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36 L.R.A.(N.S.) 592, 32 Sup. Ct. Rep. cargo and sea stores which would dis42.

tinguish liquor carried as such from As a matter of statutory construc- liquor carried

cargo, or which tion the prohibition acts negative the would indicate that liquor carried as intention of Congress to extend their sea stores is intended by Congress to operation to vessels of the United be exempt from the provision of the States on the high seas or in foreign 18th Amendment and the National ports.

Prohibition Act. American Banana Co. v. United United States v. Twenty-four Coils Fruit Co. 213 U. S. 347, 53 L. ed. 826, Cordage, Baldw. 5, Fed. Cas. No. 29 Sup. Ct. Rep. 511, 16 Ann. Cas. 16,566; United States v. One Hempen 1047; Bate Refrigerating Co. v. Sulz- Cable, Fed. Cas. No. 15,931a. berger, 157 U. S. 1, 39 L. ed. 601, 15 Messrs. Andrew Wilson and Wayne Sup. Ct. Rep. 508; United States v. B. Wheeler, amici curiæ: Cerecedo Hermanos y Compañia, 209 The 18th Amendment prohibits all U. S. 337, 52 L. ed. 821, 28 Sup. Ct. transportation of intoxicating liquors Rep. 532; Swigart v. Baker, 229 U. S. for beverage purposes within the 187, 57 L. ed. 1143, 33 Sup. Ct. Rep. United States and all territory subject 645; New York, N. H. & H. R. Co. v. to the jurisdiction thereof. Interstate Commerce Commission, 200 Downes v. Bidwell, 182 U. S. 244, 44 U. S. 361, 50 L. ed. 515, 26 Sup. Ct. L. ed. 1088, 21 Sup. Ct. Rep. 770; UnitRep. 272; United States v. Bowman, ed States v. Greathouse, 4 Sawy. 457, 260 U. S. 94, 67 L. ed. 149, Adv. Ops. 2 Abb. U. S. 364, Fed. Cas. No. 15,254; p. 72, 43 Sup. Ct. Rep. 39.

Hawaii v. Mankichi, 190 U. S. 217, 47 James M. Beck, Solicitor General, L. ed. 1023, 23 Sup. Ct. Rep. 787, 12 Mrs. Mabel Walker Willebrandt, As- Am. Crim. Rep. 465; National Prohibi. sistant Attorney General, and Mr. Al- tion Cases (Rhode Island v. Palmer) fred A. Wheat, for appellees:

253 U. S. 350, 64 L. ed. 946, 40 Sup. Ct. The 18th Amendment and the Na- Rep. 486, 588. tional Prohibition Act require the ap- The National Prohibition Act proplication of prohibition to every place hibits all transportation, possession, where the United States may exercise or furnishing of liquor, except where its jurisdiction.

express authorization therefor is Craig v. Missouri, 4 Pet. 410, 7 L. found in the act. Those who seek to ed. 903; M'Culloch v. Maryland, 4 set up an exception must establish it Wheat. 316, 4 L. ed. 579; Kendall v. as being within the words as well as United States, 12 Pet. 524, 9 L. ed. the reason thereof. 1181; Maxwell v. Dow, 176 U. S. 581, National Prohibition Cases (Rhode 44 L. ed. 597, 20 Sup. Ct. Rep. 448, Island v. Palmer) supra; United 494; Slaughter-House Cases, 16 Wall. States v. Dickson, 15 Pet. 141, 10 L. ed. 36, 21 L. ed. 394; Grogan v. Hiram 689; Ryan v. Carter, 93 U. S. 78, 23 L. Walker & Sons, 259 U. S. 80, 66 L. ed. ed. 807; Schlemmer v. Buffalo R. R. 836, 22 A.L.R. 1116, 42 Sup. Ct. Rep. & P. R. Co. 205 U. S. 1, 51 L. ed. 681, 423; National Prohibition Cases 27 Sup. Ct. Rep. 407; United States v. (Rhode Island v. Palmer) 253 U. S. Trinity & B. Valley R. Co. 128 C. C. 350, 64 L. ed. 946, 40 Sup. Ct. Rep. A. 120, 211 Fed. 448; Crane v. Camp486, 588.

bell, 245 U. S. 304, 62 L. ed. 304, 38 A foreign ship within the territorial Sup. Ct. Rep. 98; Re Crane, 27 Idaho, waters of the United States is subject 671, L.R.A.1918A, 942, 151 Pac. 1006; to their jurisdiction.

Small Grain Distilling & Drug Co. v. United States v. Diekelman, 92 U. Hamilton, 276 Fed. 544; State v. CerS. 520, 23 L. ed. 742; 2 Moore, Inter- tain Intoxicating Liquors, 51 Utah, national Law Dig. 275 et seq.; 1 Op- 569, L.R.A.1918E, 943, 172 Pac. 1050; penheim, International Law, 3d ed. State v. Giaudrone, 109 Wash. 397, 186 339, 340; The Exchange v. M'Faddon, Pac. 870; Fitch v. State, 102 Neb. 361, 7 Cranch, 135, 3 L. ed. 293; The Eagle, 167 N. W. 418. 8 Wall. 15, 19 L. ed. 365; United States The right of Congress to prohibit

Bowman, 260 U. S. 94, 67 L. ed. 149, the possession of intoxicating liquors Adv. Ops. p. 72, 43 Sup. Ct. Rep. 39; is well established. It is appropriate Crane v. Campbell, 245 U. S. 304, 62 legislation for the enforcement of the L. ed. 304, 38 Sup. Ct. Rep. 98; Patter- 18th Amendment. son v. The Eudora, 190 U. S. 169, 47 Page v. United States, 278 Fed. 41, L. ed. 1002, 23 Sup. Ct. Rep. 821.

writ of certiorari denied in 258 U. S. There is distinction between 627, 66 L. ed. 799, 42 Sup. Ct. Rep.

V.

no

(262 U. 8. 100, 67 L. ed. — , Adv. Opg. p. 552, 43 Sup. Ct. Rep. 504.) 461; Crane v. Campbell, 245 U. S. 1 Moore, International Law Dig. p. 304, 62 L. ed. 304, 38 Sup. Ct. 930; St. Clair v. United States, 154 U. Rep. 98; Phelps v. State, 16 Ala. S. 134, 38 L. ed. 936, 14 Sup. Ct. Rep. App, 161, 75 So. 877; State v. Cer- 1002; United States v. Rodgers, 150 tain Intoxicating Liquors, 51 Utah, U. S. 249, 37 L. ed. 1071, 14 Sup. Ct. 569, L.R.A.1918E, 943, 172 Pac. 1050; Rep. 109; Wynne v. United States, 217 Jones v. State, 17 Ala. App. 444, 85 U. S. 240, 54 L. ed. 749, 30 Sup. Ct. So. 839; State v. Giaudrone, 109 Wash. Rep. 447; Wiborg v. United States, 163 397, 186 Pac. 870; Lacount v. State, U. S. 633, 41 L. ed. 290, 16 Sup. Ct. 25 Ga. App. 767, 104 S. E. 920; People Rep. 1127, 1197; Miller v. United V. Stambosva, 210 Mich. 436, 178 N. States, L.R.A.1918A, 545, 155 C. C. A. W. 226; State v. Macek, 104 Kan 742, 495, 242 Fed. 907, 245 U. S. 660, 62 L. 180 Pac. 985; Banks v. State, 89 Tex. ed. 535, 38 Sup. Ct. Rep. 61; Daeche Crim. Rep. 438, 230 S. W. 994; People v. United States, 162 C. C. A. 582, 250 v. Sandy, 70 Colo. 558, 203 Pac. 671. Fed. 566; Pedersen v. United States,

The purpose of the 18th Amend. 271 Fed. 187; United States v. Smiley, ment is conclusive of its correct con- 6 Sawy. 640, Fed. Cas. No. 16,317; The struction.

Scotia, 14 Wall. 170, 20 L. ed. 822; Maxwell v. Dow, 176 U. S. 581, 44 Crapo v. Kelly, 16 Wall. 610, 21 L. ed. L. ed. 597, 20 Sup. Ct. Rep. 448, 494; 430; Lindstrom v. International Nav. Southern Exp. Co. v. Whittle, 194 Ala. Co. 117 Fed. 170; Wilson v. Mc. 406, L.R.A.1916C, 278, 69 So. 652; Re Namee, 102 U. S. 572, 26 L. ed. 234; Crane, 27 Idaho, 671, L.R.A.1918A, Manchester v. Massachusetts, 139 U. 942, 151 Pac. 1006; Lincoln v. Smith, S. 240, 35 L. ed. 159, 11 Sup. Ct. Rep. 27 Vt. 328; State v. J. P. Bass Pub. 559; People ex rel. Pacific Mail S. S. Co. 104 Me. 288, 20 L.R.A. (N.S.) 495, Co. v. Tax & A. Comrs. 58 N. Y. 242; 71 Atl. 894; State v. Certain Intoxi- Olson v. San Francisco, 148 Cal. 80, cating Liquors, 51 Utah, 569, L.R.A. 2 L.R.A.(N.S.) 197, 113 Am. St. Rep. 1918E, 943, 172 Pac. 1050; State v. 191, 82 Pac. 850, 7 Ann. Cas. 443; The Giaudrone, 109 Wash. 397, 186 Pac. Hamilton (Old Dominion S. S. Co. v. 870; Fitch v. State, supra; West Vir- Gilmore) 207 U. S. 402, 52 L. ed. 269, ginia v. Adams Exp. Co. 135 C. C. A. 28 Sup. Ct. Rep. 133; 1 Moore, Extra464, L.R.A.1916C, 291, 219 Fed. 794; dition, p. 135, § 104; 14 Ops. Atty. Trageser v. Gray, 73 Md. 250, 9 L.R.A. Gen. 281; Wharton, State Trials, pp. 780, 25 Am. St. Rep. 587, 20 Atl. 905; 392, 403; Seale's Cases, Confl. L. § 22, Crane v. Campbell, 245 U. S. 304, 62 L. ed. 304, 38 Sup. Ct. Rep. 98; State, Merchant vessels of one sovereign Paul, Prosecutor, v. Circuit Judge, 50 entering the ports of another subject N. J. L. 585, 1 L.R.A. 86, 15 Atl. 272; themselves to the law of the port of Hamilton v. Kentucky Distilleries & entry. Requiring foreign vessels enWarehouse Co. 251 U. S. 146, 64 L. tering our ports, seeking our trade, to ed. 194, 40 Sup. Ct. Rep. 106; Jacob comply with our laws, violates no Ruppert v. Caffey, 251 U. S. 264, 64 rule of international law. L. ed. 260, 40 Sup. Ct. Rep. 141; Unit- 22 Cyc. p. 1718; The Exchange v. ed States v. 254 Bottles of Intoxicat- M’Fadden, 7 Cranch, 116, 3 L. ed. 287; ing Liquor, 281 Fed. 247; Patterson Patterson V. The Eudora, 190 U. S. v. The Eudora, 190 U. S. 168, 47 L. ed. 176, 47 L. ed. 1007, 23 Sup. Ct. Rep. 1002, 23 Sup. Ct. Rep. 821.

821; United States v. Diekelman, 92 The language of the statute as well U. S. 520, 23 L. ed. 742; Wildenhus's as the decisions of this court indicates Case (Mali v. Keeper of Common that it is to be given a liberal rather Jail) 120 U. S. 1, 30 L. ed. 565, 7 Sup. than a restricted construction to ef- Ct. Rep. 383; Nishimura Ekiu v. Unitfect its purpose.

ed States, 142 U. S. 659, 35 L. ed. 1146, National Prohibition Cases (Rhode 12 Sup. Ct. Rep. 336; United States ex Island v. Palmer) 253 U. S. 350, 64 L. rel. Turner v. Williams, 194 U, S. 279, ed. 946, 40 Sup. Ct. Rep. 486, 588; 48 L. ed. 979, 24 Sup. Ct. Rep. 719; Jacob Ruppert v. Caffey, 251 U. S. 264, The Abby Dodge, 223 U. S. 172, 56 L. 64 L. ed. 260, 40 Sup. Ct. Rep. 141; ed. 391, 32 Sup. Ct. Rep. 310; Buttfield Corneli v. Moore, 257 U. S. 491, 66 L. v. Stranahan, 192 U. S. 470, 48 L, ed. ed. 332, 42 Sup. Ct. Rep. 176.

525, 24 Sup. Ct. Rep. 349; Brolan v. Vessels of the United States are United States, 236 U. S. 216, 59 L. ed. territory of the United States. The 544, 35 Sup. Ct. Rep. 285; Knott v. prohibitions of the 18th Amendment Botany Worsted Mills, 179 U. S. 68, apply to them wherever they are. 45 L. ed. 90, 21 Sup. Ct. Rep. 30; The

27 A.L.R.-83.

p. 506.

er."

Silvia, 171 U. S. 462, 43 L. ed. 241, 19 for use by the crew at meals or for
Sup. Ct. Rep. 7; The Chattahoochee, any other purpose.
173 U. S. 540, 43 L. ed. 801, 19 Sup. “Excessive or surplus liquor
Ct. Rep. 491.

stores are no longer dutiable, being Mr. Justice Van Devanter deliv- prohibited importation, but are subered the opinion of the court: ject to seizure and forfeiture.

These are suits by .steamship "Liquors properly carried as sea companies operating passenger stores may be returned to a foreign ships between United States ports port on the vessel's changing from and foreign ports to enjoin threat the foreign to the coasting trade, or ened application to them and their may be transferred under supervi. ships of certain provisions of the sion of the customs officers from a National Prohibition Act. The de- vessel in foreign trade, delayed in fendants are officers of the United port for any cause, to another vessel States charged with the act's en- belonging to the same line or own. forcement. In the first ten cases the plaintiffs are foreign corpora

January 27, 1920, the first parations and their ships are of foreign graph of those instructions was registry, while in the remaining changed (T. D. 38,248) so as to two the plaintiffs are domestic cor- read: porations and their ships are of “All liquors which are prohibited United States registry. All the importation, but which are properships have long carried, and now ly listed as sea stores on American carry, as part of their sea stores, in- vessels arriving in ports of the toxicating liquors intended to be United States, should be placed unsold or dispensed to their passen- der seal by the boarding officer and gers and crews at meals and other- kept sealed during the entire time wise for beverage purposes. Many

of the vessel's stay in port, no part of the passengers and crews are ac

thereof to be removed from under customed to using such beverages, seal for use by the crew at meals or and insist that the ships carry and for any other purpose. All such supply liquors for such purposes. liquors on foreign vessels should be By the laws of all the foreign ports sealed on arrival of the vessels in at which the ships touch this is per- port, and such portions thereof remitted, and by the laws of some it is leased from seal as may be required required. The liquors are pur

from time to time for use by the of. chased for the ships and taken on ficers and crew.board in foreign ports, and are sold October 6, 1922, the Attorney or dispensed in the course of all General, in answer to an inquiry by voyages, whether from or to those the Secretary of the Treasury, gave ports.

an opinion to the effect that the NaThe administrative instructions tional Prohibition Act, construed in dealing with the subject have varied connection with the 18th Amend. since the National Prohibition Act ment to the Constitution, makes it went into effect. December 11, unlawful (a) for any ship, whether 1919, the following instructions domestic or foreign, to bring into were issued (T. D. 38,218) :

territorial waters of the United "All liquors which are prohibited States, or to carry while within importation, but which are prop

such waters, intoxicating liquors inerly listed as sea stores on vessels tended for beverage purposes, arriving in ports of the United whether as sea stores or cargo, and States, should be placed under seal (b) for any domestic ship, even by the boarding officer and kept

when without those waters, to carry sealed during the entire time of the such liquors for such purposes eivessel's stay in port, no part there. ther as cargo or sea stores. The of to be removed from under seal President thereupon directed the (262 U. 8. 100, 67 L. ed. —, Adv. Op8. p. 552, 45 Sup. Ct. Rep. 504.) preparation, promulgation, and ap- the terms "transportation," "impor. plication of new instructions con- tation," and "territory." forming to that construction of the Some of the contentions ascribe a act. Being advised of this, and technical meaning to the words that. under the new instructions, "transportation" and "importathe defendants would seize all liq- tion.” We think they are to be uors carried in contravention of the taken in their ordi. act as so construed, and would pro- nary sense, for it Intoxicating

liquors-meanceed to subject the plaintiffs and better comports ing of "trans

with the object to "importation."

portation" and their ships to penalties provided in the act, the plaintiffs brought these be attained. In that suits.

sense transportation comprehends The hearings in the district court any real'carrying about or from one were on the bills or amended bills, place to

to another.

Definition motions to dismiss, and answers, It is not essential “transporta

tion." and there was a decree of dismissal that the carrying on the merits in each suit. 284 Fed. be for hire, or by one for another; 890; 285 Fed. 79. Direct appeals nor that it be incidental to a transunder Judicial Code, $ 238, bring fer of the possession or title. If the cases here.

one carries in his own conveyance, While the construction and appli- for his own purposes, it is transporcation of the National Prohibition tation no less than when a public Act is the ultimate matter in contro- carrier, at the instance of a conversy, the act is so closely related signor, carries and delivers to a to the 18th Amendment, to enforce consignee for a stipulated charge. which it was enacted, that a right See United States v. Simpson, 252 understanding of it involves an ex

U. S. 465, 64 L. ed. 665, 10 A.L.R. amination and interpretation of the

510, 40 Sup. Ct. Rep. 364. ImportaAmendment. The 1st section of the tion, in a like sense, consists in latter declares (40 Stat. at L. 1050, bringing an article into a country 1941):

from the outside. “Section 1. After one year from

If there be an ac

-“importation." the ratification of this article the tual bringing in, it is importation, manufacture, sale, or transporta- regardless of the mode in which it tion of intoxicating liquors within,

is effected. Entry through a custhe importation thereof into, or the

tomhouse is not of the essence of the exportation thereof from the United act. States and all territory subject to

Various meanings are sought to the jurisdiction thereof for bev. be attributed to the term “terri. erage purposes is hereby prohibit- tory" in the phrase, ed.”

"the United States

-"territory." These words, if taken in their or- and all territory subject to the judinary sense, are very plain. The

risdiction thereof." We are of opinarticles proscribed are intoxicating ion that it means the regional areas liquors for beverage purposes. The -of land and adjacent watersacts prohibited in respect of them over which the United States claims are manufacture, sale, and trans- and exercises dominion and control portation within a designated field, as a sovereign power. The immeimportation into the same, and ex

diate context and the purport of the portation therefrom. And the des- entire section show that the term ignated field is the United States is used in a physical, and not a and all territory subject to its juris

metaphorical, sense,-that it refers diction. There is no controversy

to areas or districts having fixity of here as to what constitutes intoxi- location and recognized boundaries. cating liquors for beverage pur

See United States v. Bevans, 3 poses; but contentions are made re- Wheat. 356, 390, 4 L. ed. 401, 417. specting what is comprehended in It now is settled in the United

Intoxicating

States and recognized elsewhere Moore, International Law Dig. $ that the territory subject to its 174; Westlake, International Law, jurisdiction includes the land areas 2d ed. p. 264; Hall, International under its dominion and control, the Law, 7th ed. (Higgins) § 76; Manports, harbors, bays, and other in- ning, Law of Nations (Amos) p.

closed arms of the 276; Piggott, Nationality, pt. 2, p.

sea along its coast, 13. The jurisdiction which it is inliquors-18th Amendment- and a marginal belt tended to describe arises out of the what territory subject to.

of the sea extending nationality of the ship, as estab

from the coast line lished by her domicil, registry, and outward a marine league, or 3 geo- use of the flag, and

International graphic miles. Church v. Hubbart, partakes more of law-ships as 2 Cranch, 187, 234, 2 L. ed. 249, the characteristics part of national

territory. 264; The Ann, 1 Gall. 61, Fed. Cas. of personal than of No. 397; United States v. Smiley, 6 territorial sovereignty. See The Sawy. 640, Fed. Cas. No. 16,317; Hamilton (Old Dominion S. S. Co. Manchester V. Massachusetts, 139 Gilmore) 207 U. S. 398, 403, 52 U. S. 240, 257, 258, 35 L. ed. 159, L. ed. 264, 269, 28 Sup. Ct. Rep. 164, 11 Sup. Ct. Rep. 559; Louisi- 133; American Banana Co. v. Unitana v. Mississippi, 202 U. S. 1, 52, ed Fruit Co. 213 U. S. 347, 355, 53 50 L. ed. 913, 931, 26 Sup. Ct. Rep. L. ed. 826, 831, 29 Sup. Ct. Rep. 511, 408, 571; 1 Kent, Com. 12th ed. 16 Ann. Cas. 1047; 1 Oppenheim, *29; 1 Moore, International Law International Law, 3d ed. SS 123Dig. § 145; 1 Hyde, International 125, 128. It is chiefly applicable to Law, $$ 141, 142, 154; Wilson, In- ships on the high seas, where there ternational Law, Sth ed. $ 54; West- is no territorial sovereign; and as lake, International Law, 2d ed. pp. respects ships in foreign territorial 187 et seq.; Wheaton, International waters it has little application beLaw, 5th Eng. ed. (Phillipson) p. yond what is affirmatively or tacit. 282; 1 Oppenheim, International ly permitted by the local sovereign. Law, 3d ed. $$ 185–189, 252. This, 2 Moore, International Law Dig. 38 we hold, is the territory which the 204, 205; Twiss, Law of Nations, 2d Amendment designates as its field ed. $ 166; Woolsey, International of operation; and the designation is Law, 6th ed. § 58; 1 Oppenheini, not of a part of this territory, but of International Law, 3d ed. $$ 128, "all” of it.

146, 260. The defendants contend that the The defendants further contend Amendment also covers domestic that the Amendment covers foreign merchant ships outside the waters merchant ships when within the of the United States, whether on territorial waters of the United the high seas or in foreign waters. States. Of course, if it were true

But it does not say that a ship is a part -effect on ships ontside terri- so, and what it does of the territory of Intoxicating, torial waters.

liquors-appll. say shows, as we the country whose cation of 18th have indicated, that it is confined to fag she carries, the foreign vessels.

Amendment to the physical territory of the United contention would States. In support of their conten- fail. But, as that is a fiction, we tion the defendants refer to the think the contention is right. statement sometimes made that a A merchant ship of one country, merchant ship is, a part of the terri- voluntarily entering the territorial tory of the country whose flag she limits

limits of another, Aies. But this, as has been aptly subjects herself to Inwe-jurisdie

International observed, is a figure of speech-a the jurisdiction of tion over

foreign shipa. metaphor. Scharrenberg v. Dollar the latter. The juS. S. Co. 245 U. S. 122, 127, 62 L. risdiction attaches in virtue of her ed. 189, 192, 38 Sup. Ct. Rep. 28; presence, just as with other objects Re Ross, 140 U. S. 453, 464, 35 L. within those limits. During her ed. 581, 586, 11 Sup. Ct. Rep. 897;1 stay she is entitled to the protection

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