File No. 14654/1–4.
The Secretary of State to the Italian Ambassador.
Washington, December 7, 1909.
Excellency: Referring to your note of July 14, 1908, and department’s reply of August 18 of the same year, I have the honor to say that the important questions of treaty right raised by your note have received the very careful consideration of the department.
The governor of Virginia has furnished the department with a copy of the legislation of the State of Virginia and the city of Richmond in question, from which it appears that an ordinance of the council of the city of Richmond (Virginia), approved December 12, 1907, “to prescribe the number and location of the places where the sale of ardent spirits may be licensed, and to control and regulate the granting of licenses for the conducting of such business,” which ordinance is thought by you to contravene the provisions of articles [Page 388] 2 and 3 of the treaty of February 26, 1871, between the United States and Italy, provides that—
- 2.
- No person so licensed [to sell liquor in the city of Richmond] shall allow any woman or minor or any other person who is not a legal voter of the State of Virginia to sell or otherwise dispense ardent spirits or malt liquors at their place of business.
- 3.
- No person shall be granted a license to conduct a place where ardent spirits and malt liquors, or either of them, are sold, unless it shall be affirmatively shown to the judge of the court hearing the application that the applicant is a registered voter in the city of Richmond and is a person of good moral character and of good reputation in the community in which he resides.
Furthermore, article 8 of the act of the General Assembly of Virginia, approved March 12, 1908, “to define and regulate the sale, distribution, rectifying, manufacture, and distilling of intoxicating liquors and malt beverages” in the State of Virginia, provides that—
No license for sale of ardent spirits shall be granted for such sale in any territory wherein such license is prohibited by law, nor shall such license for such sale be granted except as follows:
* * * No license to retail ardent spirits shall be granted to any person except such person is a qualified voter of the county or city in which the business is to be conducted, * * * and nothing in this section shall be construed to prohibit the granting of license to manufacturers of ardent spirits who mash 20 bushels or more per day. Nor to the manufacturers of alcoholic liquors by direct fermentation who distill as much as 200 gallons of pomace or cider per day when in operation and licensed for the period of one year.
After a careful examination of the provisions of this legislation, the department is not convinced that the act or ordinance in question is violative of the treaty provisions referred to, inasmuch as they appear to be mere police regulations requiring, in the interest of public order, that persons engaged in the business of selling or dispensing alcoholic liquors in the State of Virginia and the city of Richmond should possess certain qualifications. It will be observed that the ordinance and act are not aimed expressly at Italian subjects in particular nor at aliens in general, but that their provisions exclude from the calling in question not only all persons not citizens of the United States, but all citizens of the United States not citizens of the State of Virginia, and also all citizens of the State of Virginia who are not qualified voters in the county or city in which the business is to be conducted, as provided in the act of the Virginia Legislature, or qualified voters of the city of Richmond, as provided by the ordinance of the city of Richmond.
It would appear, therefore, that while an incidental effect of the act and ordinance in question is to exclude Italian subjects from the occupation in question, they are excluded not as such but as persons who, in common with citizens of the United States in general, including the majority of the citizens of Virginia, are not qualified voters of the State, of Virginia or of the city of Richmond.
In this connection reference is made to the case of Cantini et al. v. Tillman et al., 1893 (54 Fed. Rep., 969), in which the circuit court of the United States for the fourth circuit upheld the validity of an act of the Legislature of South Carolina which provided that intoxicating liquors should be sold in South Carolina only by county dispensers, who were required to be citizens of the United States and of South Carolina. In this case the complainants appear to have been Italian subjects and to have drawn the attention of the court [Page 389] to the provisions of the treaty of 1871. The important question of treaty construction involved, however, does not appear ever to have been passed upon by the Supreme Court of the United States. If the Italian Government or any of its subjects are dissatisfied with the construction which the United States circuit court for the fourth circuit has placed upon the treaty provision in question, appropriate proceedings might be begun and taken by appeal to the Supreme Court of the United States, in order to secure the opinion of the court of last resort upon the important questions involved.
Accept, Excellency, renewed assurances of my highest consideration.
Assistant Secretary of State.