Page:The Green Bag (1889–1914), Volume 21.pdf/240

 The Wilson Act and the Constitution liquors within the state by any traveling salesman who solicits orders by the jug or bottle in lots less than five gallons." This act the Supreme Court of the United States sustained in the case of Delamater v. South Dakota* and this it did in spite of the fact that it had already held that the power of the states to regulate intoxicating liquors did not become operative until the liquors had reached their destination. To reach this necessary conclusion, for it was absolutely necessary for the Court to catch up with popular opinion and to appease the prohibition states, the fol lowing logic was resorted to: "As we have stated, decisions of this Court interpreting the Wilson Act have held that that law did not authorize state power^to attach to liquor shipped from one state into another before its arrival and delivery within the state to which destined. From this it is insisted, as none of the liquors covered by the proposals in this case had arrived and been deliv ered within South Dakota, the power of the state did not attach to the carrying on of the business of soliciting proposals, for until the liquor arrived in the state there was nothing on which the state authority could operate. But this is simply to misapprehend and misapply the cases and to misconceive the nature of the act done in the carrying on the business of soliciting proposals. The rulings in the previous cases to the effect that, under the Wilson Act, state authority did not extend over liquor shipped from one state to another until arrival and delivery to the consignee at the point of destination, were but a rec ognition of the fact that Congress did not intend, in adopting the Wilson Act, even if it lawfully could have done so, to authorize one state to exert its author ity in another state by preventing the • 205 U. S. 93.

219

delivery of liquor embraced by trans actions made in such other state. The proposition here relied on is widely different, since it is that, despite the Wilson Act, the state of South Dakota was without power to regulate or con trol the business carried on in South Dakota of soliciting proposals related to liquor situated in another state. But the business of soliciting proposals in South Dakota was one which that state had a right to regulate, wholly irrespec tive of when or where it was contem plated the proposals would be accepted or whence the liquor which they em braced was to be shipped. Of course, if the owner of the liquor in another state had a right to ship the same into South Dakota as an article of interstate commerce, and, as such, there sell the same in the original package, irrespec tive of the laws of South Dakota, it would follow that the right to carry on the ^business of soliciting in South Dakota was an incident to the right to ship and sell, which could not be bur dened without directly affecting inter state commerce. But as by the Wilson Act the power of South Dakota attached to intoxicating liquors when shipped into that state from another state after delivery but before the sale in the orig inal package, so as to authorize South Dakota to regulate or forbid such sale, it follows that the regulation by South Dakota of the business carried on within its borders of soliciting proposals to purchase intoxicating liquors, even though such liquors were situated in other states, cannot be held to be repug nant to the commerce clause of the Constitution, because directly or indi rectly burdening the right to sell in South Dakota, a right which by virtue of the Wilson Act did not exist." Here again we find a legal refinement which it is hard to understand or to