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.