A statute of Kentucky making penal all shipments of liquor "to
be paid for on delivery, commonly called C.O.D. shipments," and
further providing that the place where the money is paid or the
goods delivered shall be deemed to be the place of sale and that
the carrier and his agents delivering the goods shall be jointly
liable with the vendor, is, as applied to shipments from one state
to another, an attempt to regulate interstate commerce, and beyond
the power of the state.
When, in a prosecution of an express company for a violation of
this statute by an interstate shipment, it is averred in the
indictment or stipulated by the prosecution that the shipment and
delivery were made and done by the express company in the usual
course of its business as a carrier, testimony that the consignee
did not order the goods or that the goods were held by the agent of
the company at the place of delivery for a few days to accommodate
the consignee is immaterial.
On February 17, 1904, a grand jury returned into the circuit
court of Laurel County, Kentucky, an indictment against Joe Newland
and the Adams Express Company charging that
"the said Joe Newland and the Adams Express Company, the latter
being a partnership engaged in and carrying on the business of a
common carrier of packages, goods, wares, and merchandise, by the
method known as express . . . did, in Laurel County, Kentucky, on
the seventeenth day of February, 1904, unlawfully and willfully
carry for and deliver to George Meece a parcel, package, shipment,
and quantity of intoxicating, spirituous, vinous, and malt liquors
. . . to be and which was paid for on delivery at East Bernstadt in
said Laurel County, same being at the time a shipment commonly
known and called C.O.D. shipments, . . . said shipment and delivery
being made and done at the time by said Joe Newland and said Adams
Express Company in the usual course of business of said Adams
Express Company. "
Page 206 U. S. 130
Subsequently the action was dismissed as to Newland, and, on a
plea of not guilty, the case was tried before a jury and resulted
in a verdict finding the company guilty and fixing the fine at $60.
The instructions of the court were as follows:
"Gentlemen of the Jury:"
"1. If you shall believe from the evidence beyond a reasonable
doubt, that the defendant, Adams Express Company, is a
copartnership, formed of persons whose names and number were
unknown to the grand jury that found this indictment, and who lived
out of the State of Kentucky, but are doing business in the State
of Kentucky and in Laurel County, Kentucky, and under the firm name
and style of 'Adams Express Company,' and that the said Adams
Express Company, in this county and within twelve months next
before the finding of the indictment herein, knowingly delivered to
the witness, George Meece, spirituous, vinous, or malt liquors in
quantities of less than five gallons at the time mentioned by the
witness, and received the pay therefor, and that said company
received any pay whatever for its service in that behalf, then you
should find the defendant guilty and fix its punishment at any fine
not less than $60.00 nor more than $100.00, in your discretion,
according to proof."
"2. The court says to the jury that, if they shall believe from
the evidence, beyond a reasonable doubt, that the agent or agents
of the defendant's company that accepted, received, transported, or
delivered the package mentioned in evidence by the witness Meece,
knew, or might, by the exercise of such care as persons of ordinary
prudence are accustomed to use in the ordinary transactions of
life, have known the contents of the package delivered to the
witness, then the defendant company is chargeable with such
knowledge, and should be held to know the contents of such
package."
Judgment was entered on the verdict, which was affirmed by the
Court of Appeals of the state, 27 Ky. 1096, and from that court the
case was
Page 206 U. S. 131
brought here on writ of error. The act under which the
prosecution was had is subsec. 4 of § 2557
b, Kentucky
Statutes, 1903, commonly called the "C.O.D." law, which is part of
the general local option law as amended in 1902, and which
reads:
"All the shipments of spirituous, vinous, or malt liquors, to be
paid for on delivery, commonly called 'C.O.D. shipments' into any
county, city, town, district, or precinct where said act is in
force, shall be unlawful and shall be deemed sales of such liquors
at the place where the money is paid or the goods delivered; the
carrier and his agents selling or delivering such goods shall be
liable jointly with the vendor thereof. "
Page 206 U. S. 135
MR. JUSTICE BREWER delivered the opinion of the Court.
The testimony showed that the package, containing a gallon of
whisky, was shipped from Cincinnati, Ohio, to George Meece at East
Bernstadt, Kentucky. The transaction was therefore one of
interstate commerce, and within the exclusive jurisdiction of
Congress. The Kentucky statute is obviously an attempt to regulate
such interstate commerce. This is hardly questioned by the Court of
Appeals, and is beyond dispute under the decisions of this
Court.
In
Vance v. Vandercook Company (No. 1), 170 U.
S. 438,
170 U. S. 444,
MR. JUSTICE WHITE, delivering the opinion of the Court, said:
"Equally well established is the proposition that the right to
send liquors from one state into another, and the act of sending
the same, is interstate commerce, the regulation whereof has been
committed by the Constitution of the United States to Congress, and
hence that a state law which denies such a right or substantially
interferes with or hampers the same is in conflict with the
Constitution of the United States."
In
Rhodes v. Iowa, 170 U. S. 412,
170 U. S. 426,
it was held that the Wilson Act
"was not intended to and did not cause the power of the state to
attach to an interstate commerce shipment whilst the merchandise
was in transit under such shipment and until its arrival at the
point of destination and delivery there to the consignee."
The Court of Appeals sustained the judgment upon these facts:
Meece testified that he had not ordered the whisky; that he was not
expecting any from Cincinnati, but, on going with his brother to
the company's office at East Bernstadt, was told that it was there
awaiting him; that he requested the agent to hold it until the
succeeding Saturday, when he would come, pay for and take it away,
and that, on that day he did so, paying $3.85 for the whisky, the
express charges
Page 206 U. S. 136
having been prepaid at Cincinnati. The court held that, by
reason of the retention of the package by the agent, the company
ceased to hold it as carrier, and had become a mere bailee or
warehouseman; that therefore the statute, as applied to the
transaction, was not a regulation of commerce; and, further, that,
as Meece had not ordered the whisky, there was no contract for the
sale of it in Cincinnati, but only by the company at East
Bernstadt, in Kentucky; that, while there was no testimony showing
that the company's agent at Cincinnati knew that the whisky had not
been ordered by Meece, yet its agent in Kentucky was so informed,
and therefore the company was possessed, through its agent, of
knowledge that there was no interstate transaction, and, with that
knowledge, sold the whisky to Meece. But that the agent consented
to hold the whisky until Saturday did not destroy the character of
the transaction as one of interstate commerce is settled by the
recent case of
Heyman v. Southern Railway Company,
203 U. S. 270. In
that case, whisky had been forwarded to a party in Charleston,
South Carolina, and after its arrival at Charleston was placed in
the warehouse of the railroad company by its agent, and there
seized by constables, asserting their right so to do under the
dispensary law of South Carolina. The point was made and sustained
by the Supreme Court of the State of Georgia, in which state an
action had been brought against the company for the value of the
goods, that, when the goods were placed in the warehouse, the
carrier was thenceforward liable only as a warehouseman. In passing
upon this contention, we said (p.
203 U. S.
276):
"As the general principle is that goods moving in interstate
commerce cease to be such commerce only after delivery and sale in
the original package, and as the settled rule is that the Wilson
Law was not an abdication of the power of Congress to regulate
interstate commerce, since that law simply affects an incident of
such commerce by allowing the state power to attach after delivery
and before sale, we are not concerned with whether, under the law
of any particular state, the
Page 206 U. S. 137
liability of a railroad company as carrier ceases and becomes
that of a warehouseman on the goods reaching their ultimate
destination, before notice and before the expiration of a
reasonable time for the consignee to receive the goods from the
carrier. For, whatever may be the divergent legal rules in the
several states concerning the precise time when the liability of a
carrier as such in respect to the carriage of goods ends, they
cannot affect the general principle as to when an interstate
shipment ceases to be under the protection of the commerce clause
of the Constitution and thereby comes under the control of the
state authority."
With reference to the testimony as to the knowledge by the
company of the fact that the whisky had not been ordered by the
consignee, it is sufficient to say that the averment in the
indictment is that the express company was engaged in the business
of a common carrier of packages, etc., and that the shipment and
delivery were made and done in the usual course of its business.
This excludes necessarily the assumption that the transaction was
one of sale by the express company at East Bernstadt, and, of
course, the company was under no obligation to offer testimony in
support of that which the state admitted to be the fact.
We do not mean to intimate that an express company may not also
be engaged in selling liquor in a state, contrary to its laws, or
that the fact that the consignee did not order a shipment might not
be evidence for a jury to consider upon the question whether the
company was not, in addition to its express business, also selling
liquor contrary to the statutes. It is enough to hold, as we do,
that, under the averments of this indictment, such testimony is
immaterial. It is, of course, a question of fact whether a carrier
is confining itself strictly to its business as a carrier or
participating in illegal sales. The consignor alone may be trying
to evade the statute. He may forward the liquors in the expectation
that the consignee will, when informed of their arrival, take and
pay for them. So the fact that there is no previous order by the
consignee
Page 206 U. S. 138
may not be conclusive of the carrier's wrongdoing, but still it
is entitled to consideration in determining that question.
Much as we may sympathize with the efforts to put a stop to the
sales of intoxicating liquors in defiance of the policy of a state,
we are not at liberty to recognize any rule which will nullify or
tend to weaken the power vested by the Constitution in Congress
over interstate commerce.
The judgment of the Court of Appeals of Kentucky is
reversed, and the case remanded for further proceedings not
inconsistent with this opinion.
MR. JUSTICE HARLAN dissents.
