Beer is a recognized article of commerce, and the right to send
it from one state to another, and the act of doing so, are
interstate commerce, the regulation whereof has been committed to
Congress, and a state law interfering with or handling the same
conflicts with the federal Constitution.
Transportation is not complete until delivery to the consignee
or the expiration of a reasonable time therefor and prior thereto
the provisions of the Wilson Act of August 8, 1890, do not
Whether commerce is interstate or intrastate must be tested by
the actual transaction; it does not depend upon the methods
employed, distance between the points, or the domicil or character
of the parties engaged therein.
The packages in which goods involved in this case were
transported in interstate commerce were those customarily used for
transportation of such articles, and not a mere plan or device to
defeat the policy of the state, and the rulings in that respect in
Austin v. Tennessee, 179 U. S. 343
Cook v. Marshall County, 196 U. S. 261
88 Kan. 589 reversed.
The facts, which involve the construction and application of the
Commerce Clause of the federal Constitution, are stated in the
Page 236 U. S. 569
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
The State of Kansas instituted this cause in a local court,
September 29th, 1910. Kirmeyer was charged with carrying on a
liquor business at Leavenworth in open and persistent violation of
law, and thereby committing a nuisance. The relief sought was
"that he be enjoined from conducting said unlawful business;
that he be enjoined from maintaining, using, and employing said
wagons, vehicles, conveyances, horses, mules, telephones, and any
other property in the said unlawful manner herein alleged; that,
upon the final determination of this action, said injunction be
made permanent; that said wagons, vehicles, conveyances, horses,
mules, telephones, and other property used in said unlawful
business be declared common nuisances, and that the same be
In the opinion of the trial court, the transactions disclosed
constituted a part of interstate commerce within the protection of
the Constitution of the United States, and judgment was rendered
for Kirmeyer. Upon appeal, the supreme court of the state
"The broad question here is whether the defendant was really
engaged in commerce between the states of Missouri and Kansas, or
was he only seeking by tricks and devices to evade the laws of his
state -- doing by indirection that which could not lawfully be done
by ordinary and direct methods?"
Referring to numerous opinions of this Court, it further said
"do not preclude a fair inquiry into methods and practices in
order to determine whether transactions
Page 236 U. S. 570
under investigation constitute legitimate interstate commerce or
are colorable merely, and intended to evade and defeat the just
operation of the Constitution and law of the state."
And the conclusion was:
"It is true that a citizen of Kansas who finds that his business
is prohibited by our laws may in good faith engage in the same
business in another state where the legal obstacle does not exist.
But he may not, under the guise of moving across the state line,
and other shifts or devices to evade the statutes of the state,
continue in the prohibited business here and be immune from the
penalties of our law. From the facts found by the court and from
the testimony of the defendant, it appears that his business was
not legitimate interstate commerce, but was carried on in violation
of the statutes of this state, and is subject to abatement and
Accordingly, the action of the district court was reversed, with
instructions to grant the relief prayed for (88 Kan. 589, 600,
603). Thereupon this writ of error was sued out.
The essential facts disclosed by the record are summarized in
paragraphs (a) and (b) following.
(a) Rigorous statutes have long prohibited the sale of
intoxicating liquors within the State of Kansas. The City of
Leavenworth lies on the Missouri River; on the opposite bank in
Missouri is Stillings, a village with one store, roundhouse, a few
residences, eight or ten beer warehouses, and a freight depot
without a regular agent, but no post office. For a long time,
plaintiff in error has resided in Leavenworth, and, prior to 1907,
he carried on there an illicit beer trade; for use in the same he
there maintained a business place and warehouse and kept wagons and
teams. In that year, alarmed by the activities of officials, he
discontinued this office and warehouse and immediately opened
others in Stillings, and connected them with the Leavenworth
telephone exchange. He did not change his residence nor remove his
wagons and teams
Page 236 U. S. 571
from Leavenworth, but kept them in quarters connected by
telephone with the local exchange, and continued to use them for
hauling to and from the new warehouse and making deliveries.
Thereafter, he received at Stillings barrels, cases, and casks of
beer in carload lots from Kansas City and other points; sometimes
he received like merchandise at the railroad depot in Leavenworth,
which was then hauled across the river. At the Stillings office, he
received and accepted orders for beer to be delivered in
Leavenworth and other points in Kansas. Eighty-five percent came by
telephone, the remainder through the Leavenworth post office, but
these were carried to his place of business before being
(b) Accepted orders for delivery in Leavenworth were filled by
setting aside the cases, kegs, or casks in the warehouse, tagging
them with the names of the purchasers, and then sending them daily
-- sometimes oftener -- over the bridge in his wagons to the
residences of purchasers. For such deliveries no charges were made.
If the goods were intended for other points in Kansas, they were
hauled to the railroad station at Leavenworth and there turned over
to the carrier. The business, for the most part, was "family trade"
for private use only, and amounted to some $500 per month. A
license tax was paid to the federal government, also merchant's and
taxes to Missouri; he had no Kansas license.
The empty cases were gathered up by the drivers throughout
Leavenworth, loaded in cars there, and shipped to some other state.
Advertisements in two Leavenworth papers announced his business and
location at Stillings, and likewise gave the telephone number at
the horse barn. When parties desiring beer called over this
telephone, they were advised to call the Stillings office.
Collections were usually made by the plaintiff in error or by
collectors, sometimes by mail. Drivers received no orders from
The instant cause arose before passage of the Act of
Page 236 U. S. 572
Congress approved March 1, 1913, c. 90, 37 Stat. 699, known as
the Webb-Kenyon Bill; consequently, neither its construction nor
application is now involved, and what is said herein, of course,
has reference to conditions existing prior to that enactment.
Former opinions of this Court preclude further discussion of
these propositions: beer is a recognized article of commerce. The
right to send it from one state to another and the act of doing so
are interstate commerce, the regulation whereof has been committed
to Congress, and a state law which denies such right or
substantially interferes with or hampers the same is in conflict
with the Constitution of the United States. Transportation is not
complete until delivery to the consignee or the expiration of a
reasonable time therefor, and prior thereto, the provisions of the
Act of Congress approved August 8, 1890, c. 728, 26 Stat. 313 --
the Wilson act -- have no application. License
5 How. 504, 527 [argument of counsel --
omitted]; Leisy v. Hardin, 135 U.
, 135 U. S. 110
Rhodes v. Iowa, 170 U. S. 412
170 U. S. 426
Vance v. Vandercook Co., 170 U. S. 438
170 U. S. 444
American Express Co. v. Iowa, 196 U.
, 196 U. S.
-143; Heyman v. Southern Ry., 203 U.
, 203 U. S. 276
Adams Express Co. v. Kentucky, 206 U.
, 206 U. S. 135
Adams Express Co. v. Kentucky, 214 U.
, 214 U. S.
The foregoing cases and those cited therein we also regard as
controlling authority in support of the claim that the business
carried on by plaintiff in error within the State of Kansas was
interstate commerce. That the traffic moved by horse-drawn wagons
from a point near the state line instead of by railroad from a
greater distance does not change the applicable rule. Nor did the
mere adoption of cumbersome and expensive methods render the
business intrastate -- that must be tested by the actual
The supreme court of the state gave much weight to the dealer's
past conduct and animating purpose, and relied
Page 236 U. S. 573
upon language quoted from Austin v. Tennessee,
179 U. S. 343
Cook v. Marshall County, 196 U. S. 261
Considered in the light of our former decisions, if the business
carried on by plaintiff in error after removal of his office to
Stillings had been conducted by a dealer who had always operated
from that place, we think there could be no serious doubt of its
interstate character. And we cannot conclude that a legal domicil
in Kansas, coupled with a reprehensible past and a purpose to avoid
the consequences of the statutes of the state, suffice to change
the nature of the transactions. Otherwise, one of two persons
located side by side in the same state, and doing the same business
in identical ways, might be engaged in interstate commerce while
the other was not.
Improper application was given to what was said in Austin v.
and Cook v. Marshall County, supra.
point for decision in them was whether the packages containing
cigarettes shipped into the state were "original" ones within the
constitutional import of the term, as theretofore defined. Looking
at all the circumstances, this Court concluded that were not. The
general use of like packages was unknown and impracticable in
transactions between manufacturers and wholesale dealers residing
in different states, and the plan pursued was plainly a mere device
designed to defeat the policy of the state where the goods were
received, not a bona fide
commercial arrangement. Here, no
such question is presented.
A long line of opinions have discussed the legal principles
involved; reiteration would be fruitless. The judgment of the court
below is reversed, and the cause remanded for further proceedings
not inconsistent herewith.