Appellant was convicted and fined by an Arkansas court for transporting intoxicating liquor through the state without a permit as required by an Arkansas statute. The question for decision is whether this statutory requirement and its penal sanction unduly encroach upon the power over interstate commerce delegated to Congress. The Arkansas Supreme Court sustained the requirement of the permit as a local police regulation permissible under the commerce clause. 201 Ark. 1123, 148 S.W.2d 656. The case comes here on appeal under the provisions of § 237(a) of the Judicial Code, 28 U.S.C. § 344(a), §§ 861a, 861b, 28 U.S.C.A. § 344(a), §§ 861a, 861b.
Section 14177, Pope's 1937 Digest of Arkansas Statutes, § 5, Act 109 of 1935, under which appellant was convicted, makes it unlawful for any person to ship into the state any distilled spirits without first having obtained a permit from the state commissioner of revenue. The statute provides that the form of permit and the shipments into the state shall be governed by rules and regulations promulgated by the commissioner. Appellant was tried upon a stipulation of facts which tended to show that when arrested in Arkansas he was engaged in transporting by motor truck, without a permit, a load of distilled spirits from a point in Illinois to a point in Mississippi. The state court held that this violated § 14177. At the time of the offense there were no regulations specifically applicable to transportation passing through the state, the regulations then in force being adapted to transportation for delivery within the state or from point to point within the state.
We have no occasion to decide whether the Arkansas statute, when applied to transportation passing through that state for delivery or use in another, derives support from the Twenty-first Amendment, which prohibits the 'transportation or importation' of intoxicating liquors 'into any State * * * for delivery or use therein' in violation of its laws, cf. United States v. Gudger, 249 U.S. 373, 39 S.Ct. 323, 63 L.Ed. 653. Nor need we decide whether appellant's admission that the transported liquor was intended for importation into Mississippi for illegal use there establishes a violation of the Twenty-first Amendment while he was in Arkansas, so as to deprive him of the right to seek protection of the commerce clause on his journey through Arkansas, cf. McFarland v. American Sugar Refining Co., 241 U.S. 79, 84, 85, 36 S.Ct. 498, 500, 501, 60 L.Ed. 899. We may also assume that appellant's admission no more deprives him of the right to invoke the protection of the commerce clause against the Arkansas statute than did intended violation by the importer of the liquor laws of the state of destination defore the adoption of the Webb-Kenyon Act, 37 Stat. 699, 27 U.S.C.A. § 122, and the Twenty-first Amendment. See Bowman v. Chicago, etc., Ry. Co., 125 U.S. 465, 8 S.Ct. 689, 1062, 31 L.Ed. 700; Leisy v. Hardin, 135 U.S. 100, 10 S.Ct. 681, 34 L.Ed. 128. For we are of the opinion that upon principles of constitutional interpretation consistently accepted and followed by this Court ever since the decisions in Willson v. Black Bird Creek Marsh Co., 2 Pet. 245, 7 L.Ed. 412 and Cooley v. Board of Wardens, 12 How. 299, 13 L.Ed. 996, the commerce clause does not foreclose the Arkansas regulation with which we are now concerned.
The commerce here is transportation alone, there being no question of sale or use within the state of regulation. We may therefore put to one side the cases in which local restrictions or prohibitions on sale or use of intoxicating liquor or other articles of commerce, unaided by Acts of Congress, have been deemed a prohibited burden on interstate commerce, see Bowman v. Chicago, etc., Ry. Co., supra; Leisy v. Hardin, supra. The present scheme of regulation is narrower in operation and has a less restrictive effect upon the commerce. It does not forbid the traffic in liquor, nor does it impede it more than is reasonably necessary to inform the local authorities who is to effect the transportation through the state, and to afford opportunity for them to police it.