors, that no material other than pure hops, or the extracts of hops, or pure barley, malt, or wholesome yeast, or rice, was used in the manufacture of same; upon the receipt of said affidavit the inspector shall inspect and label the packages containing said beer or malt liquors, for which services he shall receive like fees as those imposed upon the manufacturers of beer and malt liquors in this state."

In the printed and oral argument at bar all the contentions concerning discrimination are waived, and the sole ground relied upon is the assertion that the statute constitutes a regulation of commerce, and is, hence, repugnant to the commerce clause

of the Constitution of the United States. Brevity and clearness in the consideration of the propositions relied upon to sustain the contentions made will be subserved by fixing at the outset exactly what the statute does, and by stating the legal principles which are controlling.

The subject with which the statute deals is beer and other malt liquors. Plainly, it operates upon such liquors only when manufactured in the state, or, if shipped from other states, after their arrival in the state, and when they are held there for sale and consumption therein.

It is provided by the act of Congress, commonly styled the Wilson act (26 Stat. at L. 313, chap. 728, U. S. Comp. Stat. 1901, p. 3177), as follows:

"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."

The scope of this act and the power of Congress to adopt it was passed upon in Re Rahrer (Wilkerson v. Rahrer) 140 U. S. 545, 35 L. ed. 572, 11 Sup. Ct. Rep. 865. The scope of the act was thus stated (p. 560, L. ed. p. 576, Sup. Ct. Rep. p. 868) :

"Congress has now spoken and declared that imported liquors or liquids shall, upon arrival in a state, fall within the category of domestic articles of a similar nature."

It was decided that, although the act had the effect thus stated, it was not repugnant to the Constitution of the United States, the court saying (p. 562, L. ed. p. 576, Sup. Ct. Rep. p. 869):

"No reason is perceived why, if Congress chooses to provide that certain designated subjects of interstate commerce shall be governed by a rule which devests them of that character at an earlier period of time than would otherwise be the case, it is not within its competency to do so."

In Rhodes v. Iowa, 170 U. S. 412, 42 L. ed. 1088, 18 Sup. Ct. Rep. 664, the purport of the act was again passed upon. Reiterating the ruling made in the Rahrer Case, it was decided that, whilst the Wilson act caused liquors shipped into Iowa from another state to be devested of their character as articles of interstate of interstate commerce after their delivery in Iowa to the person to whom consigned, nevertheless the act did not authorize the laws of Iowa to be applied to such merchandise whilst in transit from another state and before delivery in Iowa.

In Vance v. W. A. Vandercook Co. 170 U. S. 438, 42 L. ed. 1100, 18 Sup. Ct. Rep. 674, the operation of a liquor law of South Carolina was considered. By the act in question the state of South Carolina took exclusive charge of the sale of liquor within the state, appointed its agents to sell the same, and empowered them to purchase the liquor, which was to be brought into the

state for sale. The fact was that by the assumption that the law of Missouri was act in question the state of South Carolina, not enacted in the exercise of the police instead of forbidding the traffic in liquor, power of that state. Certainly the reguauthorized it, and engaged in the liquor busi-lation of the sale of liquor is essentially a ness for its own account, using it as a police power. Surely, also, provision made source of revenue. The act, in addition, af- in a state law tending to determine the fixed prerequisite conditions to the ship- purity of malt liquors offered for sale and ment into South Carolina from other states consumption within a state is likewise an of liquor to a consumer who had purchased exertion of the same power. Conceding that it for his own use, and not for sale. Con- the law in question may be inadequate to acsidering the Wilson act and the previous complish the purpose designed, and prodecisions applying it, it was decided that duces a large revenue to the state over and the South Carolina law, in so far as it took above the cost of inspection, this affords no charge in behalf of the state of the sale of Federal ground upon which to hold that liquor within the state, and made such sale the police power of the state was not a source of revenue, was not an interference brought into play in making the enactment with interstate commerce. In so far, how- where the law does not operate upon a subever, as the state law imposed burdens on ject within Federal control. This becomes the right to ship liquor from another state evident when it is borne in mind that, to a resident of South Carolina intended for whether the statute be regarded as a prohis own use, and not for sale within the hibition, as a regulation, as a license, or as state, the law was held to be repugnant to an inspection law, if it encroached upon the the Constitution, because the Wilson act, Federal authority it would be void, and, on whilst it delegated to the state plenary the contrary, in all or any of these aspects, power to regulate the sale of liquors in the law would be valid, so far as the Federal South Carolina shipped into the state from Constitution is concerned, if it did not so other states, did not recognize the right of encroach. The purpose of the Wilson act a state to prevent an individual from order- was to make liquor after its arrival a doing liquors from outside of the state of his mestic product, and to confer power upon residence for his own consumption, and not the states to deal with it accordingly. The for sale. police power is, hence, to be measured by the right of a state to control or regulate domestic products, a state, and not a Federal, question as respects the commerce clause of the Constitution. So far as the state aspect is concerned, the matter is foreclosed by a decision of the supreme court of Missouri passing upon the validity, under the state Constitution, of the law now under consideration. State v. Bixman, 162 Mo. 1, 62 S. W. 828. In that case a person was proceeded against for selling malt liquor made within the state of Missouri without complying with the statute. The validity of the statute was assailed, among others, on the ground that it was a revenue law and repugnant to the uniformity clause of the state Constitution; that it was not an inspection law because it did not provide for an adequate inspection, and because the burden which it imposed was obviously out of all proportion to the cost of inspection, since the charge which was exacted copiously enriched the state treasury. The state court, after an elaborate review of its previous decisions, held that the mere fact that a revenue was produced by the execution of the statute did not cause the statute to be merely a revenue measure, and that, although the inspection which the law provided might be inadequate, nevertheless the statute did not violate the state Constitution. These views were sustained upon the But the proposition rests upon the mere ground that the statute dealt with a subject

Quite recently, at this term, in American Exp. Co. v. Iowa, 196 U. S. 133, 25 Sup. Ct. Rep. 182, 49 L. ed. 424, and Adams Exp. Co. v. Iowa, 196 U. S. 147, 25 Sup. Ct. Rep. 185, 49 L. ed. 424, the construction affixed to the Wilson act in the previous cases was applied, and the power of the state of Iowa to control the sale of liquors shipped from another state into that state, after their delivery to the consignee, was upheld.

Applying the Wilson act and the decisions thereunder to the statute here assailed, we think it clear that the contention that it is repugnant to the commerce clause of the Constitution is without merit, unless the reasons urged to show that the present case is not within the scope of the Wilson act be well founded. We proceed to consider the contentions relied on to establish that proposition.

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1st. The Wilson act, it is argued, subjects liquors shipped from one state into another, after their arrival at their destination, only to the "laws of such state or territory enacted in the exercise of its police powers. As, it is said, the law of Missouri was not enacted in the exercise of the police power, hence malt liquor received from another state, and held in Missouri for sale, retained its character as an article of interstate commerce until sold in the original package.

"In our opinion it [the law] is a police regulation imposing conditions upon the business of manufacturing and selling beer and malt liquors in this state, which business the state may absolutely suppress, or permit upon such terms as the legislature may prescribe. We construe the act, in view of all its parts and in connection with other license laws of this state, and hold that the fee exacted is the price which the state demands for the privilege of doing the business of brewing and selling beer and malt liquors in this state, and it is immaterial by what name it is called."

which was peculiarly within the police | is not open to discussion, as a similar conpower of the state. Summing up its con- tention was expressly ruled upon in Vance clusions as to the validity of the statute, v. W. A. Vandercook Co. 170 U. S. 438, 42 the court declared: L. ed. 1100, 18 Sup. Ct. Rep. 674. In that case, as has already been said, the state of South Carolina had, by law, taken charge of the sale of liquors in the various counties of the state, no liquor being allowed to be sold except through the state agencies. The law by which this system was put in force had been upheld by the state courts as a lawful exertion of the police power. The validity of the act was assailed in the circuit court of the United States on the ground of its repugnancy to the commerce clause of the Constitution, and the lower court sustained the contention. Among the grounds relied upon in this court was that the law in question was not within the Wilson act, because it was not an exertion of the police power of the state, since it did not forbid the sale of liquor, but, on the contrary, fostered and encouraged it and made it a source of revenue. In holding this proposition to be untenable the court said (p. 447, L. ed. p. 1104, Sup. Ct. Rep. p. 677) :

It

As, then, the supreme court, of Missouri has determined that the statute does not conflict with the state Constitution, and is valid because it is a police regulation imposing conditions upon the business of manufacturing and selling beer in Missouri, a traffic which it is conceded the state had the power to prohibit entirely, it follows that we are without power, from a consideration of the state Constitution, to treat the law as invalid because of the revenue provisions of the state Constitution or other limitations imposed by that Constitution upon the state government. necessarily results from this that the assailed law comes directly within the express terms of the Wilson act. The determination of this question by the supreme court of Missouri, as to liquor manufactured in Missouri, in the absence of discrimination, is necessarily conclusive, also, as to the character of the law when applied to a similar article shipped from other states into Missouri after arrival at its destination, and when held for sale and consump-nies any and all authority to regulate or tion in that state. This must be the case, since, as we have seen, the Wilson act, to use the words of Re Rahrer, places liquor coming from another state after its arrival "within the category of domestic articles of a similar nature."

To decide that an exertion by a state of its power to regulate the sale of malt liquors manufactured within the state was an exercise of its police authority, and yet to say that the same, when applied to liquor shipped into the state from other states, after delivery, was not an exertion of the police power, would be to destroy the Wilson act, and frustrate the very object which it was intended to accomplish, and, besides, would overrule the previous decisions of this court upholding and enforcing that statute.

We need not, however, further consider the subject, since the proposition relied upon

"The confusion of thought which is involved in the proposition to which we have just referred is embodied in the principle upon which the court below mainly rested its conclusion. That is, if all alcoholic liquors, by whomsoever held, are declared contraband, they cease to belong to commerce, and are within the jurisdiction of the police power; but so long as their manufacture, purchase, or sale, and their use as a beverage in any form, or by any person, are recognized, they belong to commerce, and are without the domain of the police power.' But this restricts the police power to the mere right to forbid, and de

restrict. The manifest purpose of the act of Congress was to subject original packages to the regulations and restraints imposed by the state law. If the purpose of the act had been to allow the state law to govern the sale of the original package only where the sales of all liquor were forbidden, this object could have found ready expression, whilst, on the contrary, the entire context of the act manifests the purpose of Congress to give to the respective states full legislative authority, both for the purpose of prohibition, as well as for that of regulation and restriction with reference to the sale in original packages of intoxicating liquors brought in from other states."

2d. Conceding, it is argued, that the Missouri statute attached to the liquor after delivery at its destination in Missouri, nevertheless, as the burdens which the statute imposed were of such a character as

to affect traffic in the article, and hence operated to deter shipments into Missouri, therefore the statute must be treated as if it bore upon the liquor while still in transit as a subject of interstate commerce. This proposition simply amounts to contending that the Wilson act should be disregarded, since to enforce it would give the states power to regulate interstate traffic in liquor. If, when a state has but exerted the power lawfully conferred upon it by the act of Congress, its action becomes void as an interference with interstate commerce because of the reflex or indirect or indirect influence arising from the exercise of the lawful authority, the result would be that a state might exert its power to control or regulate liquor; yet if it did so its action would amount to a regulation of commerce and be void. And this would be but to say at one and the same time that the power could and could not be exercised. But the proposition would have a much more serious result, since to uphold it would overthrow the distinction between direct and indirect burdens upon interstate commerce, by by means of which the harmonious workings of our constitutional system has been made possible.

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3d. It is further insisted that, as the Missouri law is denominated in its text as an inspection law, and does not provide an adequate inspection, and, besides, imposes a burden beyond the cost of inspection, the law is repugnant to the Constitution of the United States when tested by previous decisions of this court determining when particular inspection laws amounted to regulation of commerce, citing Atlantic & P. Teleg. Co. v. Philadelphia, 190 U. S. 160, 47 L. ed. 995, 23 Sup. Ct. Rep. 817, and Postal Teleg. Cable Co. v. New Hope, 192 U. S. 55, 48 L. ed. 338, 24 Sup. Ct. Rep. 204. These cases, however, simply considered state laws which operated upon interstate commerce. To apply them to the Missouri law necessarily involves deciding that the malt liquors to which that law applied had not ceased to be articles of interstate commerce; and, therefore, again, merely disregards the Wilson act and the decisions of this court concerning it. Indeed, the whole argument upon which the entire case of the plaintiff in error proceeds rests upon this fallacious assumption, since it admits on the one hand the validity of the Wilson law, and yet seeks to take this case out of the reach of its provisions by distinctions which have no foundation in reason, unless it be that that law is to be disregarded or held to be unconstitutional.

Decree affirmed.

Mr. Justice Brown, dissenting:

The opinion of the court is put upon the ground that the Wilson act subjects liquors shipped from one state into another, after their arrival at their destination, to the laws of the state or territory enacted in the exercise of its police powers; and that, as an inspection law is a law enacted in the exercise of its police powers, the law in question is within the act; and we are consequently precluded from inquiring whether such law is a legitimate exercise of the police powers or a mere revenue law to which the name of an inspection law is given for the purpose of obviating the difficulty, under the state Constitution, of upholding it as a revenue measure. It may be conceded at once that, if the law in question be a legitimate inspection law, it necessarily follows that, as it was enacted in the exercise of the police power of the state, it applies to foreign liquors "to the same extent and in the same manner as though such liquors or liquids had been produced in such state or territory, and shall not be exempt therefrom by reason of being introduced in original packages or otherwise." The opinion practically concedes that the act must, if constitutional, be supported as an inspection law, passed under the police power of the state; and such was the position taken by the supreme court of Missouri. It was admitted in that case, both by the majority and minority judges, that the act could not be supported as a revenue measure, because in conflict with the Constitution of the state.

To determine the question whether it can be supported as an inspection law it is necessary to consider at some length the nature of its provisions.

The agreed statement of facts shows that the plaintiff manufactures in the state of Wisconsin ten different kinds or grades of beer and malt liquors, each kind being separately manufactured and requiring special treatment; that it ships into the state of Missouri annually not less than 15,000 barrels of malt liquors, of 31 gallons each, of the aggregate value of $100,000; that there are a large number of domestic manufacturers of malt liquor in the state of Missouri, whose annual productions amount to over 2,250,000 barrels of beer of the aggregate value of $12,250,000, of which 1,275,000 are sold within the state; that there are other manufacturers outside of the state standing in the same position as the plaintiff, who annually ship into the state not less than 165,000 barrels of the aggregate value of $10,725,000, beside that imported from abroad; that plaintiff is licensed to carry on business in Missouri; that such business consists of shipping into the state, for the purposes of selling therein or reship

ping therefrom, the product of its man- | have have contemplated that the inspectors ufacture in Wisconsin; that in the usual should visit breweries outside of the state course of its business it is compelled to maintain large warehouses in the state, as well as an office, as a necessary adjunct to the conduct of its business; that it maintains no manufactory in Missouri, and that it disposes of its beer in the original packages in which it is shipped.

There are insuperable difficulties in the way of the maintenance of this act as an inspection measure.

To inspect, as defined by Webster, is to examine, to view closely and critically, especially in order to ascertain quality and condition, to detect errors, etc.

and inspect the mash, or that they should open the packages after their receipt in the state, and thus spoil the beer, it would seem that the inspectors have no alternative but to accept the affidavit as a basis of their inspection. This is said to be the manner in which the law is practically administered. Indeed, the agreed facts show that the beer involved in this case was inspected while still in the hands of the plaintiff, that the packages were never opened, but the affidavit was accepted as a sufficient compliance with the act.

While this may be the only inspection practicable, it is really no inspection at all, since it is dependent entirely upon the veracity of the person making the affidavit. There is no power given to these inspectors to investigate the truth of the statements contained in these affidavits, except, possibly, by tasting or analyzing the beer. There is no penalty provided for making a false affidavit, nor can the state proceed against the manufacturer who is beyond the jurisdiction of the court. There is no assurance that the affidavit, which may be made in the state of manufacture as well as in Missouri, has any relation to the particular shipment to which it is sought to apply it, and there is no power given even to open the boxes in which bottled liquors purport to be inclosed, to examine their contents. The object of inspection laws is to require such examination of the thing inspected as will insure to the public a safe and wholesome article. some article. Obviously to secure this the inspection must be made by officers appointed for that purpose; at least, it cannot be delegated, as it virtually is in this case, to the manufacturer. The requirement of an affidavit, and the acceptance of this in lieu of an actual inspection, make the affi

The object of the act is declared by § 4 to be to exclude the use of any substance, material, or chemical, in the manufacture of malt liquors, other than pure hops, or pure extract of hops, or pure barley, malt, or wholesome yeast or rice. So far as beer manufactured within the state is concerned, the inspection is made, or at least may be made (State v. Bixman, 162 Mo. 1, 34, 62 S. W. 828), of the ingredients of the beer in the mash tub and before the beer is actually brewed. The inspector goes to the brewery and makes his test by taking a sample of the mash of the beer there fermenting, and, although thousands of gallons may be made from one mash, a single inspection is sufficient. With respect to beer manufactured outside of the state, § 5 requires that the consignee of the beer shall notify the inspector, who shall be furnished with a sworn affidavit, subscribed by an officer authorized to administer oaths, from the manufacturer thereof or other reputable person having actual knowledge of the composition of said beer or malt liquors, that no material other than pure hops, or the extract of hops, or pure barley, malt, or wholesome yeast or rice, was used in the manufacture of the same. "Upon the re-ant, who is the manufacturer or his agent, ceipt of said affidavit the inspector shall inspect and label the packages containing said beer or malt liquors, for which services he shall receive like fees as those imposed upon the manufacturers of beers and malt liquors in this state."

the sole judge of the fact whether the liquor contains only the ingredients allowed by law. We cannot treat this as a bona fide inspection. To justify an inspection in law there must be an inspection in fact.

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We had occasion in Vance v. W. A. VanIt is true this section seems to require dercook Co. 170 U. S. 438-456, 42 L. ed. that upon receipt of such affidavit the in- 1100-1107, 18 Sup. Ct Rep. 674, to pass spector shall inspect and label the packages. upon a law requiring Sample of alcoholic But similar words used in § 7 with regard liquor proposed to be shipped, to be sent to domestic beer were interpreted by the to the state officer in advance of the shipsupreme court in State v. Bixman, 162 Mo. ment, and as a prerequisite to making a 1, 62 S. W. 828, as requiring only an in- subsequent shipment. We held that the spection of the mash at the brewery, since inspection of a sample so sent in advance the actual inspection of the beer would re- was not in the slightest degree an inspection quire the opening of each package, or at of the goods subsequently sent in to the least a sample package, which would prac-state. "The sample may be one thing and tically ruin the contents. As it is impos- the merchandise which thereafter comes in sible to suppose that the legislature should another." This is a much stronger case for

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