Grogan v. Hiram Walker & Sons Anchor Line/Dissent McKenna
Mr. Justice McKENNA dissenting.

I am unable to concur in the opinion and judgment of the Court.

The first case presents the right to transport intoxicating liquor in bond through the United States in accordance with certain rights given by the Revised Statutes and a treaty with Great Britain, notwithstanding the Eighteenth Amendment of the Constitution and its auxiliary ligislation, the Volstead Act.

The second case concerns the transshipment of like liquor from one British ship to another British ship in New York harbor. In the first case it was decided that the right of transportation still exists. Walker v. Lawson (D. C.) 275 Fed. 373. In the second case a prohibitive effect was ascribed to the amendment and the legislation.

The factors of decision are the policies constituted by the amendment to the Constitution, the statute enacted in aid of it, other statutes preceding it, and a treaty of the United States with Great Britain. And their relation is to be determined, and range. What shall be the test of determination? The words of the instruments? These, indeed, may make individuality, and express purposes, but if the purposes collide, which must give way? And upon what considerations? It is view of the court that the purposes do collide, and the court assigns prevailing force to the Eighteenth Amendment and the Volstead Act-the reform they instituted having annulled section 3005 of the Revised Statutes as amended, and article XXIX of the treaty with Great Britain, May 8, 1871.

I am unable to assent. The factors are not in antagonism, but each has a definite purpose consistent with the purpose of every other.

I consider first the Eighteenth Amendment. Its provision is that one year from the date of its ratification, the manufacture, sale or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from, the United States and all territory subject to the jurisdiction thereof for beverage purposes, is prohibited.

It will be observed that the amendment provides against the manufacture, sale and certain movements of intoxicating liquors. Those movements are its transportation within, its importation into, and its exportation from, the United States. The last two may be put immediately out of consideration. The liquor in the cases at bar, neither in common nor legal sense, was an importation into the United States or exportation from it.  Importation and exportation are constituted of something more than ingress of the intoxicants, under bond, at one border of the country and egress, under bond, at another border, the purpose being for passage only through the country, and having as impalpable effect upon it as if the passage were by airship. Still less, if I may suppose the impossible, is the transshipment of liquors in New York Harbor from one British ship to another under the supervision of revenue officers, the importation or exportation of the liquors into or from the United States.

The other movement is a case of transportation within the United States in the literal sense of the words, but this court in Street v. Lincoln Safe Deposit Co., 254 U.S. 88, 41 Sup. Ct. 31, 65 L. Ed. 151, 10 A. L. R. 1548, has limited its apparent universality by accommodating it to conditions and pre-existent rights, and this against the executive and reforming zeal of a public officer sustained by the judgment of a district court, thereby applying the rule, denominated by Mr. Justice Brewer as 'familiar,' and variously illustrated by him, in Holy Trinity Church v. United States, 143 U.S. 457, 12 Sup. Ct. 511, 36 L. Ed. 226, that a statute should not be taken at its word against its spirit, and intention. The rule has had illustration since, and this court following it, and its sanction in common sense declared against the destructive revolution urged, based upon the literal meaning of words. The court decided that it was not 'unlawful to have or possess' (the words of the Volstead Act) liquors, and that transportation thereof from a room leased in a public warehouse, where they were stored, to the dwelling house of the owner of them for consumption for himself and family was not adverse to the act or to the Eighteenth Amendment. The decision was only possible by rejecting the literal meaing of the words unlawful 'to have or possess' intoxicating liquors or the 'transportation' of them 'within the United States' and accommodating those words to the spirit and intention of their use.

In Corneli v. Moore, decided on January 30th of this term, a distinction between a room leased in a public warehouse and a public warehouse was made, and the transportation from the latter was decided to be prohibited. In other words, it was decided that liquor in a public warehouse was not in possession of the owner of the liquor, and that therefore its removal from the warehouse was a transportation of it within the United States from one place to another. The intention of the word was satisfied and the case is consistent with Street v. Lincoln Safe Deposit Co.

But in United States v. Gudger, 249 U.S. 373, 39 Sup. Ct. 323, 63 L. Ed. 653, it was decided that the transportation of liquor through a state was not transportation into it, within the meaning of a provision in the Post Office Appropriation Bill. To me the case is decisive of those at bar.

With the suggestion of it and the other cases in our minds, let us consider what meaning and purpose are to be assigned to the Eighteenth Amendment and the Volstead Act. It is certainly the first sense of every law that its field of operation is the country of its enactment. American Banana Co. v. United Fruit Co., 213 U.S. 347, 29 Sup. Ct. 511, 53 L. Ed. 826, 16 Ann. Cas. 1047. And this is true of the Eighteenth Amendment and the Volstead Act, and necessarily they get their meaning from the field and purpose of their operation-from the conditions which exist in that field or designed to be established there. The transportation that they prohibit is transportation within that field-that is, the United States and 'for beverage purposes.' The importance of the purposes suggests the emphasis of italics, and the Volstead Act is at pains to declare that it shall be construed 'to the end that the use of intoxicating liquor as a beverage may be prevented.'

The transportation and the purposes are therefore complements of each ohter, and both must exist to fulfill the declared prohibition. Enither exist in the cases at bar-the transportation in neither is, in the sense of the amendment and act, 'within' the United States 'for beverage purposes.' In one it is through the United States, in the other transshipment in a port of the United States, and both under the direction and control of the revenue officers of the United States and for use in other countries than the United States. Not only, therefore, are the cases not within the prohibition of the Eighteenth Amendment or the Volstead Act, but they are directly within section 3005 of the Revised Statutes and the treaty with Great Britain. In the view of the court, however, the section and the treaty have been extinguished superseded by a world-wide reform that cannot tolerate any aid by the United States to the offensive liquor.

'The Eighteenth Amendment,' is the declaration, 'meant a great revolution in the policy of this country,' and did not timidly confine itself 'to the use of intoxicants in this country.' There is appeal in the declaration. It presents the attractive spectacle of a people too animated for reform to hesitate to make it as broad as the universe of humanity. One feels almost ashamed to utter a doubt of such a noble and moral cosmopolitanism, but the facts of the world must be adduced and what they dictate. They are the best answer to magnified sentiment. And the sentiment is magnified. The amendment and the Volstead Act were not intended to direct the practices of the world. Such comprehensive purpose resides only in assertion and conjecture and rejects the admonitory restraint of section 3005, the treaty with Great Britain and the noninterfering deference that nations pay to the practices of one another.

If such mission had been the purpose it would have been eagerly avowed, not have been left to disputable inference. Zeal takes care to be explicit in purpose, and it cannot be supposed that section 3005 (Comp. St. § 5690) and the treaty were unknown and their relation-harmony or conflict-with the new policy, and it must have been concluded that there was harmony, not conflict. The section and the treaty support the conclusion. The section permits all merchandise arriving at certain ports of the United States and destined for places in the adjacent British provinces, and arriving at certain ports and destined for places in Mexico, to be entered at the custom house and conveyed in transit through the United States. In a sense, it has its complement in section 3006 (section 5691), which gives to merchandise of the United States the same facility of transportation through the British provinces or the Republic of Mexico.

The treaty (article XXIX) provides a reciprocation of privileges. Merchandise arriving at ports in the United States and destined for British possessions in North America may be entered at the proper custom house and conveyed in transit through the United States without payment of duties. A like privilege is given United States merchandise arriving at ports in the British possessions for transit through those possessions.

In other words, the treaty is an exchange of trade advantages advantages not necessary to the commerce of either, but affording to that commerce a facility. And yet, it is said, that it is the object of the Eighteenth Amendment to take away that facility, and to take away the transshipment of liquor in an American port from one British ship to another. This is the only accomplishment! What estimate can be put upon it? It takes away not a necessity of British commerce, as I have said, but a convenience to it, in disregard of a concession recognized by law and by a treaty. And upon what prompting? Universal reform? If so why was the Panama Canal given up as a convenience to the prohibited beverage and apparently with purposeful care? There is a perversion in one or the other of those actions that needs to be accounted for. There seems to be a misunderstanding of their respective effects, an overlooking of their antagonism, if the purpose of our legislation be a reversal of things not only in the United States but elsewhere. To deny the distribution of intoxicants by forbidding them transit through the United States and affording them distribution through the Panama Canal cannot both be conducive to the world-wide reform which the court considers was the mission instituted by the Eighteenth Amendment and put in execution by the Volstead Act.

It is said, however, that regarding the United States alone, the amendment and the act have a practical concern. If liquor be admitted for transit, is the declaration, some may stay for consumption. The apprehension is serious-not of itself, but because of its implication. It presents the United States in an invidious light. It is possible that its sovereignty, and what it can command, cannot protect a train of cars in transit from the Canadian border to the Mexican border or the removal of liquors from one ship to another from the stealthy invasions of inordinate appetites or the daring cupidity of bootleggers? But granting that the care of the government may relax, or its watchfulness may be evaded, is it possible that such occasional occurrences, such petty pilferings, can so determine the policy of the country as to justify the repeal of an act of Congress, and violation or abrogation of its treaty obligation by implication?

I put my dissent upon the inherent improbability of such intention-not because it takes a facility from intoxicating liquor, but because of its evil and invidious precedent, and this at a time when the nations of the earth are assembling in leagues and conferences to assure one another that diplomacy is not deceit, and that there is a security in the declaration of treaties, not only against material aggression, but against infidelity to engagements when interest tempts or some purpose antagonizes. Indeed I may say there is a growing aspiration that the time will come when nations will not do as they please and bid their wills avouch it.

I think the judgment in No. 615 should be affirmed, and that in No. 639 reversed.

I am authorized to say that Mr. Justice DAY and Mr. Justice CLARKE concur in this dissent. 

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