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as interstate commerce despite the state, but of a want of power to reach the result prohibition because the Webb-Kenyon Law accomplished because of the method resort. was not correctly applied, for the following ed to for that purpose. This is certain reason: Coming to consider the text of that since the sole claim is that the act was law, the court said that as the Webb- not within the power given to Congress to Kenyon Act prohibited the shipment of in- regulate because it submitted liquors to the toxicants "only when liquor is intended to control of the states by subjecting interbe used in violation of the law of the state,” state commerce in such liquors to present and as the liquor shipped was intended for and future state prohibitions, and hence, personal use, which not forbidden, in the nature of things, was wanting in uni. therefore the shipment, although prohibited formity. Let us test the contentions by by the state law, was beyond the reach of reason and authority. the Webb-Kenyon Act. But

The power conferred is to regulate, and ground for following the ruling thus made, the very terms of the grant would seem to since, as we have already pointed out, it repel the contention that only prohibition necessarily rested upon an entire miscon- of movement in interstate commerce was ception of the text of the Webb-Kenyon Act, embraced. And the cogency of this is mani. because that act did not simply forbid the fest since, if the doctrine were applied to introduction of liquor into a state for a those manifold and important subjects of prohibited use, but took the protection of interstate commerce as to which Congress interstate commerce away from all receipt from the beginning has regulated, not proand possession of liquor prohibited by hibited, the existence of government under state law.

the Constitution would be no longer pos. The movement of liquor in interstate com-sible. merce and the receipt and possession and The argument as to delegation to the right to sell prohibited by the state law states rests upon a mere misconception. It having been in express terms divested by is true the regulation which the Webbthe Webb-Kenyon Act of their interstate Kenyon Act contains permits state prohibi. commerce character, it follows that if that tions to apply to movements of liquor from act was within the power of Congress to one state into another, but the will which adopt, there is no possible reason for hold. causes the prohibitions to be applicable is ing that to enforce the prohibitions of the that of Congress, since the application of state law would conflict with the commerce state prohibitions would cease the instant clause of the Constitution; and this brings the act of Congress ceased to apply. In us to the last question, which is:

fact, the contention previously made, that 4. Did Congress have power to enact the the prohibitions of the state law were not Webb-Kenyon Law?

applicable to the extent that they were We are not unmindful that opinions ad- broader than the Webb-Kenyon Act, is in verse to the power of Congress to enact the direct conflict with the proposition as to law were formed and expressed in other delegation now made. departments of the government. Opinion So far as uniformity is concerned, there of the Attorney General, 30 Ops. Atty. Gen. is no question that the act uniformly ap. 88; Veto Message of the President, 49 Cong. plies to the conditions which call its proRec. 4291. We are additionally conscious, visions into play,—that its provisions therefore, of the responsibility of deter-apply to all the states,—so that the quesmining these issues and of their serious tion really is a complaint as to the want character.

of uniform existence of things to which the It is not in the slightest degree disputed act applies, and not to an absence of uni. that if Congress had prohibited the ship-formity in the act itself. But, aside from ment of all intoxicants in the channels of this, it is obvious that the argument seeks interstate commerce, and therefore had to engraft upon the Constitution a restricprevented all movement between the several tion not found in it; that is, that the states, such action would have been lawful, power to regulate conferred upon Congress because within the power to regulate which obtains subject to the requirement that the Constitution conferred. Lottery Case regulations enacted shall uniform (Champion v. Ames) 188 U. S. 321, 47 L. throughout the United States. In view of ed. 492, 23 Sup. Ct. Rep. 321, 13 Am. Crim. the conceded power on the part of Congress Rep. 561; Hoke v. United States, 227 U. to prohibit the movement of intoxicants S. 308, 57 L. ed. 523, 43 L.R.A. (N.S.) 906, in interstate commerce, we cannot admit 33 Sup. Ct. Rep. 281, Ann. Cas. 1913E, that because it did not exert its authority 905. The issue, therefore, is not one of an to the full limit, but simply regulated to absence of authority to accomplish in sub- the extent of permitting the prohibitions stance a more extended result than that in one state to prevent the use of interbrought about by the Webb-Kenyon Law, state commerce to ship liquor from another


state, Congress exceeded its authority to movement of intoxicants in interstate comregulate. We can see, therefore, no force merce was under the control of Congress in the argument relied upon tested from despite the wide scope of the police author. the point of view of reason, and we come to ity of the state over the subject, it was the question of authority.

said (p. 108): “Yet a subject matter It is settled, says the argument, that in which has been confided exclusively to Conterstate commerce is divided into two great gress by the Constitution is not within the classes, one embracing subjects which do jurisdiction of the police power of the not exact uniformity, and which, although state, unless placed there by congressional subject to the regulation of Congress, are, action.” Again, referring to the uniform in the absence of such regulation, subject operation of interstate commerce regulato the control of the several states (Cooley tions, it was said (p. 109): "Hence, in. v. Port Wardens, 12 How. 299, 13 L. ed. asmuch as interstate commerce, consisting 996), and the other embracing subjects in the transportation, purchase, sale, and which do require uniformity, and which, in exchange of commodities, is national in its the absence of regulation by Congress, re- character, and must be governed by a unimain free from all state control (Leisy v. form system, so long as Congress does not Hardin, 135 U. S. 100, 34 L. ed. 128, 3 pass any law to regulate it, or allowing Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681). the states so to do, it thereby indicates its As to the first, it is said, Congress may, will that such commerce shall be free and when regulating, to the extent it deems untrammeled.” Further the court said (p. wise to do so, permit state legislation en- 119): “The conclusion follows that, as acted or to be enacted to govern, because the grant of the power to regulate comto do so would only be to do that which merce among the states, so far as one sys. would exist if nothing had been done by tem is required, is exclusive, the states Congress. As to the second class, the ar. cannot exercise that power without the asgument is, that in adopting regulations sent of Congress.” Again, after pointing Congress is wholly without power to pro- out that the question of the prohibition vide for the application of state power to of manufacture and sale of particular ar. any degree whatever, because, in the ab-ticles was a matter of state concern, it was sence of the exertion by Congress of power said (p. 123): “But, notwithstanding it to regulate, the subject matter would have is not vested with supervisory power over been free from state control; and because, matters of local administration, the rebesides, the recognition of state power un sponsibility is upon Congress, so far as the der such circumstances would be to bring regulation of interstate commerce is conabout a want of uniformity. But granting cerned, to remove the restriction upon the the accuracy of the two classifications state in dealing with imported articles of which the proposition states, the limitation trade within its limits, which have not been upon the power of Congress to regulate mingled with the common mass of property which is deduced from the classifications therein, if, in its judgment, the end to be finds no support in the authority relied secured justifies and requires such action.” upon to sustain it. Let us see if this is And finally, after pointing out that the not the case by examining the authority states had no power to interfere with the relied upon. What is that authority? The movement of goods in interstate commerce ruling in Leisy v. Hardin, supra. But that before they had been commingled with the case, instead of supporting the contention, property of the state, it was said that this plainly refutes it for the following reason: limitation obtained "in the absence of con. Although Leisy v. Hardin declared in ex. gressional permission” to the state (p press terms that the movement of intoxi. 124). cants in interstate commerce belonged to Thus it follows that although we accept that class which was free from all inter the classification of interstate commerce in ference by state control in the absence of intoxicants made in Leisy v. Hardin, we regulation by Congress, it was at the same could not accept the contention which is time in the most explicit terms declared now based upon that classification without that the power of Congress to regulate in in effect overruling that case, or, what is terstate commerce in intoxicants embraced equivalent thereto, refusing to give effect the right to subject such movement to state to the doctrine of that case announced in prohibitions, and that the freedom of in- terms so certain that there is no room for toxicants to move in interstate commerce controversy or contention concerning them. and the protection over it from state con. But we would be required to go further trol arose only from the absence of con- than this, since it would result that we gressional regulation, and would endure would have to shut our eyes to the cononly until Congress had otherwise provided. I struction put upon the ruling in Leisy v. Thus in that case, in pointing out that the Hardin by Congress in legislating when it adopted the Wilson Act, and also to done by the Webb-Kenyon Law) making it practically overrule the line of decisions impossible for one state to violate the prowhich we have already referred to sustain. hibitions of the laws of another through ing and enforcing that act. Let us see if the channels of interstate commerce. Inthis is not certain. As we have already deed, we can see no escape from the conpointed out, the very regulation made by clusion that if we accepted the proposition Congress in enacting the Wilson Law to urged, we would be obliged to announce minimize the evil resulting from violating the contradiction in terms that because prohibitions of state law by sending liquor Congress had exerted a regulation lesser through interstate commerce into a state, in power than it was authorized to exert, and selling it in violation of such law, was therefore its action was void for excess of to divest such shipments of their interstate power. Or, in other words, stating the commerce character and to strip them of necessary result of the argument from a the right to be sold in the original pack- concrete consideration of the particular age free from state authority which other subject here involved, that because Conwise would have obtained. And that gress, in adopting a regulation, had conCongress had the right to enact this legisla- sidered the nature and character of our tion making existing and future state pro- dual system of government, state and nahibitions applicable was the express result tion, and instead of absolutely prohibiting, of the decided cases to which we have re- had so conformed its regulation as to proferred, beginning with Re Rahrer, 140 U. duce co-operation between the local and naS. 545, 35 L. ed. 572, 11 Sup. Ct. Rep. 865. tional forces of government to the end of As the power to regulate which was mani. preserving the rights of all, it had therefested in the Wilson Act, and that which by transcended the complete and perfect was exerted in enacting the Webb-Kenyon power of regulation conferred by the ConLaw, are essentially identical, the one being stitution. And it is well again to point but a larger degree of exertion of the iden. out that this abnormal result to which the tical power which was brought into play in argument leads concerns a subject as to the other, we are unable to understand which both state and nation, in their reupon what principle we could hold that the spective spheres of authority, possessed the one was not a regulation without holding supremest authority before the action of that the other had the same infirmity,– Congress which is complained of; and a result which, as we have previously said, hence the argument virtually comes to the would reverse Leisy v. Hardin and over- assertion that, in some undisclosed way, by throw the many adjudications of this court the exertion of congressional authority, sustaining the Wilson Act.

power possessed has evaporated. These considerations dispose of the con- It is only necessary to point out that the tention, but we do not stop with stating considerations which we have stated disthem, but recur again to the reason of pose of all contentions that the Webb-Kenthings for the purpose of pointing out the yon Act is repugnant to the due process fundamental error upon which the conten- clause of the 5th Amendment, since what tion rests. It is this: the mistaken as- we have said concerning that clause in the sumption that the accidental considerations 14th Amendment as applied to state power which cause a subject, on the one hand, to is decisive. come under state control in the absence Before concluding, we come to consider of congressional regulation, and other sub- what we deem to be arguments of incon. jects, on the contrary, to be free from state venience which are relied upon; that is, control until Congress has acted, are the the dread expressed that the power by essential criteria by which to test the ques. regulation to allow state prohibitions to tion of the power of Congress to regulate attach to the movement of intoxicants lays and the mode in which the exertion of that the basis for subjecting interstate compower may be manifested. The two things merce in all articles to state control, and are widely different, since the right to reg. therefore destroys the Constitution. The ulate and its scope and the mode of exer. want of force in the suggested inconvention must depend upon the power possessed ience becomes patent by considering the by Congress over the subject regulated. principle which, after all, dominates and Following the unerring path pointed out controls the question here presented; that by that great principle we can see no reais

, the subject regulated and the extreme son for saying that although Congress, in power to which that subject may be subview of the nature and character of intoxi-jected. The fact that regulations of liquor cants, had a power to forbid their move- have been upheld in numberless instances ment in interstate commerce, it had not the which would have been repugnant to the authority to so deal with the subject as to great guaranties of the Constitution but establish a regulation (which is what was 'for the enlarged right possessed by govern


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ment to regulate liquor has never, that we Richland County, in that state, in favor of are aware of, been taken as affording the plaintiff in an action for wrongful death. basis for the thought that government Dismissed for want of jurisdiction. might exert an enlarged power as to sub- See same case below, 100 S. C. 375, 85 jects to which, under the constitutional S. E. 372. guaranties, such enlarged power could not The facts are stated in the opinion. be applied. In other words, the exceptional Messrs. Frederic D. McKenney, P. A. nature of the subject here regulated is the Willcox, L. W. McLemore, and Douglas Mcbasis upon which the exceptional power Kay for plaintiff in error. exerted must rest, and affords no ground Messrs. William S. Nelson, Jo-Berry for any fear that such power may be con- Sloan Lyles, J. Team Gettys, and John H. stitutionally extended to things which it Clifton for defendant in error. may not, consistently with the guaranties of the Constitution, embrace.

Mr. Justice Clarke delivered the opinAffirmed.

ion of the court:

On December 10th, 1910, John J. Mims, Mr. Justice McReynolds concurs in the a car inspector in the employ of the plainresult.

tiff in error, when attempting to cross a

track to inspect a train of cars which had Mr. Justice Holmes and Mr. Justice Van just arrived, was run down and killed by Devanter dissent.

a switching engine at a public crossing in the city of Sumter, South Carolina.

In April following this suit was (242 U. S. 532)

menced by the filing of a complaint, which ATLANTIC COAST LINE RAILROAD

charges actionable negligence and alleges COMPANY, Plff. in Err.,

that the defendant owned and operated a LIZZIE M. MIMS, as Administratrix of

line of railway described as wholly within the Estate of John J. Mims, Deceased.

the state of South Carolina. There is

nothing in the complaint tending to state COURTS 396(3)-ERROR TO STATE COURT a cause of action under the Federal law.

-FEDERAL QUESTION-HOW AND WHEN To this complaint the defendant filed an RAISED.

The refusal of the state trial court, answer which is a specific denial under the upheld by the highest court of the state, to South Carolina Code of Civil Procedure and admit testimony in support of a claim under which contains two separate defenses. The the Federal Employers' Liability Act of first defense admits that Mims was killed April 22, 1908 (35 Stat. at L. 65, chap. 149, at the time alleged, admits the paragraph Comp. Stat. 1913, § 8657), is not a denial alleging that the defendant, at the time of of a Federal right which the Federal Su the accident complained of, owned and preme Court can review by writ of error, operated the line of railroad described as where such claim was not asserted at a time or in a manner calling for its considera- being wholly within the state of South tion by the highest state court under its Carolina, and denies all the other allegaestablished system of practice and pleading, tions of the complaint. The second deit not having been presented until after the fense is one of contributory negligence. plaintiff had rested in the second trial of

Upon this complaint and answer the case the case after it had once been taken to the went to trial, and when the testimony was highest state court, and after the defendant, all introduced the trial court granted a upon the opening of the second trial, had amended its answer by adding a new defense, nonsuit, which was reversed by the supreme without mentioning or in any manner at- court of the state with an order remanding tempting to plead the Federal claim, and the case for a new trial. where the assertion of the claim even at that When the case was called for the second stage of the trial consisted only of a tender trial the defendant asked leave to amend of testimony without any application to its answer by pleading "gross and wilful amend the answer.

contributory negligence" on the part of de[Ed. Note-For other cases, see Courts, Cent. ceased, which was granted, and the trial Dig. $ 1080; Dec. Dig. Om 396(3).]

proceeded until plaintiff rested her case. [No. 242.]

Up to this time no claim had been made

by defendant and no facts had been pleaded Argued December 4, 1916. Decided January or evidence offered by either party from 15, 1917.

which it could be inferred that the deceased

at the time of his death was engaged in N ERROR to the Supreme Court of the interstate commerce, or that the Federal

I in

judgment which, on a second appeal, affirmed applicable to the case. a judgment of the Circuit Court of When the plaintiff rested her case on the

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

second trial, the defendant for the first Even at this stage of the trial the assertion time offered to introduce testimony which of the claim consisted only in a tender of it is claimed, if admitted, would have tend- testimonywithout any application to ed to prove that the train which the de- amend the answer. ceased was in the act of approaching to To become the basis of a proceeding in erinspect when he was killed "was engaged ror from this court to the supreme court of in interstate commerce and that the de- a state "a right, privilege, or immunity" ceased was in this respect and otherwise claimed under a statute of the United engaged in interstate commerce." The States must be "especially set up and trial court rejected this proffer of testi- claimed,” and must be denied by the state mony on the ground that it came too late court. Rev. Stat. § 709, Judicial Code, and was not relevant to any issue tendered § 237 [36 Stat. at L. 1156, chap. 231, Comp. by the pleadings in the case. No applica. Stat. 1913, § 1214). This means that the tion was made for leave to amend the an. claim must be asserted at the proper time swer by adding the claim under the Fed- and in the proper manner by pleading, moeral law.

tion, or other appropriate action under the The practice differs in the courts of the state system of pleading and practice (Muvarious states as to what testimony may be tual L. Ins. Co. v. McGrew, 188 U. S. 291, introduced under "a specific denial,” such 308, 47 L. ed. 480, 484, 63 L.R.A. 33, 23 as was filed in this case, and the supreme Sup. Ct. Rep. 375), and upon the question court of South Carolina, while recognizing whether or not such a claim has been so fully the ruling character of the Federal asserted the decision of the state court is Employers' Liability Act when the facts binding upon this court, when it is clear, making it applicable are properly pleaded, as it is in this case, that such decision is yet, upon full and obviously candid and not rendered in a spirit of evasion for the competent consideration, decided, as we purpose of defeating the claim of Federal have seen, that, under the settled rules of right. Central Vermont R. Co. v. White, pleading in that state, the evidence tendered 238 U. S. 507, 59 L. ed. 1433, 35 Sup. Ct. was not admissible. The essential justice Rep. 865, Ann. Cas. 1916B, 252, 9 N. C. C. of this decision, which is the fundamental A. 265; John v. Paullin, 231 U. S. 583, 58 thing, commends it to our favor. The evi. L. ed. 381, 34 Sup. Ct. Rep. 178; Erie R. dence admitted in the case shows that the Co. v. Purdy, 185 U. S. 148, 46 L. ed. 847, train which the deceased was about to in- ; 22 Sup. Ct. Rep. 605; Layton v. Missouri, spect when he was killed was a local freight 187 U. S. 356, 47 L. ed. 214, 23 Sup. Ct. train, with a run habitually, and on the Rep. 137. morning of the accident complained of, The plaintiff in error mistakenly argues wholly within the state of South Carolina. that, under recent decisions of this court, If the relation of the deceased to the traffic it is not necessary to claim the benefits which this intrastate train carried was such of the Federal Employers' Liability Act in as to give an interstate character to his a pleading in a state court in order to service, that fact must have been known obtain a review here of a decision denying to the defendant from the day the accident or refusing to consider such a claim. Refoccurred, and it could not possibly have erence to the decisions relied upon shows been known to the plaintiff, and therefore that the Federal right was in terms claimed surprise and delay certainly, and possibly in the petition in Missouri, K. & T. R. Co. defeat of plaintiff's claim under statutes v. Wulf, 226 U. S. 570, 57 L. ed. 355, 33 of limitation, must have been the incvitable Sup. Ct. Rep. 135, Ann. Cas. 1914B, 134, result of permitting the introduction of the and Grand Trunk Western R. Co. v. Lindproffered testimony late in the second trial, say, 233 U. S. 42, 58 L. ed. 838, 34 Sup. without the Federal right claimed from it ct. Rep. 581, Ann. Cas. 1914C, 168, and having been “specially set up and claimed" that in St. Louis, I. M. & S. R. Co. v. in the answer of the defendant.

Hesterly, 228 U. S. 702, 57 L. ed. 1031, The plaintiff recovered a judgment, which 33 Sup. Ct. Rep. 703, the decision proceeds the supreme court affirmed.

upon the statement that, since the supreme This epitome of the action of the state court of the state held the Federal quescourt shows that the claim under the Fed- tion sufficiently raised and decided it, the eral statute now made was not presented objection that it was not saved was not until after the plaintiff had rested in the open in this court. While it is true that second trial of the case after it had been to the reports show that in St. Louis, S. F. the supreme court, and after the defend- & T. R. Co. v. Seale, 229 U. S. 156, 57 L. ant, upon the opening of this second trial, ed. 1129, 33 Sup. Ct. Rep. 651, Ann. Cas. had amended its answer by adding a third 1914C, 156, and in Toledo, St. L. & W. R. defense, without mentioning or in any man. Co. v. Slavin, 236 U. S. 454, 59 L. ed. 671, ner attempting to plead the Federal claim.' 35 Sup. Ct. Rep. 306, the Federal act was

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