394 OLEOMAEGAEINE. 



I doubt if there is a parallel to these decisions in the whole of the 

 reports of the Supreme Court of the United States, a case in which the 

 mouthpiece of the court in the main opinion that is, the South Caro- 

 lina case following the Iowa case to which you refer in which the 

 mouthpiece of the court in the main opinion in a subsequent dissent 

 protested to his fellows that they did not mean to say what they claim 

 in their subsequent majority was the effect of the decision, and pro- 

 claiming that had that been the intention of the court at the time he 

 would iiave been on the dissenting side instead of on the majority side. 



Senator DOLLIVER. But in the Iowa case the court hinted at that 

 legislation, and Congress followed the hint of the court and did com- 

 mit to the States an absolute control over original packages of liquor. 



Mr. DAVIS. That is exactly what I am considering now. 



Senator DOLLIVER. Has the validity of that act of Congress ever 

 been brought into dispute? 



Mr. DAVIS. That is exactly the point to which I am addressing my- 

 self, Senator Dolliyer. In the case of Scott v. Donald (165 U. S., 58), in 

 general terms, without qualification, speaking of the intoxicating- 

 liquors law, the Supreme Court did decide that that was a constitutional 

 exercise of the powers of Congress. That was the first of the dis- 

 pensary cases from South Carolina. Judge Shiras delivered the opinion 

 in that case. In a subsequent case, when the court sought to make it 

 appear that that was a broad decision as to the validity of that act of 

 Congress, so as to make it applicable to all subjects of interstate com- 

 merce, he protested that that was not the meaning of the decision; 

 that it never was in his mind to say so when he delivered the opinion, 

 and I am going to quote you his words to show you that he distin- 

 guishes that case very clearly and shows that what the court meant to 

 say was that in respect to such a thing as intoxicating liquors it was 

 a valid exercise of the constitutional powers of Congress, but that as 

 to any other wholesome subject of commerce Congress had no right so 

 to do. I will read you his words in a few moments, and that is the 

 point, if I may say so, which has not been observed in any of the dis- 

 cussions, either before the other committee or before this one; and to 

 me it presents the real point in connection with the consideration of 

 the question of the constitutionality of this section. 



In support of Judge Shiras's opinion in the later case, he quotes from 

 the initial case, this case of Scott v. Donald, in the Supreme Court of 

 the United States, under that act of 1890. That is the act you speak 

 of, Senator Dolliver, as having been passed on the hint of the decision 

 in the Iowa case. This law subjects intoxicating liquors to the effect 

 of State laws upon their arrival in the States. In that case Judge 

 Shiras delivered the opinion himself, and, speaking of the original 

 South Carolina dispensary law, which was then under consideration, 

 he said, in 165 U. S., 100: 



It is not a law purporting to forbid the importation, manufacture, sale, and use of 

 intoxicating liquors as detrimental to the welfare of the State and to the health of 

 the inhabitants, and hence it is not within the scope and operation of the act of Con- 

 gress of August, 1890. That law was not intended to confer upon any State the 

 power to discriminate injuriously against the products of other States in articles 

 whose manufacture and use are not forbidden, and whioh are therefore the subjects 

 of legitimate commerce. 



He distinctly put his opinion, which was the majority opinion, in 

 Scott v. Donald, upon the proposition that the act of 1890 was confined 

 in its operation to intoxicating liquors, because, to use the language of 

 the court in another case, they are confessedly conducive to pauperism, 

 idleness, and crime, and recognized as having such a tendency. 



