Appt., (242 U. S. 311) titioners who employ drugs in determining | JAMES CLARK DISTILLING COMPANY, the accommodative and refractive states of the human eye." To sustain the statute appellees adduce the police power of the state; against the statute complainant urges the 14th Amendment and its prohibition of discrimination. The case requires, under the averments of the bill, adjustment of these contentions. It is established that a state may regulate the practice of medicine, using this word in its most general sense. Dent v. West Virginia, 129 U. S. 114, 32 L. ed. 623, 9 Sup. Ct. Rep. 231; Hawker v. New York, 170 U. S. 189, 42 L. ed. 1002, 18 Sup. Ct. Rep. 573; Reetz v. Michigan, 188 U. S. 505, 47 L. ed. 563, 23 Sup. Ct. Rep. 390; Watson v. Maryland, 218 U. S. 173, 54 L. ed. 987, 30 Sup. Ct. Rep. 644; Collins v. Texas, 223 U. S. 288, 56 L. ed. 439, 32 Sup. Ct. Rep. 286. V. WESTERN MARYLAND RAILWAY COM. JAMES CLARK DISTILLING COMPANY, 1. A state may, consistently with the 14th Amend., forbid all shipments of indue process of law clause of U. S. Const. toxicating liquor, whether intended for personal use or otherwise. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 841; Dec. Dig. 295.] COMMERCE 14 STATE REGULATION TRANSPORTING INTOXICATING LIQUORWEBB-KENYON ACT. Complainant tries to escape from the rulings of those cases by asserting a dis- 2. Any immunity from the prohibitions crimination against her. She is an ophthal- of W. Va. Code 1913, chap. 32A, as amendmologist, she avers, "which is a school of ed by Laws 1915, chap. 7, § 7, Laws 1915, 2d Ex. Sess. p. 660, § 34, against the ship. scientific learning and practice confined to ment from without the state of intoxicat the treatment of the inflammation of the eye ing liquors intended for personal use, and its membranes and in fitting glasses to and the receipt and possession of liquors the human eye," and that she has prac- so transported, which the interstate chartised her profession for the past three years, acter of such a shipment might otherwise and does not employ medicine, drugs, or of the Webb-Kenyon Act of March 1, 1973 give, was taken away by the provisions surgery. She, however, attacks the statute (37 Stat. at L. 699, chap. 90, Comp. Stat. because, to use the language of her coun- 1913, § 8739), forbidding the interstate sel, it "arbitrarily discriminates against shipment or transportation of intoxicating every other school of scientific knowledge liquor which is intended by any person inand practice in favor of the school employ-sold, or in any manner used, either in the terested therein to be received, possessed, ing drugs in determining the accommodative and refractive states of the human eye." It undoubtedly does, but gives the name of the school that of "optometry" and its practitioners "optometrists." We cannot suppose that any injury is done her by the difference in names, and yet she gives no other tangible ground of complaint. Whether they are different, and whether the difference is of substantial or unsubstantial degree, she does not inform us. She practises one of them in preference to the other, and for the practice of that one the state has declared that its certificate of competency is necessary. The cases cited above establish that the state has such power and it requires no more of complainant than it requires of any other ophthalmologist, to use her word, or of any other optometrist, to use the word of the statute. The District Court was, therefore, right when it decided that, on the averments of the bill, complainant was not entitled to an injunction. Decree affirmed. original package or otherwise, in violation of the law of the state to which the liquor is transported, although individual use may not have been prohibited by the West Vir ginia law. [Ed. Note.-For other cases, see Commerce, Cent. Dig. §§ 30, 92; Dec. Dig. 14.] [Ed. Note.-For other cases, see Commerce. 4. There is nothing repugnant to the due process of law clause of U. S. Const. 5th For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Amend., in the provisions of the Webb-Ken- | purposes, and the right otherwise to sell yon Act of March 1, 1913 (37 Stat. at L. 699, chap. 90, Comp. Stat. 1913, § 8739), under which an interstate shipment of intoxicating liquor, though intended for per sonal use, may be subjected to the state prohibitory laws. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 841; Dec. Dig. 296(1).] [Nos. 75 and 76.] Argued May 10 and 11, 1915. Ordered for reargument November 1, 1915. Reargued November 8 and 9, 1916. Decided January 8, 1917. TWO WO APPEALS from the District Court of the United States for the District of Maryland to review decrees dismissing the bills in suits to compel carriers to accept shipments of intoxicating liquor for interstate transportation forbidden by the laws of the state into which the liquor was to be transported. Affirmed. The facts are stated in the opinion. Messrs. Lawrence Maxwell, Joseph S. Graydon, Walter C. Capper, and J. Phillip Roman for appellant. Messrs. W. B. Wheeler and Fred O. Blue for the state of West Virginia. Mr. Wiley E. Jones, Attorney General of Arizona, Mr. Clifford Walker, Attorney General of Georgia, Mr. J. H. Peterson, Attorney General of Idaho, Mr. George Cosson, Attorney General of Iowa, Mr. S. M. Brewster, Attorney General of Kansas, Mr. Ross Collins, Attorney General of Mississippi, Mr. T. W. Bickett, Attorney General of North Carolina, Mr. Henry J. Linde, Attorney General of North Dakota, Mr. S. P. Freeling, Attorney General of Oklahoma, Mr. George M. Brown, Attorney General of Oregon, Mr. Thomas H. Peebles, Attorney General of South Carolina, Mr. Frank M. Thompson, Attorney General of Tennessee, Mr. John Garland Pollard, Attorney General of Virginia, Mr. W. V. Tanner, Attorney General of Washington, and Mr. William L. Martin, Attorney General of Alabama, as amici curiæ. wine for sacramental and alcohol for scientific and manufacturing purposes, the law forbade "the manufacture, sale, keeping or storing for sale in this state, or offering or exposing for sale," intoxicating liquors, and were comprethe intoxicants embraced hensively defined. The statute contained many restrictions concerning hotels, restaurants, clubs, and so-called associations where liquor was kept and served either as a result of membership or by gift or otherwise, which were evidently intended to prevent the frustration of the prohibitions against the keeping of intoxicants for sale and purchase by subterfuge in the guise of the exercise of an individual right. There was no express prohibition against the individual right to use intoxicants and none implied unless that result arose (a) from the prohibition in universal terms of all sales and purchases of liquor within the state, (b) from the clause providing that every delivery made in the state by a common or other carrier of the prohibited intoxicants should be considered as a consummation of a sale made in the state at the point of delivery, and (c) from the prohibitions which the statute contained against solicitations made to induce purchases of liquor, and against the publication in the state of all circulars, advertisements, price lists, etc., which might tend to stimulate purchases of liquor. Under this statute, and in reliance upon the provisions of the act of Congress known as the Webb-Kenyon Law (Act of Congress of March 1, 1913, 37 Stat. at L. 699, chap. 90, Comp. Stat. 1913, § 8739), the state of West Virginia in one of its courts sued the Western Maryland Railroad Company and the Adams Express Company to enjoin them from carrying from Maryland into West Virginia liquor in violation of law. In substance it was charged that very many shipments had been taken by the carriers contrary to the law, both as to solicitations and as to the use for which the liquor was intended. Preliminary injunctions were issued restraining the carrying of liquor into Mr. Chief Justice White delivered the the state, subject to many conditions as to opinion of the court: To refer to the principal state law relating to these suits, to the pleadings and the decision of the court below, will make the issues in these cases clear and point directly to the elements required to be considered in deciding them. West Virginia in February, 1913, enacted a prohibition law to go into effect on July 1st of the following year. Code 1913, chap. 32A. Putting out of view the right of druggists, under stringent regulations provided by the statute, to sell for medicinal investigation, etc., etc. With these injunctions in force, these suits were commenced by the Clark Distilling Company to compel the carriers to take a shipment of liquor which it was asserted was ordered for personal use, and deliver it in West Virginia, on the ground that the Act of Congress to Regulate Commerce imposed the duty to receive and carry, and that, besides, the West Virginia prohibition law, when rightly construed, did not forbid it. The carriers, not challenging the asserted meaning of the West Virginia law, set up the injunctions For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes the state. But the possibility of dispute over these subjects no longer exists because, after the decision below, and since the cases were first argued (for they have been here argued twice), the state of West Virginia amended the statute so as to leave no room for doubt that it does forbid all shipments, whether for personal use or otherwise, and whether from within or without the state. The pertinent provisions of the amendments are placed in the margin. 1 As the relief sought is the permanent right to ship in the future, the meaning of the statute now, that is, as amended, is the test by which we must consider the questions requiring solution. Indeed, this is frankly admitted by the parties, since it is unequivocally declared that the question is the operation and effect of the statute as amended and its constitutionality. We therefore come to the second question, which is: and averred that to receive and carry the it did, whether or not the prohibitions liquor would violate their provisions, and of the law equally applied to shipments therefore there was no duty under the Unit- from outside and to those originating in ed States law to do so. West Virginia intervened in the suits, relying upon the state law and the injunctions which had been issued. At the trial it was shown that the plaintiff Distilling Company had systematically solicited purchases and constantly shipped liquor from Maryland into West Virginia in violation of the prohibition law. The court held that the West Virginia law did not prohibit personal use, and did not forbid shipments for such use, and that, as there was no state prohibition, the Webb-Kenyon Law had no application, and that, as the solicitations forbidden by the state statute were solicitations to do that which was forbidden, that consideration was irrelevant. The construction of the statute made by the state court was held not authoritatively binding, as that court was not one of last resort, and the right to practically modify the injunctions was declared to exist because West Virginia, by making herself a party to the suits, had submitted herself to the jurisdiction of the court. All questions concerning the power of the state of West Virginia to pass the prohibition law if it meant otherwise, and of the right of Congress to adopt the WebbKenyon Act under a like hypothesis, were reserved. 219 Fed. 333. Before the decrees entered became final, the circuit court of appeals for the fourth circuit, in a case pending before it (West Virginia v. Adams Exp. Co. L.R.A.1916C, 291, 135 C. C. A. 464, 219 Fed. 794), decided directly to the contrary. It held that the law of West Virginia did prohibit shipments for personal use; that it did forbid solicitations therefore for such purchases; that, by operation of the Webb-Kenyon Act, there was no longer a right to ship liquor into the state in violation of its laws; and that both the state law and the Webb-Kenyon Act were constitutional. Controlled by such decision, the trial court recalled its opinion, heard a reargument, and, although not changing its view, accepted and gave effect to the conclusions reached by the circuit court of appeals because they were deemed to be authoritative, and the cases were brought directly here, because of the constitutional questions, to review such action. The issues to be decided may be embraced in four propositions which we proceed separately to consider. 1. The correct meaning of the West Virginia law as to the subjects in dispute. The difference as to the meaning of the statute in the court below was whether or not the West Virginia law prohibited the receipt of liquor for personal use; and, if 2. The power of the state to enact the prohibition law consistently with the due process clause of the 14th Amendment and the exclusive power of Congress to regulate commerce among the several states. That government can, consistently with the due process clause, forbid the manufacture and sale of liquor and regulate its traffic, is not open to controversy; and that there goes along with this power full police authority to make it effective, is also not open. Whether the general authority includes the right to forbid individual use, we need not consider, since clearly there would be power, as an incident to the right to forbid manufacture and sale, to restrict the means by which intoxicants for personal use could be obtained, even if such use was permitted. This being true, there can be no doubt that the West Virginia prohibition law did not offend against the due process clause of the 14th Amendment. But that it was a direct burden upon 1 "Sec. 7. It shall be unlawful for any person to keep or have, for personal use or otherwise, or to use, or permit another to have, keep or use, intoxicating liquors at any restaurant, store, office building, club, place where soft drinks are sold (except a drug store may have and sell alcohol and wine as provided by §§ 4 and 24), fruit stand, news stand, room, or place where bowling alleys, billiard or pool tables are maintained, livery stable, boathouse, public building, park, road, street or alley. shall also be unlawful for any person to give or furnish to another intoxicating liquors, except as otherwise hereinafter provided in this section. Any one violating this section shall be guilty of a misdemean It interstate commerce and conflicted with the | be received, possessed, sold, or in any manpower of Congress to regulate commerce ner used, either in the original package or among the several states, and therefore otherwise, in violation of any law of such could not be used to prevent interstate state, territory, or district of the United shipments from Maryland into West Vir- States is hereby prohibited." ginia, has been not open to question since the decision in Leisy v. Hardin, 135 U. S. 100, 34 L. ed. 128, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681. And this brings us to consider whether the Webb-Kenyon Law has so regulated interstate commerce as to give the state the power to do what it did in enacting the prohibition law, and cause its provisions to be applicable to ship ments of intoxicants in interstate commerce, thus saving that law from repugnancy to the Constitution of the United States, which is the third proposition for consideration. 3. Assuming the constitutionality of the Webb-Kenyon Act, what is its true meaning and its operation upon the prohibitions contained in the West Virginia law? Omitting words irrelevant to the subject now under consideration, the title and text of the Webb-Kenyon Act are as follows: "An Act Divesting Intoxicating Liquors of Their Interstate Character in Certain Cases. 66 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, into any other state, territory, or district of the United States, which said spirituous, vinous, malted, fermented, or other intoxicating liquor is intended, by any person interested therein, to or, and upon conviction thereof shall be, fined not less than $100, nor more than $500, and be imprisoned in the county jail not less than two nor more than six months; provided, however, that nothing contained in this section shall prevent one, in his home, from having and there giving to another intoxicating liquors when such having or giving is in no way a shift, scheme or device to evade the provisions of this act; but the word 'home' as used herein, shall not be construed to be one's club, place of common resort, or room of a transient guest in a hotel or boarding house. And, provided, further, that no common carrier, for hire, nor other person, for hire or without hire, shall bring or carry into this state, or carry from one place to another within the state, intoxicating liquors for another, even when intended for personal use; except a common carrier may, for hire, carry pure grain alcohol and wine, and such preparations as may be sold by druggists for the special purposes and in the manner as set forth in §§ 4 and 24; and, provided, further, however, that in case of search and seizure, the find As the state law forbade the shipment into or transportation of liquor in the state, whether from inside or out, and all receipt and possession of liquor so transported, without regard to the use to which the liquor was to be put, and as the WebbKenyon Act prohibited the transportation in interstate commerce of all liquor "intended 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," there would seem to be no room for doubt that the prohibitions of the state law were made applicable by the Webb-Kenyon Law. If that law was valid, therefore, the state law was not repugnant to the commerce clause. It is insisted that this view gives too wide an effect to the Webb-Kenyon Law, since that act was only intended to include state prohibitions in so far as they forbade the shipment, receipt, and possession of liquor for a forbidden use, and hence, as individual use was not forbidden by the state law, the shipment, receipt, and possession for such use was not embraced by the Webb-Kenyon Act, and the state law, so far as it was outside of that Act, was repugnant to the commerce clause. This is sought to be supported by the historical environment of the Webb-Kenyon Act as evidenced by the debates on its passage and by a decision of this court, as well as decisions of state ing of any liquors shall be prima facie evidence that the same are being kept and stored for unlawful purposes." [Acts 1915, chap. 7, p. 34.] "Sec. 34. It shall be unlawful for any person in this state to receive, directly or indirectly, intoxicating liquors from a common, or other carrier. It shall also be unlawful for any person in this state to possess intoxicating liquors, received directly or indirectly from a common, or other carrier in this state. This section shall apply to such liquors intended for personal use, as well as otherwise, and to interstate, as well as intrastate, shipments or carriage. Any person violating this section shall be guilty of a misdemeanor and upon conviction shall be fined not less than $100 nor more than $200 and in addition thereto may be imprisoned not more than three months; provided, however, that druggists may receive and possess pure grain alcohol, wine and such preparations as may be sold by druggists for the special purpose and in the manner as set forth in §§ 4 and 24." [Acts 1915, 2d Ex. Sess. chap. 7, p. 660.] courts (which are in the margin 2), which, | the state prohibitions to take away from it is insisted, have so construed that act. interstate commerce shipments a right which they otherwise would have embraced; that is, the right to sell after receipt in the original package, any state law to the contrary notwithstanding. At the same time it was recognized, however, that as the right to receive liquor was not affected by the Wilson Act, such receipt and the possession following from it and the resulting right to use remained protected by the commerce clause even in a state where what is known as the dispensary system prevailed. Vance v. W. A. Vandercook Co. 170 U. S. 438, 42 L. ed. 1100, 18 Sup. Ct. Rep. 674. Assuming, for the sake of argument only, that the debates may be resorted to for the purpose of showing environment, we are of opinion they clearly establish a result directly contrary to that which they are cited to maintain. Undoubtedly they show that it was insisted the act was not in tended to interfere with personal use, as of course it was not, since its only purpose was to give effect to state prohibitions, not to compel the states to prohibit personal use. Indeed, the meaning which it is sought to affix to the Webb-Kenyon Act, if accepted, would cause that act to have the effect | Reading the Webb-Kenyon Law in the light of compelling the states to prohibit personal thus thrown upon it by the Wilson Act and use, since, if all the prohibitions of state the decisions of this court which sustained laws against manufacture, sale, receipt, and and applied it, there is no room for doubt possession of intoxicants remained subject that it was enacted simply to extend that to the danger of indirect violation by per- which was done by the Wilson Act; that is mitting shipment, receipt, and possession to say, its purpose was to prevent the imfor personal use, it would follow that a munity characteristic of interstate comnecessary and immediate incentive was im-merce from being used to permit the receipt posed upon the states by the Webb-Kenyon of liquor through such commerce in states Act to enact a provision against personal use. The antecedents of the Webb-Kenyon Act, that is, its legislative and judicial progenitors, leave no room for the contention made. To correct the great evil which was asserted to arise from the right to ship liquor into a state through the channels of interstate commerce, and there receive and sell the same in the original package, in violation of state prohibitions, was indisputably the purpose which led to the enactment of the Wilson Law (Act of Congress of August 8, 1890, 26 Stat. at L. 313, chap. 728, Comp. Stat. 1913, § 8738), forbidding the sale of liquor in a state in the original package even although brought in through interstate commerce, when the existing or future state laws forbade sales of intoxicants. And this was recognized by the long line of decisions (a few of the leading cases are in the margin 3) which upheld that law, and pointed out that it permitted 2 Van Winkle v. State, 4 Boyce (Del.) 578, 91 Atl. 385, Ann. Cas. 1916D, 104; Adams Exp. Co. v. Com. 154 Ky. 462, 48 L.R.A. (N.S.) 342, 157 S. W. 908; Adams Exp. Co. v. Com. 160 Ky. 66, 169 S. W. 603; Palmer v. Southern Exp. Co. 129 Tenn. 116, 165 S. W. 236; Ex parte Peede, 75 Tex. Crim. Rep. 247, 170 S. W. 749. 8 Re Rahrer, 140 U. S. 545, 35 L. ed. 572, 11 Sup. Ct. Rep. 865; Rhodes v. Iowa, 170 U. S. 412, 42 L. ed. 1088, 18 Sup. Ct. Rep. 664; American Exp. Co. v. Iowa, 196 U. S. 133, 49 L. ed. 417, 25 Sup. Ct. Rep. 182; Pabst Brewing Co. v. Crenshaw, 198 U. S. 17, 49 L. ed. 925, 25 Sup. Ct. Rep. 552; Rosenberger v. Pacific Exp. Co. 241 U. S. 48, 60 L. ed. 880, 36 Sup. Ct. Rep. 510. contrary to their laws, and thus in effect afford a means by subterfuge and indirection to set such laws at naught. In this light it is clear that the Webb-Kenyon Act, if effect is to be given to its text, but operated so as to cause the prohibitions of the West Virginia law against shipment, receipt, and possession to be applicable and controlling irrespective of whether the state law did or did not prohibit the individual use of liquor. That such also was the embodied spirit of the Webb-Kenyon Act plainly appears, since, if that be not true, the coming into being of the act is wholly inexplicable. The case in this court relied upon to establish the contrary (Adams Exp. Co. v. Kentucky, 238 U. S. 190, 59 L. ed. 1267, L.R.A.1916C, 273, 35 Sup. Ct. Rep. 824, Ann. Cas. 1915D, 1167) clearly does not do so. All that was decided in that case was that, as the court of last resort of Kentucky, into which liquor had been shipped, had held that the state statute did not forbid shipment and receipt of liquor for personal use, therefore the Webb-Kenyon Act did not apply, since it only applied to things which the state law prohibited. The leading state case cited is Van Winkle v. State, 4 Boyce (Del.) 578, 91 Atl. 385, Ann. Cas. 1916D, 104. It is true in that case the state law prohibited shipment to and receipt of intoxicants in local-option territory, and if the Webb-Kenyon Law had been applied, there would have been no possible ground for claiming that the state prohibitions could be escaped because the liquor was shipped in interstate commerce. But the shipment was held to be protected |