Gordon v. Texas – Oral Argument – January 09, 1958 (Part 2)

Media for Gordon v. Texas

Audio Transcription for Oral Argument – January 09, 1958 (Part 1) in Gordon v. Texas

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Earl Warren:

Mr. Stewart, you may proceed.

C. K. Richards:

Mr. Chief —

Earl Warren:

Mr. Richards — I beg your pardon.

C. K. Richards:

— Chief Justice and Associate Justices.

At the outset, I never did answer Mr. Justice Frankfurter’s question.

There is no way under the laws of the State of Texas that liquor can be transported in a private automobile through the State of Texas and interstate commerce.

That has been definitely decided for the reason that there is no permit which an individual can get to transport intoxicating liquor in private automobile.

In fact, this Court had before if not so very long ago, the case of Cartlidge versus Rainey from the Fifth Circuit which involve the transportation from the State of Arkansas through the State of Texas and to the State of Oklahoma of a private automobile loaded down to the gunnels with various bottles of intoxicating liquor.

William O. Douglas:

You mean Mr. Richards that if he paid $100 could he — he could not have taken this liquor with him?

C. K. Richards:

In the end — in this individual case?

No, sir.

Not according to my theory which I’ll try to —

William O. Douglas:

Give $100 and leave the liquor there?

C. K. Richards:

He would have to leave the liquor there.

William O. Douglas:

How would he get it across?

C. K. Richards:

Pardon?

William O. Douglas:

How would he get it across?

C. K. Richards:

He could get it across by getting a customs broker before it entered Texas to put it in bond, deliver it to a common carrier who’s also under bond and then it should go in interstate commerce to its destination.

They would be no custom’s duty if it was exempt.

He would of course have to pay the customs broker’s fee and the common carrier’s fee.

William J. Brennan, Jr.:

And also the tax.

C. K. Richards:

No, he would be exempt from tax.

No, Your Honor.

It’s specifically provided in the — any person authorized to export liquor from the state and having liquor intended for shipment from one place to a point outside must keep it in a separate compartment.

They gave them a little sort of a — let’s say fare or passport which shows that that is intended for export and no tax is due thereon.

The tax is a possessory or used tax.

It is not a duty.

It is for possession or used — or use in the state now.

To continue my answer, that is the only way that I know that this liquor could be transported by the individual who is coming in to the customs and having it for his own personal use could bring it to the State of Texas.

There is no provision for making bond.

C. K. Richards:

The legislature did not see fit to do it.

Now, the legislature did —

Felix Frankfurter:

By an individual.

C. K. Richards:

By an individual, yes, Your Honor

Felix Frankfurter:

What you’re saying is that Texas has legislation by which nobody in a private car can get liquor through the State of Texas?

C. K. Richards:

Yes, Your Honor, that is correct.

Felix Frankfurter:

It had nothing to do with the lot fee or —

C. K. Richards:

Fee or any —

Felix Frankfurter:

It is prohibiting the carriage of liquor in private car.

C. K. Richards:

Yes, Your Honor.

Now —

Earl Warren:

Without the payment of the tax if he gets — if he pay his tax.

C. K. Richards:

Well, the — there’s a provision in the law that one — one quart not to exceed one quart may be imported into the State of Texas, brought into the State of Texas but the stamp, the tax must be paid and the stamp to fix.

Now, the last legislature changed that so that non-residence of Texas could bring in not to exceed for a quart.

Felix Frankfurter:

But beyond that —

C. K. Richards:

That is the sole exemption.

Felix Frankfurter:

— beyond that he — he can pay a thousand dollars (Voice Overlap) —

C. K. Richards:

And could not keep the liquor, no, sir.

William J. Brennan, Jr.:

Well, Mr. Richard’s tell me.I don’t quite follow it.

Why was that the — that Texas then in phase of his declaration of intention to take it in North Carolina insisted on the payment of the tax.

C. K. Richards:

Your Honor, I don’t understand the mental processes of some of these agents of the Texas Liquor Control Board.

I do know that the law says that the — in there at least the way they concede — construe it, if you have liquor in the State of Texas to which no stamp has been affixed, no tax paid, it is an illegal beverage except that is all that which is in excess of one quart.

Therefore, he’s subject to seizure.

Now, if he had brought one quart in there and has refused to pay the tax, he might be confronted with a different situation but he had exceeded.

He and his two companions each exceeded the allotment for personal use.

He said it was brought in for personal use.

William J. Brennan, Jr.:

Well then what should have happened, I gather on your theory is that each of them could have kept one bottle or three of them, weren’t they?

C. K. Richards:

I think nothing would have been done if each one had kept one bottle.

William J. Brennan, Jr.:

And not (Voice Overlap) they accepted to have to pay the tax from the one bottle.

C. K. Richards:

They would have to pay — the tax is levied on the fact that it was — it was illegally possessed.

William J. Brennan, Jr.:

But on the basis of his declaration that they’re going to the North Carolina with it, it should have concede.

C. K. Richards:

That is —

William J. Brennan, Jr.:

— everything of the three bottles.

C. K. Richards:

Because they — it would be unlawful for him to transport.

Felix Frankfurter:

Where is the specific provision which translates legislatively what you said that this is a measure in keeping what the transportation through or in Texas of liquor by a private — personal automobile?

Where is that provision?

C. K. Richards:

There is no provision, Your Honor.

That is judicial — judicial interpretation.

Felix Frankfurter:

But where is this — can you reverse to the decisions of your court?

C. K. Richards:

I can refer you to a case of Bols versus State.

Charles E. Whittaker:

Bols?

C. K. Richards:

Bol, B-O-L.

They are cited in my brief at — glancing on page 5.

Felix Frankfurter:

132 (Inaudible)

C. K. Richards:

132, also the case of Chalmers versus State, 216 S.W. 2d 203.

Felix Frankfurter:

And ultimately to Supreme Court of Criminal Appeals.

C. K. Richards:

By the Court of Criminal Appeals which is the Court of last — last resort.

Felix Frankfurter:

Well, (Voice Overlap) for our purpose, it is the law of Texas declared by Court of Criminal Appeals for our purpose of the law of Texas or written to your constitution.

C. K. Richards:

Yes.

Felix Frankfurter:

That (Inaudible) or anybody and the Chief Justice driving from Texas (Inaudible) something that he can’t have (Inaudible) anything.

C. K. Richards:

Yes, Your Honor that is correct.

Now, in — the —

Felix Frankfurter:

No matter what he pays?

C. K. Richards:

No, matter what he pay.

Earl Warren:

If — in other words, this man had paid $1.40 a gallon on his 11 bottles, he still could —

C. K. Richards:

He still could not have taken it, no, Your Honor.

Felix Frankfurter:

Not only that but he would be — he would —

C. K. Richards:

He would still be subject to fine because he had imported more than the exempted provision.

I think that this —

Felix Frankfurter:

Well, this isn’t — it’s not — I don’t know where to take this — but this is not a fiscal tax.

C. K. Richards:

No, the tax incidentally is a regulatory tax primarily.

Now, the taxes are divided in two sections.

I have not cited those in my brief because I — although I should have.

I will admit that I was in error not so doing.

We have the permit fees, the license fees.

Those are solely a revenue measures.

They go one-fourth for the permanent school fund and three-fourth to the old age assistance.

Felix Frankfurter:

Licensing whom for what?

C. K. Richards:

For the wholesalers, the retailers, the position —

Felix Frankfurter:

The people (Voice Overlap) —

C. K. Richards:

Yes, the people in business.

I’m sure in case of an occupation of dealing with it.

Felix Frankfurter:

Yes.

C. K. Richards:

The — this tax which is denominated as a sales tax but which is in fact a possession or used tax.

It is primarily regulatory tax and after the expenses of the enforcement of the Liquor Control Act have been — that which the legislature choose to appropriate for that purpose have been expended and then the balance goes into the general fund and maybe used for other purposes.

I think that there’s an allocation, one-fourth additional of that for the school fund.

The tax is generally — the stamp is generally fixed by the retailer in the package store before he sells it.

And to that extent, it’s a sales tax but if I bring it in from Arkansas as in the case of Chalmers.

He brought them from Louisiana.

He brought it in with the United — with the federal stamp attached, the Louisiana stamp attached.

But no Texas stamp so it was seized.

He didn’t have a permit to transport it within the State of Texas in private automobile.

That is a case in Bols versus State.

Now, there is an old case, Horton versus State where the man had in his possession, not quite a quart, and under the law before it was amended, you were allowed to import one quart in without the payment of any tax.

That law was later on amended and required with the proviso that provide the tax be paid and the stamp be affixed.

The Court in that case said that he is — the Court under the — within the exempt of provision.

He was not guilty of any offense.

In other words, the States contention in here is bottomed on effect the — if the importer had brought this in as an import to be transported in interstate commerce any tax that we would attempt to levy upon him would be void.

It would plainly be a burden on interstate commerce.

But the amount that he brought in made itself ipso facto contraband and the fact that he had possession of it and could not get a permit to transport in — in interstate commerce to North Carolina.

C. K. Richards:

It was still contraband.

Therefore, it was subject to the tax.

That is on the basis of his possession.

He had it in there illegally.

Now, that is the gist of the State’s case.

Yes, Your Honor.

This is a — excuse me.

Is this a fine from possession or —

C. K. Richards:

It is a fine for the possession of unstamped liquor.

Not a tax at all?

C. K. Richards:

No, sir.

It’s a — it’s a — in a way it is.

It’s a — it’s a tax on the possession of unstamped liquor.

You might say it’s a fine.

It might be a civil fine as opposed to the criminal penalty of the $100 for having possession of it.

There’s a criminal penalty for transporting or having in your possession any illegal beverages.

This is an illegal beverage because it’s not stamped.

I realize the fact that what Your Honor I think his question direct to me is why — why catch an illegal beverage.

Well, the possession of an illegal beverage I think is always been subject to a tax.

As a matter of fact, I don’t have the citation right with me but prior to the — or during the prohibition here, the State of Pennsylvania have what they call the floor tax for the possession of beverages which was illegal to possess.

This is an unusual way to levy a fine without a trial of any kind, just collect $100 off hand.

C. K. Richards:

No, that was a criminal trial, Your Honor.

The — the tax — he didn’t — he had not paid the possessory tax.

If he paid the possessory tax, he could not have been prosecuted.

He was prosecuted for the possession of unstamped liquor which is an illicit beverage.

Charles E. Whittaker:

It was determined not taxed or failure to pay a tax but merely —

C. K. Richards:

If — for the possession only.

Charles E. Whittaker:

Possession only?

C. K. Richards:

For the possession only.

They — if you’ll recall, the counsel said that he — they took him back to the bridge again and offered him the opportunity to pay the tax which he refused standing on his — what he alleged to be his constitutional rights.

C. K. Richards:

So then, he was arrested.

The liquor was confiscated and he was tried before a jury.

And the issues were submitted.

And issue was not appended to pay the tax.

C. K. Richards:

The possession of — of 11 gallons of unstamped liquor which is a possession of an illegal beverage.

Charles E. Whittaker:

Contrary to law?

C. K. Richards:

Contrary to law, yes, Your Honor.

Charles E. Whittaker:

Not because he had failed to pay in taxes.

C. K. Richards:

No, sir.

William J. Brennan, Jr.:

So that in effect, I gather, he could not encourage himself of the offense even if subsequently he had paid the tax.

C. K. Richards:

I think that if he — no, not after the — he couldn’t have purged himself after the —

William J. Brennan, Jr.:

Well, you didn’t have to take him back to the bridge and give him (Voice Overlap) —

C. K. Richards:

I don’t think that was necessary.

He had the opportunity and he stood on his alleged constitutional rights.

William J. Brennan, Jr.:

Tell me.

Does any of Texas position depend on the Twenty-First Amendment?

C. K. Richards:

Pardon me?

William J. Brennan, Jr.:

Is the position that you’re asserting for Texas depend in anyways under the Twenty-First Amendment?

C. K. Richards:

Yes, Your honor.

The whole Texas Liquor Control Act is based on the Twenty-First Amendment.

Felix Frankfurter:

Have we had a case in — did this Court have occasion to construe delivery in the Twenty-First Amendment to include physical (Inaudible) coming into a State and transfer it to another State.

Do we have a case —

C. K. Richards:

I have not — I am trying to read all the cases that this opinion, this Court has written on the Twenty-First Amendment and that question — as a matter of fact, the — there are not many cases on the tax question.

I think the —

Felix Frankfurter:

But you — your — this statute according to what you’ve told us of the rulings of your court, raises a question whether the Twenty-First Amendment giving Texas power to deal with liquor brought — for delivery or use (Inaudible) does bring into play what the delivery covers within the scope of that Amendment.

C. K. Richards:

Yes, I think it does, definitely.

Felix Frankfurter:

Is there any like many or a few opinions that had been written by this Court?

C. K. Richards:

No, sir.

Your Honor, I — I have cite —

Felix Frankfurter:

(Inaudible)

C. K. Richards:

Carter — Carter case.

Felix Frankfurter:

In Carter in which —

C. K. Richards:

There is a case which was just — which were decided on October 29th by the Tenth Circuit Murphy versus Love which according to gossip will eventually reach this Court.

There’s a divided court there, however, that was not directly on this point.

It brings into effect the — into play the amendment and the federal enclave at Fort Leavenworth, Kansas.

I don’t know whether the Court is familiar with it or not or whether the Court would care to have me discuss it or not.

Well, it does bear on it to — to an — in a certain degree.

Felix Frankfurter:

But it must be your confession that this is not (Voice Overlap) the holding of a (Inaudible) giving Texas regular authoritative power over liquors within its physical confines, includes liquor that it is only (Inaudible)

C. K. Richards:

Yes, Your Honor, definitely that is the basis of the Cartlidge versus Rainey, the Duckworth case and the Ziffrin case.

William J. Brennan, Jr.:

Well, let me put it to in other way Mr. Richards.

Does that depend also on our concluding that delivery does include possession under these circumstances that delivery within the meaning of the Twenty-First Amendment?

C. K. Richards:

My –- I don’t know whether I follow Your Honor’s question.

William J. Brennan, Jr.:

Now, what I mean is with — unless this regulation authorized by the Twenty-First Amendment.

Does your case fall?

C. K. Richards:

I would say that it did.

William J. Brennan, Jr.:

You say that it does?

C. K. Richards:

I would say that it did, definitely.

I think that the power which is the legislature is delegated to the Liquor Control Board under the Liquor Control Act is definitely a product of the Twenty-First Amendment.

It was the intention of the legislature, I think, to prevent any liquor from being brought into the State of Texas from — for use or sale or dispose of unless it came to the proper channels and unless a tax had been paid.

Now, as it happens at the — usually the tax is affixed by the retailer to the bottle before the sold to the purchaser.

That’s in a package store and the package stores are the only ones who have the right to sell liquor in the original package.

Earl Warren:

And what is the limit, Mr. Richards if they sell on those package stores?

C. K. Richards:

As much as you can pay for I think.

Earl Warren:

There’s no limit.

C. K. Richards:

No limit.

No, Your Honor.

Earl Warren:

There’s no limit on how — how it’s transported?

C. K. Richards:

No, you — except that it cannot be transported from a wet area to a dry area.

That is the section which counsel quoted 666-23 (a).

It can be transported from a place where it’s authorized to be sold to another place where it’s authorized to be used which would be from one wet county to another one, but it can’t be transported from a wet county and to a dry county.

C. K. Richards:

If it is, it’s subject to seizure, stamped or unstamped.

Hugo L. Black:

May I ask you a question?

C. K. Richards:

Yes.

Hugo L. Black:

Let me see if I fully understand that (Inaudible) of your law as a regulatory measure for a judgment of Twenty-First Amendment.

I understand that liquor can be transported through the state if certain authorized (Inaudible) transported.

C. K. Richards:

Yes, Your Honor, without the payment of a tax.

Hugo L. Black:

Does that extend beyond recognized common carriers such as a railroad or a trucking company?

C. K. Richards:

I think that there is a provision that a contract carrier may.We have a difference in — in automobile carriers.

We have what’s called a common carrier.

We have specialized carriers and we have a contract carrier.

Hugo L. Black:

I was — what I was wondering was, has the State of Texas set up for itself a new category of carrier if they need certain qualification of Texas and transport it through the State and interstate commerce or does that merely apply for a recognized common carrier to the now existing (Inaudible) —

C. K. Richards:

Now, I can read if Your Honor will permit me, I can read the definition of carrier.

The word carrier when used in this section shall mean and include water carriers, airplane lines.

All steam, electric motor power railway carriers and common carrier and motor carriers operating under (Inaudible) convinced necessity issued by the Railroad Commission of Texas or by certificates issued by the Interstate Commerce Commission.

The holders of such certificates shall be authorized to transport liquor into and out of the State and points within this — and between points within the State.

Such carrier shall furnish such information concerning the transportation of liquor as maybe required by the Board.

The annual state fee for carrier permits should be $5.

Hugo L. Black:

Now —

C. K. Richards:

Now, that — that differs from the Ziffrin case and that a common carrier holding the certificate from the federal — under the Federal Motor Carrier Act doesn’t have to get a state permit.

Hugo L. Black:

Do I understand the (Inaudible) of the regulation of the State seeks to interpose (Inaudible) interstate commerce insofar as attempting to limit transportation through the State to the recognized common carrier.

C. K. Richards:

Yes, Your Honor, I think that is definite.

Hugo L. Black:

That is not on a tax basis —

C. K. Richards:

Not on a tax basis, no.

No, Your Honor, that’s not on the tax basis.

Hugo L. Black:

— regulating the carriage.

C. K. Richards:

The carriage to the State to prevent it from being — and as I mentioned earlier, there is a provision for these carriers to separate the interstate shipment from the state shipment.

They’re kept in separate compartments.

The idea being that the common carriers are responsible.

They are under bond and they can’t drop off into dry area and there are quite a number of dry areas in the State of Texas, kind of 15 cases which can be use and even though the tax has been paid.

Hugo L. Black:

The State of Texas evidently claimed as I understand the (Inaudible) its power to do that under the Court — the Amendment.

C. K. Richards:

Yes, Your Honor.

Hugo L. Black:

Rather than — and admits that the related issues or something else that — that regulation would be permitted by the (Voice Overlap) —

C. K. Richards:

Oh, I don’t think there’s any question about that as far as the export-import feature is concerned.

Hugo L. Black:

Does that apply to the extent that — I am a little mixed up on the point so far.

I understand now that they’re going to take the (Inaudible) it has to be done by common carriers.

Suppose a man just want to drive to Texas.

Can he bring liquor — a bottle of liquor in —

C. K. Richards:

He can bring a quart not to exceed one quart.

Now —

Hugo L. Black:

He have to drink it while he’s there or —

C. K. Richards:

Not necessarily.

Hugo L. Black:

He can carry it all the way through.

C. K. Richards:

He can carry it all the way through and that quite frequently is done.

That quite frequently is done.

Hugo L. Black:

So that what you have is a prohibition against transporting liquors through the State of Texas in excess of one quart.

C. K. Richards:

In excess of one quart.

Hugo L. Black:

And unless, it is transported through —

C. K. Richards:

On — with a permit.

Yes, that is quite true.

Felix Frankfurter:

Why isn’t this (Inaudible)

C. K. Richards:

I think it is, Your Honor.

Earl Warren:

But let me — let me ask you this Mr. Richards, suppose — suppose a man went to — to one of your store, one of your package store and you said there was no limit on what he could buy.

C. K. Richards:

Yes.

Earl Warren:

He could buy a whole truckload if he wants.Suppose he bought a truckload and transport it through the State as long as he didn’t go into a dry territory which you speak of, he could do so.

C. K. Richards:

I think he could.

Yes, sir.

Earl Warren:

But they get through the State analysis.

C. K. Richards:

I think he could do so.

Yes, Your Honor.

Earl Warren:

One other question I’d like to ask —

C. K. Richards:

Provided with stamp, of course it would be stamped if he bought it from a package store.

Earl Warren:

Yes.

One other question I’d like to ask you is that — that permit that you spoke of that goes to common carriers —

C. K. Richards:

Yes.

Earl Warren:

— and so forth.

I — I understood you to say that the cost of that permit is only $5.

C. K. Richards:

$5.

Yes, Your Honor.

Earl Warren:

So it’s purely a regular (Voice Overlap) —

C. K. Richards:

Purely a regular store.

The — the entire scheme of the Liquor Control Act is regulation.

I might state that it is — as counsel said there are several features in there that seem to contradict themselves.

But this law was compromised between the wet and the dry thought.

It’s a — it’s a sort of a hybrid.

Charles E. Whittaker:

Mr. Richards, I’m troubled by one thing —

C. K. Richards:

Yes, sir.

Charles E. Whittaker:

— and maybe you can help me.

You have stated that this fine imposed upon petitioner was not for failure to pay a tax but for merely having possession which was illegal under the local law.

C. K. Richards:

Yes, Your Honor.

Charles E. Whittaker:

Is the petitioner then, getting down to this particular case, guilty of the offense charged in the information which says that he had in — in his possession, a rum, both now in the container to which no tax stamps showing the payment of the tax on said beverage due to State of Texas was affixed and to which so unstamped container, is this literally being read, no valid evidence was affixed showing a payment of the tax on such beverage due to the State of Texas and the tax stamp was then and there required by the laws of Texas to be affixed to such container and the tax on such beverage was then and there due to the State of Texas and the tax imposed to the laws of the State of Texas on such illicit beverage had not been paid all against the piece of dignity of the State.

Now — and the question, isolating our attention to this particular case, does this information charge a violation of the law?In this particular case, says he is guilty because he failed to pay the tax, isn’t it?

C. K. Richards:

As I read the law and as I’ve just stated to the Court, I — the law is rather next step.

The illicit beverage is defined in 666-3 (a) which is on page 16 of the appendix.

The illicit beverages shall mean and refer to any alcoholic beverages possessed imported or transported in violation in this Act or on which any tax imposed to the laws of the State has not been paid and the tax stamped affixed thereto.

Now, no person shall import into the State any liquor in excess of one quart from any source unless a permit be first obtained from the Board and any person so purchasing or importing liquor in violation in this Section shall be subject to penalties here and after provide.

And here comes the carriers.

Now, for tax purposes only, this is 666-1732, protects purposes on a distilled spirits contained in the container having attached thereto the federal liquor strip stamp or imported from any foreign country.

I hereby subject to trans — to taxation and must have affixed thereto the appropriate Texas tax stamp for the distilled spirits.

Now, that’s for tax purposes only.

First, they say that the illicit beverage is one which is possessed which doesn’t have the tax stamp on it.

C. K. Richards:

And subsequently, they say that anything that is imported from a foreign country must have the tax stamp on it and if it doesn’t have the tax stamp on it then its contraband.

Felix Frankfurter:

And if — and according to your statement, this couldn’t have — you couldn’t get any tax stamp possessed because a private person bringing in liquor cannot get legalized right to bring it to (Voice Overlap) —

C. K. Richards:

That is true.

Felix Frankfurter:

So that no tax is paid to be sure but he couldn’t possibly pay it.

But nevertheless, you say it contraband because he is a fellow who can’t get a tax.

C. K. Richards:

He can’t get it.

Now, that — if the — the indictment or the information here does not specify the number of quart, it says he had in his possession out and the illicit beverage as defined under the Act.

Felix Frankfurter:

But to sustain your — your conviction, you have to show not only possession of this liquor but —

C. K. Richards:

That — that the tax had not been paid.

Harold Burton:

That the tax had not been paid and therefore he must also show that the tax could have been paid if it wasn’t — that this was a valid tax, you can charge him with — with the — of having unstamped liquor and — and there’s no — no validity of the stamp.You have to show both the possession of the liquor and the —

C. K. Richards:

That it was subject to tax.

Harold Burton:

— valid tax.

C. K. Richards:

Yes, Your Honor.

Charles E. Whittaker:

Under this information?

C. K. Richards:

Under the information, yes, sir.

Charles E. Whittaker:

And he couldn’t have got the stamps.

C. K. Richards:

He could have got one stamp.

He —

Charles E. Whittaker:

For — for one gallon.

C. K. Richards:

No, sir.

No, sir, he could not have get — I —

Charles E. Whittaker:

He didn’t need it for one gallon.

C. K. Richards:

It would seem as —

One quart.

C. K. Richards:

As I say, Your Honor, the meeting place upon this by the agents of the Liquor Control Board is that everything inside has got to have a stamp on it willy-nilly that it — I fail to see any reason why the — anything in excess of one quart to each person was not the imported if provided it was not in interstate commerce in violation along with subject to seizure.

Felix Frankfurter:

But — but if your court — if the Court of Criminal Appeals of Texas says that a fellow who has in his possession liquor without appropriate stamp, had violated the statute and it is no defense that he is a fellow who couldn’t possibly get a stamp because he is forbidden from carrying it at all but the determination is not reviewable by this Court.

That’s the local law of Texas.

Harold Burton:

But he’s not — he’s not forbidden from possessing if he put a stamp.

C. K. Richards:

If he puts a stamp.

No, Your Honor.

C. K. Richards:

I think he would be — I think Your Honor, I think he would be prohibited by law from possessing more than one quart which is imported from Mexico —

Charles E. Whittaker:

And that —

C. K. Richards:

— or any — any state of the — the United States.

Charles E. Whittaker:

And that needed no stamp.

C. K. Richards:

That would have needed stamps, yes, sir.

Charles E. Whittaker:

With that one quart?

C. K. Richards:

No — yes, sir, that would have needed stamps also.

William J. Brennan, Jr.:

Well Mr. Richards, can this conviction be supported under the language of this information merely on the proof that at least one quart if he was entitle to one quart, stamped, he could have carried it through Texas but he’d need — he did not have even one quart stamp.

C. K. Richards:

I think that he could.

Hugo L. Black:

I suppose you would probably argue that it’s against the law of whatever liquor in Texas that’s not stamped (Voice Overlap) —

C. K. Richards:

Period, yes.

Hugo L. Black:

Then you would say that it doesn’t excuse a man of that violation to prove on his part that he can’t establish because he’s cared to do it.

C. K. Richards:

Yes, sir.

That’s — that’s exactly my contention.

Felix Frankfurter:

An early suggestion and early words from the appellant, but is there any suggestion that this conviction offense the Due Process Clause because he was convicted procedurally for the wrong thing?

C. K. Richards:

No, Your Honor, the only thing that I have answered — attempted to answer in the state’s brief is that it’s not an export-import tax and it wasn’t —

Felix Frankfurter:

And it’s as if (Voice Overlap) —

C. K. Richards:

— it’s not an interstate commerce and that’s all the sufficiency of the information.

It has never been great.

Felix Frankfurter:

All the satisfaction of the — of the information of — of the status — the adequacy of evidence to satisfy the information as before.

C. K. Richards:

That isn’t before, no, Your Honor.

Now, in six —

Hugo L. Black:

You’ve got any doubt (Inaudible)

It’s not in the question raised that this liquor didn’t have to be taxed (Inaudible)

C. K. Richards:

No.

Hugo L. Black:

It was still liquor?

C. K. Richards:

It was still liquor if it exceeded the alcoholic content that was required to the tax.

Now the —

Charles E. Whittaker:

How could he get stamps?

C. K. Richards:

— in answer to — in answer to Your Honor’s question, 666-23a (4) it provides — it is provided that any person may bring into this State not more than one quart of liquor for his own personal use.

C. K. Richards:

That’s the way the law used to be.

Then they added this, provided further that he shall pay and affix thereto the required state tax stamps.

Now, the legislature in its wisdom, the last session I think, has increased I don’t know whether I stated this before or not, has increased the — the amount allowable to a non-resident of Texas to four quarts.

Hugo L. Black:

What’s the argument of that?

I want to know.

C. K. Richards:

I think that —

Hugo L. Black:

People from outside the State —

C. K. Richards:

I think —

Hugo L. Black:

— more liquor than people in Texas?

C. K. Richards:

I hardly believe that is true, Your Honor.

I think that it’s been the price that the (Voice Overlap) there and it hurts the Chambers of Commerce that the people coming to Texas, they prefer to go to some other State where that — port of entry where that doesn’t affect it.

In order to do that, you’ve got the whole country sold up though.[Laughter]

C. K. Richards:

Well, Tijuana is still with us and I think there are ports of entry in New Mexico, I think it’s very small and there are two in Arizona, Douglas and Nogales.

What — they require that military personnel, this amendment requires that military personnel stationed in Texas are restricted to one quart only.

Military personnel living outside the State or outside the State of Texas may bring in four quarts.

This whole Texas Liquor Control Act is a — is a product of trial and error so to speak.

It’s amended that every session in the legislature one way or another depending on the amount of pressure brought by the various forces.

Briefly, in order to conclude my argument, I don’t think that any of the cases cited by counsel for the appellant or after the board, I think all the export-import tax cases I think it’s good — they’re a good law but they’re all ad valorem cases.

And there’s no question that the findings of the Court particularly in that (Inaudible) case.

That was where the liquor was being assembled from outside of California, came to rest in the warehouse for export to the Hawaiian Islands.They attempted to let the ad valorem tax on it.

A great question before the Court was there whether that had come to rest and not to — a tax could be — would attach.

(Inaudible) case with the converse of that, that was importation into California and again there was the ad valorem tax.

To my mind, the Carter case is — and the Duckworth cases are in our support.

The Jamison case that counsel cited was a case that arose under the read amendment which was purely against the transportation from dry to wet state.

The man had five quarts and he was transporting it by a private automobile.

The matter that was before this Court seemed to be that he said that those were of his own personal use and the Court’s majority opinion said that it was immaterial whether it’s his personal use or not.

And Mr. Justice Clark, not the present Mr. Justice Clark, but his predecessor, dissented, stating that he thought that since it was for his personal use, that it was excluded from the Commerce Clause, it’s the Commerce —

Felix Frankfurter:

That was on page 21?

C. K. Richards:

That was — that was —

Felix Frankfurter:

(Inaudible)

C. K. Richards:

That was a pre-Twenty-First Amendment case.

We — I fail to find any cases.

Our case here is bottomed on this Cartlidge versus Rainey that the transportation was illegal.

That is he couldn’t go to Texas, therefore it was contraband.

Now, the fact that — I think the State of Texas should afford some relief to a person who is coming through as a bona fide tourist and intends that for his own personal use.

The fact is the legislature is not seemed fit to do it except for these one and now four quart exemption.

We think that the conviction being for the possession of an illegal beverage, the illegal beverage being that which is not stamped.

And since it was not in interstate commerce, the conviction should be affirmed.

B. R. Stewart:

Mr. Chief Justice and gentlemen.

I would like to clear up something that seems to have puzzled you as I see it.

The information in this particular case charged possession, illegal possession of the liquor and that the reason that possession was illegal was because the appellant herein had not paid the stamp tax due on that liquor.

If he had paid the stamp tax and affixed it on the bottle, he never would have been charged.

That was the sole point for the Court that he had not paid the tax, consequently, his possession was illegal because the tax was not paid.

He claimed that the tax was not valid, therefore he was not — he did not need to pay the tax.

And if he did not need to pay the tax, he could not be charge with illegal possession of the liquor for — for not having tax payments on it.

Earl Warren:

What is the fact — what is the law rather if he had paid the tax?

Do you contend that he could have transported it?

B. R. Stewart:

Yes, sir.

In fact that was — this is going outside of the record perhaps but as long as the tourist prior to the decision set down by the Court of Criminal Appeals, paid the tax, any known which they were from they could bring in four quarts of liquor, pay the tax and transport through the State of Texas.

That was done in custody.

Felix Frankfurter:

Mr. Stewart.

B. R. Stewart:

Yes, sir.

Felix Frankfurter:

Could Texas obtain liquor from coming in at all?

Could Texas say make himself a prohibition state for his own people and interest of enforcement of effectiveness involved or any liquor coming in from many other states or from any foreign countries.

B. R. Stewart:

For use and delivery therein, yes, sir.

William O. Douglas:

But not in transit across.

B. R. Stewart:

They are in transit across.

I don’t think so.

William O. Douglas:

That’s basically your argument.

B. R. Stewart:

Yes, sir.

William J. Brennan, Jr.:

Well, you’re sure that liquor in fact would not be used or delivered therein, isn’t there some room for state regulation as to the method by which — that which it is said shall be carried across the State?

They may be assured will be carried across the State?

B. R. Stewart:

I think they could devise a method, yes sir, I think so.

William J. Brennan, Jr.:

Well, for example —

B. R. Stewart:

They could —

William J. Brennan, Jr.:

— suppose the State could say that you may carry it across here.

We think that reasonably to be sure it doesn’t stop here and isn’t delivered here and it isn’t used here.

It may go across only by common carrier in the bond.

B. R. Stewart:

I think they could even do this that they could say for instance, you can bring this liquor through, we will stamp it or we will seal it.

And you report at the Texas border where you leave the State of Texas, if you — you have used any liquor then you pay the tax.

William J. Brennan, Jr.:

No, but can’t — may they not — I’m assuming the question Justice Frankfurter put to you, it’s completely dry state.

B. R. Stewart:

Yes, sir.

William J. Brennan, Jr.:

And may not a state that it is a completely dry state say that if you say you’re going to take it across into another state just to be sure that you do, we insist that it go by common carrier in bond.

B. R. Stewart:

I don’t think they could for this reason that the Congress has passed legislation saying that they may import that.

And that since Congress has acted the State cannot deny the person the right to bring in that gallon of liquor.

William J. Brennan, Jr.:

Well, what’s the meaning of Twenty-First Amendment?

Certainly, it must allow some leeway to a state, doesn’t it, to regulate, to assure that there shall be no delivery or use of liquor that they do not want to be delivered or used in the State without regard to what the Congress has done?

B. R. Stewart:

Yes, sir.

But in this instance, I think — I think that’s what this Court has held that they may regulate, for instance in the Carter case.

They require that person to — and incidentally, this was commercial transportation involved in the Carter case, in the Duckworth case and all cases that were cited by Mr. Richards, were all commercial transportation say 150 cases, a thousand cases of liquors such as that.

The State in those instances required a bond and they required a route designation showing the route that they will pass through in that State.

And this Court said that that was a reasonable regulation in absence of any action by the federal congress.

And each instance, the Court has qualified in his opinion by saying in absence of any regulation by Congress and I think here we have the regulation by Congress.

The Congress has assumed that the person returning from a foreign country may bring in one quart of liquor free.

Since it’s an import, he has a right to carry it to his destination without interference from the State on the border.

Charles E. Whittaker:

Mr. Stewart.

B. R. Stewart:

Yes, sir.

Charles E. Whittaker:

What have you to say in respect to Justice Frankfurter’s question put to Mr. Richards that if this fine was — find him guilty and was made and the fine imposed upon a wrong ground, namely, refusal to pay a tax, not mainly for possession — no, the other way around, refusal to pay a tax when it should have been on possession that such as inadequate state ground decision and we have no jurisdiction.

If — in other words, if the State — if the actual ground of the conviction was possession though you charged something else and the conviction was had, would we have jurisdiction?

B. R. Stewart:

The — I’m not sure.

B. R. Stewart:

I don’t know how to answer that but let me say this and maybe it will answer it.

The possession was illegal because the tax was not affixed.

We say the tax is unconstitutional and not due.

Consequently, the possession would not be illegal.

Does that — does that answer or am I just going around it and avoid it?

Because the crime is the possession of unstamped —

B. R. Stewart:

The crime is the possession of the unstamped liquor and if the liquor is in due, there is no crime.

I mean if the tax is not due, there is no crime.

Charles E. Whittaker:

But actually, the statute as argued by Mr. Richards makes the crime to consist of possession alone without the payment.

Let me see —

B. R. Stewart:

The possession and tax are intertwined.

There’s no — no separating.

It’s not possession of liquors, possession of unstamped liquor.

B. R. Stewart:

Possession of unstamped liquor.

Felix Frankfurter:

Was this stamped?

B. R. Stewart:

Sir?

Felix Frankfurter:

Was this stamped?

B. R. Stewart:

No, sir.

He refused to pay the tax saying it was unconstitutional.

Felix Frankfurter:

Well, why — why didn’t your Court of Criminal Appeals has the right to fine the crime that’s made up.

You say because he didn’t think it was — no stamp is required.

You say —

B. R. Stewart:

I say the stamp is unconstitutional, yes, sir.

And as unconstitutional, he did not owe it.

Hugo L. Black:

Suppose he didn’t.

B. R. Stewart:

Sir?

Hugo L. Black:

Suppose he didn’t, he still had possession of unstamped liquor and that’s a crime in that State, can he defend by saying (Inaudible) has no right.

I didn’t have to pay and put a stamp.

B. R. Stewart:

That’s exactly what he said.

Hugo L. Black:

What you’re saying — what you’re saying is that they can make it against the law on that State if they have possession of unstamped liquor.

B. R. Stewart:

I’m saying that they cannot impose this tax.

Hugo L. Black:

Yes, but —

B. R. Stewart:

And consequently —

Hugo L. Black:

— he had — he had liquor that was not stamped.

Suppose — let’s say it’s a surplusage if you want, they — they could have simply charge him with having possession of unstamped liquor which he did.

B. R. Stewart:

That’s correct.

Hugo L. Black:

And suppose that — that’s what they do, charge him with having possession of unstamped liquor.

B. R. Stewart:

That’s right.

Hugo L. Black:

Why does that not make it a crime and what difference does it make because he could have put a stamp on it?

B. R. Stewart:

Well, it doesn’t make any difference.

He could have put a stamp on it.

Hugo L. Black:

Well —

B. R. Stewart:

He could have purchased —

Hugo L. Black:

Well, what does it make if he could have and he didn’t have (Inaudible) and he had possession of unstamped liquor?

B. R. Stewart:

Well, let me — let (Voice Overlap) —

Hugo L. Black:

Unless Texas is barred from — of making that a crime and I should think if they visit the Virginia case (Inaudible)

B. R. Stewart:

What I’m trying to say — perhaps may be this will get it.

I’m trying to say that — that Texas could not impose the tax on liquor traveling through the State of Texas.

That therefore he was — should have been able to carry that liquor through the State of Texas without any tax being paid to the State of Texas.

And that therefore, if they charged him with possession of unstamped liquor, they just can’t charge him with that particular thing.

Hugo L. Black:

What you’re saying — what you’re saying in (Inaudible) it’s a State contention without power even since the Twenty-First Amendment to limit the transportation of liquor through their — through their (Inaudible) to common carriers if they —

B. R. Stewart:

I — yes, sir, I recognize that they have a regulatory power to do so.But a tax and regulation is — they’re separable in the Collins versus Yosemite Park case.

The — this Court said that such a tax was separable from the regulatory phrase of the Alcoholic Control Act of California.

Felix Frankfurter:

Suppose there’s no tax at all.

All fiscal, all dollar and cents (Inaudible) and Texas has a separable colloquially drawn statute which says that in view of the illusive character and the slippery nature of liquor when you want to concentrate attention or enforcement by providing that liquor can be transported within the bounds of Texas whether from one place to another or coming in from Mexico and going outside the other way around from north to south.

That can be only done by licensed carriers not a — and anybody who brings the license carrier and carry this liquor shall be guilty of an offense.

No taxation and no money at all.

B. R. Stewart:

I think under the Carter case, they could do that.

Felix Frankfurter:

That would be all right.

B. R. Stewart:

Yes, sir.

B. R. Stewart:

But —

Felix Frankfurter:

But if it says that —

B. R. Stewart:

In absence of federal legislation, Mr. Justice Frankfurter.

Now, the federal government comes along and says, “all right, you as a private individual can carry so much liquor through the State.”

Any state legislation contrary would be void.

Earl Warren:

What do you do with the Twenty-First Amendment?

B. R. Stewart:

I think this Court has interpreted.

It could mean delivery and use theory and not in transit.

I think in the Yellow Cab Company — Yellow Cab Transit Company case about transporting liquor through the State of Oklahoma to the Military Reservation at Fort Sill.

They said that they could do that.

Felix Frankfurter:

But that’s a different story.

That’s (Inaudible) the power of the Government or its military.

That’s a very —

B. R. Stewart:

There again, Government has power over —

Felix Frankfurter:

That is a different story.

B. R. Stewart:

That’s exactly what I’m contending.

The Government has the power over the export and import business and if the individual state cannot vary the uniformity for the whole of the United States —

Felix Frankfurter:

But that’s — the point of that was that it’s a Government territory.

B. R. Stewart:

Yes, sir

Felix Frankfurter:

That was for all practical purposes like the District of Columbia.

B. R. Stewart:

That’s correct.

And at the same time, the Government by the Export-Import Clause has complete control.

Felix Frankfurter:

But the Export-Import Clause is out by the Twenty-First Amendment.

B. R. Stewart:

Well, that’s my contention that —

Felix Frankfurter:

That’s the liquor I mean.

That’s to liquor.

B. R. Stewart:

That’s my contention that the — the Twenty-First Amendment does not repeal the Export-Import Clause.

Felix Frankfurter:

Purely restrict —

B. R. Stewart:

It would have —

Felix Frankfurter:

(Inaudible)

B. R. Stewart:

It would have to be by implication only.

It does not say we also repeal the Export-Import Clause or control of — of foreign commerce.

Felix Frankfurter:

But if you’re right then the Congress of United States having nothing else to do, (Inaudible) the purpose statute saying that Texas and all the other states may do what they please within their confines but may deal the liquor traffic so important for national security or whatnot, the enjoyment of people which enlarge their morale that liquor shall be allowed to come in every state — in one state to another and one foreign country into other state.

Could they do that?

B. R. Stewart:

No, sir.

Felix Frankfurter:

But yet — why not?

B. R. Stewart:

Because the individual state has a control under the Twenty-First Amendment of the liquor within its boundaries.

Felix Frankfurter:

Well, this is within its boundary.

This is liquor that came into Texas.

B. R. Stewart:

But it is going through the State of Texas.

It is my contention.

Hugo L. Black:

If you’re wrong (Inaudible)

If you’re wrong in citing that Texas is without power put on this regulation inside the case then to (Inaudible) if —

B. R. Stewart:

If — if this Court should construe.

Hugo L. Black:

But leaves Texas free to limit the shipment of liquor through Texas, the common carriers then you are out of —

B. R. Stewart:

No, sir.

Hugo L. Black:

Why not?

B. R. Stewart:

Because of the regulation or the — the — or the regulation, not regulation, but that the legislation by Congress.

Hugo L. Black:

Well, then — then you will have to expose it —

B. R. Stewart:

Then if that — if that didn’t cover it and the Export-Import Clause did not cover it then I would be out, yes sir.

Hugo L. Black:

Well, do you think Congress has the power to say now to pass liquor legislation just take — take away from the State’s power given from the Twenty-First Amendment (Voice Overlap) —

B. R. Stewart:

To control within the State border and so far as the possession or — I mean as insofar as use or delivering in that State is concerned, no they could not.

Hugo L. Black:

In — insofar as the scope of the amendment goes (Inaudible)

B. R. Stewart:

That’s right.

But he it did not repeal the Export-Import Clause and didn’t repeal the Foreign Commerce Clause under which Congress has acted.

Felix Frankfurter:

But if — but you say it does lead free indeed cast upon this Court the duty of determining whether a particular measure or dry state is fairly calculated to protect the dryness of that state.

B. R. Stewart:

No, sir.

Felix Frankfurter:

It couldn’t do that?

Didn’t your argument get down that we must say that this is not related to the protection of Texas as a dry State?

B. R. Stewart:

That’s correct.

B. R. Stewart:

May I emphasize that — that in this particular instance that the defendant if he had pay the tax, there would been no regulation other than that.

That is — I’m not stipulating but uncontroverted in the — in the statement of facts that if he had paid the tax, he could have gone on his way.

There was no question of a permit before the Court of Criminal Appeals of Texas as to whether they have permit or not.

There was no question on that.

They seem to think that that came into it.

What we were attacking the entire thing on the tax base only, not as a regulatory measure but a revenue raising tax omission.

I think if you’ll check our Liquor Control Act, Article 666, the same is used for revenue production.

I think perhaps my brief has cited this cases and I think they are pertinent and will bear me out that there is a definite separation of powers that should be maintained.

Let me — let me give this one instance and then I’ll quit.

For instance, if the State of Texas on tax decided to go in and tax Scotch whiskey at the rate of $10 a quart, all the imports from — from Mexico tax Scotch whiskey at $10 a quart.

No tax for rum.

They would be affecting the general right of the Congress to control the import-export industry.

They would be affecting it locally, just as definitely as if they had gone in to say, you can’t bring in rum but you can bring in scotch or you can bring in (Inaudible) or you might bring in (Inaudible).

Hugo L. Black:

Then why couldn’t they say that’s under Twenty-First Amendment?

B. R. Stewart:

As long as it’s going through their State to a final destination and is an import, it is without the bounds of the State’s regulatory powers or taxing powers.

Hugo L. Black:

You’re limiting your state — I see, you’re limiting your statement and the argument you made that they can carry it through —

B. R. Stewart:

Yes, sir.

Hugo L. Black:

The State can’t (Inaudible)

B. R. Stewart:

And I think — I think under Article 666-23a (1) that they have the right to carry it through the State.

I thank you for your attention.