common carrier, or other person who shall, in connection with the transportation of spirituous, vinous, malt, and intoxicating liquors of all kinds from one State or Territory into another State or Territory, collect on, before, or after delivery, from the consignee or other person, the purchase price, or any part thereof of such liquors, or who shall in any manner act as the agent of the consignor or seller of such liquors for the purpose of selling or completing the sale thereof, saving only in the actual transportation and delivery of the same, shall be subject in so doing to all the police powers of the State or Territory into which such liquors are transported and delivered, and for this purpose in all cases of the sale of spirituous, vinous, malt, and intoxicating liquors of all kinds, in interstate commerce, where the same is sold "Collect on delivery," the place of delivery shall be deemed and held the place of sale. COMMITTEE ON THE JUDICIARY, The committee met at 10.30 o'clock a. m., Hon. John J. Jenkins in the chair. The committee thereupon proceeded to the consideration of House bills 3159, 13655, 13856, and 16479. The CHAIRMAN. The committee will be in order. Mr. Dinwiddie will take charge of the side favoring this legislation, and Mr. Hexamer will look after the other side of it. Owing to the fact that Mr. Williams, a Member of Congress, has to go away to-morrow morning, he will be heard first this morning. We will hear you now, Brother Williams. STATEMENT OF HON. JOHN SHARP WILLIAMS, REPRESENTATIVE FROM MISSISSIPPI. Mr. WILLIAMS. Mr. Chairman and gentlemen of the committee, the bill to which I shall direct your attention is H. R. 13856, and I will read it, in order that the committee may fully understand its exact provisions [reading]: "Be it enacted," etc., "That express companies and other common carriers are prohibited from importing into the United States from any foreign country and from transporting into one State from another State any spirituous, malt, or vinous liquors forbidden by the laws or police regulations of a State to be sold therein, or prohibited by law to be sold in the country or municipality whither they are transported, when such spirituous, vinous, or malt liquors so imported into the United States or so transported into such State, county, or city are carried collect on delivery, or in any manner so that the carrier thereof is charged with the duty of collecting money in payment for the same, or of doing any other act as agent for the seller necessary to complete or perfect the sale." Section 2 merely prescribes the penalty in accordance with other penalties in the interstate-commerce act. Now, Mr. Chairman, the object of this legislation, in my opinion, is to do that which was sought to be done by the Congress of the United States in the enactment of the so-called Wilson Act, which followed upon the decision of the Supreme Court in the so-called Original Package cases, to some parts of which I shall direct the attention of the committee in a moment. The words of the original Wilson Act are very broad. They subject to the police powers of the States all vinous, spirituous, and malt liquors transported into a State mark how broad the language is—"for sale, consumption, or storage." Now, Mr. Chairman, it is evident to you as a lawer that an express company acts as a common carrier up to the point where it has brought the package into the place of delivery. Then, when it holds it there in order that the conditions of delivery may be complied with, it has ceased to act under the liabilities of a common carrier and begins to act under the liabilities of a warehouseman, and it is storing the liquor. It is also evident to you, Mr. Chairman, that whatever may be the technical law of the case, in the court of ethics and of fact, when one person, natural or artificial, undertakes to perform a service for another and undertakes as a part of that service to do a part of the work which the other man otherwise would have to do, the first person is acting as agent for the second. It is evident that in the court of ethics and of fact an express company which undertakes to deliver certain goods, but, prior to delivery, to see to it that certain payments are made, is acting for the purpose of collecting the money as the agent of the shipper. It is sometimes well, Mr. Chairman, to know the animus of the witness. I am not a prohibitionist. I sometimes think I would, perhaps, be a better man if I were; but I am not. But I am, perhaps, an almost fanatical advocate of local self-government. I believe thoroughly that the maintenance of liberty everywhere depends upon the very largest possible measure of local self-government, and especially in cases affecting the health and morals of the people, so called police cases; that they ought to be regulated altogether by the locale as far as it is possible to have them regulated in accordance with the laws, including the organic law of the country in which you live. That is my standpoint toward this matter. It seems to me that the Supreme Court made a mistake in two cases. However, it never lies in a lawyer's mouth to make his guess against the guess of the court, because the court has the last guess and the ultimate guess and the controlling guess about law points. I want to call your attention first, Mr. Chairman, to this point: In this case of the express company (there were two cases against the State of Iowa, decided at the October term, 1904) the Supreme Court seems to have had it in its mind that a decision in that particular matter might have affected a vast body of commerce, bills of lading commerce, where the collection was to be made later on-all C. O. D. deliveries of every description, no matter what the subject-matter of deliv ery. It seems to me to have neglected to consider the figure which the Wilson Act itself cut in that matter. Already this particular subjectmatter of alcoholic liquors had been segregated, by the Wilson Act itself, from the great body of things which were carried in interstate commerce. Congress had concluded, in its wisdom, that this subjectmatter ought to be treated from a different standpoint and in a different way. The Supreme Court seems to me to have taken no cognizance of that matter, and it seems not to have been dwelt upon by the attorneys below, except by one, in a rather cursory way. Mr. LITTLEFIELD. What are those cases, please? Mr. WILLIAMS. One of them is the case of the American Express Company v. Iowa; the other is the case of the Adams Express Company v. Iowa. I will read later on parts of the decisions that will bring out the points I am making. Mr. HENRY. What report do you read from? Mr. WILLIAMS. The Original Package Case, in 196 U. S. I will read later the parts of these decisions that in my opinion reenforce what I am saying to you. A great deal has been said about the power of Congress to delegate to a State, as it is expressed, "the interstate-commerce power." That is not a fair expression of what was sought to be done in the Wilson Act or of what is sought to be done in this bill. The court having decided that the States, notwithstanding their police power, could not make certain regulations, Congress was resorted to, not to delegate to the States the right to make them, but to make the regulations themselves, and if they happened to be cooperative with the State regulations all the better. That did not vitiate the action of Congress in the slightest degree. And that Congress has power to pass such legislation as it chooses, even though it does it with the express view of aiding the State, there can be, in my opinion, no doubt from reading the Original Package case, certain parts of which I will read later on. In fact, we have already in that case attempted to do what I am trying here to complete. I understand that in one of Mr. Littlefield's bills there is a provision declaring the situs of a C. O. D. delivery sale to be at the place of delivery; and it may be thought by some of you that that will meet this evil. But I will read you in a moment from this case of the Express Company v. Iowa to show you that the court said in that case that however that might be, whatever might be the place of sale, whether in Iowa or whether in Illinois, it was not necessary to pass upon; that the contract for sale and delivery, which was the interstatecommerce contract, undoubtedly took place in the State of Illinois. So that in that case, even if the court had determined that the sale itself was a sale in Iowa, it would still have held that the interstatecommerce clause of the Constitution shielded and protected the transaction, because the contract to sell and deliver was undoubtedly made in the State of Illinois. There is nothing that can meet the evil that I am coming to now except the direct legislation proposed in this bill, although that provision will be of the highest utility in many other ways. What is the evil? I hear a great many people say that the States are coming to Congress because they are acknowledging their own ineffectiveness and impotency, their own inability, to execute their own laws. There has never been but one thing that has prevented a majority of the counties in the State of Mississippi from executing their local-option laws, and that was the interstate-commerce clause of the Constitution of the United States and the decisions of the courts thereupon. We are not asking you to help execute them, although if we did it would be no shame that we should. Why should it be a charge against national legislation that it is cooperating with State legislation for the purpose of accomplishing a State legislative purpose? Now, in how far is dealing in liquor lawful and in how far is it unlawful? It is a lawful business sometimes and sometimes it is an unlawful business. It is not made lawful or unlawful by act of Congress, except in the District of Columbia, the Territories, the military reservations, and on shipboard. It is made unlawful, where unlawful at all, by the act of a State, or, under State law, by the act of a community in a local-option election. Wherever it is unlawful Congress certainly ought not to contribute to its carrying on. It ought not to contribute to its carrying on either by legislative action or by legislative nonaction. And that is what the Congress of the United States thought in passing the Wilson Act. That matter I will come to. That the power of Congress to pass legislation of this sort is undoubted I will not say; but that the power of Congress to pass it is the better opinion I will assert, and I think I can show that from the Original Package case. I myself have no doubt about the power of Congress to regulate interstate commerce as fully as it can regulate foreign commerce. They are both given in the same clause in the Constitution in the same breath, and they go exactly to the same limit. I have no doubt that Congress can regulate interstate commerce except where it clashes against the police power of a State to regulate the public health and the public morals. It seems to me that originally the Supreme Court ought to have held-it did not-that with regard to the sale of liquor it fell in the same category as quarantine matters and matters of that sort, because by the universal consensus of the legislative mind, not only here but in Great Britain and everywhere else in the world, not only among the English-speaking race, but elsewhere, the subject-matter had been set aside in a special category as, in the common opinion, having a tendency to injure public health and public morals. And even those of us who are not total abstainers or prohibitionists know that it has no great tendency to the contrary, at any rate. Now, Mr. Chairman, upon this question of the impotency of the State, I want to tell the committee something that took place in my own little town. My son-in-law is mayor of the town-quite a young fellow, not a prohibitionist himself, but believing that it is always a gentleman's duty when in official position, to execute the laws whatever they are, whether they are laws that he would have voted for or not. He proceeded to attempt to execute the prohibition laws in that little town. We had about 19 so-called "blind tigers." In less than six months-less than three months, in fact-there were not any, and we went along without any until the Supreme Court decided this very identical case. Drummers would come there and they would say that they could not get a drink of anything for $5. You could not pay a hotel porter $5 and get a drink. It was impossible to get one in the little town. Immediately upon the decision of this case the express company became a warehouse for the receipt and retention of liquor shipped sometimes to A and B and C, sometimes shipped to No. 1 and No. 2 and No. 3, in that way, and this man or that or the other would come around with an authority from the man who was identified by the liquor seller's letter as No. 1, 2, or 3 and get out his jug of whisky. The administration was of course rendered absolutely helpless, because you will see in a moment that the Supreme Court of the United States not only decided in one of these express company cases that the local officer could not seize and destroy the stuff under the State law, but that the law of the State declaring the keeping of whisky for sale a nuisance could not be executed for the same reason. Mr. ALEXANDER. May I ask you a question, Mr. Williams? Mr. ALEXANDER. Suppose you live in a prohibition State and a prohibition county; you go up to Cincinnati and buy a jug of whisky, and pay for it to be shipped to your home. Mr. WILLIAMS. Yes; this bill does not interfere with that. I am not seeking to interfere with that, and I do not think it ought to be interferred with. Now, right there, the question may be asked why one stands on a different ground from another, and I will tell you. The man who is ordering a jug of whisky or a case of beer or a case of wine for his own consumption either pays for it or receives it to be remitted for in the ordinary course of business. It is not sent to him C. O. D. There is not one case in a hundred where that is the case. The man who is engaged in the illicit selling of whisky in the community contrary to the law of that particular community generally has it shipped C. Ŏ. D. for two reasons: First, I am sorry to say, he is not the character of man that the whisky company would like to credit upon a general account, so he must pay for his goods before he gets them out; secondly, he is generally not the man that can remit for a large quantity of liquor at once. You will find in one of these cases here in the Supreme Court that the shipment was of goods to the value of $500 or $600. Therefore the whisky is shipped to the express company, and the man takes it out as he sells it, or other people take it out as he sells it to them upon his order for delivery, you understand. So that the liquor dealer in the other State is enabled to do business with this man, and he could not do business with him upon any other basis except the C. O. D. basis-first, because the man can not remit (he seldom has a large enough amount of money to pay for a large quantity), and secondly, because the liquor house would not credit him. Mr. HENRY. Does your State local option or prohibition law attempt to prevent, or do you know of any State local-option law that does attempt to prevent, an individual from shipping liquor into his home for his own consumption and use? Mr. WILLIAMS. No, sir; and I know of none that does. Mr. HENRY. Your statute does not touch that point at all? Mr. WILLIAMS. Oh, no. No law in any State, so far as I know, ever has attempted to do that. Mr. CLAYTON. You do not think that such a law would be valid, do you? I Mr. WILLIAMS. I do not know whether it would be valid or not. do not know about that, but I think it would be very unwise and very tyrannical and very oppressive. I do not think any government under the sun has the right to do that. A government has a right to pronounce a business unlawful and illegal and to prevent that business from being carried on if, in the opinion of the government, it is dangerous to public health or morals. Mr. HENRY. I think several State courts have held that could not be prevented anyhow. Mr. WILLIAMS. I think it could be prevented; but whether it could or not, nobody has ever thought of doing it. Mr. GILLETT. Would not the bill that you have here have the effect of preventing its being shipped to a person for his own personal use. |