# Scott v. Donald (165 U.S. 58)/Dissent Brown

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* Dissenting Opinion Brown
United States Supreme Court
165 U.S. 58
Scott v. Donald
Mr. Justice BROWN, dissenting.
I am unable to concur in the opinion of the court holding the South Carolina dispensary law to be unconstitutional, as applied to the facts of this case. While I see no reason to question the propriety of our rulings in the cases analyzed in the opinion of Railroad Co. v. Husen, 95 U.S. 446, Minnesota v. Barber, 136 U.S. 313, 10 Sup. Ct. 862, and Brimmer v. Rebman, 138 U.S. 78, 11 Sup. Ct. 213, they do not seem to me to have any considerable bearing upon the question in controversy, in view of the recent legislation by congress upon the subject of intoxicating liquors.
In Leisy v. Hardin, 135 U.S. 100, 10 Sup. Ct. 681, this court, in April, 1890, overruling the prior case of Peirce v. New Hampshire, 5 How. 504, held that a state statute prohibiting the sale of intoxicating liquors, except for certain purposes, and under license from a county court, was, when applied to a sale by an importer of liquors brought from another state in the original packages, unconstitutional and void, as repugnant to the power of congress to regulate commerce. Following closely upon this decision, and probably in consequence of it, congress, upon August 8th of the same year, enacted what is popularly known as the 'Wilson Bill,' and declared that all such liquors transported into any state, or remaining there for use, consumption, sale, or storage, should, upon arrival, be 'subject to the operation and effect of the laws of such state, enacted in the exercise of its police powers' to the same extent as if they had been produced in such state.
The effect of this enactment seems to me to withdraw intoxicating liquors from the operation of the commerce clause of the constitution, and to permit the traffic in them to be regulated in such manner as the several states, in the exercise of their police powers, shall deem best for the general interests of the public. The act is not limited in its operation, as the majority opinion seems to assume, to state laws forbidding the importation, manufacture, and sale of such liquors; but declares that they shall be subject, upon their arrival within the state, to the operation of all its laws enacted in the exercise of its police powers. Adopting the very language of the act of congress, section 32 of the dispensary law provides: 'That all fermented, distilled or other liquors or liquids containing alcohol, transported into this state or remaining herein for use, sale, consumption, storage or other disposition, shall, upon introduction and arrival in this state, be subject to the operation and effect of this law, to the same extent and in the same manner as though such liquors or liquids had been produced in the state.'
We cannot fail to recognize the growing sentiment in this country in favor of some restrictions upon the sale of ardent spirits; and whether such restrictions shall take the form of a license tax upon dealers, a total prohibition of all manufacture or sale whatever, or the assumption by the state government of the power to supply all liquors to its inhabitants, is a matter exclusively for the states to decide.
The first section of the dispensary law of South Carolina declares that the manufacture, sale, receipt, acceptance, or keeping in possession of alcoholic liquors, except when bought from a state officer authorized to sell the same, are declared to be contraband, and against the morals, good health, and safety of the state, and may be seized wherever found, without warrant. Now, as congress has expressly declared that such articles shall, upon their arrival in the state, become subject to its laws to the same extent as if they had been originally produced there, and as the dispensary act does not declare them contraband as imported liquors, or because they were imported, but because they were not bought from a state officer authorized to sell the same, and as the law makes no discrimination in that particular between imported and domestic liquors, it is impossible for me to see why congress has not directly authorized the action that was taken by the state officers in seizing these liquors. The power to declare intoxicating liquors to be contraband, and to prohibit their manufacture and sale in toto, was affirmed by this court in Mugler v. Kansas, 123 U.S. 623, 8 Sup. Ct. 273, and, if the provision requiring them to be bought of the state dispensary be valid, it applies as well to imported as to domestic liquors.
But, as I understand, the court bases, to a certain extent, its opinion of the unconstitutionality of this act upon the fact that the traffic in intoxicating liquors is not absolutely prohibited, but is monopolized by the state itself through the agency of a state commissioner, who is required (section 3) to 'purchase all intoxicating liquors for lawful sale' in the state and to 'furnish the same to such persons as may be designated as dispensers thereof,' to be sold as thereafter provided in the act. Conceding this to be so, I am unable to see that any provision of the federal constitution is thereby infringed. The constitution does, indeed, require of each state a republican form of government, and, in the tenth section of the first article, imposes certain limitations upon state action, none of which have any relevancy to the subject under consideration. Except as restricted by the provisions of this section, the several state legislatures possess, so far as any interference by the federal government is concerned, full legislative powers, and, with respect to the subject of intoxicating liquors, are, since the passage of the Wilson bill, untrammeled by the federal constitution.
Granting that the act gives the state itself a monopoly of all traffic in such liquors, it is not a monopoly in the ordinary or odious sense of the term, where one individual or corporation is given the right to manufacture or trade which is not open to others, but a monopoly for the benefit of the whole people of the state, the profits of which, if any, are enjoyed by the whole people; in short, a monopoly in the same sense in which the post-office department, and the right to carry the mails, is a monopoly of the federal government. Lowenstein v. Evans, 69 Fed. 908.
The only objections to the dispensary law which strike me as being of any force are the provisions of the fifteenth and twenty-third sections, requiring the state commissioner to purchase his supplies from the brewers and distillers in the state. But even this provision, though perhaps unwise, is subject to two conditions: First, that their product shall reach the standard required by the act; and, second, that such supplies can be purchased as cheaply from such brewers and distillers in this state as elsewhere. As this restriction is practically no restriction at all, and only incorporates in the statute exactly what the law would imply without it, I see no valid objection to it.
But, even if it were conceded that this particular provision of the law were inoperative, and might be so declared in a case properly raising that question, it is not of the essence of the law, but a mere incident to the power of the commissioner, and surely should not have the sweeping effect of rendering the whole law unconstitutional and void. The main object of the act is to preserve the health and morals of the people by securing to them pure liquors, prohibiting individual dealings in such liquors, and requiring all such traffic to be carried on through the agencies of the state. Such methods of dealing with this traffic are by no means unknown abroad. Indeed, I understand the act to be but the reproduction in this country of what is known as the 'Gothenberg System.'
It is entirely well settled that the unconstitutionality of a particular provision will not invalidate an entire statute, unless such provision embodies the main purpose of the statute, or is so connected with such purpose that it is inseparable from it, or unless the court can see that the legislature would not have passed the act without such provision. This doctrine has been repeatedly affirmed by this court. Bank v. Dudley, 2 Pet. 492; Austin v. Aldermen, 7 Wall. 694; Packet Co. v. Keokuk, 95 U.S. 80. Indeed, in Tiernan v. Rinker, 102 U.S. 123, this court held an act of the legislature of Texas, taxing intoxicating liquors, to be inoperative only so far as it discriminated against imported wines or beers; and that, as defendant was also engaged in selling other liquors, an injunction was properly refused. That the provision that the commissioner in purchasing the liquors shall give preference to those of domestic manufacture is separable from the main purpose of the act seems to me too clear for argument. That the legislature would have passed the act without this provision is conclusively shown by the fact that in a general amendment and re-enactment or this law, made in 1896, this provision was omitted.
While the power of courts to declare an act of legislature to be unconstitutional undoubtedly exists, it is one of great delicacy, particularly when brought to bear upon the legislative acts of another sovereignty. In one of the early cases decided by this court (Fletcher v. Peck, 6 Cranch, 87, 128) it was said by Chief Justice Marshall: 'But it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its act to be considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.' Still more explicit is the language of Chief Justice Waite in the Sinking Fund Cases, 99 U.S. 700, 718: 'It is our duty, when required in the regular course of judicial proceedings, to declare an act of congress void if not within the legislative power of the United States; but this declaration should neyer be made except in a clear case. Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule.'
I regard these words as particularly applicable to the dealings by this court with the proceedings of a state legislature, and that their right to determine what is for the best interests of their people should be carefully respected, except where it comes in manifest conflict with the dominant law. Especially should everything be avoided which carries the suggestion of a vexatious interference with state action. The manifest dangers to the future of the country which lurk in the inflexibility of the federal constitution can only be averted by carefully distinguishing between such laws as practically concern the inhabitants of a particular state only, and are intended bona fide for their welfare, and such as are a mere subterfuge for an unlawful discrimination, and cannot be carried into effect without doing palpable injustice to citizens of other states. It should not be overlooked in this connection that the complaints in this case emanate from a citizen of South Carolina, who seeks to defy the law of his own state, and puts forward as his excuse the injustice done the citizens of other states, who make no complaint of her action in this particular. If a state cannot prohibit her own citizens from importing liquors, as well as buying them at home, the Wilson bill is set at naught, and the prohibitory laws of the several states rendered inoperative in a vital particular. The fact that these liquors were imported for complainant's own use and consumption, instead of for sale, raises no question under the federal constitution. Both are under the ban of the statute.
I am unable to see wherein that section of the dispensary act of South Carolina which authorized the seizure made in this case conflicts in any particular with the federal constitution.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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