Gordon v. Texas

PETITIONER:Gordon
RESPONDENT:Texas
LOCATION:Philadelphia Board of Public Education

DOCKET NO.: 71
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: Texas Court of Criminal Appeals

CITATION: 355 US 369 (1958)
ARGUED: Jan 09, 1958
DECIDED: Jan 13, 1958

Facts of the case

Question

  • Oral Argument – January 09, 1958 (Part 2)
  • Audio Transcription for Oral Argument – January 09, 1958 (Part 2) in Gordon v. Texas

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

    Earl Warren:

    Number 71, I. N. Gordon, Appellant versus State of Texas.

    Mr. Stewart.

    B. R. Stewart:

    Mr. Chief Justice, may it please the Court.

    This case that we have today is a bit different from the points that normally get publicity, the ones of the Federal Government imposing their will upon the state’s rights of the various states.

    I think in this instance, this is a case of the State imposing its will on the federal rights in a case.

    We have involved in this case — I would like to relate the facts if that’s permissible.

    A man charged with possession of liquor in the State of Texas on which the Texas liquor stamp had not been paid.

    The facts involved — he was fined incidentally $100 in the County Court of Hidalgo County, Texas.

    The facts involved are these.

    Mr. Gordon, the appellant, his wife and daughter had been residing for sometime in Cuernavaca, Mexico.

    Mr. Gordon is or was an author.

    His wife and his daughter decided that they should return to the States and in the process, they purchased each of them and jointly together, 12 bottles of Mexican liquor.

    I think there were some eight or nine bottles of rums and some other types of brandy, a total of 12 bottles.

    They reached the border and during the period of their journey with 11 bottles as they cross the port of entry in Hidalgo — Hidalgo County, Texas.

    They passed through the U.S. customs inspection and after clearance through the customs inspection station, they were approached by the Texas State Control Board official on duty at the International Bridge there in Hidalgo and requested that they pay a Texas state liquor tax on this liquor which they were importing from the State of Mexico — Republic of Mexico.

    They were merely joining — he requested that that be paid and the appellant refused.

    His offhand remark as I recall the testimony was that it was unconstitutional.

    He left the port of entry in journeyed towards McAllen, Texas.

    Town of ten miles away, he was stopped in the process by state highway patrolmen, some seven miles distance and held by them — by the state highway patrolmen until some officials for the Liquor Control Board arrived at the point where he was stopped.

    He was taken into custody by the officials of the Liquor Control Board and turned to the International Bridge and given the opportunity to again pay the Texas state tax and he again he refused.

    The officials then took Mr. Gordon before a local Justice of the Peace and charged him with the possession of unstamped liquor in the State of Texas.

    He was held in jail that night and the next day he was released and he and his wife and daughter continued their journey to the State of North Carolina.

    He returned in November and was tried the jury — before a jury and the jury verdict was guilty and a fine of $100 was given.

    I might mention that the car that he was driving bore a North Carolina license plate at that time.

    Now, at the time of trial prior thereto in — at all times during the appeal, we raised two points that the Texas liquor tax violated the U.S. Constitution that it violated it — the portion of the Export-Import Clause where Congress is given the control over duties on exports and imports and secondly on the Commerce Clause.

    We presented this to the Court for the first time in a motion to dismiss prior to trial.

    We also had a sworn motion to quash prior to trial.

    We had our trial — both of those motions were overruled.

    We had a trial.

    I had a motion to instruct a verdict in favor of the jury based on these two grounds and some others that were local in nature.

    B. R. Stewart:

    That motion was overruled.

    The verdict was brought in.

    I mean prior to that time, a requested instructions of the Court to the jury, upholding and showing these various courses of the constitutionality that — so that they could be presented and argued to the jury.

    These instructions were used by the Court and then the verdict was held.

    We presented our exceptions, our bills of exceptions on all of those points at the Court of Criminal Appeals in the State of Texas.

    And in their opinion, the constitutionality question did not arise or it was not pertinent to this very fact.

    I would first like —

    Earl Warren:

    It passed on — it passed on the constitutional question.

    B. R. Stewart:

    Yes, sir.

    They said that — that — so far as they can see that it was not violative of the Constitution in both instances either on the Commerce Clause or under the Export-Import Clause.

    The export-import portion is based on the clause which gives to Congress the complete control of duties on exports and imports.

    There’s one exception in there for inspection purposes and I don’t think that enters — enter this case.

    I don’t think it entered into the record, any place.

    The first case that came before this Court as I read the cases, was the case of Brown versus Maryland in 1837 I believe, Chief Justice Marshall wrote the opinion.

    And in that case, he set up what is known as the original package doctrine saying that when a thing is imported from a foreign country or without the boundaries of the United States, then such import is not subject to state taxation as long as it remains in the hands of the importer that the same is in the original package and under the control of the import.

    When such import become so commingled with the mass of the goods of a state to which it is destined, then in that instance, the state might have control and may have the right to tax.

    Now, this case was considered next — I mean the provision of the Constitution was next considered by the Court in the license cases.

    There were three cases from New Hampshire and Massachusetts in Rhode Island, involving the question of a local ordinance requiring a tax on sellers of liquor in the local towns and they were brought up.

    None of which were involved on a direct import from the — from a foreign country.

    They had gone through the process of being sold or were out of the importers but Chief Justice Taney and several of the other justices stated that if the liquor involved in the cases had been a foreign import that the — the town ordinances would have been unconstitutional that the tax would not have been valid.

    The — there are a number of other cases along that line.

    The — probably a pertinent one is — there was — was the case of Low versus Austin in which liquor imported from France was taken into the City of San Francisco and stored in the warehouse there.

    The City of San Francisco attempted to assess an ad valorem tax on the liquor as it was stored in the warehouse.

    It was still in the hands of the original importer.

    And they import or paid the tax and then sue to recover it on the grounds that it was an unconstitutional tax.

    The Court — this Court held that such a tax, even though it was equal to all goods in the City of San Francisco, not discriminating as to the liquor or otherwise.

    The Court held that the tax was invalid because the import was still in — in the hands of the importer.

    And consequently, it was not subject to a local taxation.

    It had not become a part of the general mass of goods of the — the state or the tax immunity was trying to levy the tax.

    Perhaps, the most recent case considered by this Court was Hooven & Allison Co. versus Evatt involving a case of him.

    B. R. Stewart:

    Now these ones that I’ve cited before had been involving liquor.

    Hooven & Allison Co. versus Evatt involved a rope manufacturer in the State of Ohio.

    And he had imported him from India, from the Philippine Islands and various other places and stored it in his warehouse in Ohio.

    The State of Ohio attempted to assess the ad valorem tax on that import.

    This Court held in that case that it was still in the hands of the importer and was not subject to a state tax, even though it had come to rest in the State.

    It had not become a part of the mass of goods in the State of Ohio and consequently it was not subject to a tax.

    Did your state court construe the statute as not being an ad valorem tax but a used tax?

    B. R. Stewart:

    Yes, sir.

    They construed it as a used tax.

    B. R. Stewart:

    They construed it as a used tax.

    That’s correct.

    And —

    You’re still citing on the concept that —

    B. R. Stewart:

    Yes, sir I say —

    Export-import —

    B. R. Stewart:

    — the reason — for this reason.as part of the evidence in the case here involved that the defendant or the appellant stated to elect control officers that he had no intention to use it, dispose of it or sell it in the State of Texas that he was merely carrying the same through the State of Texas, through the state of his destination, the State of North Carolina.

    And we’re contending that the tax of Texas was invalid for — it was still an import.

    It was in the hands of an importer, the appellant herein.

    And that he was merely carried through the State of Texas.

    If Texas could put a tax on it in Louisiana, Mississippi, Alabama, Georgia, all the rest of them up until he got to South Carolina — I mean North Carolina, could impose a tax thereon under the reason the meaning of state tax — the State of Texas.

    Well, it might run a power to the Commerce Clause but it wouldn’t necessarily run a power to the other clauses.

    B. R. Stewart:

    Yes, sir, very definitely.

    I think it runs more foul of the Export Clause than it does of the Commerce Clause.

    I think it run a foul on both them.

    But I — the various cases that this Court has passed on says that — that among other things that the clause was put in the Constitution to make the policy as to imports uniform throughout the United States.

    Now, the State of Texas can impose a tax, whatever they wish that destroys that uniformity of policy immediately.

    The Congress of the United States for instance has passed as part of the duty statutes or the import statutes, a law saying that a person returning from the — a foreign country may bring in as part of the goods with them a full wine galloon of liquor, free of tax.

    William O. Douglas:

    Did he have avoided the tax for getting a permit.

    B. R. Stewart:

    Sir?

    William O. Douglas:

    Did he have avoided the tax for getting a permit?

    B. R. Stewart:

    No, sir.

    I don’t think the question will permit even entered into this particular case.

    William O. Douglas:

    Well the Court talks about it on page —

    B. R. Stewart:

    The Court talks about it.

    I don’t believe that it was in the case.

    William O. Douglas:

    Tell me —

    B. R. Stewart:

    There was nothing in the facts as to whether a permit was issued, could have been issued or —

    William O. Douglas:

    No, I’m asking about Texas law.

    When does it permit or issue?

    B. R. Stewart:

    They have permits of certain persons that are allowed to have permits.

    In this particular instance, they have a statute, Article 66-23 (a) Section 1 which says that a person may transport liquor from a place where the purchase or the sale thereof is legal to where a — the possession there was legal.

    So I don’t believe that he would necessarily have to have a permit.

    I think the Court was mistaken in that particular —

    William O. Douglas:

    Well they’re pretty authoritative on their — when it comes to Texas law.

    B. R. Stewart:

    That’s true, yes.

    But I think — I think that they did not consider that section that states that a person may transport that liquor anywhere in the State.

    From place where the possession of — is the sale or purchase that is legal to a place where the possession of it is legal.

    In other words, if — if a person went as one of the justices argued there I think in one of the concurring opinions.

    A person would run into this fact, if he didn’t have the right to transport liquor from the liquor store where he bought it without a permit to his home then you would run into a complete prohibition.

    William O. Douglas:

    The Court says that it’s unlawful to import liquor into Texas without a permit.

    B. R. Stewart:

    I think that that again runs afoul of the constitutional provision.

    William O. Douglas:

    That gets pretty close if that’s the true to the Arkansas case —

    B. R. Stewart:

    Yes, sir.

    I think what they’re saying — they’re — they’re trying to — control imports on — on a matter that Congress has acted on.

    Congress had said that a person returning from a foreign country may bring in a wine galloon of liquor free of duty which to me would imply the right to carry that to any place in United States without interference from any local or state regulation.

    And I don’t see how that it could be interpreted any other way.

    I’ll be glad to read that section.

    Don’t bother — state statute.

    B. R. Stewart:

    In any event, the provision was put in the Constitution to eliminate the evil of maritime or border states controlling imports into the United States.

    If they have the right to tax, they would have the right to enrich their own treasuries at the expense of the border’s states.

    B. R. Stewart:

    I mean of the interior states.

    And actually that your uniform policy would breakdown immediately.

    I think if we go back in the history, we can find it under the constitutional Congress that — under the continental Congress that that was a big part of their problem that the states were bickering.

    They had no uniform policy as to import from without and even in the other foreign nations were taking quite an advantage of it.

    I think you will see in each one of this case — in all of these cases that the courts have — this Court has maintained that the import does not end immediately upon arriving into the United States that its immunity as an import survives until it reaches its final destination.

    And until such time as it becomes a part of the mass of goods of that state.

    Now, there are two cases out of California, one by the Supreme Court and one by the Court of Appeals, Von Hamm-Young Company versus City and County of San Francisco decided by the Supreme Court of California, March 14, 1947.

    And they go back — and this Von Hamm case and the (Inaudible) Company versus City and County of San Francisco, again are involved — involved imports of liquor coming into the United States and the attempt by a political subdivision other than the federal government to impose a tax on those imports.

    Now granted that these were big importers but I think it equally applies to the person who brings it in under the federal statutes that allowed them to do it as well as to a large scale of import.

    Is this on a tax on implication?

    B. R. Stewart:

    It is not set up or so.

    No, sir.

    It is uniformed throughout the state.

    Because of a tax on the possession of — within the state.

    In other words, you can bring it in as much as the federal government permitted that you apply to pay the state tax.

    B. R. Stewart:

    Well, there again — that’s — that’s the position that the State has maintained in the — in the Court of Criminal Appeals.

    It maintain — we say that the tax is invalid because it is still an import and hence not subject to any tax are controlled by the State of Texas until it has become a part of the mass of goods of the State of Texas.

    This is in its original — these bottles were in their original package or carried by the defendant or attempt to be carried by the appellant through the State of Texas.

    Charles E. Whittaker:

    What did you do about that (Inaudible)

    B. R. Stewart:

    There was not one — there was one broken in the possession of the liquor control agents.

    I assume it is either evaporated or drained away.

    Charles E. Whittaker:

    Well, is that broken accidentally?

    B. R. Stewart:

    It was broken accidentally.

    Charles E. Whittaker:

    (Inaudible)

    B. R. Stewart:

    No.

    The — there was one that had been either broken or used in the trip prior to the time that they left for the border.

    So that they had 11 bottles within the limitation that is allowed by the import —

    Charles E. Whittaker:

    What is — which is the package here?

    The carton, the case (Voice Overlap) —

    B. R. Stewart:

    I say — I say the — each bottle, the four bottles or five bottles per — Mr. Gordon — that Mr. Gordon had, the five bottles that his wife had and the two bottles that his daughter had or one bottle that the daughter had, are the original package.

    B. R. Stewart:

    That is the form in which they were imported.

    Charles E. Whittaker:

    The father was the original (Inaudible)

    B. R. Stewart:

    Yes, sir.

    Charles E. Whittaker:

    Not the (Inaudible)

    B. R. Stewart:

    No, I — I don’t think in this instance that they would be.

    (Inaudible) did the evidence show?

    B. R. Stewart:

    No, I — it wouldn’t — a sealed case, I would say no because there were different types of liquor involved.

    Twelve bottles on that —

    B. R. Stewart:

    Twelve bottles in the case, that’s normal.

    Yes, sir but they were various kinds.

    In other words, there were rum and brandy and I think some (Inaudible) of some type, so that each bottle would have been with the individual.

    Hugo L. Black:

    Was it within a case or —

    B. R. Stewart:

    I think that he carried it in a carton — that they carry it in a carton and had put it in the trunk of their car.

    The other point is the fact that it violates Commerce Clause.

    Here, we have a question arouse in my mind as to whether this man was actually in interstate commerce, transporting across the state line.

    But the case of Simpson versus U.S., I think sets that at rest, involved a man transporting five bottles of liquor across the — a state line into a state where the manufacture of liquor was prohibited.

    And he was filed on under a federal statute for transporting.

    So — and they held — and this Court held that he was in the interstate commerce.

    So I think that we have our appellant within the interstate commerce provision.

    And that the cases are numerous in a state that a tax on goods moving in the interstate commerce is an invalid — invalid tax as an undue burden on the interstate commerce.

    There were a number of cases that bothers me by virtue of the fact that this Court had passed on liquor question a number of times in connection with the Twenty-first Amendment.

    And I think that in all of those cases, the Court has held that the state has a right to enact regulatory measures concerning the interstate transportation of liquor.

    So long as the same does not violate some action by the Congress of the United States.

    Here again, I say that the provision that Congress has allowed the person to bring in not less than one wine galloon of liquor for his own personal use, implies that if he has the right to transport that to his home or to his residence and that any — any state action to the contrary must be on Constitution.

    The — perhaps the most recent case was the case of Carter versus the Commonwealth or Carter versus Virginia before this Court in 1944.

    That the Court said at that time, it has been held that a shipment through a state is not transportation or importation into a state within the meaning of the amendment, talking about the Twenty-first Amendment.

    It is enough that Virginia could conclude in the absence of contrary federal legislation that she could not safely permit the transportation of liquor through her territory by those who concededly mean to break federal laws and the rules of a neighboring state.

    Now, I say that by the action of the Congress in allowing a person to bring this import in, free of duty, is such federal legislation or federal action as the Court had in mind and that consequently, being in interstate commerce that the state action of trying to impose a tax on goods moving through the state must be void regardless of the fact that they were uniform as to all liquor in the State of Texas.

    Was it prohibited (Inaudible)

    B. R. Stewart:

    I think under the decision of this Court that they have a right to limit it to a — as to how it’s carried.

    B. R. Stewart:

    I don’t think they could prohibit transportation through the state.

    In other words, you could go — go, say New Hampshire up here could — I mean Maine could be standing by one of the Border States there.

    By that state saying no liquor maybe transported through this state and that Maine would be completely dry as far as land transportation is concerned.

    Is that — the — I have cited a number of cases in here, I think they are pertinent.

    I think that they uphold a position that we’re trying to maintain.

    I think that the Court of Criminal Appeals of the State of Texas was completely an error.

    In this respect, they said, they assumed that the importation must have been completed at the time that tax was applied to this liquor.

    And I think their error was in assuming that that importation was completed the very instant — instant that it entered the State of Texas.

    An import remains an import until such time as it reaches its final destination and becomes a part of the mass of the goods for the State.

    In this case, it could not have been under the admitted facts, undisputed facts.

    He says, I’m not going to use it, I’m not going to sell it, I’m not going to dispose of it, I’m not going to do anything with it but carry it through the State of Texas, through the State of Louisiana, through the State of Alabama up to North Carolina.

    And yet, they maintained that Texas has a legal right to tax that.We say that the import survives in any tax regardless of what is an ad valorem tax, whether it’s a used tax or any type of tax by the State of Texas is completely invalid under the foreign Export-Import Clause in the Constitution and the Foreign Commerce Clause for that —

    (Inaudible)

    B. R. Stewart:

    They say upon the use — the tax is set up on this basis as it is here by levied on the first sale of liquor in addition to the other fees and tax —

    (Inaudible)

    B. R. Stewart:

    Yes, sir.

    That’s the way this — the act reached.

    It is hereby levied and imposed on the first sale in addition to the other fees and taxes levied by this act that followed.

    A tax of $1.40 per galloon on each galloon of the sales first, and it goes on to say the first — the term for sale as used in Article 1 of this Act shall mean include and include the for sale possession, distribution or use in the state of any and all liquor refined, blended, manufactured, imported into or in any other manner produced or require, possessed or brought in to the state.

    And clearly, used tax are sales tax.

    It is part of a general regulatory statute.

    (Inaudible)

    B. R. Stewart:

    I agree.

    (Inaudible)

    B. R. Stewart:

    That’s correct.

    (Inaudible)

    B. R. Stewart:

    It’s a mere possession in the State of Texas enough for the tax to apply.

    We say the possession is not enough because we are carrying it through the state as an import, as an exempt import or in interstate commerce.

    Yes, sir.

    Earl Warren:

    Does a state concede that all you were doing was carrying it through the state?

    B. R. Stewart:

    That is undisputed.

    Earl Warren:

    That’s undisputed?

    B. R. Stewart:

    Yes, sir.

    One other point I might bring out in the — in the evidence that was presented in my questioning — the control agents, they stated — I asked them if there were any other places in the State of Texas whereby a person could purchase a tax stamp and place it on the liquor, unstamped liquor other than the Texas-Mexico border.

    And they said no.

    That the only place they have them are on the border between Texas and Mexico, none between Texas and New Mexico, none between Texas and Oklahoma and none between Texas and Louisiana or Arkansas that it is only on the Mexican border where the persons are stopped in a tax collection.

    Earl Warren:

    But the Act purports to apply to coming into the state —

    B. R. Stewart:

    Yes, sir.

    Earl Warren:

    from any other state.

    B. R. Stewart:

    Yes, sir.

    There are provisions in the Act — actually when this first came up, I was quite of a lost to determine under what sections they were charging the defendant.

    And I’m still not really sure.

    There are number of sections in the Act that involved either importation or the sale as — as we have here and to somewhat conflict.

    I mean there are somewhat of conflict within the Act itself.

    Earl Warren:

    Does the State have any — does the state have any kind of a permit that will enable the person to carry liquor through the state in bonds so to speak or there is nothing?

    B. R. Stewart:

    Other than, say you’re common carriers or you’re a —

    Earl Warren:

    Yes.

    B. R. Stewart:

    — carrier such as that.

    Earl Warren:

    Yes.

    But if a person — if a person let’s say was destined for New Mexico, he came into the border as — as your client did with a truckload of liquor and was to — for the purpose of transporting it through to New Mexico, not a public carrier but his own — his own truck and cleared that the — at the border and start to go through to New Mexico.

    Is there no way that the state provides for that man to protect himself against this — this tax or would he have to pay the tax?

    B. R. Stewart:

    Well, I don’t think under the circumstances if it were — if there are a number of cases, I don’t think he could transport it without a permit from the State of Texas.

    Earl Warren:

    What kind of a permit would he get?

    B. R. Stewart:

    There are some 30 types of permits as I recall.

    He would either have to get a wholesaler or wholesale distributor’s permit or a license under — as a common carrier.

    Earl Warren:

    Or maybe he wasn’t — maybe he was neither of those — maybe he wanted (Inaudible) —

    B. R. Stewart:

    Then —

    Earl Warren:

    — maybe he wanted to take it to his home in –in New Mexico, let us say, and he came to the border with this truckload of liquors.

    How would he — or would he have to pay the tax of Texas or is there any kind of permit that the State issues that will enable him to go through the State without having to pay?

    Felix Frankfurter:

    That’s the (Voice Overlap) —

    B. R. Stewart:

    I don’t believe so.

    Felix Frankfurter:

    (Inaudible)

    Earl Warren:

    Yes, yes, something — anything like that.

    B. R. Stewart:

    I don’t believe so.

    In other words —

    Earl Warren:

    You don’t believe what?

    Will he have to pay it or —

    B. R. Stewart:

    I think — I think he would have to pay the tax and I don’t think they’ll let him transport.

    Earl Warren:

    Well that’s what (Inaudible) —

    B. R. Stewart:

    I feel that — that the whole statute, anything that has to do with imports is void under the Constitution because they have imposed a state will on the imports from a foreign country and consequently violated this uniformity that is not only desirable but is imperative and that the control of such is within the federal government.

    It’s not one of these fields that — that the State can act in.

    It’s prohibited to them and that anything that comes in conflict with that probation must be violative of the Constitution as this tax, we contend is.

    Consequently, if the tax is not valid that he owed no tax, there was no offense and the prosecution must fail because he’s prosecuted simply for having the possession of unstamped liquor.

    And that it was elicit because it was unstamped.

    Hugo L. Black:

    Coming back to the Chief Justice’s question, the statute permitting a (Inaudible)

    B. R. Stewart:

    I think not unless you come in under one of the permittees that are allowed under the statute.

    Felix Frankfurter:

    Well, is that — the permittee provision of the law in the brief?

    William O. Douglas:

    Well, it’s here and it’s cited by the Court of — the Texas court and I have it in front of me, it says Article 666-8, no person shall import to the state, any liquor in excess of what’s imported.

    B. R. Stewart:

    That’s right.

    Incidentally —

    William O. Douglas:

    — unless a permit will be first obtained from the border.That’s the one I think Justice Black (Inaudible) —

    B. R. Stewart:

    Yes.

    And they say that — well, there’s just any permit unless you have to be a wholesale leader or retail leader or something like that.

    No way that an individual for his own personal use other than the statute that I cited, this 23 (a) Section 1, can transport liquor across the State of Texas.

    (Inaudible)

    B. R. Stewart:

    Yes, sir.

    Not —

    B. R. Stewart:

    Now —

    Twenty-first Amendment (Inaudible)

    B. R. Stewart:

    That’s correct.

    B. R. Stewart:

    It says to import for delivery or use therein.

    We’re not — we’re not delivering or using it in the State of Texas.

    Unless your possession is used.

    B. R. Stewart:

    Unless your possession is used and I think — I think that the Twenty-first Amendment was merely carrying out the (Inaudible) Act which was — people from bringing it into the state in violation of their laws for use and delivery, use or delivery, either way in that state.

    Delivery to me implies that it will be used in that state or get in that state.

    Is this transaction to be construed in the leverage of the sale that’s brought in from a foreign country and sell it in the state?

    B. R. Stewart:

    I don’t see how because his intentions were to carry it completely through the State of Texas.

    That’s the (Inaudible)

    B. R. Stewart:

    Yes, sir.

    It was uncontroverted.

    Felix Frankfurter:

    When you say delivery it means, what it means to you, could Texas provide as a means of enforcing a liquor statute and in the interest of avoiding what one has a right to assume or the opportunities for evasion that even a fellow Texas stuff through should get a permit to take it through, could Texas do that?

    I’m not saying it has done it but could it, not merely like —

    B. R. Stewart:

    I don’t think they could in this — in this —

    Felix Frankfurter:

    — for use in the State would have a control system of stuff going through the state.

    B. R. Stewart:

    No, sir.I don’t think they could.

    Felix Frankfurter:

    You don’t think it could?

    B. R. Stewart:

    Not under the statute that Congress has passed allowing a person to bring into this country, duty free, one — no more than one wine galloon of liquor.

    Felix Frankfurter:

    And that Texas couldn’t say — awfully easy to say, we’re just going through rather than consume again in the state, you better get a license.

    B. R. Stewart:

    I think not because the import gives it — the import law gives him the right to carry it to their final destination.

    Felix Frankfurter:

    But I’m — I’m not —

    B. R. Stewart:

    Yes.

    Felix Frankfurter:

    — admitting that.

    Couldn’t it as a matter of assuring the state that it’s going through or not stopping there or being used there or sold on the way to some foreign or profitable transaction, couldn’t it as a means of administration exercise that (Inaudible)?

    I’m not saying it has done so that this statute is susceptible to that construction, I don’t know.

    B. R. Stewart:

    No, I don’t think they could in this instance.

    Felix Frankfurter:

    Well, I’m not making that —

    B. R. Stewart:

    I think — I think that Texas — anything that —

    Felix Frankfurter:

    You say that it’s above — if in fact — if in fact as a matter of truth, somebody brings in liquor from — from Mexico into Texas to go to Texas or the Chief Justice suggested New Mexico, Texas can do nothing about assuring the fact that he is going to go through to New Mexico rather than make a profitable sale having changed his mind instead of bringing it to his father-in-law making a profitable turn of the penny in Texas.

    B. R. Stewart:

    Well, I think you’d run into the de minimis proposition there on that particular one —

    Felix Frankfurter:

    Well, I didn’t mean (Inaudible)

    B. R. Stewart:

    Because they are limited to bring in liquor personally to one wine of galloon, that’s (Inaudible) of liquor.

    And that consequently, the statute gives them that right to carry it through without interference of any sort by the state statute or the state because Texas come along and say —

    Felix Frankfurter:

    I don’t know if that’s how you construe the — what is it, the Nineteenth Amendment?

    B. R. Stewart:

    Twenty-first.

    Felix Frankfurter:

    Twenty-first Amendment.

    B. R. Stewart:

    Yes, sir.

    Felix Frankfurter:

    Thank you.

    B. R. Stewart:

    Based on what argument I’ve tried to present here.

    I honestly ask the Court to reverse the decision and dismiss the prosecution.

    Thank you sir.

    Earl Warren:

    Mr. Richards.

    C. K. Richards:

    Mr. Chief Justice and may it please the Court.

    I wish to make a statement at the outset the Chief Justice has come to the question as to whether it was conceded that he was going to — the appellant was going to use this for his own use.

    The State concedes nothing.

    The record shows that the appellant did make the statement that he and his companions, that is wife and daughter had purchased this 11 galloon bottles in Mexico for the purpose of bringing it through the State of Texas for his personal use in the State of North Carolina and that he did not intend to use, sell or otherwise dispose of it in the State of Texas but we will not concede that he could not have done so.

    He — that was his statement that he made.

    Is there evidence (Inaudible)?

    C. K. Richards:

    There was no evidence to sustain his contention either because I — as I see it, Your Honor, he never got the chance.

    That was his testimony?

    C. K. Richards:

    That was his testimony which is uncontroverted and I fail to see how anybody could controvert it, unless he had the opportunity to — to transport it.

    Now, our contention is briefly this, and I will concede at the offset that had this whiskey had been purchased in Mexico, it could be transported through the State of Texas after it came to the port of entry into the State of North Carolina without the payment of the tax in interstate commerce if he had complied with the regulations that the State of Texas has set up under the Liquor Control Act.

    William J. Brennan, Jr.:

    And that — that’s about getting a permit?

    C. K. Richards:

    About getting a permit, yes, Your Honor.

    As a matter of fact, while he was stopped there at the bridge and when that liquor was being declared at the customs office, assuming that he was traveling in private conveyance, which he was, he could call the customs broker.

    But customs broker pointed up — put up a bond and transport it by a common carrier which is also under bond from the port of entry to his home in North Carolina.

    Felix Frankfurter:

    Would you mind stating in detail that will become — stating in detail, in precise detail the exact procedure that a person bona fide in good faith and with unchanging purpose bringing in liquor from Texas to move on to North Carolina, what he would do or what he would be able to do at the port of entry once he gets into the Texas (Inaudible) exactly what he would have to do or he would be able do?

    What machinery goes through?

    What it would cost him if anything, what return if anything would be made of any fee that he has to pay, could you do that?

    C. K. Richards:

    I couldn’t tell you what it would cost him, Your Honor, but I (Voice Overlap) —

    Earl Warren:

    We’ll recess now, Mr. Richards.