Opinion
(Filed 28 October, 1914.)
1. Intoxicating Liquors — Carrying Into Prohibited Territory — Personal Use — Interstate Commerce — Webb-Kenyon Act — Interpretation of Statutes.
Chapter 1014, Public Laws 1907, relating to the city of High Point and providing that it shall be unlawful for any person, etc., to sell or dispose of for gain, or keep for sale, within the township, any spirituous wines, intoxicating liquors, etc., and that any person, corporation, etc., bringing within these limits any liquors, the sale of which is prohibited by the act, shall be guilty of a misdemeanor and fined or imprisoned, etc., is a valid exercise of legislative power, extending its prohibition to the purposes of sale and not to its receipt of transportation and delivery for personal use; and the importation of such liquor for personal use being lawful under the statute, the Webb-Kenyon law has no application, where interstate shipments are involved.
2. Intoxicating Liquors — Carrying Into Prohibited Territory — Criminal Law — Equity — Injunction.
Where the transportation of intoxicating liquors into prohibited territory is declared a misdemeanor and made punishable by statute, except in certain instances, the carrier must exercise vigilance and sound discretion and take notice of the use to which it is intended to put the liquor; and equity will not undertake to determine upon injunction whether the shipments of liquor are intended for an illegal or legal purpose. Nor will our courts enjoin the enforcement of the criminal law, at the suit of the carrier, upon the ground that it is threatened with continuous indictments for transporting the liquor to the prohibited territory.
APPEAL by defendant from Lane, J., heard at chambers in GUILFORD.
Watson, Buxton Watson, Stras Williams, Winston Biggs for plaintiff.
L. B. Williams for defendant.
CLARK, C. J., concurs in result.
Motion for a restraining order. The motion was based upon the verified complaint of the plaintiff. His Honor held that upon the complaint, itself, the plaintiff was not entitled to a restraining order. The plaintiff excepted and appealed.
The plaintiff seeks to enjoin the defendants from the enforcement of a statute of this State, chapter 1014, Public Laws 1907, which reads as follows: "That it shall be unlawful for any person, firm, or corporation to sell or dispose of for gain, or keep for sale within High Point Township, any spirituous wines, malt, or other intoxicating liquors; that any person, firm, or corporation bringing into High Point Township, for delivery to any person, corporation, company, or firm, any liquors, the sale of which is prohibited by this act, shall be guilty of misdemeanor and fined or imprisoned at the discretion of the court."
The plaintiff alleges that the defendant municipal officers of (104) High Point threatened to procure warrants for indictments against the plaintiff, and to arrest it and its agents and subordinates each time they make a delivery of liquors, delivered to it from points without the State, to be transported in interstate commerce to the township of High Point. The plaintiff contends that the said act is null and void in so far as it undertakes to prevent the delivery of liquors in interstate commerce within the said territory.
There are two insuperable objections to the granting of an injunction:
1. The statute sought to be enjoined as to its enforcement is not void, but in our opinion is a valid exercise of legislative power. The power of a State to prohibit within its boundaries the manufacture and sale of intoxicating liquors has been unquestioned since the case of Mugler v. Kansas, 123 U.S. 623.
It is also true, as contended by the plaintiff, that the right of an individual to import liquor into a prohibition State for his own personal use is recognized and declared in Vance v. Vanderhook, 170 U.S. 468, wherein the Supreme Court of the United States says: "It follows that under the Constitution of the United States, every resident of South Carolina is free to receive for his own use liquor from other States, and that the inhibitions of a State statute do not operate to prevent liquors from other States from being shipped into such State, on the order of a resident, for his own use. But the right of persons in one State to ship liquor into another State to a resident for his own use is derived from the Constitution of the United States, and does not rest on the grant of the State law."
The same question is discussed and decided in Adams Express Co. v. Kentucky, 214 U.S. 218. These decisions were made prior to the Webb-Kenyon law, and what bearing that may have upon them it is not necessary for us to decide.
The High Point statute does not undertake to prohibit the plaintiff from bringing into High Point Township for delivery to any one packages of liquor intended for personal use and consumption, or for any other lawful purpose. The law only extends its pains and penalties to any person, firm, or corporation bringing into such territory and delivering liquor therein to be kept for sale. The law is directed solely at the importation of liquor for sale, and not at that imported for personal use, which, so far, has been held to be a lawful purpose.
It must be borne in mind that the General Assembly of North Carolina has not up to this time undertaken to prohibit introduction of liquor into this State for individual consumption. Whether it can do so, (105) under the Constitution of the United States and of this State, has never been decided by this Court, and is a question not presented by this appeal.
The furthest that the general State law has gone, as affecting an individual who imports liquor for his own use, is to make the possession of more than a certain quantity at one time prima facie evidence of a purpose to sell. It is not contended, so far as we know, by any one, where the State permits the importation of liquor for the individual consumption of its citizens, or for any other lawful purpose, that the Webb-Kenyon law has any effect.
The High Point statute, as we have said, prohibits the introduction of liquor by any carrier intended for an illegal purpose, and it is asked, "How can the carrier know or ascertain whether the liquor is intended for sale, or for personal consumption?" That is a question we are not called upon to answer. As pointed out by the Supreme Court of Kentucky, the carrier must exercise vigilance and sound discretion and take notice of the use to which it is intended to put the liquor. Adams Express Co. v. Kentucky, 157 S.W. 908.
2. In any prosecution of an indictment under this act it is a valid defense that the liquor was intended for a lawful purpose, and therefore the courts will not undertake to determine upon injunction proceedings whether shipments of liquor are intended for an illegal or a legal purpose. We admit, as contended by the plaintiff, that the Supreme Court of the United States has departed sometimes from the doctrine enunciated in Fitts v. McGee, 172 U.S. 516, and that injunctions have been issued by the Federal courts prohibiting the enforcement of State statutes where such excessive penalties and punishments are imposed upon common carriers, and their officers, that they are deterred from testing the validity of such statutes in the State courts upon criminal proceedings. This subject is fully discussed in Ex parte Young, 209 U.S. 124, by Mr. Justice Peckham, and in an elaborate dissenting opinion by Mr. Justice Harlan. In that and subsequent cases the Court proceeded on the theory that the legislation was so drastic that the corporation and its officers were intimidated from testing it in the usual manner by the severity of the punishment imposed.
Even if we were inclined to depart from our own well settled precedents, no such case is made out by the complaint in this case, and as we have before remarked, it would be utterly impracticable to determine, by injunction proceedings, the legality of such shipments of liquor. The courts of this State will not undertake by injunction to enjoin the enforcement of the criminal law. The party charged with crime must make his defense and plead to the indictment, and if convicted, he may, by appeal, bring his case before this Court. This must be especially true as to the statute, which we declare to be valid. S. v. R. R., (106) 145 N.C. 516; Paul v. Washington, 134 N.C. 380.
Upon a consideration of this appeal, we are of opinion (1) that the High Point act is a valid exercise of legislative power, and does not prohibit the bringing of liquor into High Point for a lawful use; (2) that upon the facts presented in the record, the injunction was properly refused.