The Portland daily press., 1890-04-30

Congress steps in with legislation every pro.
hibitory law in the country is practically
worthless under this decision. The synop-
sis referred to said that the opinion of the
court was, that latter the liquor, becomes the
property Of the importer the state may, un-
der its police powers, regulate or prohibit
the sale, but it has no power, in the absence
of express congressional authority, to pro-
hiblt the transportation of the article from
another state and its delivery to the
importer" The idea conveyed by this
was clearly that the court had held sim
ply that while the State could mot
interfere with liquor in transitu. after
1t reached its destination-that is
come Into the hands OF the importer
1t could, under its police powers, regulate or
prohibit its sale. The fact is that the court
held, not only that the State could not inter-
fere with the liquor while On its way to the
importer, but could not restrict the sale of it
until it became mixed up and incorporated
with the mass of property in the State. The
court follows exactly the decision of Chief
Justice Marshall in the case Of Brown VS..
Maryland in 1926 This was the dry goods
case which we referred to yesterday. In
that case the State of Maryland had
| imposed upon an importer OF dry
goods a license and made the pay
ment of it a condition precedent ofthe power
to sell his goods. The court held that such
license was in effect regulation Of foreign
commerce inasmuch as it restricted the right
to sell which was an inseparable part of the
right to import. The court in that case de-
fined the right of the importer and distinctly
held that the right to sell his goods in the
original package was part of it, and that
the state was prohibited from interfering
with it. This prohibition, the court held.
continued until the importer had so acted
upon the goods that they had become incor-
porated and mixed up with the mass of prop
erty in the country, which happened when
the original package was no longer such In
his hands. That is to say the importer could
sell the goods, provided he sold them in the
original packages. an the state could not
restrain him. But when the goods had
passed into hands other than those of the
importer or the original packages had been
broken then they had sufficiently passed
into the mass of property of the country
for the state to acquire control over them
Many years later the court in deciding an
other case gave expression to some views
which seemed to imply that if the imported
article was one that was deleterious to the
public health or the public morals the court
would affirm the right of the State, under its
police powers. to abridge partly or entirely
the right of sale even by the importer and
before the goods had become incorporated
with the mass of property of the country.
In its decision of the Iowa case the major
ity of the court, however, adhere strictly to
the doctrine laid down in Brown VS.. Mary
land and apply it just as strictly to liquors as
Chief Justice Marshall did to dry goods And
furthermore they hold that the doctrine of
that case is as applicable to importations
from one State into another as to importa-
tons from foreign country.
The effect of this decision is very far
reaching, and. as we have said, it practically
nulliies every prohibitory law in the country.
Not only can an importer bring liquor from
foreign country, as Mr.. Michael Burns did,
and sell 1t in the original package, but under
this decision man can bring liquor in bot
ties or kegs from Massachusetts into Maine,
openly expose it for sale and:isell if and the
State cannot prevent it. Judge White
houses decision in the Burns case is COM
pletely reversed by this opinion. And as the
State courts are bound to follow the Supreme
Court in the Interpretation of the constitu
ton and laws of the United States it looks
as If this decision would relieve cur Supreme
Court from any more arduous duty in the
Burns case than simply expressing concur.
renee therein.
Three justices, Harlan, Gray and Brewer
dissent from the majority. We quote from
their opinion the following paragraph in
which they describe the effect of the views
held by the majority:
If the statutes of a State, restricting or prohib-
ltlng the sale of intoxicating liquors within its
territory are TO be held imperative and void as
applied 10 liquors sent or brought from another
State and sold by the importer in what are called
original packages, the consequence must be thai
an innapltant OF any State may, under the pre-
text OF interstate commerce, and without license
or supervision OF any public authority, carry or
SEND INTO and sell in any or all of the other States
sSrlption in cases or kegs, or even in single bot
Ties or TASKS. despite any legislation Of those
should be the only one which had not enacted
similar laws: We would require affirm alive and
eopsGo iegisiati0h on the part OF Congress to
a result ''-A'" sum
The remedy for the state of things which
the decision of the court brings about is per-
haps legislation by Congress giving the States
permission to regulate the transportation of
liquor, as has been done in the case of nitro
glycerine and other Explosives. But until
some such legislation is enacted by Congress,
it looks as if, under this decision, the pro
hibitory laws of the States would be practi-
cally useless.