LOCATION: South Carolina State House
DOCKET NO.: 138
DECIDED BY: Warren Court (1962)
LOWER COURT: United States Court of Appeals for the Second Circuit
CITATION: 370 US 713 (1962)
ARGUED: Feb 28, 1962
DECIDED: Jun 25, 1962
Facts of the case
Media for Idlewild Bon Voyage Liquor Corporation v. EpsteinAudio Transcription for Oral Argument - February 28, 1962 (Part 1) in Idlewild Bon Voyage Liquor Corporation v. Epstein
Audio Transcription for Oral Argument - February 28, 1962 (Part 2) in Idlewild Bon Voyage Liquor Corporation v. Epstein
Charles H. Tuttle:
If I may just conclude this matter with (Inaudible) sentences, I'll come directly to the Twenty-First Amendment.
I would ask Your Honors' attention to the reasons which they assign for these new proposals.
At page 38 of our brief, it's in one sentence and I'll read it.
The petitioner seeking a threatened infringement of its rights under the Federal Constitutions may have a cause of action which it cannot seek in the federal court.
It should not be foreclosed for bringing such suit nor should it be subjected to irreparable harm pending the judicial determination of those rights.
And then it proceeds to -- at page 31 to offer and what it calls an assurance that if the case in the federal court is suspended, pending to file determination in a state court action to be brought, they will agree that there will be no enforcement proceedings in the meanwhile and or any penalties for business in the meanwhile.
Of course, it's inconceivable that even where they have assurance of that third parties like those who are the trackers and so forth are going to be very much impressed with that protection.
They are not parties to this case.
And in also, it puts our entire business onto a shadow.
I'm stating that because they cite the Harrison case in 360 U.S. 167 where abstention was granted in an opinion which stressed the fact that as a matter of discretion, there had been assurances by the state officials that there would be no enforcement proceedings pending final determination.
Well, the answer to that is, in the first place that that assurance had been given at the very outset of the federal court suit.
They came by to him and said but in this case of course, we met nothing but threats and effort suit proceedings, subpoenas save, representatives consulting, going to interstate bonded trackers, going to us and telling us that there would be criminal and civil proceedings.
And in the second place, in the Harrison case as it all the cases they say that foreign commerce isn't involved at all with all the consequences in law and to the -- make them so on nationalism which is essential here are.
Our justice sentenced from the -- this Court.
I am quoting from 289 U.S. Board of Trustees, “The principle of duality in our system does not attach the authority of the Congress in the regulation of foreign commerce the right to engage in foreign commerce is not the gift to a state and the state cannot regulate or restrain.”
Now of that being so, I am also saying that the Harrison case has no parallel to this case or to these proposals because as I come to the Twenty-First Amendment, I will refer you to two state court decisions in New York each by our appellant division which is the intermediate appellate court holding squarely that the Twenty-First Amendment does not give any dual jurisdiction or any much less any veto power over foreign commerce in wines and liquors conducted as it's conducted here.
Now then, I come to the Twenty-First Amendment.
And I'm going to call Your Honors' attention to the extraordinary statement that they make and have to make in order to give that Amendment any possibility of application here.
You will find it on page 18 of their brief, it's in a heading and in black type and I'll read it.
“Regulation of the liquor traffic in the state -- by the state is paramount,” notice this word paramount “To the Federal Governments' right to regulate” and all we are talking about is foreign commerce here, “Whether under the constitutional provisions governing commerce, exports and imports and supremacy or under statutory and regulatory provisions of a preemptive character.”
I regard that as the extremely revolutionary statement the like of which will be found in no decision by this or any other court.
“Paramount”, it's a complete denial of the national power as regards foreign commerce in wines and liquors.
It would make impossible the plan which is contained in 311, any state on the seaboard or on the Pacific Coast or indeed in the interior could veto that plan in cause it to fall as utterly ineffective.
Now, let me refer in the discussion back to the concessions made by the Attorney General in his opinion.
We all know that the wording of the Twenty-First Amendment is this, “The transportation or importa -- importation into any state territory or possession of the United States for delivery or use therein of the intoxicating liquors in violation of the laws thereof is hereby prohibited.”
Now I read you, but may I just repeat these three concessions.
Delivery is not made within the state because it isn't.
There's no delivery to anybody except to cause delivery to the place or to the plane but that plane is an interstate -- is upon plane -- upon commerce plane and there's no delivery to the passenger until he's reached abroad.
The original package is not destroyed.
Second concession was it's not a sale or consumption in the state and of course, that means within the state.