Message to the Senate Returning Without Approval An Act Divesting Intoxicating Liquors of Their Interstate Character in Certain Cases (Webb–Kenyon Act)

To the Senate:

I return herewith, without my signature, S. 4043.

The bill, including title and enacting clause, is as follows:

An act divesting intoxicating liquors of their interstate character in certain cases.

Be it enacted, etc., That the shipment or transportation, in any manner or by any means whatsoever, of any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, from one State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, into any other State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, or from any foreign country into any State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, which said spirituous, vinous, malted, fermented, or other intoxicating liquor is intended by any person interested therein, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, is hereby prohibited.

After giving this proposed enactment full consideration, I believe it to be a violation of the interstate commerce clause of the Constitution, in that it is in substance and effect a delegation by Congress to the States of the power of regulating interstate commerce in liquors which is vested exclusively in Congress.

The most recent expression of the Supreme Court on the general subject is found in the case of the Louisville & Nashville Railroad Co. v. F. W. Cook Brewing Co. (223 U. S., 70). This was a bill in equity to enjoin the railroad company from refusing to accept the product of the brewing company at Evansville, Ind., where it was located, for transportation to local option or so-called 'dry communities' in Kentucky.

In delivering the judgment of the Supreme Court, affirming the action of the Circuit Court in awarding the injunction asked, Mr. Justice Lurton said:

By a long line of decisions, beginning even prior to Leisy v. Hardin (135 U. S., 100), it has been indisputably determined:

a. That beer and other intoxicating liquors are a recognized and legitimate subject of interstate commerce.

b. That it is not competent for any State to forbid any common carrier to transport such articles from a consignor in one State to a consignee in another.

c. That until such transaction is concluded by delivery to the consignee, such commodities do not become subject to State regulation, restraining their sale or disposition.

The Wilson Act, which subjects such liquors to State regulation although still in the original packages, does not apply before actual delivery to such consignee where the shipment is interstate. Some of the many later cases in which these matters have been so determined and the Wilson Act construed are: Rhodes v. Iowa (170 U. S., 412); Vance v. Vandercook Co. (170 U. S., 438); Heyman v. Southern Railway (203 U. S., 270); Adams Express Co. v. Kentucky (214 U. S., 218).

Valid as the Kentucky legislation undoubtedly was as a regulation in respect to intrastate shipments of such articles, it was most obviously never an effective enactment in so far as is undertook to regulate interstate shipments to 'dry' points. Pending this very litigation, the Kentucky Court of Appeals, upon the authority of the line of cases above cited, reached the same conclusion, C. & N. O. Ry. v. Kentucky (126 Ky., 563).

The obligation of the railway company to conform to the requirements of the Kentucky law, so far as that law prohibited intrastate shipments, is clear, and to this extent its circular notification was commendable. But the duty of this company, as an interstate common carrier for hire, to receive for transportation to consignees upon its line in Kentucky from consignors in other States any commodity which is an ordinary subject of interstate commerce, and such transportation could not be prohibited by any law of the State of such consignee, inasmuch as any such law would be an unlawful regulation of interstate commerce not authorized by the police power of the State.

The Wilson Act, referred to by Judge Lurton, provides as follows:

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 liquids 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.

The Supreme Court, in Rhodes v. Iowa (170 U. S., 423), construed this language to mean that the legislative authority of the respective States should attach to intoxicating liquors coming into the States by an interstate shipment, only after the consummation of the shipment, but before the sale of the merchandise. The court held that the right of the consignee to sell before delivery was a mere incident to the shipment, and that it was within the power of Congress to submit the incidental power to sell to the dominion of State authority.

The court declined to express an opinion as to the authority of Congress under its power to regulate commerce to delegate to the States the right to forbid the transportation of merchandise from one State to another. It must be admitted, therefore, that upon the exact point in question, to wit, the right of the Congress to delegate to States the power to forbid the shipment of intoxicating liquors from another State into its jurisdiction, the Supreme Court has declined to express an opinion, though it is difficult to read the language of the court in the case of Rhodes v. Iowa (170 U. S., 412); Vance v. Vandercook Co. (170 U. S., 438), and of Mr. Justice Catron in the License cases (5 Howard, 504, 599) quoted with approval by Mr. Justice Matthews in Bowman v. Railway Co. (125 U. S., 465, 489) without inferring that such a delegation of power would be beyond the power of Congress.

One of the main purposes of the union of the States under the Constitution was to relieve the commerce between the States of the burdens which local State jealousies and purposes had in the past imposed upon it; and the interstate commerce clause in the Constitution was one of the chief reasons for its adoption. The power was there conferred upon Congress. Now, if to the discretion of Congress is committed the question whether in interstate commerce we shall return to the old methods prevailing before the Constitution or not, it would seem to be conferring upon Congress the power to amend the Constitution by ignoring or striking out one of its most important provisions. It was certainly intended by that clause to secure uniformity in the regulation of commerce between the States. To suspend that purpose and to permit the States to exercise their old authority before they became States, to interfere with commerce between them and their neighbors, is to defeat the constitutional purpose.

This conclusion is sustained in a very careful report prepared by the subcommittee of the Judiciary Committee of the Senate, in which then Senator Knox was chairman. The conclusions stated were as follows:

First. Interstate shipments are not completed until they reach the consignee.

Second. An interruption or interference with interstate shipments before they reach the consignee constitutes a regulation of commerce.

Third. Regulating interstate shipments is an exclusive function of Congress.

Fourth. Congress cannot delegate any part of its exclusive power to the States.

Fifth. To remove the bar or impediment of exclusive Federal power which shuts the States out of the Federal domain is to permit or sanction a State law in violation of the Constitution and in effect to delegate a Federal function to the States.

I am quite aware that the purpose of this act is to enable the States more completely to regulate the sale and use of intoxicating liquors in their respective jurisdictions, and that a very large part of the good people of each of such States is strongly in favor of any law which will permit the State to do this, and therefore that the necessity for maintaining the constitutional restrictions in such cases with reference to interstate commerce, is not looked upon with popular favor in those States. Recognizing this popular wish, Congress has already gone to the extent of subjecting the original package in which the liquor is imported to the laws of the State as soon as it is delivered into the hands of the consignee. It has regulated the commerce in liquors by forbidding, under sections 238, 329 and 240 of the Penal Code (1) delivery of intoxicating liquor to any person other than the consignee, unless upon his written order, or to any fictitious person; (2) the collection of the purchase price of intoxicating liquor by any common carrier acting as agent of buyer or seller; (3) the shipment of any liquor unless labeled on the outside to show name of consignee, nature of contents, and quantity contained. These restrictions must greatly aid the State authorities in their enforcement of their liquor laws.

If Congress, however, may in addition entirely suspend the operation of the interstate commerce clause upon a lawful subject of interstate commerce and turn the regulation of interstate commerce over to the States in respect to it, it is difficult to see how it may not suspend interstate commerce in respect to every subject of commerce wherever the police power of the State can be exercised to hinder or obstruct that commerce. I cannot think that the framers of the Constitution, or that the people who adopted it, had in mind for a moment that Congress could thus nullify the operation of a clause whose useful effect was deemed so important and which in fact has contributed so much to the solidarity of the nation and the prosperity that has followed unhampered, nation-wide trade.

But it is said that this is a question with which the Executive or members of Congress should not burden themselves to consider or decide. It is said that it should be left to the Supreme Court to say whether this proposed act violates the Constitution. I dissent utterly from this proposition. The oath which the Chief Executive takes, and which each member of Congress takes, does not bind him any less sacredly to observe the Constitution than the oaths which the Justices of the Supreme Court take. It is questionable whether the doubtful constitutionality of a bill ought not to furnish a greater reason for voting, against the bill, or vetoing it, than for the court to hold it to be invalid. The court will only declare a law invalid where its unconstitutionality is clear, while the law-maker may very well hesitate to vote for a bill if of doubtful constitutionality because of the wisdom of keeping clearly within the fundamental law. The custom of legislators and executives having any legislative function to remit to the courts entire and ultimate responsibility as to the constitutionality of the measures which they take part in passing is an abuse which tends to put the court constantly in opposition to the Legislature and Executive, and, indeed, to the popular supporters of unconstitutional laws. If, however, the legislators and the executives had attempted to do their duty this burden of popular disapproval would have been lifted from the courts, or at least considerably lessened.

For these reasons, and in spite of the popular approval of this bill, I have not felt justified in signing it, because I feel that under principles of proper constitutional construction it violates the interstate commerce clause of our fundamental law.

I am sustained in the view I have taken by the judgment and opinion of Attorney General Wickersham, which contains an elaborate discussion of the question and considers in detail the issues which have been raised in the congressional debates and elsewhere.

WM. H. TAFT.

The White House, February 28, 1913.