The opinion
In my opinion section 5 of *Page 309
the Allison Act has no application whatever to this case, but section 4 thereof has exclusive application, and this prosecution was based exclusively on section 4. I think I have demonstrated this in my dissenting opinion, and also that section 4 without any doubt applies, and was intended to apply, to deliveries of interstate shipments.
If any "court of last resort before which the interstate shipment of intoxicating liquors has come, has held that a State is powerless to prohibit interstate shipments of intoxicating liquors for personal use," this was before the passage of the Webb-Kenyon Act, and can have no application to such a question since then. The decisions of the United States Supreme Court, before the Webb-Kenyon Act, held that no State could prohibit the interstate shipment and delivery of such liquor, even where expressly shipped and delivered for a known unlawful purpose as well as for any lawful use or purpose, as demonstrated by the opinion of the Supreme Court of Delaware in the Van Winkle case, so fully quoted from, but no such decision has been rendered by the United States Supreme Court since the Webb-Kenyon Act. The decisions before are wholly inapplicable now.
The said Delaware case was rendered under a statute of that State very different from the Allison Act, and is inapplicable to this case because thereof.
In my very thorough search I have found no case from any other State appellate court, and I think none can be found, holding that a State can not constitutionally regulate how and when a person in dry territory can get liquor from without the State for his personal use, and that no court of any other State, with such a statute as the Allison Act, has ever so held, or ever will so hold, since the Webb-Kenyon Act was passed, and I have found no such decision so holding even before then, and I think there is no such decision.
I dissent from the opinion on rehearing and the disposition of the motion.