Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1891-02-13
Conclusions Of Law in the Famous
Liquor Test Case by the
Supreme Court.
Original Packages as Well as "by
) the Glass Mode Must be
= Done Away With.
The 1rOn-Clad State UkaSe Declared
Valid-A Unanimous DtciS-
ion of the Court.
Prohibition Must Prohibit,

apptdl lfOlu Ine ulStTlCJ court OF lass county
Diminishing the action, William B. Mcconnell,
judge.
Geo. +. Goodwin, attorney general; Charles A.
POLLOCK, assistant attorney general, and s. B.
bartlett, district attorney for Cass county, for
Messrs. Ball L. Smith and lilly a. Stewart for
respondents.
Willin D.. This is an action in equity
brought on behalf of the state by the dis
trict attorney for Cass county under Sec
ton Is of chapter ITO of the laws of North
Dakota OF 1890. The plaintiff demands in
his complaint, in substance, that the de-
PENDANTS be enjoined from the further
prosecution of their business as liquor
dealers, and that their place of BUSINESS,
located in the city of Fargo, be abated as a
common nuisance. The complaint charges
in substance that the defendants are carry
ing on the business Of selling Intoxicating
liquor in Fargo at the number and street
stated in the complaint.
CONCLUSIONS Of LAW.
BY a concensus of judicial opinion. both
state and federal, the question of
whether a state, in the exercise of its power
to conserve the public health and morals,
AA"S "AiSliJ PlollUlU GllC uldlluldCGuIt anu
sale of intoxicating liquors within it's
boundaries, is no longer d%ebateable in the
courts. 1t is equally well settled where a
statute of a state prohibits the manufac.
ture and sale of liquor and declares that
all places in the state where it is made or
sold are common %nuiSanceS, and also au-
thOriZes a court Of equity to abate such
places as %nuiSances II to enjoin the pros
ecution Of such business by the ordinary
nrnnnlnrn nn,nIn,nI hy o~,,tc 80 oz.:xS
that such legislation oOes not deprive any
one of any rights guaranteed by the con-
stitutiOn or the United States. See Muglpr
VS.. Kansas and Kansas VS.. Zeibold, 1913 U.
S. 1923: Kidd VS.. Pearsons, 12S U. s. /.
No reason is given by the trial court for
its Judgment Diminishing the action other
than a general statement to the effect that
under existing law 1t is not unlawful for a
nonresident importer to Keep a place of
business in this state where Intoxicating
liquors are stored and kept for ale and
sold, provided that the liquor thus stored
and sold is in the original and unbroken
package in which it was contained when
shipped out of the state from (which it
came. This conclusion of the district
court could only lave been reached upon
the assumption that the prohibitory liquor
law in North Dakota is unconstitutional
and consequently void in 50 far as it pro-
hibits the sale OF imported liquor in the
oiiSAho' LOON vi pdChdSC Ill WHICH Tie
same is imported. In this we think the
trial court was mistaken.
Counsel for respondents, arguing in sup
port OF the Judgment of the court below,
cite the case OF Lesley VS.. Hardin, reported
in 1876 y. 5. 100, and contend that the case
IS decisive OF the point in question. 1t is
true that the decision when it was pro-
mulgated by the supreme court of the
United States was, with respect to the
federal question involved in the case, de-
clslye authority, and the doctrine enunci-
ated ny the decision. as the law then stood,
would have protected a nonresident i'm
porter in the business of importing foreign
or interstate intoxicants and selling them
in an unDroken package in this state re-
CARELESS of any state law or police reg
ulatlon forbidding such sale. The deci-
sion rests upon and interprets the provi-
sion OF the United States constitution
declaring that congress shall AVE power
TO regulate commerce with foreign ma
tons and among the several states"
The decision in effect holding that in
toxlcatlng liquor, when it came into the
state as an article of foreign or interstate
commerce, was within the limits OF federal
protection and until a quantity of inter
state or foreign liquor should be sold by
the importer and thus mingled with the
mass OF state property it was not subject
to seizure under the police regulations of
any state. The court says: Commerce
between the states has been confided ex-
cluSlvely to congress by the constitution
and is not within the jurisdiction of the
police power OF the state unless placed
there by congressional %action.' Prior to
this decision there had been no congress
slonal action placing interstate intoxicants
within reach of the police regulations of
any state prior to their sale by the i'm
porter and with respect to this the courts
say: "The absence of a law by congress
as TO 1nV article nf pOmmQroo iS auuivo-
lent to its declaration that the importation
OF that article into the states shall be IN
restricted.
But subsequent to the decision of Lesley
VS.. Hardin, and prior to the sales of liquor
made by the defendants, congress took &C
monty known as the Wilson law. This
statute provides shat all fermented, dis
titled or other intoxicating liquors trans
ported into any state or territory, or re-
manning there for use, consumption. sale
or storage therein, shall, upon arrival in
operation and effect of the avs 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 liquor
or liquids had been produced in such state
or territory and shall not be exempt there.
from IT, by reason of being introduced therein
IN original packages or otherwise" Under
this statute, imported liquor, however
introduced into the state, is placed under
local control to the same extent as liquors of
domestic production. On crossing the boun-
Diary line Of a state the supreme authority
has declared by this enactment that inter
state liquor ceases to be an object of federal
protection and control and becomes
mingled with the mass of property within
the state, and. in common with all such
property, subject to local police regula-
lions. IL has been commended, but not in
this case, that the Wilson bill is invalid
because it in terms delegates to the states
the power to regulate interstate commerce
in liquor and thereby violates the provi-
sion of the federal constitution, which con-
ters such power upon congress alone.
Counsel in this case insist that the act, if
valid, is only permissive to the states, and
until a state has acted under it and passed
new laws, Or-re-enacted existing statutes
that the provisions of the Wilson bill are
imperative, and that the re-existing pro.
hibitory legislation of the state is void as
to imported liquor sold in the original
package. This position is supported by a
decision of the circuit court of the United
States for the district of Kansas, in a deci-
sion rendered by Judges Phillips and Fos-
ter. In re Rohrer, 4S Fed. Rep. 556.
But precisely the opposite view is taken,