Rhodes v. Iowa/Dissent Gray
Mr. Justice GRAY, with whom concurred Mr. Justice HARLAN and Mr. Justice BROWN, dissenting.

Mr. Justice HARLAN, Mr. Justice BROWN, and myself are constrained to dissent from this judgment, which appears to us to deny due effect to the police power reserved to each state by the constitution of the United States, and recognized by congress in the act of August 8, 1890 (chapter 728), commonly known as the 'Wilson Act' (26 Stat. 313).

The purpose and effect of this act may be best understood by recalling the history of the law upon the subject.

In order to keep this opinion within reasonable compass, we shall, in referring to the previous decisions of this court, confine ourselves, as far as possible, to those decisions which directly relate to the traffic in intoxicating liquors.

The regulation of the manufacture, sale, and use of intoxicating liquors has always been recognized as a subject peculiarly appertaining to the police power of the several states respectively. License Cases, 5 How. 504; Bartemeyer v. Iowa, 18 Wall. 129; Beer Co. v. Massachusetts, 97 U.S. 25; Foster v. Kansas, 112 U.S. 201, 5 Sup. Ct. 8, 97; Mugler v. Kansas, 123 U.S. 623, 8 Sup. Ct. 273; Kidd v. Pearson, 128 U.S. 1, 9 Sup. Ct. 6; Eilenbecker v. Plymouth Co., 134 U.S. 31, 10 Sup. Ct. 424.

Upon the question how far the police power reserved to each state over this subject is affected by the grant to congress of the power to regulate commerce among the several states, there have been conflicting opinions, and even varying decisions, at different periods.

The earliest cases which came before this court, concerning the extent of the police power of each state over intoxicating liquors within its borders, were Thurlow v. Massachusetts, Fletcher v. Rhode Island, and Peirce v. New Hampshire, decided in 1847, and reported under the name of The License Cases, 5 How. 504.

In Peirce v. New Hampshire, a statute of New Hampshire, prohibiting sales of intoxicating liquors by any person without a license from municipal authorities, and authorizing licenses to be granted only to persons residing within the state, was held by all the justices to be constitutional and valid, as applied to a barrel of intoxicating liquors brought into New Hampshire from another state, and sold in New Hampshire by the importer, in the same barrel, unbroken, and in the same condition in which it had been brought in; there having been no legislation of congress upon the subject.

That decision was afterwards repeatedly cited with approval. Gilman v. Philadelphia, 3 Wall. 713, 730; Beer Co. v. Massachusetts, 97 U.S. 25, 33; Mobile Co. v. Kimball, 102 U.S. 691, 701; Mugler v. Kansas, 123 U.S. 623, 657, 658, 8 Sup. Ct. 273. And in several cases the validity of statutes of a state taxing the sale of intoxicating liquors brought from another state was treated as depending upon the question whether the statutes made any discrimination in favor of liquors manufactured within the state. Hinson v. Lott, 8 Wall. 148; Tiernan v. Rinker, 102 U.S. 123; Walling v. Michigan, 116 U.S. 446, 460, 6 Sup. Ct. 454.

The question whether the power of congress to regulate commerce with foreign nations and among the several states is exclusive or only paramount was a subject of much diversity of opinion from an early period until 1851, when this court, speaking by Mr. Justice Curtis, in Cooley v. Board, 12 How. 299, laid down this principle: When the nature of the particular subject in question is such as to demand a single uniform rule, operating equally throughout the United States, the power of congress is exclusive; but when the subject is of such a nature as to require different systems of regulation, drawn from local knowledge or experience, and conformed to local wants, it may be the subject of state legislation so long as congress has not legislated. 12 How. 319, 320. The principle there laid down has become fully recognized and established in our jurisprudence. Parkersburg & O. R. Transp. Co. v. City of Parkersburg, 107 U.S. 691, 704, 2 Sup. Ct. 732; Crandall v. Nevada, 6 Wall. 35, 42; Mobile Co. v. Kimball, 102 U.S. 691, 701.

Wherever, from the nature of the subject, the power of congress to regulate commerce is exclusive, the several states, of course, cannot legislate, even if there has been no legislation by congress; or, as the proposition has been stated in another form: 'Where the power of congress to regulate is exclusive, the failure of congress to make express regulations indicates its will that the subject shall be left free from any restrictions or impositions; and any regulation of the subject by the states, except in matters of local concern only, is repugnant to such freedom.' Robbins v. Taxing Dist., 120 U.S. 489, 493, 7 Sup. Ct. 592.

The theory that the bringing of intoxicating liquors from one state into another, and the selling of them there in the packages in which they had been introduced, are subjects requiring to be regulated by a national and uniform rule, and therefore within the exclusive power of congress, and wholly free from state legislation, was not broached by any member of the court before the cases of Bowman v. Railway Co., 125 U.S. 465, 8 Sup. Ct. 689, 1062, and Leisy v. Hardin, 135 U.S. 100, 10 Sup. Ct. 681.

In Bowman's Case Chief Justice Waite and two other justices dissented, and in Leisy's Case three justices dissented, and the reasons for and against the decisions were stated at length in the opinions delivered in those cases. It will be sufficient, for our present purpose, to state the points there decided.

Each of those cases arose under the statutes of the state of Iowa regulating the manufacture, the sale, and the transportation of intoxicating liquors within the state.

Bowman v. Railway Co. (decided by this court March 19, 1888) involved the validity of a provision of those statutes (substantially similar to the provision now before us, as construed by the highest court of the state) imposing a penalty upon any railroad company or other common carrier, or any agent of either, or any other person, that should knowingly bring within the state, or knowingly transport or convey between points or from one place to another within the state, for any other person or corporation, any intoxicating liquors, without first having obtained a certificate from the auditor of the county to which it was consigned, or within which it was to be conveyed from place to place, certifying that the consignee was authorized by the laws of Iowa to sell such liquors. The majority of this court, upon a consideration of the whole statute, frankly recognized that 'the provision in question has been adopted by the state of Iowa, not expressly for the purpose of regulating commerce between its citizens and those of other states, but as subservient to the general design of protecting the health an  morals of its people and the peace and good order of the state, against the physical and moral evils resulting from the unrestricted manufacture and sale within the state of intoxicating liquors.' 125 U.S. 475, 476, 8 Sup. Ct. 693. Nevertheless, the provision was held to be unconstitutional and void, as applied to a railroad company transporting intoxicating liquors into the state from another state, upon the ground that the state 'cannot, without the consent of congress, express or implied, regulate commerce between its people and those of the other states of the Union, in order to effect its end, however desirable such a regulation might be.' 125 U.S. 493, 8 Sup. Ct. 702. The court took pains to distinguish the case from Peirce v. New Hampshire, above cited, and distinctly reserved the expression of any opinion upon the question whether the state had the right to regulate or prohibit the sale of the liquor by the importer in unbroken packages after it had been brought within the state. 125 U.S. 479, 499, 500, 8 Sup. Ct. 689.

But in Leisy v. Hardin, two years later, that question was distinctly presented for decision; and it was decided that the provision of the statutes of Iowa prohibiting the sale of any intoxicating liquors otherwise than for pharmaceutical, medicinal, chemical, or sacramental purposes, and under a druggist's license from a county court of the state, was, as applied to a sale by the importer, and in the original packages, unbroken and unopened, of such liquors manufactured in and brought from another state, unconstitutional and void, as repugnant to the grant by the constitution to congress of the power to regulate interstate commerce. The majority of the court, in its opinion, delivered by the present chief justice, April 28, 1890, treated Peirce v. New Hampshire as overruled, and stated its own conclusions as follows: 'The plaintiffs in error are citizens of Illinois, are not pharmacists, and have no permit, but import into Iowa beer, which they sell in original packages, as described. Under our decision in Bowman v. Railway Co., they had the right to import this beer into that state, and, in the view which we have expressed, they had the right to sell it, by which act alone it would become mingled in the common mass of property within the state. Up to that point of time we hold that, in the absence of congressional permission to do so, the state had no power to interfere by seizure, or any other action, in prohibition of importation and sale by the foreign or nonresident importer.' And it was said in that opinion that 'the responsibility is upon congress, so far as the regulation of interstate commerce is concerned, to remove the restriction upon the state in dealing with imported articles of trade within its limits, which have not been mingled with the common mass of property therein, if, in its judgment, the end to be secured justifies and requires such action.' 135 U.S. 123, 124, 10 Sup. Ct. 689.

Thereupon congress immediately interposed, and by explicit legislation unequivocally manifested its purpose that no silence on its part should give rise to the presumption that it intended that either the transportation of intoxicating liquors from one state into another, or their sale in the latter state, even in the packages in which they had been brought, should be free, and beyond the reach of the police power of the state.

On May 14, 1890, Mr. Wilson, of Iowa, reported to the senate, from the committee on the judiciary, a bill, which, as amended upon his motion on May 29, was passed August 8, 1890, enacting 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 liquis  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.' Cong. Record, 51st Cong., 1st Sess., pt. 5, p. 4642; Id. pt. 6, p. 5430; Act Aug. 8, 1890, c. 728 (26 Stat. 313).

Soon after the passage of this act of congress, the question of its constitutionality and effect was brought before this court in Rahrer's Case, 140 U.S. 545, 11 Sup. Ct. 865. Intoxicating liquors, which had been sent, before the passage of this act, by their owners, in Missouri, to Rahrer, in Kansas, to be sold by him on their account, were, after the passage of the act, sold by him in Kansas as the agent of the consignors, and in the original packages. This court unanimously held that Rahrer was liable to be prosecuted for such a sale under statutes of the state of Kansas, passed in 1889, which made no distinction between imported and domestic liquors.

The chief justice, in delivering the opinion of the majority of the court, said: '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.' 140 U.S. 560, 11 Sup. Ct. 868. The grant by the constitution to congress of the power to regulate interstate commerce, said the chief justice, 'furnishes no support to the position that congress could not, in the exercise of the discretion reposed in it, concluding that the common interest did not require entire freedom in the traffic in ardent spirits, enact the law in question. In so doing, congress has not attempted to delegate the power to regulate commerce, or to exercise any power reserved to the states, or to grant a power not possessed by the states, or to adopt state laws.' '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.' 140 U.S. 561, 562, 11 Sup. Ct. 869. 'Congress did not use terms of permission to the state to act, but simply removed an impediment to the enforcement of the state laws in respect to imported packages in their original condition, created by the absence of a specific utterance on its part. It imparted no power to the state not then possessed, but allowed imported property to fall at once upon alrival within the local jurisdiction.' 'This is not the case of a law enacted in the unauthorized exercise of a power exclusively confided to congress, but of a law which it was competent for the state to pass, but which could not operate upon articles occupying a certain situation until the passage of the act of congress. That act in terms removed the obstacle, and we perceive no adequate ground for adjudging that a reenactment of the state law was required before it could have the effect upon imported which it had always had upon domestic property. Jurisdiction attached, not in virtue of the law of congress, but because the effect of the latter was to place the property where jurisdiction could attach.' 140 U.S. 564, 565, 11 Sup. Ct. 870.

The necessary effect of that decision is that the police power of each state includes the police power of each state includes the regulation of the transportation, as well as the sale, of all intoxicating liquors within its territory, except so par as affected by the grant by the constitution to congress of the power over interstate and foreign commerce; and that, so far as congress manifests its intention that the interests of such commerce do not require its exemption from the exercise of the police power of the state, this power is unrestricted.

The opinions heretofore delivered in this court upon the effect of the act of congress of 1890, although they do not decide, clearly imply, that the 'arrival in such state,' contemplated and intended by the act, is an arrival within h e territorial limits and jurisdiction of the state. In Rahrer's Case, the chief justice, in the passages already quoted, said that congress by this act has declared that 'imported liquors shall, upon arrival in a state, fall within the category of domestic articles of a similar nature,' and has allowed 'imported property to fall at once upon arrival within the local jurisdiction.' 140 U.S. 560, 564, 11 Sup. Ct. 868, 870. The natural meaning of these expressions is that imported liquors, upon arrival within the jurisdiction of the state, become at once subject to its jurisdiction. And in Scott v. Donald, 165 U.S. 58, 17 Sup. Ct. 265, the phrase used in the opinion of the majority of the court was, 'upon arrival in a state,' and, in the dissenting opinion, 'upon their arrival within the state,' without a suggestion in either opinion that the two phrases were not exactly synonymous, or that any 'arrival within the state' was not an 'arrival in the state.' 165 U.S. 99, 102, 17 Sup. Ct. 272, 273.

The case at bar directly presents the question of the meaning of the words 'upon arrival in such state,' as used by congress in this act.

Chief Justice Marshall, when discussing the general meaning of the words 'arrival' and 'to arrive,' said: "To arrive' is a neuter verb, which, when applied to an object moving from place to place, designates the fact of 'coming to' or 'reaching' one place from another, or of coming to or reaching a place by traveling or moving towards it. If the place be designated, then the object which reaches that place has arrived at it. A person who is coming to Richmond has arrived when he enters the city. But it is not necessary, to the correctness of this term, that the place at which the traveler arrives should be his ultimate destination, or the end of his journey. A person going from Richmond to Norfolk by water arrives within Hampton Roads when he reaches that place; or, if he diverges from the direct course, he arrives in Petersburg when he enters that town. This is, I believe, the universal understanding of the term.' The Patriot, 1 Brock. 407, 411, 412, Fed. Cas. No. 13,985.

If, as Chief Justice Marshall declared, it is the universal understanding of the term that it designates the fact of 'coming to' or 'reaching' a place by traveling or moving towards it, and does not require that the place at which the traveler arrives should be his ultimate destination, and, consequently, that a traveler arrives in a city or town when he enters that city or town, it would seem to follow that 'arrival in the state' is complete when the person or the merchandise in question enters the state.

That such is the meaning of the word 'arrival,' as used in the act of congress now in question, appears to us to be confirmed by the whole scope and by the obvious purpose of the act.

The act declares and enacts that all intoxicating liquors '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 effect and operation of its laws enacted in the exercise of its police powers, to the same extent and in the same manner as though they had been produced in it, 'and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.'

The act, in terms, includes all intoxicating liquors 'transported into any state or territory, or remaining therein for use, consumption, sale or storage therein,' if it be assumed that the words 'for use, consumption, sale or storage therein,' are not restricted to the next preceding clause, 'or remaining therein,' but also extend back to the earlier clause, 'TRANSPORTED INTO ANY STATE OR TERRITORY,' still the effect of the words is to cover all intoxicating liquors transported into or remaining in the state for any possible purpose, except that of being transported though the state to another state or country. All such liquors are, 'upon arrival in such state,  to be subject to the operation and effect of the laws enacted by the state 'in the exercise of its police powers,' to the same extent and in the same manner as if the liquors had been produced within its limits. And it is expressly provided that intoxicating liquors shall not be exempt from the exercise of the police powers of the state 'by reason of being introduced therein in original packages or otherwise.' The phrases 'transported into any state,' 'upon arrival in such state,' and 'introduced therein,' would seem to have been used as substantially equivalent.

The act makes no mention of arrival at a specific destination or place in the state. Its whole object, as appears upon its face, as well as from the circumstances which led to its enactment, is not to define when a particular voyage or transit shall be considered at an end; but to assure to the state, throughout its territorial jurisdiction, the full exercise of its police powers over the subject of intoxicating liquors. And we find nothing in the act to indicate an intention on the part of congress that the mere fact that intoxicating liquors, brought by a common carrier into the state, have not reached their ultimate destination in the state, or been delivered to the consignee, shall exempt them, after coming within the territorial limits of the state, from the exercise of its police powers.

By the statute of the state of Iowa, under which Rhodes was prosecuted, 'if any express company, railway company, or any agent or person in the employ of any express company, or of any common carrier, or any person in the employ of any common carrier, or if any other person shall transport or convey between points or from one place to another within this state, for any other person or persons or corporation, any intoxicating liquors, without first having been furnished with a certificate from and under the seal of the county auditor of the county to which said liquor is to be transported or is consigned for transportation, or within which it is to be conveyed from place to place, certifying that the consignee or person to whom said liquor is to be transported, conveyed or delivered, is authorized to sell such intoxicating liquors in such county,' the company, agent, or person so offending shall, upon conviction, be fined in the sum of $100 for each offense; and 'the offense herein defined shall be held to be complete and shall be held to have been committed in any county of the state, through or to which said intoxicating liquors are transported, or in which the same is unloaded for transportation, or in which said liquors are conveyed from place to place or delivered.' But it is provided that 'the defendant may show as a defense hereunder, by preponderance of evidence, that the character and circumstances of the shipment and its content were unknown to him.' McClain's Code, § 2410. And it was held by the supreme court of the state that, in order to support the conviction of Rhodes, it must appear that, when doing the act complained of, he knew that the box in question contained intoxicating liquor.

The material facts, as appearing by the record, and stated in the opinion of the supreme court of Iowa, reported in 90 Iowa, 496, were as follows:

The intoxicating liquor which Rhodes has been adjudged guilty of transporting or conveying from one place to another within the state of Iowa, in violation of the statute of the state, was a jug of whisky, contained and hidden in a wooden box about a cubic foot in size, marked 'W. H.,' represented to contain groceries, delivered at Dallas, in the state of Illinois, by a company doing business at that place, to the Chicago, Burlington & Quincy Railway Company, and consigned to one William Hown, at Brighton, in the state of Iowa; and was carried, under a through waybill, by that railway company, over its road, to Burlington, in the state of Iowa, and was there transferred to the Burlington & Western Railway Company, whose road was wholly within the state of Iowa, and was carried by this company to r ighton. Upon its arrival at Brighton, it was delivered by the trainmen upon the platform of this company's depot; and immediately afterwards Rhodes, the company's station agent at Brighton, complying with the directions of his employer, carried the box from the platform into the freight room of the depot building, where, on the same day, it was seized by a constable on a search warrant, being then held by the company for payment of the unpaid freight and for delivery to the consignee. Neither Rhodes nor the company held a permit for the transportation or sale of intoxicating liquors, or a certificate from the county auditor that the consignee was authorized to sell such liquors.

Rhodes testified that before the arrival of the box a mail carrier told him he was looking for a box from Dallas for William Hown, and said it was likely to be marked 'W. H.,' and would contain alcohol or whisky; that he told the mail carrier he had not received a box of that description; that the box arrived the next day; and that he supposed, perhaps, this was the box the mall carrier told him would come. The supreme court of Iowa was of opinion that this testimony clearly showed that Rhodes knew that the box contained intoxicating liquors, and its reviewable by this court. Dower v. is not reviewable by this court. Dower v. Richards, 151 U.S. 658, 14 Sup. Ct. 452; Egan v. Hart, 165 U.S. 188, 17 Sup. Ct. 300; Turner v. People, 168 U.S. 90, 95, 18 Sup. Ct. 38.

Nor does the conclusion of that court that Rhodes, by moving the box from the depot platform to the freight house, only a few feet off, transported or conveyed the box from one place to another within the state, within the meaning of the statute of Iowa, present any question of law which this court is authorized to review, except so far as the statute, thus construed, may deprive him of a right under the constitution and laws of the United States.

The intoxicating liquor in question was brought by rail under a through waybill from Dallas, in the state of Illinois, to Burlington and Brighton, in the state of Iowa. It was carried by the Chicago, Burlington & Quincy Railway Company (whose road ran from Illinois into Iowa) to Burlington, and was there delivered to the Burlington & Western Railway (whose road was wholly in the state of Iowa), and was carried by this company to Brighton, and was there delivered by its servants upon the platform of its freight station. Taking into consideration that so much of the transportation as was performed by an interstate railroad company had been accomplished, and that the remainder of the transportation was by an Iowa corporation, and wholly within the state of Iowa, and had been so far completed as to land the intoxicating liquor upon the soil of Iowa, we are of opinion that there had been an 'arrival in such state,' so as to subject the liquor to the exercise of the police powers of the state of Iowa, within the letter and the spirit of the act of congress. 

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