As noted in Wine Wars, Part 5, the alcohol jurisprudence of the 19th Century had the peculiar effect of discriminating in favor of out-of-state alcohol production. The Supreme Court had blessed the power of states to exercise their police power over local affairs to enact state prohibition or to allow local jurisdictions to exercise a “local option” to ban the production and consumption of alcohol, including even the production for personal use. On the other hand, the Supreme Court held that under the “Original Package” doctrine interpretation of the Commerce Clause, dry states could not prohibit the delivery of alcohol in its original package from out-of-state sellers and manufacturers. Because of the Original Package doctrine, the States were unable to regulate imported alcohol until the first sale in the State or until it was removed from its original package. As a result, states could regulate saloons and bars, but could not regulate even the resale of liquor that remained in its original package.
Congress responded to this anomaly by passing the Wilson Act, 26 Stat. 313 (1890), which provides that intoxicating liquors or liquids transported into any State or remaining therein for use, consumption, sale or storage, shall, upon arrival, be subject to the laws of the State “enacted in the exercise of its police power to the same extent and in the same manner as though such liquids or liquors had been produced in such State * * *, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.”
The language permitting States to regulate imported liquor “to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory,” thereby eliminated the privileged status of interstate sellers under the Leisy and Bowman. But the Wilson Act also retained the long-standing prohibition on state discrimination against interstate commerce that was laid down in Walling v. Michigan; the Act was intended only to empower the States to impose the same regulation on imported alcohol as domestic products, not to discriminate against out-of-state products.
In Scott v. Donald, 165 U.S. 58, 100 (1897), the Supreme Court held that the purpose of the Wilson Act was to resolve the conflict between the federal Commerce Clause and the state’s police power by closing the gap in the state’s police power created by the original package doctrine. Thus the Wilson Act built upon the foundation of the state’s police power to regulate alcohol—both the state’s power to regulate local affairs under the police power was unaffected, but the traditional limitations on the police power that were recognized in Walling remained. Thus, the Court noted in Donald that the courts must first determine whether a given state law is a lawful “exercise of its police power,” but even if it is, it must still comport with the Constitution. “We cheerfully concede that the law in question was passed in the bona fide exercise of the police power. *** But, as we have had more than one occasion to observe, our willingness to believe that this statute was enacted in good faith, and to protect the people of the state from the evils of unrestricted importation, manufacture, and sale of ardent spirits, cannot control the final determination, whether the statute, in some of its provisions, is not repugnant to the constitution of the United States.” The court also noted that the law did not completely prohibit the manufacture or sale of alcohol, it simply discriminated against interstate sellers.
As to the effect of the Wilson Act, the Court observed, “That law was not intended to confer upon any state the power to discriminate injuriously against the products of other states in articles whose manufacture and use are not forbidden, and which are, therefore, the subjects of legitimate commerce. When that law provided that ‘all fermented, distilled or intoxicating liquors transported into any state or territory, remaining therein for use, consumption, sale or storage therein, should, 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 should not be exempt therefrom by reason of being introduced therein in original packages or otherwise,’ evidently equality or uniformity of treatment under state laws was intended.”
The Court continued, “The question whether a given state law is a lawful exercise of the police power is still open, and must remain open, to this court. Such a law may forbid entirely the manufacture and sale of intoxicating liquors, and be valid; or it may provide equal regulations for the inspection and sale of all domestic and imported liquors, and be valid. But the state cannot, under the congressional legislation referred to, establish a system which, in effect, discriminates between interstate and domestic commerce in commodities to make and use which are admitted to be lawful.”
As Scott v. Donald indicated, therefore, the power to regulate alcohol remained grounded in the state police power, and the Wilson Act was intended to plug a hole that had been caused by the Original Package doctrine. Nothing in the Wilson Act suggested that Congress intended to overturn the longstanding principle recognized in Walling or to create a new and unprecedented power for the states to erect discriminatory barriers to interstate commerce or to treat out-of-state alcohol worse than in-state.
Subsequent court decisions, however, undermined the Wilson Act by barring dry states from prohibiting the interstate shipment of alcohol directly to consumers, so long as the alcohol was in its original package and was intended for purely personal use and not for resale. In re Rahrer, 140 U.S. 545 (1891); Rhodes v. Iowa, 170 U.S. 412 (1898). This led to the enactment of the Webb-Kenyon Act, which will be reviewed in the next post.
Incidentally, the Wilson Act remains in effect today, and Scott v. Donald has never been overturned or questioned. Presumably, therefore, if the nondiscrimination principle of the Wilson Act and Scott was intended to have been overturned by Webb-Kenyon or the 21st Amendment, one would expect to find some reference to it in those enactments.
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