The writ of error in
O'Neil v. Vermont, 144
U. S. 344, was dismissed because it did not appear that
the commerce clause of the Constitution was relied on in, was
called to the attention of, or passed on by, the state court, and
the case is inapposite where it appears that the protection of
commerce clause was properly set up, relied upon in, and denied by,
the state court.
Bowman v. Chicago, 125 U. S. 465,
Leisy y. Hardin, 135 U. S. 100,
Rhodes v. Iowa, 170 U. S. 412,
Vance v. Vandercook Co. No. 1, 170 U.
S. 438, rest on the broad principle of the freedom of
commerce between the states, of the right of citizens of one state
to freely contract to receive and send merchandise from and to
another state, and on the want of power of one state to destroy
contracts concerning interstate commerce valid in the states where
made.
The right of the parties thereto to make a contract, valid in
the state where made, for the sale and purchase of merchandise and
in so doing to fix the
Page 196 U. S. 134
time when, and condition on which, completed title shall pass is
beyond question.
Without passing on the questions whether the property in a
C.O.D. shipment is at the risk of buyer or seller and when the sale
is completed, a package of intoxicating liquor received by an
express company in one state to be carried to another state, and
there delivered to the consignee C.O.D. for price of the package
and the expressage, is interstate commerce and is under the
protection of the commerce clause of the federal Constitution and
cannot, prior to its actual delivery to the consignee, be
confiscated under prohibitory liquor laws of the state.
The American Express Company received at Rock Island, Illinois,
on or about March 29, 1900, four boxes of merchandise to be carried
to Tama, Iowa, to be there delivered to four different persons, one
of the packages being consigned to each. The shipment was C.O.D.,
three dollars to be collected on each package, exclusive of
thirty-five cents for carriage on each. On March 31, the
merchandise reached Tama, and on that day was seized in the hands
of the express agent. This was based on an information before a
justice of the peace, charging that the packages contained
intoxicating liquor held by the express company for sale. The
express company and its agent answered, setting up the receipt of
the packages in Illinois, not for sale in Iowa, but for carriage
and delivery to the consignees. An agreed statement of facts was
stipulated admitting the receipt, the carriage, and the holding of
the packages as above stated. The seizure was sustained. Appeal was
taken to a district court. The express company and its agent
amended their answer, specially setting up the commerce clause of
the Constitution of the United States. There was judgment in favor
of the express company, and the State of Iowa appealed to the
supreme court and obtained a reversal. 118 Iowa, 447. This writ of
error was prosecuted.
Page 196 U. S. 140
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
Although the majority of the Supreme Court of Iowa doubted the
correctness of a ruling previously made by that court, nevertheless
it was adhered to under the rule of
stare decisis, and was
made the basis of the decision in this cause. In the previous case,
it was held by the Supreme Court of Iowa that, where merchandise
was received by a carrier with a duty to collect the price on
delivery to the consignee, the merchandise remained the property of
the consignor, and was held by the carrier as his agent with
authority to complete the sale. Upon this premise, it was decided
that intoxicating liquors shipped C.O.D. from another state were
subject to be seized on their arrival in Iowa, in the hands of the
express company. Sustaining, upon this principle, the seizure in
this case, the Supreme Court of Iowa did not expressly consider the
defense based on the commerce clause of the Constitution of the
United States, because the court deemed that its ruling on the
subject of the effect of the C.O.D. shipment was a wholly
nonfederal
Page 196 U. S. 141
ground, broad enough to sustain the conclusion reached. And this
the court considered was sanctioned by
O'Neil v. Vermont,
144 U. S.
324.
In accord with the opinion of the Supreme Court of Iowa, it is
insisted at bar that this writ of error should be dismissed for
want of jurisdiction, because the decision below involved no
federal question, and the case of
O'Neil v. Vermont,
144 U. S. 324,
is relied upon. The contention is untenable. As pointed out in
Norfolk & Western Ry. Co. v. Sims, 191
U. S. 446, the view taken of the
O'Neil case is
a mistaken one. True, in that case, the Supreme Court of Vermont
gave to a C.O.D. shipment the effect attributed to it by the
Supreme Court of Iowa in this case. True also, a writ of error was
prosecuted from this Court to the Vermont court upon the assumption
that the commerce clause of the Constitution was involved, but this
Court dismissed the writ of error because it did not appear that
the commerce clause of the Constitution was relied on in the state
court, was in any way called to the attention of that court, or was
passed upon by it. As on this record it appears that the protection
of the commerce clause was directly invoked in the state court, it
is apparent that the
O'Neil case is inapposite. And as, in
order to decide the contention that the judgment below rests upon
an adequate nonfederal ground, we must necessarily consider how far
the C.O.D. shipment was protected by the commerce clause of the
Constitution, which is the question on the merits, we pass from the
motion to dismiss to the consideration of the rights asserted under
the commerce clause of the Constitution.
We can best dispose of such asserted rights by a brief reference
to some of the controlling adjudications of this Court.
In
Bowman v. Chicago & N.W. Ry. Co., 125 U.
S. 465, it was held that the statutes of Iowa forbidding
common carriers from bringing intoxicating liquors into the State
of Iowa from another state or territory without obtaining a
certificate required by the laws of Iowa was void, as being a
regulation of commerce between the states, and therefore that those
laws
Page 196 U. S. 142
did not justify a common carrier in Illinois from refusing to
receive and transport intoxicating liquors consigned to a point
within the State of Iowa.
In
Leisy v. Hardin, 135 U. S. 100, it
was held that a law of the State of Iowa, forbidding the sale of
liquor in that state, could not be made to apply to liquors shipped
from another state into Iowa, before the merchandise had been
delivered in Iowa, and there sold in the original package, without
causing the statute to be a regulation of commerce, repugnant to
the Constitution of the United States. In
Rhodes v. Iowa,
170 U. S. 412, the
same doctrine was reiterated, except that it was qualified to the
extent called for by the provisions of the Act of Congress of
August 8, 1891, 26 Stat. 313, commonly known as the Wilson Act. In
that case, a shipment of intoxicating liquors had been made into
the State of Iowa from another state, and the agent of the ultimate
railroad carrier in Iowa was proceeded against for an alleged
violation of the Iowa law because, when the merchandise reached its
destination in Iowa, he had moved the package from the car in which
it had been transported to a freight depot, preparatory to delivery
to the consignee. The contention was that, as by the Wilson Act,
the power of the state operated upon the property the moment it
passed the state boundary line; therefore the State of Iowa had the
right to forbid the transportation of the merchandise within the
state, and to punish those carrying it therein. This was not
sustained. The Court declined to express an opinion as to the
authority of Congress, under its power to regulate commerce, to
delegate to the states the right to forbid the transportation of
merchandise from one state to another. It was, however, decided
that the Wilson Act manifested no attempt on the part of Congress
to exert such power, but was only a regulation of commerce, since
it merely provided, in the case of intoxicating liquors, that such
merchandise, when transported from one state to another, should
lose its character as interstate commerce upon completion of
delivery under the contract of interstate shipment, and before sale
in the original packages.
Page 196 U. S. 143
The doctrine of the foregoing cases was applied in
Vance v.
Vandercook Company, No. 1, 170 U. S. 438,
170 U. S. 442,
to the right of a citizen of South Carolina to order from another
state, for his own use, merchandise, consisting of intoxicating
liquors, to be delivered in the State of South Carolina.
Coming to test the ruling of the court below by the settled
construction of the commerce clause of the Constitution, expounded
in the cases just reviewed, the error of its conclusion is
manifest. Those cases rested upon the broad principle of the
freedom of commerce between the states, and of the right of a
citizen of one state to freely contract to receive merchandise from
another state, and of the equal right of the citizen of a state to
contract to send merchandise into other states. They rested also
upon the obvious want of power of one state to destroy contracts
concerning interstate commerce, valid in the states where made.
True, as suggested by the court below, there has been a diversity
of opinion concerning the effect of a C.O.D. shipment, some courts
holding that, under such a shipment, the property is at the risk of
the buyer, and therefore that delivery is completed when the
merchandise reaches the hands of the carrier for transportation,
others deciding that the merchandise is at the risk of the seller,
and that the sale is not completed until the payment of the price,
and delivery to the consignee at the point of destination.
But we need not consider this subject. Beyond possible question,
the contract to sell and ship was completed in Illinois. The right
of the parties to make a contract in Illinois for the sale and
purchase of merchandise, and, in doing so, to fix by agreement the
time when and condition on which the completed title should pass,
is beyond question. The shipment from the State of Illinois into
the State of Iowa of the merchandise constituted interstate
commerce. To sustain, therefore, the ruling of the court below
would require us to decide that the law of Iowa operated in another
state so as to invalidate a lawful contract as to interstate
commerce made in such other state; and, indeed, would require us to
go yet further, and say
Page 196 U. S. 144
that, although, under the interstate commerce clause, a citizen
in one state had a right to have merchandise consigned from another
state delivered to him in the state to which the shipment was made,
yet that such right was so illusory that it only obtained in cases
where, in a legal sense, the merchandise contracted for had been
delivered to the consignee at the time and place of shipment.
When it is considered that the necessary result of the ruling
below was to hold that, wherever merchandise shipped from one state
to another is not completely delivered to the buyer at the point of
shipment so as to be at his risk from that moment, the movement of
such merchandise is not interstate commerce, it becomes apparent
that the principle, if sustained, would operate materially to
cripple, if not destroy, that freedom of commerce between the
states which it was the great purpose of the Constitution to
promote. If upheld, the doctrine would deprive a citizen of one
state of his right to order merchandise from another state at the
risk of the seller as to delivery. It would prevent the citizen of
one state from shipping into another unless he assumed the risk; it
would subject contracts made by common carriers, and valid by the
laws of the state where made, to the laws of another state, and it
would remove from the protection of the interstate commerce clause
all goods on consignment upon any condition as to delivery, express
or implied. Besides, it would also render the commerce clause of
the Constitution inoperative as to all that vast body of
transactions by which the products of the country move in the
channels of interstate commerce by means of bills of lading to the
shipper's order, with drafts for the purchase price attached, and
many other transactions essential to the freedom of commerce, by
which the complete title to merchandise is postponed to the
delivery thereof.
But general considerations need not be further adverted to in
view of prior decisions of this Court relating to the identical
question here presented. In
Caldwell v. North Carolina,
187 U. S. 622,
187 U. S. 47 L.
ed. 336, 23 Sup.Ct. Rep. 229, the facts were these: the Chicago
Portrait Company
Page 196 U. S. 145
shipped to Greensboro, North Carolina, by rail, consigned to its
order, certain pictures and frames. At Greensboro, the company had
an agent who received the merchandise, put the pictures and frames
together, and delivered them to the purchasers who had ordered them
from Chicago. The contention was that the portrait company was
liable to a license charge imposed by the Town of Greensboro for
selling pictures therein, and this was supported by the argument
that, although the contract for sale was made in Chicago, it was
completed in North Carolina by the assembling of the pictures and
frames, and the delivery there made. It was held that the license
could not be collected, because the transaction was an interstate
commerce one. In the course of the opinion, after a full review of
the authorities, it was observed (p.
187 U. S.
632):
"It would seem evident that, if the vendor had sent the articles
by an express company, which should collect on delivery, such a
mode of delivery would not have subjected the transaction to state
taxation. The same could be said if the vendor himself, or by a
personal agent, had carried and delivered the goods to the
purchaser. That the articles were sent as freight, by rail, and
were received at the railroad station by an agent, who delivered
them to the respective purchasers, in nowise changes the character
of the commerce as interstate."
In
Norfolk & Western Railway Company v. Sims,
191 U. S. 441,
these were the facts: a resident of North Carolina ordered from a
corporation in Chicago a sewing machine. The machine was shipped
under a bill of lading to the order of the buyer, but this bill of
lading was sent to the express agent at the point of delivery in
North Carolina, with instructions to surrender the bill on payment
of a C.O.D. charge. The contention was that the consummation of the
transaction by the express agent in transferring the bill of lading
upon payment of the C.O.D. charge was a sale of the machine in
North Carolina which subjected the company to a license tax. The
contention was held untenable. Calling attention to the fact that
the contract of sale was completed as a contract in Chicago,
Page 196 U. S. 146
and after reviewing some of the authorities on the subject of
interstate commerce, the Court said (p.
191 U. S.
450):
"Indeed, the cases upon this subject are almost too numerous for
citation, and the one under consideration is clearly controlled by
them. The sewing machine was made and sold in another state,
shipped to North Carolina in its original package for delivery to
the consignee upon payment of its price. It had never become
commingled with the general mass of property within the state.
While technically the title of the machine may not have passed
until the price was paid, the sale was actually made in Chicago,
and the fact that the price was to be collected in North Carolina
is too slender a thread upon which to hang an exception of the
transaction from a rule which would otherwise declare the tax to be
an interference with interstate commerce."
The controlling force of the two cases last reviewed upon this
becomes doubly manifest when it is borne in mind that the power of
the states to levy general and undiscriminating taxes on
merchandise shipped from one state into another may attach to such
merchandise before sale in the original package when the
merchandise has become at rest within the state, and therefore
enjoys the protection of its laws, and this upon the well
recognized distinction that the movement of merchandise from state
to state, whilst constituting interstate commerce, is not an import
in the technical sense of the Constitution.
American Steel
& Wire Co. v. Speed, 192 U. S. 500.
As from the foregoing considerations it results that the court
below erred in refusing to apply and enforce the commerce clause of
the Constitution of the United States, its judgment must be
reversed.
The judgment of the Supreme Court of Iowa is reversed, and the
cause is remanded to that court for proceedings not inconsistent
with this opinion.
Mr. Justice Harlan dissents.