120 Ky. 512 | Ky. Ct. App. | 1905
Opinion by
Affirming.
The appellants were indicted by tbe grand jury of Laurel county, charged with the offense of retailing liquor contrary to law. A trial resulted in their conviction and a fine being inflicted, and from the judgment enforcing this verdict they have appealed.
Laurel is one of the five counties in which the re
The local prohibition law, commonly called, the “Five Counties’ Act,” approved April 4, 1884 (Acts 1883-84, vol. 1, p. 1116, chap. 598), forbids the sale of liquor by retail in Laurel county. The act of 1894, as amended by Acts 1902, p. 41, C. 14 (sec. 2557, Ky. Stats., 1903), provides as follows: “Any person who shall sell, barter, or loan, directly or indirectly, any such liquors in said county, city, town, district or precinct, shall, upon conviction, be fined not less than sixty nor more than one hundred dollars, or be confined in the county jail not less than ten nor more than forty days, or both so fined and imprisoned, in the discretion of the court or jury for each offense.” Sub
Appellants, Robert L. and Jacob S. Crigler, are partners, conducting a distillery business under the firm name of Crigler & Crigler. They own and operate a distillery in Scott county, Ky., and have places of business both in Covington, Ky., and Cincinnati, Ohio. Prior to the enactment of the amendment in 1902, commonly called the “C. O. D. statute,” and which is quoted above, they had no business place in Cincinnati, but had been for several years theretofore making what is known as “C. O. D. shipments” from Covington to various points throughout the State of Kentucky, among which was Laurel county, where, under the operation of the act of 1884, the retailing of spirituous liquor was prohibited. Their mode of business was to send an agent to the county to take orders and forward them to appellants at Covington, who filled them and . shipped direct to
After 1902 the appellants, evidently not desiring to surrender their business of retailing liquor in prohibition counties on the one hand, nor to subject themselves to the punishment denounced by the statute as amended on the other, opened up a branch house in Cincinnati, and notified their customers in local option districts in Kentucky that thereafter all orders must be sent to .the Cincinnati business place, from which all shipments would be made. In the case at bar the specific facts constituting the offense of which appellants were found guilty are as follows: One Britt Davis forwarded to appellants’ place of business in Cincinnati, Ohio, an order for four quarts of whisky, which was accepted by appellants, who shipped it to him in Laurel county through the Adams Express Company, “collect on delivery.” It was delivered to the consignee in Laurel county. The price was there paid to the express company, and forwarded to appellants. The whisky was contained in four quart bottles, which were inclosed in a box,
Upon the trial of the case the State introduced Britt Davis, who testified to sending the order to appellants through D. C. Adams; that in return the whisky was shipped to him at East Bemstadt, Laurel county, and there delivered to and paid for by him. In response to question 11, “What amount did you get,” he answered: “A gallon and one-half pint bottle in a little box. They called it a ‘bible.’ I think.” The witness showed that the “bible,” in addition to the liquor, contained a corkscrew and a dram glass. Upon these were printed: “Woodland Whisky. Adopted by the United States Government for Hospital Purposes, Crigler & Crigler, Distillers, Covington, Kentucky.” In response to question 35 the witness stated that he was told by Mr. Barkley, an agent of appellants, that if he sent to Covington for the whisky he could get it for $3.35 by sending the money, but if he sent to Cincinnati he would have to give $3.85, “and they (appellants)- had to send it to Cincinnati to ship it. Q. 36. Did he make any other statement to you? A. He said he could not ship from Covington C. O. D., as it was against the law; that he had to take it to- Cincinnati, Ohio, to- ship.”
D. C. Adams testified that he was an agent of,appellants to take orders in Laurel county, and had
“This is to certify that Mr. D. C. Adams, East B'ernstadt, Kentucky, has been appointed our authorized representative to take orders for Woodland Whisky. Territory assigned, Laurel county. We have paid all G-overnment licenses which gives our representatives the right to take orders in any part of- the United States, whether that place is local option, prohibition or otherwise. This paper empowers our representative to take orders only which the laws of the revenue department permit him to do for us. We bill, ship and collect. By a' special ruling of the United States Supreme Court express companies may now deliver whisky C. O. D. in any State,- and the said ruling holds that any local option or prohibition law to the contrary is in violation of the interstate commerce law, and is therefore not binding. Crigler & Crigler, distillers of Woodland Whisky, and sole proprietors of the' U. S. bonded warehouses and distillery No. 54, Seventh Revenue District of Kentucky. [Seal.] (Crigler & Crigler, Woodland Distillery, Covington, Ky.) Covington, Ky., this day of April 13, 1903.”
J. W. Morin testified that he had taken orders for appellants, and had received two letters from them, which show .that' Mr. Barkley, spoken of by one of the witnesses as the agent of appellants, represented them, and also their manner of doing business and from what points. These letters were introduced in evidence, and are as follows:
“Covington, Ky., April 10, 1903.
“ J. W. Morin, Esq., London, Ky.:
“Dear Sir: — As per the order of our Mr. Barkley, we are shipping to your city to-day several, consign*521 ments of whisky; he advises you have accepted the agency, and you will be allowed commission on these orders, as per enclosed terms to representatives. Commission will be paid you on all business from your territory whether the orders come from you or direct from the customers. There will be no trouble in regard to the express agent at London and Pittsburg delivering C. O. D. shipments as we have taken up the matter with the proper authorities and will instruct the agent to deliver C. O. D. shipments. The orders must be mailed to our Cincinnati office as per. enclosed envelopes. We will do everything in our power to assist you, and in the box for yourself we have included two quarts for sample purposes. We will keep you supplied with samples in the proportion of one quart for every ten gallons sold.
“Crigler & Crigler.”
“Covington, Ky., May 14, 1903.
“Mr. J. W. Morin, London, Ky.:
“Dear Sir — We are in receipt of your letter of the 12th, enclosing ten orders; same have had our prompt attention and gone forward by first express, all charges prepaid. We note your remarks in reference to a sample sent you on the 9th of the month; we hold the express company’s receipt for same, and they should have delivered it on the 12th. If you do not receive it in a day or two, advise us and we shall ship you- a duplicate and make a claim against the express company for the one lost. In the future always- enclose your order blanks to our Cincinnati branch, as per enclosed envelope, that will insure prompt shipment as soon as your orders arrive. Looking over the books, we find there are five shipments on which you have not had returns, perhaps they have been paid in the express company*522 and we will receive them in a few days. As soon as we have returns, we will be glad to pay you commission. Thanking you for the orders, we are, very respectfully,
“Crigler & Crigler.”
At the close of the Commonwealth’s testimony the appellants introduced no evidence in their own behalf, apparently willing to submit the case upon that of the Commonwealth. There can be no manner of doubt that they were guilty of the offense with which they stood charged, unless the shipment they made of the whisky from their warehouse in Cincinnati to the consignee in Laurel county, Ky., is protected from the operation of the prohibition laws of this State by the interstate commerce clause of the Constitution of the United States. Our State has adopted the standard fixed by the act of Congress, whereby selling less than five gallons of spirituous liquors at one time constitutes retailing. The quantity sold in the case at bar was one gallon, and the question before us is whether, under the facts of this case, the shipment in question was interstate commerce. It may be conceded at the very outset that the shipment is not taken out of the category of interstate commerce by the act of Congress of August 8, 1890 (26 Stats., 313, chap. 728 [U. S. Comp. St., 1901, p. 3177]), commonly called the “Wilson bill.” Under this act, as construed by the Supreme Court of the United States In re Rahrer, 140, U. S., 545, 11 Sup. Ct., 865, 35 L. Ed., 572, and Rhodes v. Iowa, 170 U. S., 412, 18 Sup. Ct., 664, 42 L. Ed., 1088, the prohibition law of the State did not attach until the whisky was delivered to the consignee. If, therefore, we are to reach the conclusion that the shipment here involved was not interstate commerce, it must be
We conclude, therefore, upon the authority of Austin v. Tennessee, this shipment was not legitimate interstate commerce, but a mere trick or device to evade the prohibition laws of the State; and this particular whisky was never interstate commerce for the additional reason that it was manufactured by citizens of this State, in this State, sent to Ohio, and then shipped back into the State for the express purpose of evading the prohibition laws of this Commonwealth.
The record discloses that appellants notified their customers, after the enactment of the C. O. D. statute, that they must send their orders to the Cincinnati office, and that a small additional sum must be paid in excess of the usual price to cover the cost to appellants of shipping the whisky to Cincinnati for the purpose of reshipment back to the customer. This transaction was so transparent a device as to require no argument to demonstrate that it had no ele
The whole subject of the rights of Congress under the commercial clause of the Constitution and the police power of the State under its reserved rights is thus summarized by John Randolph Tucker in his work on the Constitution of the United States (vol. 2, sec. 260): “The delicate boundary line between the Congressional and State power may be drawn by the judiciary upon the principle that the State may not mala fide, under color of its reserved power, impinge on the commercial power of Congress; and Congress may not, under color of its granted power, impinge on the reserved power of the State. Bona tides is required on both sides. This bona tides is equivalent to the word 'frankly’ in the quotation above from the chief justice. Each must use its distinct power in such a way as not to trench on the power of the other. Where the judiciary find that a State uses its reserved power as a pretext to regulate commerce, or that Congress under the commerce power invades the reserved clause jurisdiction of the State, it shall so adjust it ini both cases as to maintain the supreme law of the land over Congress and the States. Hence the early laws of Congress regulating commerce respected the quarantine laws of the State, and aided their maintenance, and did not obstruct them. And this because a law to regulate commerce was neither necessary nor proper, but the contrary, when it introduced into the State disease and death, physical or moral, contrary to the State quarantine.”
It is believed that this states the true rule of the subject matter under discussion. To quote the language of Mr. Justice Gray in his dissenting opinion
Judgment affirmed.